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Federal Deposit Insurance Corporation.
Final rule.
The Federal Deposit Insurance Corporation (the “FDIC”) is adopting a final rule that implements section 210(a)(16)(D) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act” or the “Act”). This statutory provision requires the promulgation of a regulation establishing schedules for the retention by the FDIC of the records of a covered financial company (
This final rule is effective on July 27, 2016.
Legal Division: Elizabeth Falloon, (703) 562–6148; Joanne W. Rose, (703) 562–2175. Division of Resolutions and Receiverships: Teresa Franks, (571) 858–8226; James Horgan, (917) 320–2501; Manuel Ramilo, (571) 858–8227. Office of Complex Financial Institutions: Charlton R. Templeton, (202) 898–6774. Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429.
In enacting Title II
Upon appointment of the FDIC as receiver for a financial company, the FDIC succeeds to all rights, titles, powers and privileges of the financial company, including title to the books and records of the financial company.
Section 210(a)(16)(D) of the Dodd-Frank Act
Section 210(a)(16)(D)(iii) of the Act, entitled “Records Defined,” describes the forms of documentary material addressed in the regulation and statute, specifying that any document, book, paper, map, photograph, microfiche, microfilm, computer or electronically-created record is included. In addition, that section specifies that records inherited from the failed company are
On October 21, 2014, the Board of Directors of the FDIC approved a notice of proposed rulemaking entitled “Record Retention Requirements,” promulgated pursuant to section 210(a)(16)(D) of the Dodd-Frank Act. The proposed rule was published in the
Generally, the proposed rule required that records inherited from a covered financial company that were created less than ten years before the appointment of the FDIC as receiver be retained for not less than 6 years following the date of the appointment of the receiver. Under the proposed rule, records created by the FDIC in connection with the exercise of its orderly liquidation authority as receiver for a covered financial company were required to be maintained at least six years following the termination of the receivership, regardless of when they were created.
Two comment letters were submitted in response to the proposed rule, both from individuals.
Both commenters stated that the retention periods in the proposed rule were too short, and one of the commenters suggested that all records be kept indefinitely for “analytical purposes.” The requirement in section 210(a)(16)(D)(i) of the Dodd-Frank Act that retention schedules be established suggests that Congress expected that the FDIC would exercise its discretion to identify some appropriate period of time as a minimum period of time to retain records.
One of the commenters objected to the use of the phrase “reasonably accessible” in the definition of “documentary material,” which forms the basis for the types of materials that constitute a record for purposes of the proposed rule. The commenter suggested that if a party in litigation is willing to pay for the recovery of electronically-stored information, such a record should be made available. Unfortunately, this suggestion does not reflect the reality of record storage and accessibility.
A large component of record storage expense is the cost of maintaining legacy systems that house records, as well as the cost of retrieving and identifying possible relevant information from those systems and sources. To comply with the commenter's suggestion, all records systems, no matter how out-of-date or incompatible with the FDIC's systems, would have to be indefinitely maintained as accessible, together with the technological and staffing capacity to use these systems to retrieve obsolete records. This indefinite maintenance would be attempted on the remote chance that one record, or a portion thereof, stored on a legacy system would be requested by a litigant. The cost to indefinitely maintain an entire legacy system that could house an arguably relevant document would be impossible to calculate and to bill to a litigant. The “reasonably accessible” discovery standard requires maintenance of these systems where it is reasonable and practicable to do so. (See discussion on the “reasonably accessible” discovery standard used in the definition of documentary material in the section-by-section analysis.) Accordingly, the term “reasonably accessible” is included in the definition of “documentary material” in the final rule.
One of the commenters objected to the exclusion from records of documentary material generated or maintained by a bridge financial company or a subsidiary or affiliate of a covered financial company. This exclusion was included in paragraph (d)(3)(ii) of the proposed rule. As required by the statute, the proposed rule addresses only the records of a covered financial company and the records of the FDIC as receiver of such covered financial company. Retention of the records of any other legal entity, including a covered financial company's subsidiaries or affiliates, is beyond the scope of the requirements of the statute. Although bridge financial company records and subsidiary records are not expressly subject to the proposed rule, records generated by the FDIC receiver in its oversight of a bridge financial company, or records sent to the FDIC receiver by the bridge's management and maintained by the FDIC in the course of such oversight would be subject to the applicable minimum retention requirements of the proposed rule. Accordingly, no change was made to the final rule in this respect and the exclusion is found in paragraph (e)(2)(ii) of the final rule.
In response to the comment letters and pursuant to internal agency consideration, the FDIC made certain changes to the final rule. These changes are discussed below.
The proposed rule has been revised to eliminate the set retention period for records created by the FDIC in connection with its appointment as receiver for a covered financial company and in connection with its exercise of its Title II responsibilities. The proposed rule provided for a retention period for these records of not less than six years after the date of the termination of the related receivership.
Two definitions have been added and appear in the final rule: “Inherited records” in paragraph (b)(2) and “receivership records” in paragraph (b)(3). Although the proposed rule separately addressed these two kinds of records, the wording used to describe these records (“records of a covered financial company for which the Corporation is appointed receiver” and “records of the Corporation as receiver for a covered financial company”) was unnecessarily repetitive. The use of the defined terms, which are both accurate and descriptive, results in more succinct language in the final rule.
Inherited records may be transferred to a third-party transferee in connection with a transfer, acquisition, or sale of a covered financial company's assets and liabilities. Paragraph (b)(4) of the proposed rule has been slightly expanded in the final rule (and is now paragraph (c)(3) of the final rule). The final rule requires that in order for the transfer of inherited records to satisfy the record retention requirements of the final rule and section 210(a)(16)(D) of the Act, the transferee must agree not only to maintain the inherited records for at least six years from the date of appointment of the FDIC as receiver for the covered financial company, as provided in the proposed rule, but must also agree that, prior to the destruction of any such inherited records, it will provide the FDIC with notice and the opportunity to cause the return of such inherited records to the FDIC.
Paragraph (a) sets forth the scope of the final rule. It makes clear that the final rule applies to the two categories of records addressed by section 210(a)(16)(D) of the Act,
Paragraph (b) provides definitions for terms used in the final rule that are not otherwise defined in the Dodd-Frank Act. Part 380 of title 12 of the Code of Federal Regulations concerns the FDIC's orderly liquidation authorities conferred by Title II of the Dodd-Frank Act. Section 380.1 contains the definition of the term
Paragraph (b) sets forth three definitions. The first is that of
The definition of documentary material clarifies that only documentary material that is reasonably accessible is included in the scope of the final rule. This reflects the policy behind Federal Rule of Civil Procedure 26(b)(2)(B), which provides that a party from whom discovery is sought need not provide electronically-stored information from sources that are not reasonably accessible because of undue cost or burden. For example, a party may be excused from restoring electronically-stored information from aging back-up tapes in order to produce it in response to a discovery request. Thus, the use of the phrase “reasonably accessible” would align the concept of material subject to the final rule with the discovery standard and would protect the FDIC as receiver from incurring inordinate expenses associated with restoring or maintaining the legacy system of a covered financial company in order to extract documentary material from those systems that is not otherwise needed by the FDIC to carry out its receivership functions.
Two definitions have been added and appear in the final rule in paragraphs (b)(2) and (b)(3):
Paragraph (b)(2) of the final rule defines, and addresses the retention schedule for, inherited records. Under the final rule the term
The first factor is whether the documentary material was generated or maintained in accordance with the covered financial company's own practices and procedures (including the document retention policies of the covered financial company) or pursuant to standards established by the covered financial company's regulators. In general, a company's own policies and procedures will reflect the significance of its records to its business and regulatory requirements and the importance of documentary material generated or maintained by the company. Thus, the FDIC will consider whether documentary material was created or maintained in accordance with the covered financial company's own practices and procedures (including its document retention policies) when determining whether specific documentary material is an inherited record for the purposes of section 210(a)(16)(D) of the Act and the final rule. Likewise, the FDIC will consider whether documentary material was generated or maintained pursuant to standards imposed by the covered financial company's regulators when determining whether specific documentary material is an inherited record for the purposes of section 210(a)(16)(D) of the Act and the final rule.
The second factor is whether the documentary material is necessary for the FDIC to carry out its obligations as receiver for the covered financial company. This inquiry would permit the classification of documentary material as an inherited record if it is necessary for the FDIC to maintain such documentary material in order to carry out its functions as receiver for the covered financial company, for example, where the documentary material is necessary in order for the FDIC to (i) transfer the covered financial company's assets or liabilities, (ii) assume or repudiate the covered financial company's contracts, (iii) determine claims against the receivership of the covered financial company, or (iv) collect obligations owed to the covered financial company.
The third factor is whether there is a present or reasonably foreseeable evidentiary need for such documentary material by the FDIC as receiver for the covered financial company or the public. The wording of this factor closely follows the wording of section 210(a)(16)(D)(i)(II) of the Dodd-Frank Act. That section emphasizes that the FDIC must retain documentary materials that have evidentiary value to the FDIC as receiver and to the public. The final rule reflects this statutory direction and makes it clear that in making any determination of future evidentiary value a “reasonably foreseeable” standard should be applied.
Paragraph (c)(1) of the final rule establishes the record retention schedule for inherited records. The time period included in the final rule is modeled on the time period contained in the FDIA statutory provision and the FDIA records rule.
Paragraph (c)(2) provides a non-exclusive list of examples of material that would constitute inherited records to provide additional guidance and clarity with respect to the sorts of documentary material that are subject to the retention requirements of the final rule. Included examples are correspondence; tax forms; accounting forms and related work papers; internal audits; inventories; board of directors or committee meeting minutes; personnel files and employee benefits information; general ledger and financial reports; financial data; litigation files; loan documents including records relating to intercompany debt; contracts and agreements to which the covered financial company was a party; customer accounts and transactions; qualified financial contracts and related information; and reports or other records of subsidiaries or affiliates of the covered financial company that were provided to the covered financial company.
Paragraph (c)(3) of the final rule addresses the transfer of inherited records to a third party (including a bridge financial company) that acquires assets or liabilities of the covered financial company from the FDIC as receiver for the covered financial company. In a resolution of a covered financial company, the FDIC may transfer inherited records to the custody of a third party, including a bridge financial company, in connection with the transfer, acquisition, or sale of assets or liabilities of the covered financial company to such third party. Paragraph (c)(3) of the final rule provides that such a transfer will satisfy the records retention obligations under paragraph (c)(1) and section 210(a)(16)(D) of the Act so long as the transferee agrees, in writing, that it will maintain the inherited records for at least six years from the date of the appointment of the FDIC as receiver for the covered financial company unless otherwise notified in writing by the FDIC. In addition, the third party must agree that prior to the destruction of any such inherited records it will provide the FDIC with notice and the opportunity to cause return of such inherited records to the FDIC as receiver. The final rule differs from the proposed rule in that it adds the language emphasizing that prior to the destruction of any transferred records such transferee will be required to give the FDIC the opportunity to cause the return of such records to the FDIC as receiver.
In fulfilling its duties and responsibilities as receiver for a covered financial company pursuant to Title II of the Dodd-Frank Act, the FDIC itself would generate, receive, and maintain documentary material in connection with and after its appointment as receiver, records that would be separate and apart from the inherited records. Section 210(a)(16)(D) of the Act
To be a receivership record the documentary material must be generated or maintained in accordance with policies and procedures of the FDIC, including the record retention policies and procedures of the FDIC. The FDIC will look to its internal procedures and guidance for generating and maintaining all of its own records, including corporate and bank receivership records, and use them as a guideline to determine whether documentary material generated or maintained as receiver for a covered financial company comport with these procedures and, thus, constitute receivership records under the final rule. Like private companies and other governmental organizations, the FDIC has established protocols for the efficient and effective generation and maintenance of files, records, and non-record documentary materials. These protocols reflect the importance of these materials and their relevance to the work of the FDIC.
Paragraph (d)(1) of the final rule sets forth the retention requirements for the receivership records described in paragraph (b)(3). The final rule clarifies that receivership records are likely to be valuable and consequential, given the significance of an orderly liquidation under Title II. Thus, the final rule emphasizes that receivership records, those records generated and maintained by the FDIC as it conducts a receivership, shall be retained indefinitely for as long as there is a present or reasonably foreseeable future evidentiary or historical need for them. In addition, the final rule sets a minimum retention standard during which, in effect, evidentiary need is conclusively presumed. That minimum period is a six-year minimum retention period for all receivership records measured from the termination of the receivership. In the case of a three-year receivership,
Receivership records that are subject to a litigation hold by the FDIC or are subject to a Congressional subpoena or relate to an ongoing investigation by Congress, the United States Government Accountability Office or the FDIC's Office of Inspector General will be retained pursuant to the conditions of such subpoena, hold, or investigation under paragraph (d)(1) of the final rule.
Paragraph (d)(2) makes it clear that receivership records are those that are generated or maintained by the FDIC as receiver in connection with a Title II orderly liquidation and do not include the inherited records generated or maintained by the financial company which are addressed in paragraph (c) of the final rule.
Paragraph (d)(3) of the final rule sets forth a non-exclusive list of examples of receivership records in order to provide additional guidance and clarity with respect to the types of documentary material that are subject to the retention requirements of the final rule. Included examples are: Correspondence; tax forms; accounting forms and related work papers; inventories; contracts and other information relating to the management and disposition of the assets of the covered financial company; documentary material relating to the appointment of the FDIC as receiver; administrative records and other information relating to administrative proceedings; pleadings and similar documents in civil litigation, criminal restitution, forfeiture litigation, and all other litigation matters in which the FDIC as receiver is a party; the charter and formation documents of a bridge financial company; contracts, other documents and information relating to the role of the FDIC as receiver in overseeing the operations of the bridge financial company; reports or other records of the bridge financial company and its subsidiaries or affiliates that were provided to the FDIC as receiver; and documentary material relating to the administration, determination, and payment of claims by the FDIC as receiver.
Paragraph (e) of the final rule applies to any documentary material that falls within the scope of the retention requirements of the final rule as that scope is described in paragraphs (c) and (d). Paragraph (e)(1) of the final rule makes clear that the FDIC's designation of documentary material as inherited records or receivership records pursuant to paragraph (c) or (d) is solely for the purpose of identifying documentary material subject to the retention requirements of section 210(a)(16)(D) of the Act and the final rule has no effect on whether the documentary material is discoverable or admissible in any court, tribunal, or other adjudicative proceeding, nor on whether such material is subject to release under the Freedom of Information Act,
Paragraph (e)(1) also clarifies that any designation made by the FDIC under the final rule will not prevent full compliance with any applicable legal or regulatory requirement or court order that establishes particular requirements with respect to certain records, such as a requirement that specific records be preserved, maintained, destroyed, or kept under seal.
Paragraph (e)(2) of the final rule lists three categories of documentary material that are excluded from the definition of inherited records and receivership records and thus will not be subject to the retention requirements of section 210(a)(16)(D) of the Act and the final rule. The first category includes duplicate copies, as required by the mandate in section 210(a)(16)(D)(I) of the Act to accord due regard to the avoidance of duplicative record retention. Also in the first category is documentary material such as reference materials, drafts of documents that are superseded by later drafts or revisions, documentary material provided to the FDIC by other parties in concluded litigation for which all appeals have expired, transitory information including routine system messages or system-generated log files, notes and other material of a personal nature, or other documentary material not routinely maintained under the standard record retention policies and procedures of the FDIC. The term “transitory information” or “transitory record” is commonly used in record retention systems to describe records of temporary usefulness required only for a limited period of time for the completion of an action by an employee or official and that are not essential to the fulfillment of statutory obligations or the documentation of government or business functions.
The second category of exclusions from the final rule encompasses documentary material generated or maintained by a bridge financial company
The third category of exclusions from the scope of the final rule and section 210(a)(16)(D) of the Act is non-publicly available supervisory information and operating or condition reports that were prepared by, on behalf of, or at the requirement of any agency responsible for the supervision or regulation of the covered financial company or its subsidiaries. This is consistent with the federal common law bank examination privilege, many state statutes, and the FDIC's long-standing policy that reports of examination or other confidential supervisory correspondence or information prepared by FDIC examiners or for the use of the FDIC and other regulatory agencies with respect to a financial company or an insured depository institution or other regulated subsidiary of a financial company belong exclusively to such regulators and not to the institution, even though institutions may retain copies.
Paragraph (f) of the final rule provides that the FDIC may establish policies and procedures with respect to the retention of inherited records and receivership records that are consistent with the final rule. It is expected that these policies and procedures will address specific matters related to the capture, processing, and storage of inherited records such as collecting computer hard drives, email databases, and backup and disaster recovery tapes, as well as establishing standard policies with respect to the retention of receivership records by the FDIC in its own files, information systems, and databases.
Immediately following the FDIC's appointment as receiver of a covered financial company pursuant to Title II of the Dodd-Frank Act, the FDIC's retention determinations and collections must begin with respect to both the records of the covered financial company and the FDIC's own records. The final rule will provide transparency and consistency with respect to these determinations and will ensure that records of a financial company that fails in a manner that would present systemic risk (absent the exercise of the Title II orderly liquidation authority), as well as the records generated in connection with the orderly liquidation of that financial company under Title II of the Dodd-Frank Act, will be available for as long as there is a reasonably foreseeable evidentiary need for such records. At the same time, the application of the factors described in the final rule will appropriately limit the costs of the maintenance of documentary material that is not covered by the statute.
The FDIC considered a range of alternatives from requiring permanent retention of all documentary material to providing for clear dates upon which records could be destroyed. The permanent retention of all documentary material is impractical, if not impossible. The FDIC deemed it important to include a broad definition of documentary material that could be considered inherited records or receivership record for the purpose of the final rule in light of the rapidly changing nature, forms, and format of data. At the same time, this explosion of data and changes in form and media make it important to differentiate between meaningful data and irrelevant information. In addition, as formats change the difficulty and expense of retrieving useful information becomes more complex. Accordingly, the FDIC identified factors that could be used to
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601,
No new collections of information within the meaning of the Paperwork Reduction Act, 44 U.S.C. 3501,
The Office of Management and Budget has determined that the final rule is not a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), which provides for agencies to report rules to Congress and for Congress to review such rules.
Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106–102, 113 Stat. 1338, 1471), requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The FDIC has presented the final rule in a simple and straightforward manner.
The FDIC has determined that the final rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999.
Financial companies, Holding companies, Insurance companies, Records and records retention.
For the reasons set forth in the preamble, the Federal Deposit Insurance Corporation amends 12 CFR part 380 as follows:
12 U.S.C. 5389; 12 U.S.C. 5390(s)(3); 12 U.S.C. 5390(b)(1)(C); 12 U.S.C. 5390(a)(7)(D); 12 U.S.C. 5381(b); 12 U.S.C. 5390(r); 12 U.S.C. 5390(a)(16)(D).
(a)
(b)
(1)
(2)
(i) Whether such documentary material was generated or maintained in accordance with the covered financial company's own practices and procedures (including the document retention policies of the covered financial company) or pursuant to standards established by the covered financial company's regulators;
(ii) Whether such documentary material is necessary for the Corporation to carry out its obligations as receiver for the covered financial company; and
(iii) Whether there is a present or reasonably foreseeable evidentiary need for such documentary material by the Corporation as receiver for the covered financial company or the public.
(3)
(c)
(i) Subject to a litigation hold imposed by the Corporation;
(ii) Subject to a Congressional subpoena or relates to an ongoing investigation by Congress, the United States Government Accountability Office, or the Corporation's Inspector General; or
(iii) An inherited record that the Corporation has determined is necessary for a present or reasonably foreseeable future evidentiary need of the Corporation or the public.
(2)
(3)
(i) It will maintain the inherited record for at least six years from the date of the appointment of the Corporation as receiver for the covered financial company unless otherwise notified in writing by the Corporation; and
(ii) Prior to destruction of such inherited record it will provide the Corporation with notice and the opportunity to cause the inherited record to be returned to the Corporation.
(d)
(ii) A receivership record that is subject to a litigation hold imposed by the Corporation, is subject to a Congressional subpoena, or relates to an ongoing investigation by Congress, the United States Government Accountability Office, or the Corporation's Office of Inspector General shall be retained pursuant to the conditions of such hold, subpoena, or investigation.
(iii) In no event shall a receivership record be retained by the Corporation for a period of less than six years following the termination of the receivership to which it relates.
(2)
(3)
(e)
(1)
(2)
(i) A duplicate copy of retained documentary material, reference material, a draft of a document that is superseded by later drafts or revisions, documentary material provided to the Corporation by other parties in concluded litigation for which all appeals have expired, transitory information including routine system messages and system-generated log files, notes and other material of a personal nature, or other documentary material not routinely maintained under the standard record retention policies and procedures of the Corporation;
(ii) Documentary material generated or maintained by a bridge financial company, or by a subsidiary or affiliate of a covered financial company, that was not provided to the covered financial company or to the Corporation as receiver; or
(iii) Non-publicly available confidential supervisory information or operating or condition reports prepared by, on behalf of, or at the requirement of any agency responsible for the regulation or supervision of financial companies or their subsidiaries.
(f)
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Bureau of Consumer Financial Protection.
Final rule; official interpretation.
The Bureau of Consumer Financial Protection (Bureau) is issuing this final rule amending the regulatory text and official interpretations for
This final rule is effective January 1, 2017, except for the amendment to § 1026.52(b)(1)(ii)(B) which is effective on June 27, 2016.
Jaclyn Maier, Counsel, Office of Regulations, Consumer Financial Protection Bureau, 1700 G Street NW., Washington, DC 20552 at (202) 435–7700.
The Bureau is amending the regulatory text and official interpretations for Regulation Z, which implements TILA, to update the dollar amounts of various thresholds that are adjusted annually based on the annual percentage change in the Consumer Price Index. Specifically, for open-end consumer credit plans under the CARD Act, the threshold that triggers requirements to disclose minimum interest charges will remain unchanged in 2017. The adjusted dollar amount for the safe harbor for a first violation penalty fee will remain unchanged at $27 in 2017; the adjusted dollar amount for the safe harbor for a subsequent violation penalty fee will remain unchanged in 2017 from the corrected amount of $38 applicable in 2016, as discussed in this notice. For HOEPA loans, the adjusted total loan amount threshold for high-cost mortgages in 2017 will be $20,579. The adjusted points and fees dollar trigger for high-cost mortgages will be $1,029. For the general rule to determine consumers' ability to repay mortgage loans, the maximum threshold for total points and fees for qualified mortgages in 2017 will be 3 percent of the total loan amount for a loan greater than or equal to $102,894; $3,087 for a loan amount greater than or equal to $61,737 but less than $102,894; 5 percent of the total loan amount for a loan greater than or equal to $20,579 but less than $61,737; $1,029 for a loan amount greater than or equal to $12,862 but less than $20,579; and 8 percent of the total loan amount for a loan amount less than $12,862.
In 2010, the Board of Governors of the Federal Reserve System (Board) published amendments to Regulation Z implementing the CARD Act, which amended TILA. Public Law 111–24, 123 Stat. 1734 (2009). Pursuant to the CARD Act, the Board's Regulation Z amendments established new requirements with respect to open-end consumer credit plans, including requirements for the disclosure of minimum interest charge amounts and the establishment of a safe harbor provision allowing card issuers to impose penalty fees for violating account terms without violating the restrictions on penalty fees established by the CARD Act.
Sections 1026.6(b)(2)(iii) and 1026.60(b)(3) of the Bureau's Regulation Z provide that the minimum interest charge thresholds will be re-calculated annually using the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI–W) that was in effect on the preceding June 1. When the cumulative change in the adjusted minimum value derived from applying the annual CPI–W level to the current amounts in §§ 1026.6(b)(2)(iii) and 1026.60(b)(3) has risen by a whole dollar, the minimum interest charge amounts set forth in the regulation will be increased by $1.00. The BLS publishes consumer-based indices monthly, but does not report a CPI change on June 1; adjustments are reported in the middle of the month. This adjustment is based on the CPI–W index in effect on June 1, 2016, which was reported on May 17, 2016, and reflects the percentage change from April 2015 to April 2016. The CPI–W is a subset of the CPI–U index (based on all urban consumers) and represents approximately 28 percent of the U.S. population. The adjustment accounts for a 0.8 percent increase in the CPI–W from April 2015 to April 2016. This increase in the CPI–W when applied to the current amounts in §§ 1026.6(b)(2)(iii) and 1026.60(b)(3) did not trigger an increase in the minimum interest charge threshold of at least $1.00, and therefore the Bureau is not amending §§ 1026.6(b)(2)(iii) and 1026.60(b)(3).
The Bureau's Regulation Z provides that the safe harbor provision which establishes the permissible fee thresholds in § 1026.52(b)(1)(ii)(A) and (B) will be re-calculated annually using the CPI–W that was in effect on the preceding June 1. The BLS publishes consumer-based indices monthly, but does not report a CPI change on June 1; adjustments are reported in the middle of the month. On September 21, 2015, the Bureau published an adjustment, effective January 1, 2016, based on the CPI–W index in effect on June 1, 2015, which was reported on May 22, 2015. The CPI–W is a subset of the CPI–U index (based on all urban consumers) and represents approximately 28 percent of the U.S. population. When the cumulative change in the adjusted value derived from applying the annual CPI–W level to the current amounts in § 1026.52(b)(1)(ii)(A) and (B) has risen by a whole dollar, those amounts will be increased by $1.00. Similarly, when the cumulative change in the adjusted value derived from applying the annual CPI–W level to the current amounts in § 1026.52(b)(1)(ii)(A) and (B) has decreased by a whole dollar, those amounts will be decreased by $1.00. See comment 52(b)(1)(ii)–2.
In the September 21, 2015, notice, 80 FR 56895, the subsequent violation penalty safe harbor fee amount in § 1026.52(b)(1)(ii)(B) was miscalculated, as it did not fully account for situations in which the CPI–W decreased, as occurred in 2015. The published subsequent violation penalty safe harbor fee amount was $37. Effective immediately, the Bureau is amending § 1026.52(b)(1)(ii)(B) to reflect the correct subsequent violation penalty safe harbor fee amount of $38.
The 2017 adjustment is based on the CPI–W index in effect on June 1, 2016, which was reported on May 17, 2016, and reflects the percentage change from April 2015 to April 2016. The 0.8 percent increase in the CPI–W from April 2015 to April 2016 did not trigger an increase in the first violation penalty safe harbor fee of $27 or the corrected subsequent violation penalty safe harbor fee of $38, and therefore, the Bureau is not further amending § 1026.52(b)(1)(ii)(A) and (B) for the 2017 calendar year.
On January 10, 2013, the Bureau issued a final rule pursuant to,
Pursuant to section 1431 of the Dodd Frank Act and § 1026.32(a)(1)(ii)(B) as amended by the 2013 HOEPA Final Rule, implementation of the 2013 HOEPA Final Rule also changed the HOEPA points and fees dollar trigger to $1,000. The HOEPA 2013 Final Rule provides that this threshold amount will be recalculated annually and the Bureau uses the CPI–U index, as published by the BLS, as the index for adjusting the $1,000 figure. The adjustment to the CPI–U index reported by BLS on May 17, 2016, was the CPI–U index in effect on June 1, and reflects the percentage change from April 2015 to April 2016. The adjustment to the $1,000 figure being adopted here reflects a 1.1 percent increase in the CPI–U index for this period and is rounded to whole dollars for ease of compliance.
On January 10, 2013, the Bureau issued a final rule pursuant to,
The minimum interest charge amounts for §§ 1026.6(b)(2)(iii) and 1026.60(b)(3) will remain unchanged for the year 2017. Accordingly, the Bureau is not amending these sections.
As discussed above, effective immediately, the permissible safe harbor fee amount in § 1026.52(b)(1)(ii)(B) is $38. Accordingly, the Bureau is revising § 1026.52(b)(1)(ii)(B) to reflect the corrected subsequent violation penalty safe harbor fee amount of $38.
Effective January 1, 2017, the permissible safe harbor fee amounts are $27 for § 1026.52(b)(1)(ii)(A) and $38 for § 1026.52(b)(1)(ii)(B). These amounts did not change based on the increase in CPI–W from April 2015 to April 2016. Thus, they remain the same as the 2016 amount for § 1026.52(b)(1)(ii)(A) and the 2016 amount corrected in this notice for § 1026.52(b)(1)(ii)(B). The Bureau is amending comment 52(b)(1)(ii)–2.i to preserve a list of the historical thresholds for this provision.
Effective January 1, 2017, for purposes of determining under § 1026.32(a)(1)(ii) the points and fees coverage test under HOEPA to which a transaction is subject, the total loan amount threshold is $20,579, and the adjusted points and fees dollar trigger under § 1026.32(a)(1)(ii)(B) is $1,029. When the total loan amount for a transaction is $20,579 or more, and the points and fees amount exceeds 5 percent of the total loan amount, the transaction is a high-cost mortgage. When the total loan amount for a transaction is less than $20,579, and the points and fees amount exceeds the lesser of the adjusted points and fees dollar trigger of $1,029 or 8 percent of the total loan amount, the transaction is a high-cost mortgage. Comments 32(a)(1)(ii)–1 and –3, which list the adjustments for each year, are amended to reflect for 2017 the new dollar threshold amount and the new points and fees dollar trigger, respectively.
Effective January 1, 2017, for purposes of determining whether a covered transaction is a qualified mortgage under § 1026.43(e), a covered transaction is not a qualified mortgage if, pursuant to § 1026.43(e)(3), the transaction's total points and fees exceed 3 percent of the total loan amount for a loan amount greater than or equal to $102,894; $3,087 for a loan amount greater than or equal to $61,737 but less than $102,894; 5 percent of the total loan amount for loans greater than or equal to $20,579 but less than $61,737; $1,029 for a loan amount greater than or equal to $12,862 but less than $20,579; and 8 percent of the total loan amount for loans less than $12,862. Comment 43(e)(3)(ii)–1, which lists the adjustments for each year, is amended to reflect the new dollar threshold amounts for 2017.
Under the Administrative Procedure Act (APA), notice and opportunity for public comment are not required if the Bureau finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b)(B). Pursuant to this final rule, in Regulation Z, § 1026.52(b)(1)(ii)(B) in subpart E is amended and comments 32(a)(1)(ii)–1.iii and –3.iii, 43(e)(3)(ii)–1.iii, and 52(b)(1)(ii)–2.i.D in supplement I are added to update the exemption thresholds. Comments 32(a)(1)(ii)–1.iii and –3.iii, 43(e)(3)(ii)–1.iii, and 52(b)(1)(ii)–2.1.D added by this final rule are technical and non-discretionary, and they merely apply the method previously established in Regulation Z for determining adjustments to the thresholds. The amendment to § 1026.52(b)(1)(ii)(B) merely applies a necessary correction to address an inadvertent calculation error for the 2016 safe harbor fee. For these reasons, the Bureau has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendments are adopted in final form. The Bureau also finds that there is good cause for making the technical calculation correction to the safe harbor fee amount in § 1026.52(b)(1)(ii)(B) in this final rule effective immediately upon publication in the
Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 5 U.S.C. 603(a), 604(a).
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320), the Bureau reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.
Advertising, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.
For the reasons set forth in the preamble, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:
12 U.S.C. 2601, 2603–2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601
(b) * * *
(1) * * *
(ii) * * *
(B) $38 if the card issuer previously imposed a fee pursuant to paragraph (b)(1)(ii)(A) of this section for a violation of the same type that occurred during the same billing cycle or one of the next six billing cycles; or
The additions read as follows:
1. * * *
iii. For 2017, $1,029, reflecting a 1.1 percent increase in the CPI–U from June 2015 to June 2016, rounded to the nearest whole dollar.
3. * * *
iii. For 2017, $20,579, reflecting a 1.1 percent increase in the CPI–U from June 2015 to June 2016, rounded to the nearest whole dollar.
1. * * *
iii. For 2017, reflecting a 1.1 percent increase in the CPI–U that was reported on the preceding June 1, a covered transaction is not a qualified mortgage unless the transactions total points and fees do not exceed:
A. For a loan amount greater than or equal to $102,894: 3 percent of the total loan amount;
B. For a loan amount greater than or equal to $61,737 but less than $102,894: $3,087;
C. For a loan amount greater than or equal to $20,579 but less than $61,737: 5 percent of the total loan amount;
D. For a loan amount greater than or equal to $12,862 but less than $20,579: $1,029;
E. For a loan amount less than $12,862: 8 percent of the total loan amount.
2. * * *
i. * * *
D. Card issuers were permitted to impose a fee for violating the terms of an agreement if the fee did not exceed $27 under § 1026.52(b)(1)(ii)(A), through December 31, 2016. Card issuers were permitted to impose a fee for violating the terms of an agreement if the fee did not exceed $37 under § 1026.52(b)(1)(ii)(B), through June 26, 2016, and $38 under § 1026.52(b)(1)(ii)(B) from June 27, 2016 through December 31, 2016.
Federal Deposit Insurance Corporation (“FDIC”).
Final rule.
The FDIC is revising a provision of its Securitization Safe Harbor Rule, which relates to the treatment of financial assets transferred in connection with a securitization or participation, in order to clarify a requirement as to loss mitigation by servicers of residential mortgage loans.
Effective July 27, 2016.
George H. Williamson, Manager, Division of Resolutions and Receiverships, (571) 858–8199. Phillip E. Sloan, Counsel, Legal Division, (703) 562–6137.
The FDIC, in its regulation codified at 12 CFR 360.6 (the “Securitization Safe Harbor Rule”), set forth criteria under which, in its capacity as receiver or conservator of an insured depository institution, it will not, in the exercise of its authority to repudiate contracts, recover or reclaim financial assets transferred in connection with securitization transactions. Asset transfers that, under the Securitization Safe Harbor Rule, are not subject to recovery or reclamation through the exercise of the FDIC's repudiation authority include those that pertain to certain grandfathered transactions, such as, for example, asset transfers made prior to December 31, 2010 that satisfied the conditions (except for the legal isolation condition addressed by the Securitization Safe Harbor Rule) for sale accounting treatment under generally accepted accounting principles (“GAAP”) in effect for reporting periods prior to November 15, 2009 and that pertain to a securitization transaction that satisfied certain other requirements. In addition, the Securitization Safe Harbor Rule provides that asset transfers that are not grandfathered, but that satisfy the conditions (except for the legal isolation condition addressed by the Securitization Safe Harbor Rule) for sale accounting treatment under GAAP in effect for reporting periods after November 15, 2009 and that pertain to a securitization transaction that satisfies all other conditions of the Securitization Safe Harbor Rule (such asset transfers, together with grandfathered asset transfers, are referred to collectively as Safe Harbor Transfers) will not be subject to FDIC recovery or reclamation actions through the exercise of the FDIC's repudiation authority. For any securitization transaction in respect of which transfers of financial assets do not qualify as Safe Harbor Transfers but which transaction satisfies all of its other requirements, the Securitization Safe Harbor Rule provides that, in the event the FDIC as receiver or conservator remains in monetary default for a specified period under a securitization due to its failure to pay or apply collections or repudiates the securitization asset transfer agreement and does not pay damages within a specified period, certain remedies can be exercised on an expedited basis.
Paragraph (b)(3)(ii) of the Securitization Safe Harbor Rule sets forth conditions relating to the servicing of residential mortgage loans. This paragraph includes a condition that the securitization documents must require that the servicer commence action to mitigate losses no later than ninety days after an asset first becomes delinquent unless all delinquencies on such asset have been cured.
In January, 2013, the Consumer Financial Protection Bureau (“CFPB”) adopted mortgage loan servicing requirements that became effective on January 10, 2014. One of the requirements, set forth in Subpart C to Regulation X, at 12 CFR 1024.41, in general prohibits a servicer from commencing a foreclosure unless the borrower's mortgage loan obligation is more than 120 days delinquent. This section of Regulation X also provides additional rules that, among other things, require a lender to further delay foreclosure if the borrower submits a loss mitigation application before the lender has commenced the foreclosure process and requires a lender to delay a foreclosure for which it has commenced the foreclosure process if a borrower has submitted a complete loss mitigation application more than 37 days before a foreclosure sale.
While the Securitization Safe Harbor Rule does not define what constitutes action to mitigate losses, the preamble to the notice of proposed rulemaking that accompanied an earlier amendment to the Securitization Safe Harbor Rule stated, “action to mitigate losses may include contact with the borrower or other steps designed to return the asset to regular payments, but does not require initiation of foreclosure or other formal enforcement proceedings.”
Having received no comments on the NPR, the FDIC is adopting the amendment set forth in the NPR as a final rule (the “Final Rule”). Specifically, § 360.6(b)(3)(ii)(A) is being revised to include language stating that the loss mitigation action requirement thereunder “shall not be deemed to require that the documents include any provision concerning loss mitigation that requires any action that may conflict with the requirements of Regulation X . . .”
One of the FDIC's general policy objectives is to facilitate regulatory compliance and ease regulatory burden by ensuring that regulations are clear and consistent with other regulatory initiatives. In particular, the objective of this rulemaking is to harmonize the residential loan servicing condition of the Securitization Safe Harbor Rule with the CFPB's loan servicing requirements. Adopting the Final Rule accomplishes that objective.
In accordance with the Paperwork Reduction Act (44 U.S.C. 3501,
The Regulatory Flexibility Act (5 U.S.C. 601,
The Office of Management and Budget has determined that this final rule is not a “major rule” within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801,
Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106–102, 113 Stat. 1338, 1471) requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The FDIC has sought to present the Final Rule in a simple and straightforward manner.
Banks, Banking, Bank deposit insurance, Holding companies, National banks, Participations, Reporting and recordkeeping requirements, Savings associations, Securitizations.
For the reasons stated above, the Board of Directors of the Federal Deposit Insurance Corporation amends 12 CFR part 360 as follows:
12 U.S.C. 1821(d)(1),1821(d)(10)(C), 1821(d)(11), 1821(e)(1), 1821(e)(8)(D)(i), 1823(c)(4), 1823(e)(2); Sec. 401(h), Pub. L. 101–73, 103 Stat. 357.
(b) * * *
(3) * * *
(ii) * * *
(A) Servicing and other agreements must provide servicers with authority, subject to contractual oversight by any master servicer or oversight advisor, if any, to mitigate losses on financial assets consistent with maximizing the net present value of the financial asset. Servicers shall have the authority to modify assets to address reasonably foreseeable default, and to take other action to maximize the value and minimize losses on the securitized financial assets. The documents shall require that the servicers apply industry best practices for asset management and servicing. The documents shall require the servicer to act for the benefit of all investors, and not for the benefit of any particular class of investors, that the servicer maintain records of its actions to permit full review by the trustee or other representative of the investors and that the servicer must commence action to mitigate losses no later than ninety (90) days after an asset first becomes delinquent unless all delinquencies have been cured,
By order of the Board of Directors.
Small Business Administration.
Final rule.
This final rule amends the regulations pertaining to the determination of size eligibility based on affiliation by creating distinctive requirements for small business applicants for assistance from the Business Loan, Disaster Loan and Surety Bond Guarantee Program (“SBG”). For purposes of this rule, the Business Loan Programs consist of the 7(a) Loan Program, the Microloan Program, the Intermediary Lending Pilot Program (“ILP”), and the Development Company Loan Program (“504 Loan Program”). Note: the Intermediary Lending Pilot Program was inadvertently left out of the proposed rule. There are currently intermediaries with revolving funds for eligible small businesses, so the program has been included in this final rule. The Disaster Loan Programs consist of Physical Disaster Business Loans, Economic Injury Disaster Loans, Military Reservist Economic Injury
This rule is effective July 27, 2016.
Dianna Seaborn, Office of Financial Assistance, Office of Capital Access, Small Business Administration, 409 Third Street SW., Washington, DC 20416; telephone 202–205–3645.
SBA is revising its regulations on affiliation for the Business Loan, Disaster Loan, and SBG Programs by separating and distinguishing the rules from the Agency's government contracting, business development and other programs. This change streamlines the rules to comply with Executive Order 13563. This Executive Order “Improving Regulation and Regulatory Review,” provides that agencies “
The loan programs authorized by the Small Business Act (Act), 15 U.S.C. 631
On October 2, 2015, SBA published a proposed rule with request for comments in the
The Agency received and reviewed the public comments on its affiliation rules for 13 CFR parts 115, 120 and 121 in a proposed rule (80 FR 59667, October 2, 2015). The following narrative summarizes the comments reviewed and specifies the final rule changes regarding size standards based on principles of affiliation involving applicants to the Business Loan, Disaster Loan, and SBG Programs.
Size based on affiliation for applicants to the Business Loan, Disaster Loan, and SBG Programs will be addressed separately in a new § 121.301(f) to distinguish them from affiliation requirements for government contracting, business development, and SBA's other programs. These changes impact only the small business applicants and not lenders, CDCs, and surety bond companies.
SBA received 160 comments related to the proposed affiliation standards for the Business Loan, Disaster Loan, and SBG Programs. Of the comments received, 128 comments were from financial institutions (lenders and Certified Development Companies), 15 comments were from lender service providers, 4 comments were from businesses (accounting and consulting firms), 7 comments were from trade associations, 3 comments were from law firms, 2 comments were from franchises, and 1 comment was from an individual that did not disclose an organizational type. All but 5 commenters indicated support for the majority of the proposed affiliation rule. There were 4 opposing comments related only to proposed changes to 121.301(f)(5), affiliation based on franchise and license agreements, and a 5th comment expressing concern about compliance regarding the affiliation rules for Surety Bonds in conjunction with federal contracts.
Thirty-four commenters requested modification of the defined management officials in § 121.301(f)(1) and (f)(3).
Ninety-six commenters requested additional clarification in the language proposed defining who SBA includes for the identity of interest test in § 121.301(f)(4), while 36 requested that it be eliminated in its entirety.
One hundred thirty-eight commenters supported changes to 121.301(f)(5), “Affiliation based on franchise and license agreements,” specifically requesting further modifications and clarity as to how SBA aggregates franchisees/licensees with franchisors/licensors as affiliates to determine whether the small business applicant (franchisee/licensee) is a small, independent business. The comments opposing franchise affiliation changes were received from a consulting group, an individual, a law firm, and one lender. These comments revolved around franchise disclosures and relationship issues under the jurisdiction of the FTC, and the lack of clarity
Thirty-seven commenters requested removal of the “totality of circumstances” analysis in § 121.301(f)(6), while 92 commenters recommended examples and/or greater clarity for when and how SBA will apply this analysis. SBA's responses to these comments are detailed in the following sections.
SBA data indicates that the significant majority of surety bond guarantees are for non-federal contracts which will benefit from this simplified rule. For the federal contract recipients, the existing contract rules will still apply, and if eligible thereunder, would also be eligible under this rule for the Surety Bond Guarantee. The provision is adopted as proposed.
The current regulatory language in § 121.103(f) recognizes that “the restraints imposed on a franchisee or licensee by its franchise or license agreement relating to standardized quality, advertising, accounting format, and other similar provisions, generally will not be considered in determining whether the franchisor or licensor is affiliated with the franchisee or licensee provided the franchisee or licensee has the right to profit from its efforts and bears the risk of loss commensurate with ownership.” The current regulation continues, stating that “affiliation may arise, however, through other means, such as common ownership, common management, or
Based on the volume of comments received in the current and previous rulemaking requests, and to provide consistency in its application of the principles of affiliation involving franchise or license agreements, SBA is removing regulatory text that only addressed certain types of restraint. The regulatory changes clarify that SBA does not consider that franchise or license relationships create affiliation, provided the franchisee/licensee has the right to profit from its efforts, and bears the risk of loss commensurate with ownership. SBA will provide guidance on the franchisee/licensee's right to profit from its efforts and bear the risk of loss commensurate with ownership in its Standard Operating Procedure (SOP) 50 10.
SBA also is adding a sentence to the end of the regulatory text to clarify its intent that only franchise or license relationships of the applicant will be considered, not those of any of the applicant's affiliates.
Finally, SBA proposed not to apply several current principles of affiliation that apply in the federal contracting and business development programs to the Business Loan, Disaster Loan, and SBG Programs. Specifically, SBA proposed to eliminate applying affiliation based on a newly organized concern (
With respect to joint ventures, these partnerships form when two or more businesses combine their efforts in order to perform on a federal contract or receive other contract assistance. SBA does not consider affiliation based on the joint venture to be of significant concern to the Business Loan or Disaster Loan Programs because a loan to any joint venture will require all members of the joint venture to accept full responsibility for loan guarantee liability. Also, agency records indicate that applicants for assistance under SBA Business Loan and Disaster Loan Programs are rarely, if ever, joint ventures, and, therefore, this provision is unnecessary. For the Surety Bond Guarantee Program, the guarantee is on the bond, not a contract. In any joint venture where the surety company requests a bond guarantee, each member of the joint venture is required to accept full responsibility for the bond guarantee liability.
SBA also proposed to omit “negative control” as a stand-alone factor in determining affiliation for the purpose of loan eligibility. Pursuant to 13 CFR 121.103(a)(3), negative control may exist where a minority shareholder can block certain actions by the board of directors. SBA received many comments requesting clarity or removal of § 121.301(f)(6) Affiliation based on SBA's determination of the totality of circumstances. SBA agreed to the removal of § 121.301(f)(6), and included additional specific guidance as to negative control through minority ownership and by management agreement in § 121.301(f)(1) and (f)(3) respectively.
The Office of Management and Budget (OMB) has determined that this final rule is a “significant” regulatory action for the purposes of Executive Order 12866. Accordingly, the next section contains SBA's Regulatory Impact Analysis. However, this is not a major
The Agency believes it needs to reduce regulatory burdens and expand its Business Loan, Disaster Loan, and SBG Programs by streamlining delivery, lowering costs, and facilitating job creation. As noted above, responses received from the
This rule will eliminate unnecessary cost burdens on loan applicants' and lenders' participation in SBA-guaranteed loans. This final rule exempts the Business Loan, Disaster Loan, and SBG Programs from certain government contracting rules that determine whether an entity is deemed affiliated with an applicant. These general affiliation rules apply to federal contracting to ensure that small businesses (and not another entity) receive and perform a federal contract when a preference for small businesses is provided. Many of these general principles of affiliation (
As indicated above, on October 2, 2015, the Agency issued a proposed rule for comment in the
This final rule presents a set of requirements to determine affiliation based on the precedent separating the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs from the government contracting standards. SBA has reviewed extensive public comments and suggestions in developing this final rule and considered changes needed to mitigate identified economic risk to the taxpayers and reduce waste, fraud, and abuse.
A description of the need for this regulatory action and benefits and costs associated with this action, including possible distributional impacts that relate to Executive Order 13563, are included above in the Regulatory Impact Analysis under Executive Order 12866. The Business Loan Programs operate through the Agency's lending partners, which are 7(a) Lenders for the 7(a) Loan Program, Intermediaries for the Microloan Program and ILP Program, and CDCs for the 504 Loan Program. The Agency participated in public forums and meetings with NAGGL board members and program participants at industry conferences from the Fall of 2014 through Spring of 2015 which allowed it to reach trade associations and hundreds of its lending partners from which it gained valuable insight, guidance, and suggestions. The Agency's outreach efforts to engage stakeholders before proposing this rule was extensive, and concluded with the comment period.
This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
SBA has determined that this final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, SBA has determined that this final rule has no federalism implications warranting preparation of a federalism assessment.
The SBA has determined that this final rule would not impose additional reporting and recordkeeping requirements under the Paperwork Reduction Act (PRA). In fact, those individuals and entities that SBA considers potential affiliates has been refined and reduced for the Business Loan, Disaster Loan, and the SBG Programs, which could result in reduced reporting and recordkeeping. Participants in SBA's 7(a) Loan Program will continue to report any affiliates of their business on SBA Form 1919 (OMB Control No. 3245–0348), and participants in SBA's 504 Loan Program will continue to report affiliates on SBA Form 1244 (OMB Control No. 3245–0071). EIDL Program participants will continue to report affiliates on SBA Form 5 (OMB Control No. 3245–0017), and SBG Program participants will continue to report affiliates on SBA
When an agency issues a rulemaking, the Regulatory Flexibility Act (RFA), 5 U.S.C. 601–612, requires the agency to “prepare and make available for public comment a final regulatory analysis” which will “describe the impact of the final rule on small entities.” Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
The rulemaking will positively impact all of the approximately 4,000 7(a) Lenders (some of which are small), 35 Intermediary Lending Pilot lenders, approximately 260 CDCs (all of which are small), 145 Microloan Intermediaries, and 23 Sureties in the SBG Program. The final rule will reduce the burden on program participants. SBA has determined that the streamlining of certain program process requirements through this modification of eligibility based on affiliation will present no adverse or significant impact, including costs for the small business borrower, lender, or CDC. This proposal presents a best practice rule that removes unnecessary regulatory burdens, increases access to capital for small businesses and facilitates American job preservation and creation. SBA has determined that there is no significant impact on a substantial number of small entities.
Small business applicants will be assisted by this streamlining of requirements because it will be easier and more cost effective for lenders to identify whether applicant small businesses control or are controlled by other companies that would jeopardize eligibility. SBA reviewed five years of data from the SBA Loan Guaranty Processing Center. The data specifically tracked reasons for loan screen outs that delayed processing. During the five-year period based on the screen out reasons specific to affiliation, the processing was delayed for over 2,600 loan applicants. SBA believes that the proposed simplified rules on affiliation provide participants with needed clarity that results in reduction of the paperwork and review time required to make accurate determinations. The time/cost benefit for business applicants and participants is substantial. Additionally this regulatory action will improve SBA processing efficiency and turnaround times.
The SBA Administrator certified to the Chief Counsel for Advocacy of the SBA that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. As such, the Chief Counsel certifies that this rule will not have a significant impact on a substantial number of small entities.
Community development, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
Claims, Reporting and recordkeeping requirements, Small businesses, Surety bonds.
Individuals with disabilities, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
Grant programs—business, Individuals with disabilities, Loan programs—business, Small businesses.
For the reasons stated in the preamble, the Small Business Administration amends 13 CFR parts 109, 115, 120, and 121 as follows:
15 U.S.C. 634(b)(6), (b)(7), and 636(1).
5 U.S.C. app 3; 15 U.S.C. 687b, 687c, 694a, 694b note; and Pub. L. 110–246, Sec. 12079, 122 Stat. 1651.
15 U.S.C. 634(b)(6), (b)(7), (b)(14), (h), and note, 636(a), (h), and (m), 650, 687(f), 696(3), and 697(a) and (e); Pub. L. 111–5, 123 Stat. 115, Pub. L. 111–240, 124 Stat. 2504.
The aggregate amount of the SBA portions of all loans to a single Borrower, including the Borrower's affiliates as defined in § 121.301(f) of this chapter, must not exceed a guaranty amount of $3,750,000, except as otherwise authorized by statute for a specific program. * * *
15 U.S.C. 632, 634(b)(6), 662, and 694a(9).
(a) * * *
(8) For applicants in SBA's Business Loan, Disaster Loan, and Surety Bond Guarantee Programs, the size standards and bases for affiliation are set forth in § 121.301.
(f) Concerns and entities are affiliates of each other when one controls or has the power to control the other, or a third party or parties controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists. Affiliation under any of the circumstances described below is sufficient to establish affiliation for applicants for SBA's Business Loan, Disaster Loan, and Surety Bond Programs. For this rule, the Business Loan Programs consist of the 7(a) Loan Program, the Microloan Program, the Intermediary Lending Pilot Program, and the Development Company Loan Program (“504 Loan Program”). The Disaster Loan Programs consist of Physical Disaster Business
(1)
(2)
(ii) Agreements to open or continue negotiations towards the possibility of a merger or a sale of stock at some later date are not considered “agreements in principle” and are thus not given present effect.
(iii) Options, convertible securities, and agreements that are subject to conditions precedent which are incapable of fulfillment, speculative, conjectural, or unenforceable under state or Federal law, or where the probability of the transaction (or exercise of the rights) occurring is shown to be extremely remote, are not given present effect.
(iv) An individual, concern or other entity that controls one or more other concerns cannot use options, convertible securities, or agreements to appear to terminate such control before actually doing so. SBA will not give present effect to individuals', concerns', or other entities' ability to divest all or part of their ownership interest in order to avoid a finding of affiliation.
(3)
(4)
(5)
(6)
(7)
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 767 airplanes. This 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 AD requires 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 airplane decompression and loss of structural integrity.
This AD is effective August 1, 2016.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 1, 2016.
For service information identified in this final rule, 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 issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 767 airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
FedEx, United Airlines, and United Parcel Service comments supported the NPRM.
Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST01920SE does not affect the actions specified in the NPRM.
We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as (c)(1) and added a new paragraph (c)(2) to this AD to state that installation of STC ST01920SE (
Vision Airlines requested clarification on the effectivity in the service information. Vision Airlines stated that the airplane group numbers, line numbers, and configurations do not cover all airplanes that are identified in Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015. More specifically, Vision Airlines stated that there is no mention in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, of airplane line numbers 1–175 that have not had the aft pressure bulkhead replaced. Vision Airlines did receive guidance from Boeing stating that line numbers 1–175 without the replaced aft pressure bulkhead should use Boeing Alert Service Bulletin 767–53A0026, Revision 5, dated January 29, 2004, which is mandated by AD 2005–03–11, Amendment 39–13967 (70 FR 7174, February 11, 2005); corrected March 11, 2005 (70 FR 12119).
We partially agree. We agree that the table on page 7 of Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, may be confusing. However, page 7 is part of the Summary section of Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, and is not mandated by this AD. This AD requires using the effectivity information specified in paragraph 1.E.,”Compliance” of Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, which is correct in the identification of the Group 1 airplanes. The Group 1 airplanes are all line number 1–175 airplanes on which the aft pressure bulkhead was replaced in accordance with Boeing Alert Service Bulletin 767–53A0139, November 12, 2009. If any of these airplanes have not yet had the aft pressure bulkhead replaced as required by AD 2012–09–08, Amendment 39–17043, (77 FR 28240, May 14 2012) (“AD 2012–09–08”), then they are not yet a Group 1 airplane and are not subject to the requirements this of this AD until the aft pressure bulkhead is replaced. We have not changed this AD in this regard.
Boeing requested that we add AD 2004–05–16, Amendment 39–13511, (69 FR 10917, March 9, 2004) (“AD 2004–05–16”), AD 2012–09–08, and AD 2014–14–04, Amendment 39–17899 (79 FR 44673, August 1, 2014) (“AD 2014–14–04”) to paragraph (b) of the proposed AD. Boeing stated that these ADs do not specifically address the splice plate locations, but the inspection areas defined in these ADs can be interpreted to cover these locations. Boeing noted that Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, provides information on FAA-approved AMOCs for ADs 2004–05–16, 2012–09–08, and 2014–14–04.
We partially agree. We agree that ADs 2004–05–16, 2012–09–08, and 2014–14–04 are “related” to this AD because Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, provides information on FAA-approved AMOCs that could be used for compliance with ADs 2004–05–16, 2012–09–08, and 2014–14–04. However, we do not agree to revise paragraph (b) of this AD because it identifies “affected” ADs, and ADs 2004–05–16, 2012–09–08, and 2014–14–04 are not affected by the requirements of this AD. For example, the requirements of ADs 2004–05–16, 2012–09–08, and 2014–14–04 are not terminated by any requirements of this AD. We have not changed this AD in this regard.
Boeing requested that we clarify the terminating actions in paragraph (h) of the proposed AD. Boeing stated that the existing AD language is vague, and suggested changing the last sentence of paragraph (h) to specify the type of repair as a “reinforcing repair.” Boeing pointed out that Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015, provides information on specific AMOCs for existing repairs with damage tolerance evaluation and approval from Boeing. Boeing asserted that under the existing language non-reinforcing repairs such as hole enlargements and blending would terminate any inspections in the area and might not be correctly evaluated per 14 CFR 26.43.
We agree that non-reinforcing repairs are not an acceptable method to terminate the repetitive inspections. We have revised paragraph (h) of this AD accordingly.
We reviewed the relevant data, considered the comments received, and
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
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 station 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 estimate that this AD affects 430 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this 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.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective August 1, 2016.
None.
(1) This AD applies to all The Boeing Company Model 767–200, –300, –300F, and –400ER series airplanes, certificated in any category.
(2) Installation of Supplemental Type Certificate (STC) [STC ST01920SE (
Air Transport Association (ATA) of America Code 53, Fuselage.
This 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. We are issuing this AD to detect and correct cracking in the aft pressure bulkhead web, which could result in rapid airplane 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 reinforcing 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) 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.
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:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Service Bulletin 767–53A0266, dated April 20, 2015.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for certain Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) and SAAB 340B airplanes. This AD was prompted by reports of ruptured horizontal stabilizer de-icing boots. This AD requires a revision of the applicable airplane flight manual (AFM), repetitive inspections of the horizontal stabilizer de-icing boots, and applicable corrective actions. We are issuing this AD to detect and correct damage of the de-icing boot; such damage could lead to a ruptured boot, severe vibrations, and possible reduced control of the airplane.
This AD is effective August 1, 2016.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 1, 2016.
For service information identified in this final rule, contact Saab AB, Saab Aeronautics, SE–581 88, Linköping, Sweden; telephone +46 13 18 5591; fax +46 13 18 4874; email
You may examine the AD docket on the Internet at
Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; telephone (425) 227–1112; fax (425) 227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) and SAAB 340B airplanes. The
The European Aviation Safety Agency (EASA), which is the Technical Agent for Member States of the European Union, has issued EASA Airworthiness Directive 2015–0129, dated July 6, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) and SAAB 340B airplanes. The MCAI states:
There have been some reported events of ruptured horizontal stabilizer de-icing boots. In-flight rupture of a de-icing boot will result in complete loss of the de-icing function within its associated zone. In addition, in some of these events, the de-icing boot had formed a large open scoop.
This condition, if not detected and corrected, could lead to severe vibrations, possibly resulting in reduced control of the aeroplane.
To address this potential unsafe condition, SAAB issued Alert Operations Bulletin (AOB) No. 12 and AOB No. 23 as a temporary measure, recommending performing a flap 0 landing in the event of a suspected rupture of the de-icing boot on the horizontal stabilizer.
In addition, SAAB issued SB 340–30–094 to provide instructions to inspect the affected de-icing boots.
For the reasons described above, this [EASA] AD requires an amendment of the applicable Airplane Flight Manual (AFM) and, pending the development of a modification by SAAB, repetitive inspections of the horizontal stabilizer de-icing boots and, depending on findings, accomplishment of applicable corrective action(s).
This [EASA] AD is considered to be an interim action and further AD action may follow.
You may examine the MCAI 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 NPRM and the FAA's response to each comment.
Saab AB, Saab Aeronautics requested that we revise paragraph (g) of the proposed AD to state that the use of later-approved revisions of the applicable AFMs is also acceptable for compliance with the proposed AD.
We do not agree. When referring to specific service information in an AD, using the phrase, “or later FAA-approved revisions,” violates Office of the Federal Register regulations for approving materials that are incorporated by reference. However, affected operators may request approval to use a later revision of the referenced service information as an alternative method of compliance, under the provisions of paragraph (i)(1) of this AD. We have not changed this AD in this regard.
Saab AB, Saab Aeronautics also requested that we revise paragraph (h) of the proposed AD to explain that the inspection is not only for damage, but also for existing repairs. The commenter stated that the inspection of existing repairs is described in Saab Service Bulletin 340–30–094, dated March 27, 2015, but missing from paragraph (h) of the proposed AD.
We agree with the request. The referenced service information specifies inspecting for damage of the de-icing boots, and a sub-step specifies to “make sure that already made repairs are within specified limits.” That action was not specifically stated in the proposed AD. We have clarified the requirement by changing paragraph (h) of this AD to ensure that de-icing boots as well as existing repairs are within specified limits.
PenAir requested a change to the repetitive inspection interval. The commenter requested that the repetitive inspection interval be increased from the proposed 400-flight-hour interval to a 600-flight-hour interval. The commenter also stated that in the event that a 600-flight-hour interval is determined to be unsuitable, then a 450-flight-hour interval should be used. The commenter stated that this change would align with scheduled E-check inspections, alleviate the undue burden of creating maintenance outside of scheduled computerized aircraft maintenance program inspections, and maintain safe operation of the airplane.
We do not agree with the commenter's request to extend the compliance time. We have determined that the compliance time, as proposed, represents the maximum interval of time allowable for the affected airplanes to continue to operate safely before the next inspection is required. In addition, since maintenance schedules vary among operators, there would be no assurance that a different interval would satisfy all operators' schedules. However, under the provisions of paragraph (i)(1) of this AD, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety. We have not changed this AD in this regard.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Saab Service Bulletin 340–30–094, dated March 27, 2015. The service information describes procedures for repetitive detailed inspections of the de-icing boots installed on the horizontal stabilizers, and repair and replacement of damaged de-icing boots.
We also reviewed the following AFMs, which describe performance limitations and general data:
• Saab AFM 340A 001, Revision 57, dated March 27, 2015.
• Saab AFM 340B 001, Revision 35, dated March 27, 2015.
• Saab AFM 340B 010, Revision 28, dated March 27, 2015.
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 estimate that this AD affects 92 airplanes of U.S. registry.
We also estimate that it will take about 6 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $46,920, or $510 per product.
In addition, we estimate that any necessary follow-on actions would take about 6 work-hours and require parts costing $9,500, for a cost of $10,010 per product. We have no way of determining the number of aircraft that might need these actions.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective August 1, 2016.
None.
This AD applies to Saab AB, Saab Aeronautics (Type Certificate Previously Held by Saab AB, Saab Aerosystems) airplanes, certificated in any category, identified in paragraphs (c)(1) and (c)(2) of this AD.
(1) Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) airplanes, serial numbers(S/Ns) 004 through 138 inclusive, on which Saab Modification 1462 has been embodied in production, or Saab Service Bulletin 340–55–008 has been embodied in service, except those on which Saab Modification 1793 has also been embodied in production, or Saab Service Bulletin 340–55–010 has been embodied in service; and Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) airplanes, S/Ns 139 through 159 inclusive. Applicable Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) airplanes S/N 004–138, Post Modification No. 1462 but Pre Modification No. 1793, have a maximum flap setting of 35 degrees instead of 20 degrees, and horizontal stabilizer boots with spanwise tubes instead of chordwise tubes.
(2) Saab AB, Saab Aeronautics Model SAAB 340B airplanes, S/Ns 160 through 459 inclusive.
Air Transport Association (ATA) of America Code 30, Ice and Rain Protection.
This AD was prompted by reports of ruptured horizontal stabilizer de-icing boots. We are issuing this AD to detect and correct damage of the de-icing boot; such damage could lead to a ruptured boot, severe vibrations, and possible reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the “Abnormal Procedures” section of the applicable Saab 340 AFM to incorporate the revision specified in paragraphs (g)(1) through (g)(3) of this AD.
(1) For Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) airplanes, revise AFM 340A 001 by incorporating Revision 57, dated March 27, 2015.
(2) For Saab AB, Saab Aeronautics Model SAAB 340B airplanes, revise AFM 340B 001 by incorporating Revision 35, dated March 27, 2015.
(3) For Saab AB, Saab Aeronautics Model SAAB 340B airplanes with extended wing tips, revise AFM 340B 010 by incorporating Revision 28, dated March 27, 2015.
Within 400 flight hours or 6 months, whichever occurs first after the effective date of this AD, do a detailed inspection for damage of the horizontal stabilizer de-icing boots, and existing repairs of horizontal stabilizer de-icing boots, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340–30–094, dated March 27, 2015. Repeat the inspection thereafter at intervals not to exceed 400 flight hours. If, during any inspection required by this paragraph, any damage or existing repair outside the limits specified in Saab Service Bulletin 340–30–094, dated March 27, 2015, is found, before further flight, repair or replace the horizontal stabilizer de-icing boots, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340–30–094, dated March 27, 2015. Repair or replacement on an airplane of the horizontal stabilizer de-icing boots, as required by this paragraph, does not constitute terminating action for the repetitive inspections required by this paragraph for that airplane.
The following provisions also apply to this AD:
(1)
(2)
Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015–0129, dated July 6, 2015, for related information. This MCAI may be found in the AD docket on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Saab Service Bulletin 340–30–094, dated March 27, 2015.
(ii) Saab AFM 340A 001, Revision 57, dated March 27, 2015.
(iii) Saab AFM 340B 001, Revision 35, dated March 27, 2015.
(iv) Saab AFM 340B 010, Revision 28, dated March 27, 2015.
(3) For service information identified in this AD, contact Saab AB, Saab Aeronautics, SE–581 88, Linköping, Sweden; telephone +46 13 18 5591; fax +46 13 18 4874; email
(4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(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:
Commodity Futures Trading Commission.
Interim final rule.
The Commodity Futures Trading Commission (Commission) is amending its rule that governs the maximum amount of civil monetary penalties, to adjust for inflation. This rule sets forth the maximum, inflation-adjusted dollar amount for civil monetary penalties (CMPs) assessable for violations of the Commodity Exchange Act (CEA) and Commission rules, regulations and orders thereunder. The rule, as amended, implements the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.
Edward J. Riccobene, Associate Chief Counsel, Division of Enforcement, at (202) 418–5327 or
The Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA)
The inflation adjustment requirement applies to any penalty, fine or other sanction that (A) is for a specific monetary amount as provided by Federal law or has a maximum amount provided for by Federal law; (B) is assessed or enforced by an agency pursuant to Federal law; and (C) is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts. 28 U.S.C. 2461 note. The CEA provides for CMPs that meet the above definition and are, therefore, subject to the inflation adjustment in the following instances: Sections 6(c), 6(d), 6b, and 6c of the CEA.
Section 6(c) of the CEA,
Section 6(d) of the CEA,
Section 6b of the CEA
Section 6c of the CEA
The inflation adjustment under the FCPIAA, in the context of the CFTC's CMPs, is determined by increasing the maximum penalty by a “cost-of-living adjustment,” rounded to the nearest multiple of $1.
After this initial catch-up adjustment, subsequent annual inflation adjustments will be based on the percent change between the October CPI–U preceding the date of the adjustment, and the prior year's October CPI–U. FCPIAA Section 4(b)(2).
Applying the FCPIAA catch-up adjustment methodology results in the following amended CMPs:
The FCPIAA, as amended by the 2015 Act, provides that any increase under the FCPIAA in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.
The notice and comment procedures of 5 U.S.C. 553 do not apply to this rulemaking because the Commission is acting herein pursuant to statutory language which mandates that the Commission act in a nondiscretionary matter.
The Regulatory Flexibility Act
The Paperwork Reduction Act of 1995 (PRA),
Section 15(a) of the CEA
The Commission believes that benefits of this rulemaking greatly outweigh the costs, if any. As the Commission understands, the statutory provisions by which it is making cost-of-living adjustments to the CMPs in regulation 143.8 were enacted to ensure that CMPs do not lose their deterrence value because of inflation. An analysis of the costs and benefits of these adjustments were made before enactment of the statutory provisions under which the Commission is operating, and limit the discretion of the Commission to the extent that there are no regulatory choices the Commission could make that would supersede the pre-enactment analysis with respect to the five factors enumerated in section 15(a), or any other factors.
Civil monetary penalties, Claims.
For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 143 as follows:
7 U.S.C. 9, 15, 9a, 12a(5), 13a, 13a–1(d), 13(a), 13b; 31 U.S.C. 3701–3720E; 28 U.S.C. 2461 note.
The revisions read as follows:
(a) * * *
(1) For a civil penalty assessed pursuant to Section 6(c) of the Commodity Exchange Act, 7 U.S.C. 9, against any person (other than a registered entity):
(i) In an administrative proceeding before the Commission or a civil action in Federal court initiated prior to August 1, 2016:
(A) For manipulation or attempted manipulation violations:
(
(
(B) For all other violations:
(
(
(
(
(ii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on or after August 1, 2016:
(A) For manipulation or attempted manipulation violations, not more than the greater of $1,098,190 or triple the monetary gain to such person for each such violation; and
(B) For all other violations:
(
(
(2) For a civil monetary penalty assessed pursuant to Section 6(d) of the Commodity Exchange Act, 7 U.S.C. 13b, against any person (other than a registered entity):
(i) In an administrative proceeding before the Commission or a civil action in Federal court initiated prior to August 1, 2016, for violations committed on or after August 15, 2011, not more than the greater of $140,000 or triple the monetary gain to such person for each such violation; and
(ii) In an administrative proceeding before the Commission or a civil action in Federal court initiated prior or after August 1, 2016, not more than the greater of $152,243 or triple the monetary gain to such person for each such violation; and
(3) For a civil monetary penalty assessed pursuant to Section 6b of the Commodity Exchange Act, 7 U.S.C. 13a, against any registered entity or any director, officer, agent, or employee of any registered entity:
(i) In an administrative proceeding before the Commission or a civil action in Federal court initiated prior to August 1, 2016:
(A) For manipulation or attempted manipulation violations:
(
(
(B) For all other violations:
(
(
(
(
(
(ii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on or after August 1, 2016:
(A) For manipulation or attempted manipulation violations, not more than the greater of $1,098,190 or triple the monetary gain to such person for each such violation; and
(B) For all other violations, not more than the greater of $838,640 or triple the monetary gain to such person for each such violation;
(4) For a civil monetary penalty assessed pursuant to Section 6c of the Commodity Exchange Act, 7 U.S.C. 13a–1, against any registered entity or other person:
(i) In an administrative proceeding before the Commission or a civil action in Federal court initiated prior to August 1, 2016:
(A) For manipulation or attempted manipulation violations:
(
(
(B) For all other violations:
(
(
(
(
(ii) In an administrative proceeding before the Commission or a civil action in Federal court initiated on or after August 1, 2016:
(A) For manipulation or attempted manipulation violations, not more than the greater of $1,098,190 or triple the monetary gain to such person for each such violation; and
(B) For all other violations, not more than the greater of $167,728 or triple the monetary gain to such person for each such violation.
(b) The Commission will adjust for inflation the maximum penalties set forth in this section on a yearly basis.
The following appendix will not appear in the Code of Federal Regulations.
On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.
Social Security Administration.
Interim Final Rule.
In accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, and further amended by the Bipartisan Budget Act of 2015, section 701: Federal Civil Penalties Inflation
This interim final rule is effective on August 1, 2016.
Joseph E. Gangloff, Chief Counsel to the Inspector General, Room 3–ME–1, 6401 Security Boulevard, Baltimore, MD 21235–6401, (410) 966–4440, both directly and for IPTTY. For information on eligibility or filing for benefits, call the Social Security Administration's national toll-free number, 1–800–772–1213 or TTY 1–800–325–0778, or visit the Social Security Administration's Internet site, Social Security Online, at
The Social Security Administration (SSA) was established as an independent agency, effective March 31, 1995, under Public Law 103–296, the Social Security Independence and Program Improvements Act of 1994 (SSIPIA). The SSIPIA also created an independent Office of the Inspector General (OIG) to which the Commissioner of Social Security (Commissioner) delegated certain authority for civil monetary penalty (CMP) cases on June 28, 1995.
On November 27, 1995, the OIG published a final rule at 60 FR 58225 establishing a new Part 498 in Title 20 of the Code of Federal Regulations. This Part serves as a repository for SSA's existing CMP regulations, which implemented section 1140 of the Social Security Act (the Act). These regulations were previously located at 42 CFR part 1003.
On April 24, 1996, the OIG published a final rule at 61 FR 18078 to implement SSA's new CMP authority provided under section 206(b) of the SSIPIA, which added section 1129 to the Act, effective October 1, 1994. This authority allows for imposition of penalties and assessments against any individual, organization, agency, or other entity that makes, or causes to be made, a false or misleading statement or representation of a material fact for use in determining initial or continuing rights to Old-Age, Survivors, and Disability Insurance or Supplemental Security Income benefit payments, if the person knew, or should have known, that such statement or representation was false or misleading, or omitted a material fact.
In addition, on May 17, 2006, the OIG published a final rule at 71 FR 28579 implementing the changes in the CMP program required by section 251(a) of Public Law 106–169, the Foster Care Independence Act of 1999 (FCIA), enacted December 14, 1999, and by sections 111, 201, 204, and 207 of Public Law 108–203, the Social Security Protection Act of 2004 (SSPA), enacted March 2, 2004. Section 251(a) of FCIA expanded the authority under section 1129 to impose a civil monetary penalty and assessment for fraud involved in the receipt of benefits by certain World War II veterans. Sections 111, 201, 204, and 207 of SSPA broadened the scope under section 1129 by adding new categories of penalties against (1) representative payees with respect to wrongful conversions, and (2) individuals who withhold the disclosure of material facts to the SSA.
In an effort to maintain the remedial impact of civil money penalties (CMPs) and promote compliance with the law, the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101–410) was amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104–134) to require Federal agencies to regularly adjust certain CMPs for inflation. As amended, the law requires each agency to make an initial inflationary adjustment for all applicable CMPs, and to make further adjustments at least once every four years thereafter for these penalty amounts. The Debt Collection Improvement Act of 1996 further stipulates that any resulting increases in a CMP due to the calculated inflation adjustments (i) should apply only to the violations that occur after October 23, 1996—the Act's effective date—and (ii) should not exceed 10 percent of the penalty indicated. In addition to those penalties that fall under the Internal Revenue Code of 1986, the Tariff Act of 1930 and the Occupational Safety and Health Act of 1970, CMPs that come under the Social Security Act were specifically exempted from the requirements of the Debt Collection Improvement Act of 1996.
The Bipartisan Budget Act of 2015, Section 701: Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114–74) (the 2015 Adjustment Act) amends the Federal Civil Penalties Inflation Adjustment Act of 1990 to require Federal agencies that impose CMPs subject to inflation adjustments to adjust the penalties for inflation annually instead of at least once every four years. The 2015 Act expanded the categories of penalties that require adjustment for inflation to include CMPs under the Occupational Safety and Health Act of 1970 and the Social Security Act. The 2015 Adjustment Act further requires affected agencies to adjust the level of CMPs with an initial “catch-up” adjustment through the publication of this interim final rule no later than July 1, 2016, to be effective no later than August 1, 2016. We will identify, for each penalty, the year and corresponding amount(s) for which the maximum penalty level or range of minimum and maximum penalties was established or last adjusted in statute or regulation.
Based on guidance issued by the Office of Management and Budget (OMB),
The Social Security Act currently includes three different CMP levels, one under Section 1129, 42 U.S.C. 1320a–8, and two under Section 1140, 42 U.S.C.
Our current maximum CMP is $5,000.00 for each violation under Section 1129 of the Social Security Act, $25,000.00 per broadcast or telecast under Section 1140 of the Social Security Act, and $5,000.00 for all other violations under Section 1140 of the Social Security Act. In OMB Memorandum, M–16–06, OMB instructed affected agencies to add an initial inflationary adjustment amount (a “catch-up” amount) to relevant CMPs based on the percent change between the CPI–U for the month of October in the year of the previous adjustment and the October 2015 CPI–U. Based on OMB's guidance, our adjustments to the existing maximum CMPs result in the following new maximum penalties, which will be effective as of August 1, 2016. The information below serves as public notice of the new maximum penalty amounts for 2016; we will not be publishing a separate
$5,000.00 (current maximum) × 1.59089 (OMB-issued initial adjustment multiplier) = $7,954.00 (new maximum CMP amount-rounded to the nearest dollar).
$25,000.00 (current maximum per broadcast or telecast) × 1.97869 (OMB-issued initial adjustment multiplier) = $49,467.00 (new maximum CMP amount-rounded to the nearest dollar).
$5,000.00 (current maximum for all other violations) × 1.97869 (OMB-issued initial adjustment multiplier) = $9,893.00 (new maximum CMP amount-rounded to the nearest dollar).
Pursuant to sections 205(a), 702(a)(5), and 1631(d)(1) of the Social Security Act, 42 U.S.C. 405(a), 42 U.S.C. 902(a)(5), and 42 U.S.C. 1383(d)(1), the Social Security Administration follows the Administrative Procedures Act (APA) rulemaking procedures specified in 5 U.S.C. 553 in the development of our regulations.
The APA provides exceptions to its Notice of Proposed Rulemaking (NPRM) procedures when an agency finds that there is good cause for dispensing with such procedures on the basis that they are impracticable, unnecessary, or contrary to the public interest. In the case of these interim final rules, we have determined that under 5 U.S.C. 553(b)(B), good cause exists for waiving the NPRM procedures because doing so would have been impractical given the Congressional mandates.
Public Law 114–74 was signed into law on November 2, 2015. Section 701(b)(1)(D) requires that the Commissioner issue regulations to adjust CMPs through an interim final rulemaking, and requires the initial catch up adjustment to take effect no later than August 1, 2016. Accordingly, to issue these rules as a NPRM would have delayed issuance of final rules well past the required August 1, 2016 effective date. In light of the Congressional mandate that we issue regulations to adjust CMPs through an interim final rulemaking, and that the initial catch up adjustment take effect no later than August 1, 2016, we believe good cause exists for waiver of the NPRM procedures under the APA.
We consulted with OMB and determined that this interim final rule does not meet the criteria for a significant regulatory action under Executive Order 12866 as supplemented by Executive Order 13563. Thus, OMB did not review the interim final rule.
We generally prepare a regulatory flexibility analysis consistent with Public Law 96–354, the Regulatory Flexibility Act, unless the Inspector General certifies that a regulation will not have a significant economic impact on a substantial number of small business entities. While the increase in the civil monetary penalties provided for under sections 1129 and 1140 of the Social Security Act might have a slight impact on small entities, it is the nature of the violation and not the size of the entity that will result in an action by the OIG. In either case, we do not anticipate that a substantial number of small entities will be significantly affected by this revised rulemaking. These final rules reflect legislative amendments affecting previously existing sections of the Social Security Act, and do not substantially alter the effect of these sanctions on small business entities. Therefore, we have concluded, and the Inspector General certifies, that a regulatory flexibility analysis is not required for this interim final rule.
These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.
Administrative practice and procedure, Fraud.
For the reasons set forth in the preamble, we amend 20 CFR part 498 as set forth below:
Secs. 702(a)(5), 1129, and 1140 of the Social Security Act (42 U.S.C. 902(a)(5), 1320a–8, and 1320b–10).
(f) [Reserved]
(g) (1) The amount of the penalties described in paragraphs (a) through (d) of this section are the maximum penalties which may be assessed under these paragraphs for violations made after June 16, 2006, but before August 1, 2016.
(2) (i) After August 1, 2016 penalties are adjusted in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101–410), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104–134), as further amended by the Bipartisan Budget Act of 2015, Section 701: Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701 of Pub. L. 114–74).
(ii) The maximum penalties which may be assessed under this section is the larger of:
(A) The amount for the previous calendar year; or
(B) An amount adjusted for inflation, calculated by multiplying the amount
(iii) Notice of the maximum penalty which may be assessed under this section for calendar years after 2016 will be published in the
Food and Drug Administration, HHS.
Final rule; extension of the comment period.
The Food and Drug Administration (FDA or we) is extending the comment period for the final rule, published in the
The FDA confirms the June 3, 2016, effective date of the final rule that published on June 3, 2016 (81 FR 35610). The comment period for the final rule is extended. Submit either electronic or written comments by July 19, 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.”
• 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
Chelsea Trull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240–402–6729,
In the
Interested persons were originally given until July 5, 2016, to submit comments or written objections and a request for a hearing.
From July 1 through July 5, 2016, the Federal eRulemaking Portal,
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on Lake Erie, Bay Village, OH. This safety zone is intended to restrict vessels from a portion of Lake Erie during the Bay Village Independence Day Celebration fireworks display on July 4, 2016. This temporary safety zone is necessary to protect mariners and vessels from the navigational hazards associated with a fireworks display. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Buffalo (COTP).
This rule is effective from 9:45 p.m. to 10:45 p.m. on July 4, 2016.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rulemaking, call or email LT Stephanie Pitts, Chief of Waterways Management, U.S. Coast Guard Marine Safety Unit Cleveland; telephone 216–937–0128, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency finds good cause that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not provided to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a fireworks display.
The Coast Guard issues this rule under authority in 33 U.S.C. 1231. On July 4, 2016, between 9:45 p.m. and 10:45 p.m., a fireworks display will be held on the shoreline of Lake Erie in Bay Village, OH, in the vicinity of Cahoon Memorial Park. It is anticipated that numerous vessels will be in the immediate vicinity of the launch point. The Captain of the Port Buffalo has determined that potential hazards associated with this fireworks display poses a significant risk to public safety and property within a 560-foot radius of the launch point. Such hazards include premature and accidental detonations of fireworks, dangerous projectiles, and falling or burning debris.
This rule establishes a safety zone from 9:45 p.m. to 10:45 p.m. on July 4, 2016. The safety zone will encompass all waters of Lake Erie; Bay Village, OH within a 560-foot radius of position 41°29′23.9″ N. and 081°55′44.5″ W. (NAD 83). The duration of the zone is intended to ensure the safety of spectators and vessels during the Bay Village Independence Day Celebration fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.
We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, and will not: Interfere with other agencies; adversely alter the budget of any grant or loan recipients; or raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Under certain conditions, vessels may still transit through the safety zone when permitted by the Captain of the Port.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under E.O. 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in E.O. 13132.
Also, this rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting for one (1) hour that will prohibit entry within a small area on Lake Erie. It is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a) This zone will encompass all waters of Lake Erie; Bay Village, OH within a 560 foot radius of position 41°29′23.9″ N. and 081°55′44.5″ W. (NAD 83).
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Buffalo or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port Buffalo is any Coast Guard commissioned, warrant or petty officer who has been designated by the Captain of the Port Buffalo to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zone must contact the Captain of the Port Buffalo or his on-scene representative to obtain permission to do so. The Captain of the Port Buffalo or his on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Buffalo, or his on-scene representative.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce special local regulations for the Boston Harborfest in Boston Inner Harbor on July 2, 2016, to provide for the safety of life on navigable waterways during the fireworks. Our regulation for Captain of the Port Boston Fireworks display zone, Boston Harbor, Boston, MA identifies the regulated area for this fireworks display. During the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port or a designated representative.
The regulation in 33 CFR 165.119(a)(2) will be enforced Saturday, July 2, 2016 from 9 p.m. to 9:45 p.m.
If you have questions about this notice of enforcement, call or email Mr. Mark Cutter, Sector Boston Waterways Management Division, U.S. Coast Guard; telephone 617–223–4000, email
The Coast Guard will enforce special local regulations in 33 CFR 165.119(a)(2) Saturday, July 2, 2016 from 9 p.m. to 9:45 p.m., for the Boston Harborfest in Boston Inner Harbor. This action is being taken to provide for the safety of life on navigable waterways during the fireworks display. Our regulation for Captain of the Port Boston Fireworks display zone, Boston Harbor, Boston, MA, § 165.119(a)(2), specifies the location of the regulated area as all U.S. navigable waters of Boston Inner Harbor within a 700-foot radius of the fireworks barge in approximate position 42°21′41.2″ N. 071°02′36.5″ W. (NAD 1983), located off of Long Wharf, Boston MA. As specified in § 165.119(e), during the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port Sector Boston (COTP) or a COTP designated representative.
This notice of enforcement is issued under authority of 33 CFR 165.119 and 5 U.S.C. 552(a). In addition to this notice of enforcement in the
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is making a determination, under the Clean Air Act (CAA), that the Cleveland, Ohio (OH) and St. Louis, Missouri-Illinois (MO-IL) areas attained the 2008 ozone National Ambient Air Quality Standards (NAAQS), by the applicable attainment date of July 20, 2016. This determination for each area is based on complete, quality-assured and certified ozone monitoring data for 2013–2015.
This direct final rule will be effective August 26, 2016, unless EPA receives adverse comments by July 27, 2016. If adverse comments are received by EPA for an affected area, EPA will publish a timely withdrawal of the direct final rule for that area in the
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2016–0276 at
Kathleen D'Agostino, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–1767,
Deborah Bredehoft, Air Planning and Development Branch, Environmental Protection Agency, Region 7, 11201 Renner Blvd., Lenexa, Kansas 66219, (913) 551–7164,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On April 30, 2012, the Cleveland, OH and St. Louis, MO-IL areas were designated as nonattainment for the 2008 ozone NAAQS and were classified as marginal, effective July 20, 2012 (77 FR 30088, May 21, 2012). On March 6, 2015 (80 FR 12264), in the final 2008 ozone NAAQS SIP requirements rule, EPA established an attainment deadline for marginal areas of July 20, 2015.
The CAA section 181(b)(2) requires the EPA to determine, based on an area's ozone design value
On May 4, 2016 (81 FR 26697), based on EPA's evaluation and determination that the areas met the attainment date extension criteria of CAA section 181(8)(5), EPA granted the Cleveland and St. Louis areas a 1-year extension of the marginal area attainment date to July 20, 2016.
Under EPA regulations at 40 CFR part 50, appendix P, the 2008 ozone NAAQS is attained at a site when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentration is less than or equal to 0.075 parts per million (ppm). This 3-year average is referred to as the design value. When the design value is less than or equal to 0.075 ppm at each ambient air quality monitoring site within the area, then the area is deemed to be meeting the NAAQS. The rounding convention under 40 CFR part 50, appendix P, dictates that concentrations shall be reported in ppm to the third decimal place, with additional digits to the right being truncated. Thus, a computed 3-year average ozone concentration of 0.076 ppm is greater than 0.075 ppm and, therefore, over the standard.
EPA's determination of attainment is based upon data that have been collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA's Air Quality System database (formerly known as the Aerometric Information Retrieval System). Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percent of required monitoring days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined according to appendix P of part 50.
EPA is taking this action pursuant to the agency's statutory obligation under CAA section 181(b)(2) to determine whether the Cleveland and St. Louis nonattainment areas have attained the 2008 ozone NAAQS by the applicable attainment date of July 20, 2016. In this action, EPA is making a determination that the Cleveland and St. Louis areas attained the 2008 ozone NAAQS by the applicable deadline of July 20, 2016, based upon complete, quality-assured and certified ozone monitoring data for 2013–2015.
EPA evaluated data from air quality monitors in the Cleveland and St. Louis areas in order to determine the areas' attainment status as of the applicable attainment date of July 20, 2016. The data were supplied and quality-assured by state and local agencies responsible for monitoring ozone air monitoring networks. Table 1 displays the 2013–2015 design value for each monitor as well as the fourth high daily maximum 8-hour ozone concentration for each of the three years used to calculate the design value.
All monitoring sites in the Cleveland and St. Louis areas had design values less than 0.075 ppm based on the 2013–2015 monitoring period. Thus, EPA is determining, in accordance with section 181(b)(2)(A) of the CAA and the provisions of the SIP Requirements Rule (40 CFR 51.1103), that these areas attained the standard by the applicable attainment date of July 20, 2016. EPA's determination is based upon three years of complete, quality-assured and certified data.
We are publishing this action without prior proposal because we view this as
Under section 181(b)(2) of the CAA, a determination of attainment is a factual determination based upon air quality considerations. These determinations of attainment would, if finalized, result in the suspension of certain Federal requirements. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 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 application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications because it will not have a substantial direct effect on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Determinations of attainment do not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because a determination of attainment is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 26, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this
Environmental protection, Administrative practice and procedure, Air pollution control, Designations and classifications, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Part 52, chapter I, title 40 of Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(qq)
(d)
(oo)
(g) As required by section 181(b)(2)(A) of the Clean Air Act, EPA has determined that the Cleveland, OH marginal 2008 ozone nonattainment area has attained the NAAQS by the applicable attainment date of July 20, 2016. This determination is based on complete, quality-assured and certified data for the 3-year period 2013–2015.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving a revision to the Minnesota sulfur dioxide (SO
This direct final rule will be effective August 26, 2016, unless EPA receives adverse comments by July 27, 2016. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2015–0366 at
Anthony Maietta, Environmental Protection Specialist, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–8777,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On April 28, 2014 (79 FR 23414 and amended on April 22, 2016, at 81 FR 23641), EPA established more stringent vehicle emissions standards to reduce the sulfur content of gasoline beginning January 1, 2017. The Tier 3 gasoline fuel standards (Tier 3 standards) will reduce both tailpipe and evaporative emissions from both new and existing passenger cars, light-duty trucks, medium-duty passenger vehicles, and some heavy-duty vehicles. This will result in significant reductions in pollutants such as ozone, particulate matter, and air toxics across the country and help state and local agencies in their efforts to attain and maintain health-based NAAQS.
In order to meet the Tier 3 standards, FHR plans to increase its use of hydrotreating to remove sulfur from intermediate fuel products. The increased hydrotreating will also increase the removal of nitrogen. To address the increased removal of nitrogen and sulfur, FHR proposes to install a process to convert gas containing sulfur and nitrogen into a salable, non-hazardous, aqueous liquid fertilizer: ammonium thiosulfate (ATS).
Minnesota also requested EPA's approval of the transfer of Title I SO
In 1995, EPA approved into the Minnesota SIP Minnesota's consolidated permitting regulations. (60 FR 21447, May 2, 1995). The consolidated permitting regulations included the term “Title I condition” which was written, in part, to satisfy EPA requirements that SIP control measures remain permanent. A “Title I condition” is defined, in part, as “any condition based on source-specific determination of ambient impacts imposed for the purpose of achieving or maintaining attainment with a national ambient air
Minnesota has initiated using the joint Title I/Title V document as the enforceable document for imposing emission limitations and compliance requirements in SIPs. The SIP requirements in the joint Title I/Title V document submitted by MPCA are cited as “Title I conditions,” therefore ensuring that SIP requirements remain permanent and enforceable. EPA reviewed the state's procedure for using joint Title I/Title V documents to implement site-specific SIP requirements and found it to be acceptable under both Title I and Title V of the Clean Air Act (CAA) (July 3, 1997 letter from David Kee, EPA, to Michael J. Sandusky, MPCA).
FHR's SIP obligations are currently contained in an Order that was adopted by MPCA on August 29, 2011, and approved by EPA on May 15, 2013 (78 FR 28501) (FHR Order). On May 1, 2015, MPCA submitted revisions to the Minnesota SO
Title I SO
Review of the technical support document and computer modeling reports submitted by MPCA shows that installation of the ATS unit in conjunction with the other updates to the facility will not cause an exceedance of the modeled SO
On March 17, 2015, MPCA amended the operating permit for FHR (Air Emissions Permit No. 03700011–012). This joint Title I/Title V document incorporates, as Title I SO
Finally, Minnesota is requesting that EPA approve several changes to the existing SIP for FHR. These changes include:
EPA is approving a revision to the SIP for FHR, as submitted by MPCA on May 1, 2015. The revision will consolidate existing permanent and enforceable SO
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Minnesota Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through
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, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 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 application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 26, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(d) * * *
National Science Foundation.
Interim final rule.
The National Science Foundation (NSF or Foundation) is adjusting the maximum civil monetary penalties that may be imposed for violations of the Antarctic Conservation Act of 1978 (ACA), to reflect the requirements of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act). The 2015 Act further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect.
Effective August 1, 2016.
You may submit comments, identified by RIN 3145–AA58. Comments should be submitted by any of the following methods:
1. Internet—Send comments via email to
2. Fax—(703)292–9242.
Bijan Gilanshah, Assistant General Counsel, Office of the General Counsel, at 703–292–8060, National Science Foundation, 4201 Wilson Boulevard, Room 1265, Arlington, Virginia 22230.
The 2015 Act requires agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rulemaking; and (2) make subsequent annual adjustments for inflation. Inflation adjustments will be based on the percent change in the Consumer Price Index for all Urban Consumers (CPI–U) for the month of October preceding the date of the adjustment, relative to the October CPI–U in the year of the previous adjustment. The only civil monetary penalties within NSF's jurisdiction are those authorized by the Antarctic Conservation Act of 1978 (ACA), 16 U.S.C. 2401
For the first adjustment made in accordance with the 2015 Act, the amount of the adjustment is calculated based on the percent change between the CPI–U for October of the last year in which penalties were previously adjusted (not including any adjustment made pursuant to the Inflation Adjustment Act before November 2, 2015), and the CPI–U for October 2015. The 10 percent cap on adjustments imposed by the Debt Collection Improvement Act of 1996 has been eliminated by the 2015 Act. Instead, the 2015 Act imposes a cap on the amount of this initial adjustment, such that the amount of the increase may not exceed 150 percent of the pre-adjustment penalty amount or range. As a result, the total penalty amount or range after the initial adjustment under the 2015 Act may not exceed 250 percent of the pre-adjustment penalty amount or range.
For purposes of the initial adjustment of the ACA's penalties under the 2015 Act, Congress last set or adjusted the amount of civil penalties in 1978. Between October 1978 and October 2015, the CPI–U has increased by 354.453 percent. The post-adjustment penalty amount or range is obtained by multiplying the pre-adjustment penalty amount or range by the percent change in the CPI–U over the relevant time period, and rounding to the nearest dollar. Therefore, the new, post-adjustment maximum penalty under the ACA for violations is $5,000 × 3.54453 = $17722.65, which rounds to $17723. The new, post-adjustment maximum penalty for knowing violations is $10,000 × 3.54453= $35,445.30, which rounds to $35,445. The new, post-adjustment penalties are greater than 250 percent of the pre-adjustment penalties, so the limitation on the amount of the adjustment is implicated. Therefore, the maximum penalty under the ACA after August 1, 2016 will be $16,250 ($6500 × 2.5) for violations and $27,500 ($11,000 × 2.5) for knowing violations.
For purposes of the initial adjustment under the 2015 Act, Congress last set or adjusted the amount of PFCRA civil penalties in 1986. Between October 1986 and October 2015, the CPI–U has increased by 215.628 percent. The post-adjustment penalty amount or range is obtained by multiplying the pre-adjustment penalty amount or range by the percent change in the CPI–U over the relevant time period, and rounding to the nearest dollar. Therefore, the new, post-adjustment maximum penalty under the PFCRA is $5,000 × 2.15628 = $10,781.40, which rounds to $10,781. The new, post-adjustment penalties are less than 250 percent of the pre-adjustment penalties, so the limitation on the amount of the adjustment is not implicated. Therefore, the maximum penalty under the PFCRA for claims or statements made after August 1, 2016 will be $10,781.
The 2015 Act also requires agencies to make annual adjustments to civil penalty amounts no later than January 15 of each year following the initial adjustment described above. For subsequent adjustments made in accordance with the 2015 Act, the amount of the adjustment is based on the percent increase between the CPI–U for the month of October preceding the date of the adjustment and the CPI–U for the October one year prior to the October immediately preceding the date of the adjustment. If there is no increase, there is no adjustment of civil penalties. Therefore, if NSF adjusts penalties in January 2017, the adjustment will be calculated based on the percent change between the CPI–U for October 2016 (the October immediately preceding the date of adjustment) and October 2015 (the October one year prior to October 2016). NSF will publish the amount of these annual inflation adjustments in the
This interim final rule is being issued without prior public notice or opportunity for public comments. The 2015 Act's amendments to the Inflation Adjustment Act require the agency to adjust penalties initially through an interim final rulemaking, which does not require the agency to complete a notice and comment process prior to promulgating the interim final rule. The amendments also explicitly require the agency to make subsequent annual adjustments notwithstanding 5 U.S.C. 553 (the section of the Administrative Procedure Act that normally requires agencies to engage in notice and comment). Additionally, the formula used for adjusting the amount of civil penalties is given by statute, with no discretion provided to the NSF regarding the substance of the adjustments. NSF is charged only with performing ministerial computations to determine the amount of adjustment to the civil penalties due to increases in the Consumer Price Index for all Urban Consumers (CPI–U).
This interim final rule only makes conforming changes to the Foundation's regulations to reflect inflationary adjustments to its civil monetary penalties required by the 2015 Act.
NSF has determined that this interim final rule will not involve the taking of private property pursuant to E.O. 12630.
NSF has considered this interim final rule under E.O. 12988 on civil justice reform and determined the principles underlying and requirements of E.O. 12988 are not implicated.
NSF has considered this interim final rule under the requirements of E.O. 13132 on federalism and has determined that the interim final rule conforms with the federalism principles set out in this E.O.; will not impose any compliance costs on the States; and will not have substantial direct effects on the States, the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the Foundation has determined that no further assessment of federalism implications is necessary.
Moreover, NSF has determined that promulgation of this interim final rule does not require advance consultation with Indian Tribal officials as set forth in E.O. 13175, Consultation and Coordination with Indian Tribal Governments.
NSF has reviewed this interim final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use and has determined that this final rule does not constitute a significant energy action as defined in the E.O.
This interim final rule has not been designated a “significant regulatory action,” under Executive Order 12866. The interim final rule only makes inflation adjustments to NSF's civil monetary penalties.
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538), NSF has assessed the effects of this interim final rule on State, local, and Tribal governments and the private sector. This interim final rule will not compel the expenditure of $100 million or more by any State, local, or Tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.
This interim final rule does not contain any recordkeeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Administrative practice and procedure, Antarctica.
Civil remedies; Program fraud.
For the reasons set out in the preamble, 45 CFR parts 672 and 681 are amended as follows:
16 U.S.C. 2401
(a) For violations occurring prior to August 1, 2016, the maximum civil penalty is $6500 for any violation and $11,000 for knowing violations.
(b) For violations occurring after August 1, 2016, but before January 1, 2017, the maximum civil penalty is adjusted to $16,250 for any violation and $27,500 for knowing violations.
(c) For violations occurring on or after January 1, 2017, the maximum penalty, which may be assessed under Part 672 of the title, is the larger of:
(1) The amount for the previous calendar year, or
(2) An amount adjusted for inflation, calculated by multiplying the amount for the previous calendar year by the percentage by which the CPI–U for the month of October preceding the current calendar year exceeds the CPI–U for the month of October of the calendar year two years prior to the current calendar year, adding that amount to the amount for the previous calendar year, and rounding the total to the nearest dollar.
(d) Notice of the maximum penalty which may be assessed under Part 672 of this title for calendar years after 2016 will be published by the NSF in the
31 U.S.C. 3801
(f) For claims or statements made on or after August 1, 2016, but before January 1, 2017, the maximum penalty which may be assessed under Part 681 of the title is $10,781. For claims or statements made on or after January 1, 2017, the maximum penalty which may be assessed under Part 681 of the title is the larger of:
(1) The amount for the previous calendar year, or
(2) An amount adjusted for inflation, calculated by multiplying the amount for the previous calendar year by the percentage by which the CPI–U for the month of October preceding the current calendar year exceeds the CPI–U for the month of October of the calendar year two years prior to the current calendar year, adding that amount to the amount for the previous calendar year, and rounding the total to the nearest dollar.
(g) Notice of the maximum penalty, which may be assessed under Part 681 of this title for calendar years after 2016, will be published by NSF in the
Federal Communications Commission.
Final rule.
At the request of Charles Crawford, the Audio Division amends the FM Table of Allotments, by allotting Channel 247A at Bogata, Texas and Channel 295A at Wright City, Oklahoma. A staff engineering analysis indicates that FM Channel 247A can be allotted at Bogata, Texas at the following reference coordinates: 33–33–21 NL and 95–18–28 WL. FM Channel 295A can be allotted at Wright City, Oklahoma, at the following reference coordinates: 34–04–44 NL and 94–51–15 WL.
Effective July 25, 2016.
Nazifa Sawez, Media Bureau, (202) 418–2700.
This is a synopsis of the Commission's
Radio, Radio broadcasting.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Interim final rule.
FMCSA amends the civil penalties listed in its regulations to ensure that the civil penalties assessed or enforced by the Agency reflect the statutorily mandated ranges as adjusted for inflation. Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), FMCSA is required to promulgate a catch-up adjustment through an interim final rule. Pursuant to the Administrative Procedure Act, FMCSA finds that good cause exists for immediate implementation of this interim final rule because prior notice and comment are unnecessary, per the specific provisions of the 2015 Act.
This interim rule is effective on August 1, 2016.
Ms. LaTonya Mimms, Enforcement Division, by email at
This interim final rule (IFR) adjusts the amount of FMCSA's civil penalties to account for inflation as directed by the 2015 Act. The specific inflation adjustment methodology is described later in this document.
The changes imposed by this IFR affect the civil penalty amounts, which are considered by the Office of Management and Budget (OMB) Circular A–4, Regulatory Analysis, as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. By definition they are not considered in the monetization of societal costs and benefits of rulemakings. Congress stated in the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act) that increasing penalties over time will “maintain the deterrent effect of civil monetary penalties and promote compliance with the law.”
This rulemaking is based primarily on the 2015 Act, Public Law 114–74, title VII, § 701, 129 Stat. 599, 28 U.S.C. 2461 note (Nov. 2, 2015). The 2015 Act amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act) (28 U.S.C. 2461 note). The basic findings and purpose of the amended 1990 Act remain unchanged and include supporting the role civil penalties play in federal law and regulations in deterring violations by allowing for regulatory adjustments to account for inflation. The changes based on the 2015 Act amend sections four, five, six, and also add a new section seven. The effective provisions relevant to this rulemaking will be discussed in turn.
Under section four, agencies must adjust their civil monetary penalties and publish such adjusted penalties in the
Section five outlines the procedure for applying cost of living increases to adjust penalties. As with section four, section five addresses both initial and subsequent adjustments based on the definition of cost of living adjustment (COLA). For initial adjustments, COLA is defined as the difference between the consumer price index (CPI) for October 2015 and the CPI for October of the year the penalty was “adjusted or established under a provision of law, other than the 2015 Act” (
The 2015 Act also amended provisions of the Debt Collection Improvement Act of 1996 (DCIA) Public Law 104–134, 110 Stat 1321, 28 U.S.C. 2461 note (April 26, 1996), which amended the 1990 Act. Most importantly, the DCIA had previously provided that the first adjustment of a civil monetary penalty may not exceed 10 percent of such penalty. This 10 percent cap provision was rescinded by the 2015 Act (
In previous enforcement cases on administrative review, the FMCSA Assistant Administrator has stated that, for various purposes, a penalty will not be deemed “assessed” until the date that the Agency issues its Final Agency Action.
Section 521(b)(2)(D) of Title 49, U.S. Code, requires FMCSA to calculate each civil penalty assessment to induce further compliance. FMCSA has concluded that, for those open enforcement matters in which a penalty was proposed before the date of the “catch-up” adjustment or an annual adjustment but in which a Final Agency Action has not been issued, recalculating the amount of the proposed penalty would not induce further compliance, and would thus be contrary to the goal of 49 U.S.C. 521(b)(2)(D). Moreover, the length of time between the date that a person is notified of the amount of the proposed penalty and the issuance of the Final Agency Action can vary, but is sometimes several years, depending on litigation schedules and other factors. Applying an inflation adjustment to proposed penalties in cases long awaiting administrative review could raise questions of equity. FMCSA therefore will not retroactively adjust the proposed penalty amounts in notices of claim issued prior to the effective date. Otherwise, the 2015 Act applies prospectively, and does not retroactively change previously assessed or enforced penalties an agency is actively collecting or has collected.
While the statutory language speaks to only increases in penalty amounts, FMCSA will assess the new penalty both in cases where the penalty increases and where it decreases. This aligns with the intent of the statute, which is to ensure penalty amounts properly reflect inflation. Congress likely did not envision a scenario where penalty amounts would be decreased pursuant to the 2015 Act, which explains the use of the term “increases” in the statutory language.
Based on new section seven, oversight and reporting requirements apply. First, OMB must provide annual guidance by December of each year on implementing the 2015 Act (
Generally, agencies may promulgate final rules only after issuing a notice of proposed rulemaking and providing an opportunity for public comment under procedures required by the APA, as provided in 5 U.S.C. 553(b) and (c). The APA, in 5 U.S.C. 553(b)(3)(B), provides an exception from these requirements when notice and public comment procedures are “impracticable, unnecessary, or contrary to the public interest.” FMCSA finds that prior notice and comment is unnecessary because section 4 of the 2015 Act specifically requires the initial catch-up adjustment to be accomplished through an IFR. While prior notice and comment is not required, FMCSA will accept comments on any errors that may be found in this document. We note, however, that the penalty adjustments, and the methodology used to determine the adjustments, are set by the terms of the 2015 Act, and FMCSA has no discretion to make changes in those areas.
OMB published a memorandum on February 24th, 2016, providing guidance to the Agencies for implementation of the 2015 Act (OMB implementation guidance,
The 2015 Act has removed these rounding rules; now, penalties are simply rounded to the nearest $1. While this creates penalty values that are no longer round numbers, it does ensure that penalties will be increased each year to a figure commensurate with the actual calculated inflation. Furthermore, the 2015 Act “resets” the inflation calculations by excluding prior inflationary adjustments under the 1990 Act, which contributed to a change in the real value of penalty levels. This means the inflationary adjustments made by FMCSA in 2015,
The FMCSA thoroughly reviewed its civil penalties. This IFR sets forth the initial “catch-up” adjustment required by the 2015 Act, as shown in the table below. The first column provides a description of the penalty and its location in 49 CFR part 386. The second column (“Legal Authority”) provides the United States Code (U.S.C.) statutory citation. In the third column (“Current Penalty”), FMCSA lists the existing codified penalty. The fourth column (“Baseline Penalty”) provides the penalty amount as enacted by Congress or changed through a mechanism other than the 1990 Act. The fifth column (“Baseline Penalty Year”) lists the year in which the baseline penalty was enacted by Congress or changed through a mechanism other than the 1990 Act. The sixth column (“Multiplier”) lists the multiplier used to adjust the CPI for all urban consumers (CPI–U) of the baseline penalty year to the CPI–U for the current year. The OMB prescribes, in Table A of the OMB implementation guidance the multiplier for agencies to use. Adjusting the baseline penalty with the multiplier provides the “Preliminary New Penalty” listed in column seven. The preliminary new penalty is then compared with the current penalty from column three to find the Final Adjusted Penalty in column eight. The adjusted penalty is the lesser of either the preliminary new penalty or an amount equal to 250% of the current penalty. As no preliminary new penalties are greater than 250% of the current penalty, columns seven and eight are identical.
As noted in the regulatory text (Part 386, Appendices A and B) in today's rule, the adjusted civil penalties identified in the appendices supersede, where a discrepancy exists, the corresponding civil penalty amounts identified in title 49, United States Code.
The introductions to Part 386, Appendices A and B, have been revised to refer to the 2015 Act. Below is the table with the current civil penalty amounts in the appendices of Part 386 and new civil penalties following the inflation adjustments required by the 2015 Act:
FMCSA updates the civil penalties in Appendices A and B of Part 386 as outlined in Table 1 above and makes minor editorial changes.
This IFR is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979) and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Historically, the Agency has never assessed civil penalties that approach $100 million in any given year.
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601–612), FMCSA is not required to complete a regulatory flexibility analysis, because, as discussed earlier in the legal basis section, this action is not subject to prior notice and comment under section 553(b) of the Administrative Procedure Act.
In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this interim final rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the interim final rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance please consult the FMCSA point of contact, Ms. LaTonya Mimms, listed in the
Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1–888–REG–FAIR (1–888–734–3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $155 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2014 levels) or more in any one year. This interim final rule will not result in such an expenditure.
This interim final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for Federalism under Section 1(a) of Executive Order 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this interim final rule does not have federalism implications.
This interim final rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules to include an evaluation of the regulation's environmental health and safety effects on children if an agency has reason to believe the rule may disproportionately affect children. The Agency determined that this interim final rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, this regulatory action could not pose an environmental or safety risk to children.
FMCSA reviewed this interim final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.
Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108–447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule does not require the collection of personally identifiable information (PII).
The E-Government Act of 2002, Public Law 107–347, 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct PIA for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a privacy impact assessment.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
FMCSA analyzed this rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
This rule does not have tribal implications under E.O. 13175,
The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (
FMCSA analyzed this rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321,
FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401
Under E.O. 12898 (Actions to Address Environmental Justice in Minority Populations and Low-Income Populations), each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA has determined that this interim final rule would have no environmental justice effects, nor would its promulgation have any collective environmental impact.
Administrative procedures, Commercial motor vehicle safety, Highways and roads, Motor carriers, Penalties.
For the reasons stated in the preamble, FMCSA is amending 49 CFR part 386 as follows:
49 U.S.C. 113, chapters 5, 51, 59, 131–141, 145–149, 311, 313, and 315; 49 U.S.C. 5123; Sec. 204, Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C. 701 note); Sec. 217, Pub. L. 105–159, 113 Stat. 1748, 1767; Sec. 206, Pub. L. 106–159, 113 Stat. 1763; subtitle B, title IV of Pub. L. 109–59; Sec. 701 of Pub. L. 114–74, 129 Stat. 584, 599; and 49 CFR 1.81 and 1.87.
The Civil Penalties Inflation Adjustment Act Improvements Act of 2015 [Public Law 114–74, sec. 701, 129 Stat. 584, 599] amended the Federal Civil Penalties Inflation Adjustment Act of 1990 to require agencies to adjust civil penalties for inflation. Pursuant to that authority, the inflation adjusted civil penalties identified in this appendix supersede the corresponding civil penalty amounts identified in title 49, United States Code.
Violation—Failure to respond to Agency subpoena to appear and testify or produce records.
Penalty—minimum of $1,028 but not more than $10,282 per violation.
a. Violation—Operation of a commercial vehicle by a driver during the period the driver was placed out of service.
Penalty—Up to $1,782 per violation.
(For purposes of this violation, the term “driver” means an operator of a commercial motor vehicle, including an independent contractor who, while in the course of operating a commercial motor vehicle, is employed or used by another person.)
b. Violation—Requiring or permitting a driver to operate a commercial vehicle during the period the driver was placed out of service.
Penalty—Up to $17,816 per violation.
(This violation applies to motor carriers including an independent contractor who is not a “driver,” as defined under paragraph IV(a) above.)
c. Violation—Operation of a commercial motor vehicle or intermodal equipment by a driver after the vehicle or intermodal equipment was placed out-of-service and before the required repairs are made.
Penalty—$1,782 each time the vehicle or intermodal equipment is so operated.
(This violation applies to drivers as defined in IV(a) above.)
d. Violation—Requiring or permitting the operation of a commercial motor vehicle or intermodal equipment placed out-of-service before the required repairs are made.
Penalty—Up to $17,816 each time the vehicle or intermodal equipment is so operated after notice of the defect is received.
(This violation applies to intermodal equipment providers and motor carriers, including an independent owner operator who is not a “driver,” as defined in IV(a) above.)
e. Violation—Failure to return written certification of correction as required by the out-of-service order.
Penalty—Up to $891 per violation.
g. Violation—Operating in violation of an order issued under § 386.72(b) to cease all or part of the employer's commercial motor vehicle operations or to cease part of an intermodal equipment provider's operations,
Penalty—Up to $25,705 per day the operation continues after the effective date and time of the order to cease.
h. Violation—Operating in violation of an order issued under § 386.73.
Penalty—Up to $22,587 per day the operation continues after the effective date and time of the out-of-service order.
i. Violation—Conducting operations during a period of suspension under § 386.83 or § 386.84 for failure to pay penalties.
Penalty—Up to $14,502 for each day that operations are conducted during the suspension or revocation period.
j. Violation—Conducting operations during a period of suspension or revocation under §§ 385.911, 385.913, 385.1009 or 385.1011.
Penalty—Up to $22,587 for each day that operations are conducted during the suspension or revocation period.
The Civil Penalties Inflation Adjustment Act Improvements Act of 2015 [Public Law 114–74, sec. 701, 129 Stat. 584, 599] amended the Federal Civil Penalties Inflation Adjustment Act of 1990 to require agencies to adjust civil penalties for inflation. Pursuant to that authority, the inflation adjusted civil penalties identified in this appendix supersede the corresponding civil penalty amounts identified in title 49, United States Code.
What are the types of violations and maximum monetary penalties?
(a)
(1)
(2)
(3)
(4)
(5)
(b)
(1) A CDL-holder who is convicted of violating an out-of-service order shall be subject to a civil penalty of not less than $2,985 for a first conviction and not less than $5,970 for a second or subsequent conviction;
(2) An employer of a CDL-holder who knowingly allows, requires, permits, or authorizes an employee to operate a CMV during any period in which the CDL-holder is subject to an out-of-service order, is subject to a civil penalty of not less than $5,391 or more than $29,849; and
(3) An employer of a CDL-holder who knowingly allows, requires, permits, or authorizes that CDL-holder to operate a CMV in violation of a Federal, State, or local law or regulation pertaining to railroad-highway grade crossings is subject to a civil penalty of not more than $15,474.
(c)
(d)
(e)
(1) All knowing violations of 49 U.S.C. chapter 51 or orders or regulations issued under the authority of that chapter applicable to the transportation or shipment of hazardous materials by commercial motor vehicle on the highways are subject to a civil penalty of not more than $77,114 for each violation. Each day of a continuing violation constitutes a separate offense.
(2) All knowing violations of 49 U.S.C. chapter 51 or orders or regulations issued under the authority of that chapter applicable to training related to the transportation or shipment of hazardous materials by commercial motor vehicle on highways are subject to a civil penalty of not less than $463 and not more than $77,114 for each violation.
(3) All knowing violations of 49 U.S.C. chapter 51 or orders, regulations or exemptions under the authority of that chapter applicable to the manufacture, fabrication, marking, maintenance, reconditioning, repair, or testing of a packaging or container that is represented, marked, certified, or sold as being qualified for use in the transportation or shipment of hazardous materials by commercial motor vehicle on highways are subject to a civil penalty of not more than $77,114 for each violation.
(4) Whenever regulations issued under the authority of 49 U.S.C. chapter 51 require compliance with the FMCSRs while transporting hazardous materials, any violations of the FMCSRs will be considered a violation of the HMRs and subject to a civil penalty of not more than $77,114.
(5) If any violation subject to the civil penalties set out in paragraphs (e)(1) through (4) of this appendix results in death, serious illness, or severe injury to any person or in substantial destruction of property, the civil penalty may be increased to not more than $179,933 for each offense.
(f)
(2) A motor carrier operating a commercial motor vehicle designed or used to transport hazardous materials for which placarding of a motor vehicle is required under regulations prescribed under 49 U.S.C. chapter 51 is subject, after being placed out of service because of receiving a final “unsatisfactory” safety rating, to a civil penalty of not more than $77,114 for each offense. If the violation results in death, serious illness, or severe injury to any person or in substantial destruction of property, the civil penalty may be increased to not more than $179,933 for each offense. Each day the transportation continues in violation of a final “unsatisfactory” safety rating constitutes a separate offense.
(g)
(1) A person who operates as a motor carrier for the transportation of property in violation of the registration requirements of 49 U.S.C. 13901 is liable for a minimum penalty of $10,282 per violation.
(2) A person who knowingly operates as a broker in violation of registration requirements of 49 U.S.C. 13904 or financial security requirements of 49 U.S.C. 13906 is liable for a penalty not to exceed $10,282 for each violation.
(3) A person who operates as a motor carrier of passengers in violation of the registration requirements of 49 U.S.C. 13901 is liable for a minimum penalty of $25,705 per violation.
(4) A person who operates as a foreign motor carrier or foreign motor private carrier of property in violation of the provisions of 49 U.S.C. 13902(c) is liable for a minimum penalty of $10,282 per violation.
(5) A person who operates as a foreign motor carrier or foreign motor private carrier without authority, before the implementation of the land transportation provisions of the North American Free Trade Agreement, outside the boundaries of a commercial zone along the United States-Mexico border, is liable for a maximum penalty of $14,140 for an intentional violation and a maximum penalty of $35,351 for a pattern of intentional violations.
(6) A person who operates as a motor carrier or broker for the transportation of hazardous wastes in violation of the registration provisions of 49 U.S.C. 13901 is
(7) A motor carrier or freight forwarder of household goods, or their receiver or trustee, that does not comply with any regulation relating to the protection of individual shippers, is liable for a minimum penalty of $1,547 per violation.
(8) A person—
(i) Who falsifies, or authorizes an agent or other person to falsify, documents used in the transportation of household goods by motor carrier or freight forwarder to evidence the weight of a shipment or
(ii) Who charges for services which are not performed or are not reasonably necessary in the safe and adequate movement of the shipment is liable for a minimum penalty of $3,095 for the first violation and $7,737 for each subsequent violation.
(10) A person who offers, gives, solicits, or receives transportation of property by a carrier at a different rate than the rate in effect under 49 U.S.C. 13702 is liable for a maximum penalty of $154,742 per violation. When acting in the scope of his/her employment, the acts or omissions of a person acting for or employed by a carrier or shipper are considered to be the acts or omissions of that carrier or shipper, as well as that person.
(11) Any person who offers, gives, solicits, or receives a rebate or concession related to motor carrier transportation subject to jurisdiction under subchapter I of 49 U.S.C. chapter 135, or who assists or permits another person to get that transportation at less than the rate in effect under 49 U.S.C. 13702, commits a violation for which the penalty is $309 for the first violation and $387 for each subsequent violation.
(12) A freight forwarder, its officer, agent, or employee, that assists or willingly permits a person to get service under 49 U.S.C. 13531 at less than the rate in effect under 49 U.S.C. 13702 commits a violation for which the penalty is up to $774 for the first violation and up to $3,095 for each subsequent violation.
(13) A person who gets or attempts to get service from a freight forwarder under 49 U.S.C. 13531 at less than the rate in effect under 49 U.S.C. 13702 commits a violation for which the penalty is up to $774 for the first violation and up to $3,095 for each subsequent violation.
(14) A person who knowingly authorizes, consents to, or permits a violation of 49 U.S.C. 14103 relating to loading and unloading motor vehicles or who knowingly violates subsection (a) of 49 U.S.C. 14103 is liable for a penalty of not more than $15,474 per violation.
(15) [Reserved]
(16) A person required to make a report to the Secretary, answer a question, or make, prepare, or preserve a record under part B of subtitle IV, title 49, U.S.C., or an officer, agent, or employee of that person, is liable for a minimum penalty of $1,028 and for a maximum penalty of $7,737 per violation if it does not make the report, does not completely and truthfully answer the question within 30 days from the date the Secretary requires the answer, does not make or preserve the record in the form and manner prescribed, falsifies, destroys, or changes the report or record, files a false report or record, makes a false or incomplete entry in the record about a business-related fact, or prepares or preserves a record in violation of a regulation or order of the Secretary.
(17) A motor carrier, water carrier, freight forwarder, or broker, or their officer, receiver, trustee, lessee, employee, or other person authorized to receive information from them, who discloses information identified in 49 U.S.C. 14908 without the permission of the shipper or consignee is liable for a maximum penalty of $3,095.
(18) A person who violates a provision of part B, subtitle IV, title 49, U.S.C., or a regulation or order under Part B, or who violates a condition of registration related to transportation that is subject to jurisdiction under subchapter I or III of chapter 135, or who violates a condition of registration of a foreign motor carrier or foreign motor private carrier under section 13902, is liable for a penalty of $774 for each violation if another penalty is not provided in 49 U.S.C. chapter 149.
(21) * * *
(i) Who knowingly and willfully fails, in violation of a contract, to deliver to, or unload at, the destination of a shipment of household goods in interstate commerce for which charges have been estimated by the motor carrier transporting such goods, and for which the shipper has tendered a payment in accordance with part 375, subpart G of this chapter, is liable for a civil penalty of not less than $15,474 for each violation. Each day of a continuing violation constitutes a separate offense.
(22) A broker for transportation of household goods who makes an estimate of the cost of transporting any such goods before entering into an agreement with a motor carrier to provide transportation of household goods subject to FMCSA jurisdiction is liable to the United States for a civil penalty of not less than $11,940 for each violation.
(23) A person who provides transportation of household goods subject to jurisdiction under 49 U.S.C. chapter 135, subchapter I, or provides broker services for such transportation, without being registered under 49 U.S.C. chapter 139 to provide such transportation or services as a motor carrier or broker, as the case may be, is liable to the United States for a civil penalty of not less than $29,849 for each violation.
(h)
(i)
(1) Who by any means tries to evade regulation of motor carriers under title 49, United States Code, chapter 5, chapter 51, subchapter III of chapter 311 (except sections 31138 and 31139) or sections 31302, 31303, 31304, 31305(b), 31310(g)(1)(A), or 31502, or a regulation issued under any of those provisions, shall be fined at least $2,056 but not more than $5,141 for the first violation and at least $2,570 but not more than $7,711 for a subsequent violation.
(2) Who tries to evade regulation under part B of subtitle IV, title 49, U.S.C., for carriers or brokers is liable for a penalty of at least $2,056 for the first violation or at least $5,141 for a subsequent violation.
In proposed rule document 2016–10170 beginning on page 27220 in the issue of Thursday, May 5, 2016, make the following correction:
In Appendix A to Subpart T of Part 431, on page 27258, in the first column, above the thirteenth line from the bottom, insert the following equation:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM); reopening of comment period.
This document announces the reopening of the comment period for the above-referenced NPRM, which proposed the adoption of a new airworthiness directive (AD) that would apply to certain Zodiac Seats California LLC seating systems. The NPRM proposed to require removing affected seating systems. This reopening of the comment period is necessary to ensure that all interested persons have ample opportunity to submit any written relevant data, views, or arguments regarding the proposed requirements of the NPRM.
We must receive comments on the NPRM by July 7, 2016.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Patrick Farina, Aerospace Engineer, Cabin Safety & Environmental Systems Branch, ANM–150L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712–4137; phone: 562–627–5344; fax: 562–627–5210; email:
We proposed to amend 14 CFR part 39 by adding a notice of proposed rulemaking (NPRM) that would apply to certain Zodiac Seats California LLC seating systems. The NPRM was published in the
Since we issued the NPRM, we have received a request from Zodiac Seats California LLC to extend the comment period. Zodiac stated that initial review of the NPRM by the Society of Automotive Engineers (SAE) Aircraft Seat Committee revealed that since the subject matter of the NPRM is highly significant to the industry, more time is necessary to coordinate the industry input to formalize comments. Zodiac added that the comment due date of June 6, 2016, did not provide adequate time to properly research the topics and submit practical comments.
We agree with the commenter's request. We have determined that it is appropriate to reopen the comment period for the NPRM to give all interested persons additional time to examine the proposed requirements and submit comments.
The original comment period for the NPRM, Docket No. FAA–2016–5595, Directorate Identifier 2015–NM–087–AD, closed on June 6, 2016.
We consider it necessary to reopen the comment period to give all interested persons additional time to examine the proposed requirements of the NPRM and submit comments. We have determined that reopening the comment period until July 7, 2016, will not compromise the safety of these airplanes.
The comment period for Docket No. FAA–2016–5595, Directorate Identifier 2015–NM–087–AD, has been revised. The comment period now closes July 7, 2016.
No other part of the regulatory information has been changed; therefore, the NPRM is not republished in the
Office of the Secretary, Department of Transportation.
Notice of third public meeting of advisory committee.
This notice announces the third meeting of the Advisory Committee on Accessible Air Transportation (ACCESS Advisory Committee).
The third meeting of the ACCESS Advisory Committee will be held on July 11 and 12, 2016, from 9 a.m. to 5 p.m., Eastern Daylight Time. Members of the public may submit written comments on the topics to be considered during the meeting by July 5, 2016. See Supplementary Information for details.
The meeting will be held at the Ritz Carlton, Pentagon City, 1250 Hayes Street, Arlington, VA 22202, in the Diplomat Room. Attendance is open to the public up to the room's capacity of 150 attendees. Since space is limited, any member of the general public who plans to attend this meeting must notify the registration contact identified below no later than July 5, 2016.
To register to attend the meeting, please contact Kyle Illgenfritz (
The third meeting of the ACCESS Advisory Committee will be held on July 11 and 12, 2016, from 9 a.m. to 5 p.m., Eastern Daylight Time. The meeting will be held at the Ritz Carlton, Pentagon City, 1250 Hayes Street, Arlington, VA 22202, in the Diplomat Room. At the meeting, the ACCESS Advisory Committee will continue to address whether to require accessible inflight entertainment (IFE) and strengthen accessibility requirements for other in-flight communications, whether to require an accessible lavatory on new single-aisle aircraft over a certain size, and whether to amend the definition of “service animals” that may accompany passengers with a disability on a flight. This meeting will include reports from the three working groups on the status of their discussions of the issues identified in previous meetings and any strawman proposals that are being developed. Prior to the meeting, the agenda will be available on the ACCESS Advisory Committee's Web site,
The meeting will be open to the public. Attendance will be limited by the size of the meeting room (maximum 150 attendees). Because space is limited, we ask that any member of the public who plans to attend the meeting notify the registration contact, Kyle Illgenfritz (
Members of the public may submit written comments on the topics to be considered during the meeting by July 5, 2016, to FDMC, Docket Number DOT–OST–2015–0246. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. DOT recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that DOT can contact you if there are questions regarding your submission.
To submit your comment online, go to
To view comments and any documents mentioned in this preamble as being available in the docket, go to
The ACCESS Advisory Committee is established by charter in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. Secretary of Transportation Anthony Foxx approved the ACCESS Advisory Committee charter on April 6, 2016. The committee's charter sets forth policies for the operation of the advisory committee and is available on the Department's Web site at
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to
DOT anticipates that the ACCESS Advisory Committee will have three additional two-day meetings in Washington DC The meetings are tentatively scheduled for following dates: Fourth meeting, August 16–17; fifth meeting, September 22–23, and the sixth and final meeting, October 13–14. Notices of all future meetings will be published in the
Notice of this meeting is being provided in accordance with the Federal Advisory Committee Act and the General Services Administration regulations covering management of Federal advisory committees.
Issued under the authority of delegation in 49 CFR 1.27(n).
National Institute of Standards and Technology (NIST), United States Department of Commerce.
Notice of proposed rulemaking.
NIST is seeking comments on proposed regulations intended to foster the exchange of scientific and technical personnel among academia, industry, including particularly small businesses, and Federal laboratories. Such exchanges are an effective means for accelerating the transfer of Federal laboratory technology to benefit the United States economy. An objective of this rulemaking is to clarify the appropriate use of Cooperative Research and Development Agreement authority by a Federal laboratory for personnel exchanges where the Federal laboratory has an existing relationship with the potential partner through another legal mechanism, as well as in the context of joint research projects or the development of existing laboratory technology, and through use of the General Services Administration's Presidential Innovation Fellows program for Federal laboratory Entrepreneur-in-Residence programs. Another objective of this rulemaking is to remove outdated regulations addressing the licensing of inventions owned by the Department of Commerce. When the comment period is concluded, NIST will analyze the comments received, incorporate comments as appropriate, and publish a final regulation.
Comments must be received no later than July 27, 2016.
Submit your comments, identified by docket identification (ID) number: 160311228–6228–01, through the
Courtney Silverthorn, via email:
This proposed rule may be of interest to you if you are an educational institution, a company (including a small business firm), or a nonprofit institution, that collaborates or would like to collaborate with Federal Government employees on technology research and development of mutual interest.
The Stevenson-Wydler Technology Innovation Act of 1980, Public Law 96–480, as amended (codified at title 15 of the United States Code (U.S.C.), Section 3701
Pursuant to authority delegated to it by the Secretary of Commerce, NIST is providing notice to the public of proposed rulemaking to remove outdated provisions in part 17 of title 15 of the Code of Federal Regulations (CFR) regarding the licensing of inventions owned by the Department, and to revise part 17 to address the use of personnel exchange authorities and programs as authorized under 15 U.S.C. 3712, which authorizes the establishment of a program to foster the exchange of scientific and technical personnel among academia, industry, and Federal laboratories.
Under the Stevenson-Wydler Act, several mechanisms have been developed which are being used by various Federal agencies for exchanging personnel with the public and private sectors. The proposed rules will facilitate agencies' use of existing mechanisms, as well as provide for more integrated programs intended to expand the exchange of personnel as authorized under section 3712, in order to accelerate the transfer of innovative technologies from Federal laboratories for the benefit of the United States and its economy. Some current authorities relevant to personnel exchange between Federal laboratories and non-federal partners are described below.
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The regulation proposed by NIST to implement 15 U.S.C. 3712, in consultation jointly with the Department of Energy and the National Science Foundation, is intended to accomplish two main objectives. The first objective is to clarify the appropriate use of CRADA authority under 15 U.S.C. 3710a for personnel exchanges where a Federal laboratory has an existing relationship with the potential partner through another legal mechanism, such as a grant or cooperative agreement. The second objective is to increase the use of existing authorities to implement personnel exchange programs at Federal Laboratories: (1) By utilizing the existing CRADA authority to transfer
Under the proposed rule, all existing provisions in part 17 of title 15 of the Code of Federal Regulations (CFR), “Licensing of Government-Owned Inventions in the Custody of the Department of Commerce,” which are outdated, would be deleted. Outdated subpart A implemented for the Department of Commerce licensing rules found at 41 CFR part 101–4, which were themselves removed at 50 FR 28402, July 12, 1985. Outdated subpart B was reserved. Outdated subpart C set forth appeal procedures addressed to the outdated licensing rules of subpart A. All subparts are obsolete, and the rules governing the licensing of government-owned inventions are today found in 37 CFR part 404. The heading of part 17 would be revised to read “Personnel Exchanges Between Federal Laboratories and Non-Federal Entities,” and five new sections would be added.
Section 17.1, Scope, sets forth the scope of revised part 17, which is to implement 15 U.S.C. 3712 and to clarify the appropriate use of personnel exchanges in relation to Federal laboratory CRADAs under the authority of 15 U.S.C. 3710a(a)(1), including CRADAs involving as parties recipients of Federal funding under grants and contracts, which could include National Network for Manufacturing Innovation awardees.
Section 17.2, Definitions, provides definitions for certain terms used in this part.
Section 17.3, Exchange of Federal Laboratory Personnel with Recipients of Federal Funding, provides in paragraph (a) that the existence of a funding agreement (as defined in 35 U.S.C. 201(b)) between a Federal laboratory and a contractor shall not preclude a CRADA with that contractor, where the Federal laboratory director makes a determination that the technical subject matter of the funding agreement is sufficiently distinct from that of the CRADA. Paragraph (a) also provides that a contractor which is a collaborating party shall in no event reimburse a Federal agency under a CRADA using funds awarded to the contractor by that agency.
Paragraph (b) of section 17.3 provides that a Federal laboratory may exchange personnel with a contractor under a CRADA where the determination required under paragraph (a) cannot be made, provided that the CRADA includes at least one collaborating party in addition to the Federal laboratory and that contractor. In that circumstance, the Federal laboratory shall not provide services, property, or other resources to that contractor under the CRADA, and if any individual terms of that contractor's funding agreement conflict with the terms of the multi-party CRADA, then the funding agreement terms will control as applied to that contractor and the Federal laboratory only.
Paragraph (c) of section 17.3 sets forth a number of factors which may be taken into account in making the “sufficiently distinct” determination required under paragraph (a), including whether the conduct of specified research or development efforts under the CRADA would require the contractor to perform tasks identical to those required under the funding agreement; whether existing intellectual property to be provided by the Federal laboratory or the contractor under the CRADA is the same as that provided under, or referenced in, the funding agreement; whether the contractor's employees performing the specified research or development efforts under the CRADA are the same employees performing the tasks required under the funding agreement; and whether services, property or other resources contemplated by the Federal Laboratory to be provided to the contractor for the specified research or development efforts under the CRADA would materially benefit the contractor in the performance of tasks required under the funding agreement.
Section 17.4, Personnel Exchanges from a Federal Agency, provides in paragraph (a)(1) that a Federal laboratory may exchange its personnel with a collaborating party under a CRADA where no invention currently exists. Under paragraph (a)(2), a Federal laboratory may exchange personnel with a non-Federal collaborating party for the purposes of developing or commercializing an invention in which the Federal government has an ownership interest, including an invention made by an employee or former employee while in the employment or service of the Federal government, and such personnel exchanged may include such employee or former employee who is an inventor. Paragraph (a)(2) also provides that funding may be provided by the non-federal collaborating party to the Federal laboratory for the participation of the Federal employee in developing or commercializing an invention, including costs for salary and other expenses, such as benefits and travel. Consistent with guidance in the Office of Legal Counsel's Memorandum for Gary Davis, Acting Director, Office of Government Ethics, September 7, 2000, “Application of 18 U.S.C. 209 to Employee-Inventors Who Receive Outside Royalty Payments,” paragraph (a)(2) also sets forth that royalties from inventions received through a license agreement negotiated with the Federal laboratory and paid by the laboratory to an inventor who is a Federal employee are considered Federal compensation. Paragraph (a)(3) provides that where an employee leaves Federal service in order to receive salary or other compensation from a non-Federal organization, a Federal laboratory may use reinstatement authority in accordance with 5 CFR 315.401, or other applicable authorities, to rehire the former Federal employee at the conclusion of the exchange.
In exchanging personnel with a collaborating party under a CRADA, as in any other exercise of the CRADA authority, a Federal Agency should take into account the provisions of 15 U.S.C. 3710a(c)(3) regarding standards of conduct for its employees for resolving potential conflicts of interest.
Section 17.5, Personnel Exchanges to a Federal Agency, provides that a Federal Agency may provide funds for non-federal personnel exchanged in order to bring into a Federal laboratory outside personnel with expertise in scientific commercialization through the Presidential Innovation Fellows program, and that an Agency will engage with the General Services Administration (GSA) to transfer funding for exchanged personnel and to select and place Entrepreneurs-In-Residence at the laboratory for the purposes of evaluating the laboratory's technologies, and providing technical consulting to facilitate readying a technology for commercialization by an outside entity.
NIST requests comments on this proposed rule to encourage the exchange of personnel among Federal laboratories, State, local, and tribal governments, academia and industry, including small businesses. NIST is requesting ideas and comments about ways in which an integrated program might be developed. We have included some questions that you might consider as you develop your comments.
1. Personnel exchanges commonly occur in the course of CRADAs involving Federal laboratories and collaborating parties. Are there ways to further promote personnel exchanges
2. Do the proposed regulations facilitate the exchange of personnel between Federal laboratories and academia and industry? Are there additional mechanisms that should be incorporated in this regulation?
When submitting comments, remember to:
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Please organize your comments by referencing the specific question you are responding to or the relevant section number in the proposed regulatory text.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. Provide specific examples to illustrate your concerns and suggest alternatives.
vi. Explain your views as clearly as possible.
vii. Comments that contain profanity, vulgarity, threats, or other inappropriate language will not be considered.
viii. Make sure to submit your comments by the comment period deadline identified.
This rulemaking is a significant regulatory action under Sections 3(f)(3) and 3(f)(4) of Executive Order 12866, as it raises novel policy issues. This rulemaking, however, is not an “economically significant” regulatory action under Section 3(f)(1) of the Executive Order, as it does not have an effect on the economy of $100 million or more in any one year, and it does not have a material adverse effect on the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
This proposed rule does not contain policies with Federalism implications as defined in Executive Order 13132.
The Regulatory Flexibility Act (RFA) requires the preparation and availability for public comment of “an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:
A description of this proposed rule, why it is being considered, and the objectives of this proposed rule are contained in the preamble and in the
The information provided above supports a determination that this rule would not have a significant economic impact on a substantial number of small entities. Because this rulemaking, if adopted, would directly affect Federal agencies and not small entities, NIST concludes the action would not result in a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required and none has been prepared.
This proposed rule contains no new collection of information subject to the Paperwork Reduction Act, 44 U.S.C. 3501
This proposed rule will not significantly affect the quality of the human environment. Therefore, an environmental assessment or Environmental Impact Statement is not required to be prepared under the National Environmental Policy Act of 1969.
Federal employees, Inventions and patents, Laboratories, Research and development, Science and technology, Technology transfer.
For the reasons stated in the preamble, the National Institute of Standards and Technology proposes to revise 15 CFR part 17 as follows:
15 U.S.C. 3712.
(a) The Stevenson-Wydler Technology Innovation Act of 1980, Public Law 96–480, as amended (codified at title 15 of the United States Code (U.S.C.), section 3701
(b) This part implements 15 U.S.C. 3712 and provides clarification regarding the appropriate use of personnel exchanges in relation to Federal laboratory Cooperative Research and Development Agreements (CRADAs) under the authority of 15 U.S.C. 3710a.
(c) This part is applicable to exchanges of personnel between Federal laboratories and parties to a CRADA under 15 U.S.C. 3710a(a)(1).
(a) The term
(b) The term
(c) The term
(a) In accordance with 15 U.S.C. 3710a(b)(3)(A) and 3710a(d)(1), a Federal laboratory may provide personnel, services, property, and other resources to a collaborating party, with or without reimbursement (but not funds to non-Federal parties) for the conduct of specified research or development efforts under a CRADA which are consistent with the missions of the Federal laboratory. The existence of a funding agreement between a Federal laboratory and a contractor shall not preclude the Federal laboratory from using its authority under 15 U.S.C. 3710a to enter into a CRADA with the contractor as a collaborating party for the conduct of specified research or development efforts, where the director of the Federal laboratory determines that the technical subject matter of the funding agreement is sufficiently distinct from that of the CRADA. In no event shall a contractor which is a collaborating party reimburse a Federal agency under a CRADA using funds awarded to the contractor by that agency.
(b)(1) A Federal laboratory may enter into a CRADA with a contractor as a collaborating party for the purpose of exchange of personnel for the conduct of specified research or development efforts where the determination required under paragraph (a) of this section could not be made, provided that:
(i) The CRADA includes at least one collaborating party in addition to the Federal laboratory and that contractor; and
(ii) The Federal laboratory shall not provide services, property or other resources to that contractor under the CRADA.
(2) Where a Federal laboratory enters into a CRADA with a contractor under this paragraph (b), the terms of that contractor's funding agreement shall normally supersede the terms of the CRADA, to the extent that any individual terms conflict, as applied to that contractor and the Federal laboratory only.
(c) In making the determination required under paragraph (a) of this section, the director of a Federal laboratory may consider factors including the following:
(1) Whether the conduct of specified research or development efforts under the CRADA would require the contractor to perform tasks identical to those required under the funding agreement;
(2) Whether existing intellectual property to be provided by the Federal laboratory or the contractor under the CRADA is the same as that provided under, or referenced in, the funding agreement;
(3) Whether the contractor's employees performing the specified research or development efforts under the CRADA are the same employees performing the tasks required under the funding agreement; and
(4) Whether services, property or other resources contemplated by the Federal laboratory to be provided to the contractor for the specified research or development efforts under the CRADA would materially benefit the contractor in the performance of tasks required under the funding agreement.
(a) For personnel exchanges in which a Federal laboratory maintains funding for Federal personnel provided to a collaborating party—
(1) in accordance with 15 U.S.C. 3710a(b)(3)(A), a Federal laboratory may exchange personnel with a collaborating party for the purposes of specified scientific or technical research towards a mutual goal consistent with the mission of the Agency, where no invention currently exists, or
(2) in accordance with 15 U.S.C. 3710a(b)(3)(C), a Federal laboratory may exchange personnel with a non-Federal collaborating party for the purposes of developing or commercializing an invention in which the Federal government has an ownership interest, including an invention made by an employee or former employee while in the employment or service of the Federal government, and such personnel exchanged may include such employee or former employee who is an inventor.
(i) Funding may be provided by the non-federal collaborating party to the Federal laboratory for the participation of the Federal employee in developing or commercializing an invention, including costs for salary and other expenses, such as benefits and travel.
(ii) Royalties from inventions received through a license agreement negotiated with the Federal laboratory and paid by the Federal laboratory to an inventor who is a Federal employee are considered Federal compensation.
(3) Where an employee leaves Federal service in order to receive salary or other compensation from a non-Federal organization, a Federal laboratory may use reinstatement authority in accordance with 5 CFR 315.401, or other applicable authorities, to rehire the former Federal employee at the conclusion of the exchange.
For exchanges in which a Federal Agency provides funds for the non-federal personnel—
(a) Outside personnel with expertise in scientific commercialization may be brought in to a Federal laboratory through the Presidential Innovation Fellows program (see 5 CFR 213.3102(r)) for Entrepreneur-In-Residence programs or similar, related programs.
(b) An Agency will engage with the General Services Administration (GSA) to transfer funding for exchanged personnel, and will work with GSA to select and place Entrepreneurs-In-Residence at the laboratory for the purposes of evaluating the laboratory's technologies, and providing technical consulting to facilitate readying a technology for commercialization by an outside entity.
Federal Highway Administration (FHWA), Federal Transit Administration (FTA); U.S. Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FHWA and FTA propose revisions to the transportation planning regulations to promote more effective regional planning by States and metropolitan planning organizations (MPO). The goal of the proposed revisions is to result in unified planning products for each urbanized area (UZA), even if there are multiple MPOs designated within that urbanized area. Specifically it would result in MPOs developing a single metropolitan transportation plan, a single transportation improvement program (TIP), and a jointly established set of performance targets for the entire urbanized area and contiguous area expected to become urbanized within a 20-year forecast period for the transportation plan. If multiple MPOs are designated within that urbanized area, they would jointly prepare these unified planning products. To accomplish this, the proposed revisions clarify that the metropolitan planning area must include the entire urbanized area and contiguous area expected to become urbanized within 20 years.
These proposed revisions would better align the planning regulations with statutory provisions concerning the establishment of metropolitan planning area (MPA) boundaries and the designation of MPOs. This includes the statutory requirement for the MPA to include an urbanized area in its entirety, and the exception provision to allow more than one MPO to serve a single MPA if warranted by the size and complexity of the MPA. The rulemaking would establish clearer operating procedures, and reinstate certain coordination and decisionmaking requirements for situations where there is more than one MPO serving an MPA. The proposed rule includes a requirement for unified planning products for the MPA including jointly established performance targets within an MPA, and a single metropolitan transportation plan and TIP for the entire MPA in order to result in planning products that reflect the regional needs of the entire urbanized area. These unified planning products would be jointly developed by the multiple MPOs in such MPAs where more than one MPO is designated. The FHWA and FTA propose to phase in implementation of these proposed coordination requirements and the proposed requirements for MPA boundary and MPO boundaries agreements over 2 years.
Comments must be received on or before August 26, 2016.
Mail or hand deliver comments to: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, or submit electronically at
This document and all comments received may be viewed online through the Federal eRulemaking portal at
For FHWA: Mr. Harlan W. Miller, Planning Oversight and Stewardship Team (HEPP–10), (202) 366–0847; or Ms. Janet Myers, Office of the Chief Counsel (HCC–30), (202) 366–2019. For FTA: Ms. Sherry Riklin, Office of Planning and Environment, (202) 366–5407; Mr. Dwayne Weeks, Office of Planning and Environment, (202) 493–0316; or Mr. Christopher Hall, Office of Chief Counsel, (202) 366–5218. Both agencies are located at 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8 a.m. to 4:30 p.m., ET for FHWA, and 9 a.m. to 5:30 p.m., ET for FTA, Monday through Friday, except Federal holidays.
This regulation proposes to improve the transportation planning process by strengthening the coordination of MPOs and States and promoting the use of regional approaches to planning and decisionmaking. The proposed rule would emphasize the importance of applying a regional perspective during the planning process, to ensure that transportation investments reflect the needs and priorities of an entire region. Recognizing the critical role MPOs play in providing for the well-being of a region, this proposed rule would strengthen the voice of MPOs in the transportation planning process.
This proposed rule would revise the regulatory definition of “metropolitan planning area” (MPA) to better align with the statutory requirements in 23 U.S.C. 134 and 49 U.S.C. 5303.
An exception in 23 U.S.C. 134(d)(7) allows multiple MPOs to be designated within a single MPA if the Governor and MPO determine that the size and complexity of the area make multiple MPOs appropriate; the proposed rule would establish certain requirements applicable in such instances where multiple MPOs serve a single MPA. It
The requirement for unified planning products also applies to urbanized areas that cross State lines. In multistate urbanized areas, the Governors and MPOs designated within the MPA must jointly determine whether the size and complexity of the MPA warrant designation of more than one MPO and must jointly develop unified planning products.
These requirements for a single planning process and a single metropolitan transportation plan to accommodate the intended growth of a region will enable individuals within that region to better engage in the planning process and facilitate their efforts to ensure that the growth trajectory matches their vision and goals. In order to support the development of these single documents, the MPOs would be required to establish procedures for joint decisionmaking, including a process for resolving disagreements.
Additionally, the proposed rule seeks to strengthen the role that MPOs play in the planning process by requiring States and MPOs to agree to a process for resolving disagreements and including that process in the documentation reviewed by FHWA and FTA when they make a planning finding under 23 U.S.C. 135(g)(8). The planning finding is a determination on whether the transportation planning process through which statewide transportation plans and programs are developed is consistent with 23 U.S.C. 134–135.
These proposed changes to the planning regulations are designed to facilitate metropolitan and statewide transportation planning processes that are more efficient, more comprehensible to stakeholders and the public, and more focused on projects that address critical regional needs. The proposed rule would help position MPOs to respond to the growing trend of urbanization. It would better align the planning processes with the regional scale envisioned by the performance-based planning framework and particularly those measures focused on congestion and system performance. The proposed rule also would help MPOs to achieve economies of scale in planning by working together and drawing on a larger pool of human, material, financial, and technological resources.
The metropolitan planning statute defines an MPA as “the geographic area determined by agreement between the metropolitan planning organization for the area and the Governor under subsection [134](e)” 23 U.S.C. 134(b)(1). The agreement on the geographic area is subject to the minimum requirements contained in 23 U.S.C. 134(e)(2)(A), which states that each MPA “shall encompass at least the existing urbanized area and the contiguous area expected to become urbanized within a 20-year forecast period for the transportation plan”.
The MPA and MPO provisions in 23 U.S.C. 134 make it clear that the intent for a typical metropolitan planning
In 1991, the Intermodal Surface Transportation Efficiency Act was enacted with provisions intended to strengthen metropolitan planning. In particular, the law gave MPOs responsibility for coordinated planning to address the challenges of regional congestion and air quality issues. This enhanced planning role for MPOs was defined in the 1993 planning regulation, which was written to carry out these changes to statute. The 1993 planning regulation described a single coordinated planning process for the metropolitan planning area (MPA) resulting in a single metropolitan transportation plan for the MPA. In several locations, the 1993 regulation recognized the possibility of multiple MPOs within a single MPA and provided expectations for coordination, which included an overall transportation plan for the entire area. (See 58 FR 58040, October 28, 1993). The 1993 regulation stated in the former § 450.310(g) that “where more than one MPO has authority within a metropolitan planning area or a nonattainment or maintenance area, there shall be an agreement between the State departments(s) of transportation and the MPOs describing how the processes will be coordinated to assure the development of an overall transportation plan for the metropolitan planning area.” Further, that regulation stated in former § 450.312(e) that where “more than one MPO has authority in a metropolitan planning area . . . the MPOs and the Governor(s) shall cooperatively establish the boundaries of the metropolitan planning area . . . and the respective jurisdictional responsibilities of each MPO.” In practice, however, many MPOs interpreted the MPA to be synonymous with the boundaries of their MPO's jurisdiction, even in those areas where multiple MPOs existed within a single urbanized area, resulting in multiple “MPAs” within a single urbanized area.
In 2007, the FHWA and FTA updated the regulations to align with changes made in the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users and its predecessor, the Transportation Equity Act for the 21st Century. The revised regulations reflected the practice of having multiple “MPAs” within a single urbanized area, although the statute pertaining to this issue had not changed. The 2007 regulation refers to multiple MPOs within an urbanized area rather than multiple MPOs within an MPA, and the term “MPA” was used to refer synonymously to the boundaries of an MPO. The regulations stated “if more than one MPO has been designated to serve an urbanized area, there shall be a written agreement among the MPOs, the State(s), and the public transportation operator(s) describing how the metropolitan transportation planning processes will be coordinated to assure the development of consistent metropolitan transportation plans and TIPs across the MPA boundaries, particularly in cases in which a proposed transportation investment extends across the boundaries of more than one MPA.” See 72 FR 7224, February 14, 2007. The FHWA and FTA adopted that language as § 450.314(d), and redesignated it in a 2016 rulemaking as § 450.314(e).
As a result, since 2007, the language of the regulation has supported the possibility of multiple MPOs within an urbanized area rather than within an MPA. The FHWA and FTA have concluded this 2007 change in the regulatory definition has fostered confusion about the statutory requirements and resulted in less efficient planning outcomes where multiple TIPs and metropolitan transportation plans are developed within a single urbanized area. This proposed rule is designed to correct the problems that have occurred under the 2007 rule and return to the structure embodied in the rule before the 2007 amendments and envisioned in statute. The additional coordination requirements pertain to all MPOs designated within the MPA boundaries.
Illustrations of metropolitan areas are included in the docket to aid understanding of the distinction between MPO and MPA boundaries, and also the difference between the way MPAs have been designated in practice and the minimum area that must be included as a result of this proposed rulemaking. These illustrations will help clarify the coordination requirements proposed in this rulemaking.
The metropolitan planning statute calls for “each MPO to prepare and update a transportation plan for its metropolitan planning area” and “develop a TIP for the metropolitan planning area.” 23 U.S.C. 134(i)(1)(A) and (j)(1)(A). As discussed above, the metropolitan planning statute includes an exception provision in 23 U.S.C. 134(d)(7) that allows more than one MPO in an MPA under certain conditions. In some instances, multiple MPOs have been designated not only within a single MPA, but also within a single urbanized area in an MPA. Presently, such MPOs typically create separate metropolitan transportation plans and TIPs for separate parts of the urbanized area. Currently, the regulations require that where multiple MPOs exist within the same urbanized area, their written agreements must describe how they will coordinate activities. However, the extent and effectiveness of coordination varies, and in some cases effective coordination on regional needs and interests can prove challenging. Ultimately, the Secretary of Transportation believes, and FHWA and FTA concur, that the end result of two or more separate metropolitan transportation planning processes, resulting in two or more separate plans and TIPs for a single urbanized area is most often both inefficient and confusing to the public. For example, members of the public may be affected by projects in multiple MPO jurisdictions, either because they live in the area of one MPO and work or regularly travel to another, or because the MPOs' jurisdictional lines bisect their community. They would therefore find it necessary to contribute to each MPO's separate planning process in order to have their regional concerns adequately considered. Public participation in transportation planning is critical to ensuring that the investment decisions meet the needs of the affected communities.
Further, a regional perspective is needed if metropolitan transportation planning is to maximize economic opportunities, while also addressing the externalities of growth such as congestion, air and water quality impacts, and impacts on resilience. The
The statewide planning statute calls for a continuing, cooperative, and comprehensive process for developing the statewide plan and the statewide transportation improvement program (STIP). 23 U.S.C. 135(a)(3). The statute requires States to develop the long range statewide plan and the STIP in cooperation with MPOs designated under 23 U.S.C. 134. 23 U.S.C. 135(f)(2)(A) and (g)(2)(A). While these statutes require that the State work in cooperation with the MPOs on long-range statewide transportation plans and STIPs, the extent to which MPO voices are heard varies significantly. The nature of decisionmaking authority of MPOs and States varies due to numerous factors, including the extent of local funding for transportation projects. The Secretary of Transportation believes that the voices of MPOs will be strengthened by having a single coordinated metropolitan transportation plan and TIP for each MPA, which should create a united position on transportation needs and priorities within that urbanized area. Ultimately, each relationship between State and MPO is unique, and there may not be a single coordination process that is appropriate for all areas of the country. However, it is the opinion of the Secretary of Transportation that there must be adequate cooperation between States and MPOs. The FHWA and FTA concur in those views, and therefore this proposed rule would require that States and MPOs demonstrate evidence of cooperation, including the existence of an agreed upon dispute resolution process.
The purpose of the Planning program is to use public funds effectively and FHWA and FTA welcome ideas to improve our planning processes. As such, FHWA and FTA seek comment on how DOT can incorporate processes to further ensure that Federal funds are used efficiency by States and MPOs. How can the Statewide and Non metropolitan and Metropolitan Transportation Planning process provide stronger incentives to States and MPOs to manage transportation funding more effectively?
The proposed rule would revise the definition of “metropolitan planning area” in § 450.104 to add language to align the definition with the basic statutory requirements for MPA boundaries. The purpose of the revision is to help reduce confusion about MPA requirements. The current definition describes the MPA as the geographic area determined by agreement between the MPO(s) for the area and the Governor. That definition does not include any reference to the minimum requirement in 23 U.S.C. 134(e)(2)(A) that the MPA must include the entire urbanized area and the contiguous area expected to become urbanized within a 20-year forecast period for the transportation plan. The revised definition would add a description of the minimum requirement from the statute, and describe the 23 U.S.C. 134(e)(2)(B) option to include more than the minimum geographic area. The FHWA and FTA specifically ask for comments on whether the rule ought to expressly address how States and MPOs should determine MPA boundaries where two or more MPAs are contiguous or can be expected to be contiguous in the near future. For example, should the rule provide that such MPAs must merge? Alternatively, should the rule allow the States and MPOs to tailor the MPA boundaries and the 20-year urbanization forecast to take the proximity of other MPAs into account?
The term “Metropolitan Transportation Plan” is revised by changing the location and number of MPO references in the definition, and by adding a reference to the MPA. Similar changes are proposed for the definition of “Transportation Improvement Program” to make it clear the definition encompasses situations where multiple MPOs in an MPA work together to develop a unified TIP. The inclusion of new references to the MPA in the definitions clarifies that the Metropolitan Transportation Plan and the TIP are developed through the metropolitan transportation planning process for the entire MPA.
The proposed rule would strengthen and clarify expectations for State-MPO coordination, and would require metropolitan planning agreements to include coordination strategies and dispute resolution procedures. Section 450.208(a)(1) previously encouraged States to rely on MPO data and analysis for areas within the MPA; the rule would now require coordination between States and MPOs. This change is proposed to ensure States and MPOs employ consistent data, assumptions and other analytical materials when doing transportation planning; this does not affect roles and responsibilities for project prioritization. The section would be further amended by adding language to require the State and MPO to maintain a current planning agreement that includes a process for resolving disagreements. The metropolitan planning agreement, and its inclusion of strategies for coordination and the resolution of disagreements would be included among the other relevant documents considered by FHWA and FTA as part of their periodic determination under 23 U.S.C. 135(g)(8) whether the transportation planning process through which statewide transportation plans and programs are developed is consistent with 23 U.S.C. 134–135.
The proposed rule would change the reference to “MPO” to “MPO(s)” in two places. This is to more clearly recognize the possibility that multiple MPOs may be involved with the development of a single metropolitan TIP.
The proposed rule would provide a phase-in provision for the proposed requirement in 23 CFR 450.208(a)(1) that metropolitan planning agreement must include strategies for coordination and the resolution of disagreements. In proposed § 450.226(h), the rule would provide a phase-in period of 2 years after the publication date of a final rule. The compliance date for all other proposed changes in 23 CFR part 450, subpart A would be the effective date of the final rule. The FHWA and FTA seek comments on the appropriateness of the proposed 2-year phase-in period.
The proposed rule would add a reference to MPA in the first sentence in § 450.300(a). The addition makes it clear that an MPO carries out the planning process for its MPA. This change will enhance the consistency in the rule, maintaining the statutory focus on the MPO as carrying out planning for its MPA, of which one or more entire urbanized areas are a part.
The proposed rule would add a new paragraph to § 450.306(d). Where there are multiple MPOs for an MPA, the new provision would require the MPOs to jointly establish the MPA's performance targets under 23 CFR part 490 (where applicable), 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d). This requirement for a joint target-setting process would be consistent with the requirements established in the proposed rule for a joint metropolitan plan and TIP for the MPA shared by the MPOs. The FHWA and FTA request comments on the proposed language, and request ideas for alternatives that might better accomplish the goals embodied in the proposal. Those goals are to ensure performance targets appropriately reflect the needs and priorities of the MPA as a whole, and to avoid a situation where the MPOs within a single MPA select inconsistent or conflicting performance targets.
In paragraph (i), the proposed rule would change the reference from “MPO” to “MPO(s)” in the last sentence of the paragraph. This is to more clearly recognize the possibility that multiple MPOs may be involved with the development of an abbreviated plan or TIP using simplified procedures.
As provided in statute, some MPAs will necessarily be so large and complex that multiple MPOs are needed within the MPA. The proposed rule reflects the view, based on an interpretation of the planning statutes and on FHWA and FTA experiences, that when there are multiple MPOs within the same MPA, enhanced coordination and joint decisionmaking procedures are needed to ensure a coordinated and comprehensive planning process within the MPA. The proposed rule would revise § 450.310(e) by clarifying that more than one MPO can be designated for an MPA only when the Governor and MPO(s) determine it is warranted, in accordance with § 450.310(e). This change would reinforce the statutory principle that ordinarily only one MPO shall be designated for an MPA. The proposed rule retains the statutory standard permitting the designation of multiple MPOs within an MPA only if the Governor and existing MPO determine that the MPA's size and complexity necessitate multiple MPOs. Several references in the existing rule to “urbanized areas” would be replaced with “MPA” to better align with the statutory language.
The proposed rule would articulate in § 450.310(e) the limited exemption to the requirement of one MPO per MPA and the requirements applicable when multiple MPOs are designated within the same MPA. The case could arise that multiple MPOs that were previously designated will come to be located within the same MPA, either because this rule, once effective, will require some Governors and MPOs to reevaluate the bounds of MPAs, or due to the future merger of urbanized areas following a Decennial Census. In those situations, paragraph (e) provides that the Governor and MPOs would have to determine whether the size and complexity of the MPA warrant the designation of multiple MPOs.
The statute envisions a single MPO per MPA, with the exception that more than one MPO may be designated only if the Governor and existing MPO determine that the size and complexity of the metropolitan planning area make the designation of multiple MPOs appropriate. However, because of the past practice of many MPOs and Governors treating the term MPA as essentially synonymous with the territory of any particular MPO, many MPOs are not in compliance with the statute. This rule would require some MPOs and Governors to conceptualize for the first time the bounds of the MPAs as geographically distinct from the jurisdictional boundaries of the MPOs. Accordingly, for any MPOs that newly share an MPA with one or more other MPOs as a result of this rulemaking enforcing the statutory definition of MPA, the affected MPOs and Governor must make a determination that the MPA is of a size and complexity that makes multiple MPOs appropriate, or must merge the MPOs in MPAs where the Governor and MPOs determine that the size and complexity do not make multiple MPOs appropriate.
If the Governor and MPOs determine that multiple MPOs are not warranted based on the size and complexity of the MPA, those MPOs would have to merge and follow the redesignation procedures in § 450.310(h). Where it is determined that multiple MPOs are warranted, coordination still would be required among the MPOs in the affected MPA under the rule, with revisions to emphasize that the MPOs would jointly develop a unified plan, TIP, and performance targets for the entire MPA. The MPOs still would be required to establish official, written agreements that clearly identify areas of coordination, the division of transportation planning responsibilities among and between the MPOs, and procedures for joint decisionmaking and the resolution of disagreements—all for and within the affected MPA. Together with the Governor, those MPOs would jointly establish the MPO boundaries within the MPA.
The proposed rule would change a reference to “entire MPA” in paragraph (m), concerning coordination in multistate metropolitan areas, to “entire metropolitan area.” The FHWA and FTA believe “metropolitan area” is consistent with “multistate metropolitan area” and more clearly conveys the intent of the paragraph.
The proposed rule would reorganize, and make technical edits to, existing § 450.312. The proposed rule would add or clarify requirements through revisions in paragraphs (c), (f), (h), and (i).
The proposed rule would reorganize § 450.312(a) by switching the order of the first two sentences. The proposed rule would move certain references to “MPA” and add language in proposed § 450.312(a)(1) to clarify and emphasize that an agreement between the Governor and an MPO concerning the boundaries of an MPA is subject to the minimum requirement that the MPA contain the entire existing urbanized area plus the contiguous area expected to become urbanized within a 20-year forecast period for the transportation plan. The proposed rule also adds a new § 450.312(a)(2) to clarify that when MPOs are contiguous to the same non-urbanized area that is expected to become urbanized within a 20-year forecast period for the transportation plan, they must agree on their mutual MPA boundaries so that their boundaries do not overlap.
Section 450.312(b) would be reorganized. Section 450.312(b) and (c) would be edited for consistency with the requirement that an MPA contain an urbanized area in its entirety.
Section 450.312(f) would be revised to more closely align with the language of 23 U.S.C. 134(f). That provision calls for the Secretary to encourage the Governors and MPOs in a multistate metropolitan area to coordinate transportation planning across the entire metropolitan area. The FHWA and FTA concluded the statute's use of the term “metropolitan area,” rather than the statutorily-defined term “MPA,” reflects an intention to promote coordinated planning across a broader area than a single MPA. This interpretation takes into consideration the plain language
Section 450.312(h) would be entirely rewritten for consistency with the proposed rule's emphasis on the statutory requirement that all of an urbanized area be contained in the same MPA. As proposed, § 450.312(h) would describe the organizational options available to Governors and MPOs where more than one MPO is designated in an MPA, as authorized by the exception in 23 U.S.C. 134(d)(7). Proposed § 450.312(h)(1) through (3) would describe minimum requirements applicable where the multiple MPOs exist in a single MPA. The three requirements would be (1) a written agreement among the MPOs to identify how planning decisions will be made and carried out, (2) use of joint decisionmaking to develop a single metropolitan transportation plan and TIP for the entire MPA, and (3) establishment of the boundaries for each MPO within the MPA by agreement of the Governor and the affected MPOs.
The proposed rule would revise § 450.312(i), which addresses reviews of MPA boundaries after each Census. The changes would include clarifying that the minimum requirements for MPAs apply in this situation. Following a Decennial Census, the MPO(s) are required to review the MPA boundaries to ensure compliance with the minimum statutory requirements. This includes changes in urbanized areas that result in the merging of previously separate urbanized areas, or expansion of urbanized areas into a neighboring MPA. Under the proposed rule, if a Census results in two previously separate urbanized areas being defined as a single urbanized area, the Governor and MPO(s) would have to redetermine the affected MPAs as a single MPA that includes the entire new urbanized area plus the contiguous area expected to become urbanized within a 20-year forecast period of the transportation plan. The MPOs may remain separate only if the Governor and MPOs determine that the size and complexity of the MPA make it appropriate to have multiple MPOs designated for the area, as described in 23 U.S.C. 134(d)(7). This paragraph also clarifies the responsibilities when two or more MPOs may be adjacent to the same non-urbanized area that is expected to become urbanized within a 20-year forecast period for the transportation plan, or when an urbanized area expands into a neighboring MPA. In these situations, the Governor and MPOs are encouraged to merge adjacent MPAs when urbanized areas are contiguous or when the urbanized areas are expected to become contiguous within a 20-year forecast period for the transportation plan, but they must at a minimum agree on their mutual MPA boundaries. This paragraph also establishes a timeline for compliance following a Decennial Census that results in the merger of two or more previously separate MPAs.
The proposed rule would add a new paragraph—§ 450.312(j)—which would enumerate the situations in which a Governor and MPOs are encouraged to merge multiple MPAs into a single MPA, including when multiple urbanized areas are directly adjacent to each other, when they are expected to grow to become adjacent within 20 years, or when they are adjacent to the same non-urbanized area that is expected to become urbanized within 20 years.
The proposed rule would change a reference in the renumbered § 450.312(k) from “MPO” to “MPO(s)” for consistency with other proposed changes.
The proposed rule would change several references in § 450.314 from “MPO” to “MPO(s)” for consistency with other proposed changes in the rule.
The proposed rule would make several changes to § 450.314(e). The rule would change “an urbanized area” in the first sentence to “an MPA,” to better reflect the statutory relationship between MPOs, MPAs, and urbanized areas. The sentence would also be changed to require development of a single metropolitan transportation plan and TIP for an MPA. Where a proposed transportation investment extends across the boundaries of more than one MPA, the proposed rule would require MPOs to coordinate to assure the development of consistent metropolitan transportation plans and TIPs. This would replace language in the existing rule that calls for consistent plans and TIPs across the MPA. The proposed rule would require, rather than encourage, the use of coordinated data collection, analysis, and planning assumptions across the MPA. The proposed rule would strongly encourage the use of such practices across neighboring MPOs that are not within the same MPA. The FHWA and FTA seek comments on what, if any, exemptions ought to be contained in the rule from these requirements, and what criteria might be used for such an exemption.
The proposed rule would eliminate the phrase “urbanized area” from § 450.314(f), concerning multistate MPAs, and change existing references from “multistate area” to “multistate MPA.” These changes will make the provision more consistent with the planning statute and other proposed changes in the rule.
Under the proposed rule, § 450.314(g) would be revised for consistency with the statutory requirement that all of an urbanized are be included within the same MPA. The proposed rule would clarify that the rule's existing requirement for a written agreement on roles and responsibilities for meeting transportation management area (TMA) requirements applies where more than one MPO serve the MPA containing the TMA.
Similar changes would be made in § 450.314(h), to clarify that the cooperative development and sharing of information related to performance management applies when an MPA includes an urbanized area that has been designated as a TMA as well as an urbanized area that is not a TMA.
The proposed rule would revise § 450.316(b), (c), and (d) by changing references from “MPO” to “MPO(s).” These changes would make the references consistent with other changes proposed in this rule.
References to “MPO” in several parts of § 450.324 would be changed to “MPO(s)” for consistency with other proposed changes to the rule. The proposed rule would redesignate the current § 450.3249(c) through (m) as § 450.324(d) through (n), respectively, and add a new paragraph (c). The new provision would require that, if more
The proposed rule would add a sentence to § 450.326(a) to require that in MPAs with multiple MPOs the MPOs must jointly develop a single TIP for the MPA. The rule would require such MPOs, if in nonattainment or maintenance areas, to agree on a process for making a single conformity determination on the joint TIP. The FHWA and FTA seek comments on what, if any, exemptions ought to be contained in the rule from these requirements, and what criteria might be used for such an exemption.
The proposed rule would change “MPO” to “MPO(s)” in paragraphs (a), (b), (j), and (p). Those changes would be made for better consistency with other changes proposed in the rulemaking.
The proposed rule would change “MPO” to “MPO(s)” in § 450.328(a), (b), and (c). The changes would be made for better consistency with other changes proposed in the rule.
The proposed rule would change “MPO” to “MPO(s)” in § 450.330(a) and (c). Section 450.330(c) would be clarified by changing the first part of the first sentence from “[i]f an MPO has not . . .”, to “[i]f an MPO or MPOs have not . . .” All these changes are for better consistency with proposed revisions in other parts of the rule concerning how planning requirements apply where there are multiple MPOs in an MPA provisions, as authorized by the exception provision in 23 U.S.C. 134(d)(7).
The proposed rule would change “MPO” to “MPO(s)” in § 450.332(b) and (c), for better consistency with other changes proposed in the rule.
The proposed rule would change “MPO” to “MPO(s)” in § 450.334(a), for better consistency with other changes proposed in the rulemaking.
The proposed rule would change “MPO” to “MPO(s)” in several places in § 450.336(b), for better consistency with other changes proposed in the rule.
The proposed rule would add phase-in implementing provisions to § 450.340 for certain parts of the proposed rule. The compliance date for all other proposed changes would be the effective date of the final rule.
In a new paragraph (h), FHWA and FTA propose giving States and MPOs 2 years before they would have to be fully compliant with the MPA boundary and MPO boundaries agreement provisions in §§ 450.310 and 450.312, and with the requirements for jointly established performance targets and a single metropolitan transportation plan and TIP for the entire MPA. The proposed rule would require the Governor and MPOs to document their determination of whether the size and complexity of the MPA justify the designation of multiple MPOs, however, the decision would not be subject to approval by FHWA and FTA. Full compliance for all MPOs within the MPA would be required before the earliest next regularly scheduled update of a metropolitan transportation plan for any MPO within the MPA, following the second anniversary of the effective date of a final rule, if adopted. The FHWA and FTA seek comment on the appropriateness of the proposed 2-year phase-in period.
All comments received before the close of business on the comment closing date indicated above will be considered and available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and considered to the extent practicable. In addition to late comments, FHWA and FTA will also continue to file relevant information in the docket as it becomes available after the comment period closing date, and interested persons should continue to examine the docket for new material. A final rule may be published at any time after close of the comment period and after FHWA and FTA have had the opportunity to review the comments submitted.
The FHWA and FTA have determined that this proposed rule is a significant regulatory action within the meaning of Executive Order 12866 and within the meaning of DOT regulatory policies and procedures. This proposed regulation seeks to improve the clarity of the planning rules by addressing ambiguity in MPO boundaries and responsibilities and better aligning the regulations with the statute. Additionally, the MPOs shall establish procedures for joint decisionmaking as well as a process for resolving disagreements. These changes are also intended to result in better outcomes for the MPOs, State agencies, providers of public transportation and the public, by restoring a regional focus for metropolitan planning, and by unifying MPO processes within an urbanized area in order to improve the ability of the public to understand and participate in the transportation planning process. The joint planning requirements of this rule affect primarily urbanized areas with multiple MPOs planning for the same area, or 142 of the 409 MPOs in the country. The affected MPOs are: (1) MPOs that have been designated for an urbanized area for which other MPOs also have been designated and/or (2) MPOs where an adjacent urbanized area has spread into its MPA boundary. The MPOs designated as an MPO in multiple MPAs, in which one or more other MPOs are also designated, would be required to participate in the planning processes for each MPA. Thus, under this rule, MPOs that have jurisdiction in more than one MPA would be required to participate in multiple separate planning processes. However, the affected MPOs could exercise several options to reduce or eliminate these impacts, including adjustment of MPA boundaries to eliminate overlap and by merging MPOs. The FHWA and FTA are seeking comments on what other
All MPOs will be required to review their agreements with State DOTs and providers of public transportation to ensure that there are written procedures for joint decisionmaking and dispute resolution. The FHWA and FTA expect that the MPOs, State DOTs and providers of public transportation will undertake this review and update as they identify how they will implement a performance based planning and programming process required by MAP–21 and revised Statewide and Nonmetropolitan Transportation and Metropolitan Transportation Final Rule (FHWA RIN: 2125–AF52; FTA RIN: 2132–AB10). Because FHWA and FTA anticipate that the reviews would occur due to other existing requirements and in the absence of the proposed rule, the incremental impact, to the extent that there is any, should be quite small.
In some cases, a Governor (or Governors in the case of multistate urbanized areas) and MPOs could determine that the size and complexity of the area make multiple MPOs appropriate. The proposed rule would require those multiple separate MPOs to jointly develop unified planning products: A single metropolitan transportation plan, a single TIP, and a jointly established set of performance targets for the MPA. This should not create a large burden, and will in some cases reduce overall planning costs. Because MPOs within the same urban area will produce single planning documents, there will be less overlapping and duplicative work. Thus, the rule will enhance efficiency in planning processes for some areas, and generate cost-savings due to creating single rather than multiple documents as well as through pooling of resources and sharing data, models, and other tools. However, the MPOs that are not accustomed to coordinating across boundaries will have to establish relationships and protocols, and reconcile procedures. Coordination could create some initial costs, but those will diminish over time. There is also expected to be some offsetting costs for State DOTs and MPOs due to the necessity of updating metropolitan planning agreements to include dispute resolution processes. These costs are expected to be primarily experienced in the initial year, as processes are developed.
To the extent that there are any costs, 80 percent are directly reimbursable through Federal transportation funds allocated for metropolitan planning (23 U.S.C. 104(f) and 49 U.S.C. 5303(h)) and for State planning and research (23 U.S.C. 505 and 49 U.S.C. 5313). Thus, the costs to the affected MPOs should be minimal.
The FHWA and FTA also expect there will be some cost savings for State DOTs, which will benefit from having fewer TIPs to incorporate into their STIPs. There will also be benefits to the public if the coordination requirements result in a planning process in which public participation opportunities are transparent and unified for the entire region, and if members of the public have an easier ability to engage in the planning process.
The FHWA and FTA seek comments and available data on the costs and benefits of the proposals of this rulemaking.
In addition, this action complies with the principles of Executive Order 13563. After evaluating the costs and benefits of these proposed amendments, the FHWA and FTA anticipate that the net economic impact of this rulemaking would be minimal. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. In addition, these changes will not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.
In compliance with the Regulatory Flexibility Act (Pub. L. 96–354, 5 U.S.C. 601–612), FHWA and FTA have evaluated the effects of this action on small entities and have determined that the action would not have a significant economic impact on a substantial number of small entities. The proposed amendment addresses the obligation of Federal funds to State DOTs for Federal-aid highway projects. The proposed rule affects two types of entities: State governments and MPOs. State governments do not meet the definition of a small entity under 5 U.S.C. 601, which have a population of less than 50,000.
The MPOs are considered governmental jurisdictions, and to qualify as a small entity they would need to serve less than 50,000 people. The MPOs serve urbanized areas with populations of 50,000 or more. Therefore, the MPOs that might incur economic impacts under this proposed rule do not meet the definition of a small entity.
I hereby certify that this regulatory action would not have a significant impact on a substantial number of small entities.
The FHWA and FTA have determined that this NPRM does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, March 22, 1995, 109 Stat. 48). This proposed rule does not include a Federal mandate that may result in expenditures of $155.1 million or more in any one year (when adjusted for inflation) in 2012 dollars for either State, local, and tribal governments in the aggregate, or by the private sector. The FHWA and FTA will publish a final analysis, including its response to public comments, when it publishes a final rule. Additionally, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program and Federal Transit Act permits this type of flexibility.
The FHWA and FTA have analyzed this NPRM in accordance with the principles and criteria contained in Executive Order 13132. The FHWA and FTA have determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA and FTA have also determined that this action does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction, for further information.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
Federal agencies are required to adopt implementing procedures for National Environmental Policy Act (NEPA) that establish specific criteria for, and identification of, three classes of actions: (1) Those that normally require preparation of an Environmental Impact Statement, (2) those that normally require preparation of an Environmental Assessment, and (3) those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). This action qualifies for categorical exclusions under 23 CFR 771.117(c)(20) (promulgation of rules, regulations, and directives) and 771.117(c)(1) (activities that do not lead directly to construction) for FHWA, and 23 CFR 771.118(c)(4) (planning and administrative activities which do not involve or lead directly to construction) for FTA. The FHWA and FTA have evaluated whether the action would involve unusual or extraordinary circumstances and have determined that this action would not.
The FHWA and FTA have analyzed this proposed rule under Executive Order (E.O.) 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA and FTA do not anticipate that this proposed action would affect a taking of private property or otherwise have taking implications under E.O. 12630.
This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA and FTA certify that this action would not cause an environmental risk to health or safety that might disproportionately affect children.
The FHWA and FTA have analyzed this action under E.O. 13175, dated November 6, 2000, and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. The proposed rulemaking addresses obligations of Federal funds to State DOTs for Federal-aid highway projects and would not impose any direct compliance requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required.
The FHWA and FTA have analyzed this action under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA and FTA have determined that this is not a significant energy action under that order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.
The E.O. 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations) and DOT Order 5610.2(a) (77 FR 27534, May 10, 2012) (available online at
The FHWA and FTA have issued additional documents relating to administration of E.O. 12898 and the DOT Order. On June 14, 2012, FHWA issued an update to its EJ order, FHWA Order 6640.23A (FHWA Actions to Address Environmental Justice in Minority Populations and Low Income Populations (available online at
The FHWA and FTA have evaluated the final rule under the Executive order, the DOT Order, the FHWA Order, and the FTA Circular. The EJ principles, in the context of planning, should be considered when the planning process is being implemented at the State and local level. As part of their stewardship and oversight of the federally aided transportation planning process of the States, MPOs and operators of public transportation, FHWA and FTA encourage these entities to incorporate EJ principles into the statewide and metropolitan planning processes and documents, as appropriate and consistent with the applicable orders and the FTA Circular. When FHWA and FTA make a future funding or other approval decision on a project basis, they consider EJ.
Nothing inherent in the proposed rule would disproportionately impact minority or low-income populations. The proposed rule establishes procedures and other requirements to guide future State and local decisionmaking on programs and projects. Neither the proposed rule nor 23 U.S.C. 134 and 135 dictate the outcome of those decisions. The FHWA and FTA have determined that the proposed rule would not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations.
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 can be used to cross-reference this action with the Unified Agenda.
Grant programs—transportation, Highway and roads, Mass transportation, Reporting and record keeping requirements.
Grant programs—transportation, Highways and roads, Mass transportation.
In consideration of the foregoing, FHWA and FTA propose to amend title 23, Code of Federal Regulations, part 450, and title 49, Code of Federal Regulations, part 613, as set forth below:
23 U.S.C. 134 and 135; 42 U.S.C. 7410
(a) * * *
(1) Coordinate planning carried out under this subpart with the metropolitan transportation planning activities carried out under subpart C of this part for metropolitan areas of the State. When carrying out transportation planning activities under this part, the State and MPOs shall coordinate on information, studies, or analyses for portions of the transportation system located in metropolitan planning areas. The State(s), the MPO(s) and the operators of public transportation must have a current metropolitan planning agreement, which will identify coordination strategies that support cooperative decisionmaking and the resolution of disagreements;
(g) On and after [date 2 years after publication of the final rule], the State(s), the MPO(s) and the operators of public transportation must have a current metropolitan planning agreement, which will identify coordination strategies that support cooperative decision-making and the resolution of disagreements.
The revision reads as follows:
(a) Set forth the national policy that the MPO designated for each urbanized area is to carry out a continuing, cooperative, and comprehensive performance-based multimodal transportation planning process for its MPA, including the development of a metropolitan transportation plan and a TIP, that encourages and promotes the safe and efficient development, management, and operation of surface transportation systems to serve the mobility needs of people and freight (including accessible pedestrian walkways and bicycle transportation facilities) and foster economic growth and development, while minimizing transportation-related fuel consumption and air pollution; and
(d) * * *
(5) In MPAs in which multiple MPOs have been designated, the MPOs shall jointly establish, for the MPA, the performance targets that address performance measures or standards established under 23 CFR part 490 (where applicable), 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d).
(i) In an urbanized area not designated as a TMA that is an air quality attainment area, the MPO(s) may propose and submit to the FHWA and the FTA for approval a procedure for developing an abbreviated metropolitan transportation plan and TIP. In developing proposed simplified planning procedures, consideration shall be given to whether the abbreviated metropolitan transportation plan and TIP will achieve the purposes of 23 U.S.C. 134, 49 U.S.C. 5303, and these regulations, taking into account the complexity of the transportation problems in the area. The MPO(s) shall develop simplified procedures in cooperation with the State(s) and public transportation operator(s).
(e) Except as provided in this paragraph, only one MPO shall be designated for each MPA. More than one MPO may be designated to serve an MPA only if the Governor(s) and the existing MPO(s), if applicable, determine that the size and complexity of the MPA make designation of more than one MPO in the MPA appropriate.
(m) Each Governor with responsibility for a portion of a multistate metropolitan area and the appropriate MPOs shall, to the extent practicable, provide coordinated transportation planning for the entire metropolitan area. The consent of Congress is granted to any two or more States to:
(a) At a minimum, the boundaries of an MPA shall encompass the entire existing urbanized area (as defined by the Bureau of the Census) plus the contiguous area expected to become urbanized within a 20-year forecast period for the metropolitan transportation plan.
(1) Subject to this minimum requirement, the boundaries of an MPA shall be determined through an agreement between the MPO and the Governor.
(2) If two or more MPAs would otherwise include the same non-urbanized area that is expected to become urbanized within a 20-year forecast period, the Governor and the relevant MPOs are required to agree on the final boundaries of the MPA or MPAs such that the boundaries of the MPAs do not overlap. In such situations, the Governor and MPOs are encouraged, but not required, to combine the MPAs into a single MPA. Merger into a single MPA would also require the MPOs to merge in accordance with the redesignation procedures described in § 450.310(h), unless the Governor and MPO(s) determine that the size and complexity of the MPA make multiple MPOs appropriate, as described in § 450.310(e).
(3) The MPA boundaries may be further expanded to encompass the entire metropolitan statistical area or combined statistical area, as defined by the Office of Management and Budget.
(b) The MPA boundaries that existed on August 10, 2005 shall be retained for an urbanized area designated as a nonattainment area for ozone or carbon monoxide under the Clean Air Act (42 U.S.C. 7401
(c) An MPA boundary may encompass more than one urbanized area, but each urbanized area must be included in its entirety.
(d) MPA boundaries may be established to coincide with the geography of regional economic development and growth forecasting areas.
(e) Identification of new urbanized areas within an existing metropolitan planning area by the Bureau of the Census shall not require redesignation of the existing MPO.
(f) In multistate metropolitan areas, the Governors with responsibility for a portion of the multistate metropolitan area, the appropriate MPO(s), and the public transportation operator(s) are strongly encouraged to coordinate transportation planning for the entire multistate metropolitan area. States involved in such multistate transportation planning may:
(1) Enter into agreements or compacts, not in conflict with any law of the United States, for cooperative efforts and mutual assistance in support of activities authorized under this section as the activities pertain to interstate areas and localities within the States; and
(2) Establish such agencies, joint or otherwise, as the States may determine desirable for making the agreements and compacts effective.
(g) The MPA boundaries shall not overlap with each other.
(h) Where the Governor and MPO(s) have determined that the size and complexity of the MPA make it appropriate to have more than one MPO designated for an MPA, the MPOs within the same MPA shall, at a minimum:
(1) Establish written agreements that clearly identify coordination processes, the division of transportation planning responsibilities among and between the MPOs, and procedures for joint decisionmaking and the resolution of disagreements;
(2) Through a joint decisionmaking process, develop a single TIP and a single metropolitan transportation plan for the entire MPA;
(3) Establish the boundaries for each MPO within the MPA, by agreement among all affected MPOs and the Governor.
(i) The MPO(s) (in cooperation with the State and public transportation operator(s)) shall review the MPA boundaries after each Census to determine if existing MPA boundaries meet the minimum statutory requirements for new and updated urbanized area(s), and shall adjust them as necessary in order to encompass the entire existing urbanized area(s) plus the contiguous area expected to become urbanized within the 20-year forecast period of the metropolitan transportation plan. If after a Census, two previously separate urbanized areas are defined as a single urbanized area, not later than 180 days after the release of the U.S. Bureau of the Census notice of the Qualifying Urban Areas for a decennial census, the Governor and MPO(s) shall redetermine the affected MPAs as a single MPA that includes the entire new urbanized area plus the contiguous area expected to become urbanized within the 20-year forecast period of the metropolitan transportation plan. As appropriate, additional adjustments should be made to reflect the most comprehensive boundary to foster an effective planning process that ensures connectivity between modes, improves access to modal systems, and promotes efficient overall transportation investment strategies. If more than one MPO is designated for urbanized areas that are merged following a Decennial Census by the Bureau of the Census, the State and the MPOs shall comply with the MPA boundary and MPO boundaries agreement provisions in §§ 450.310 and 450.312, and shall determine whether the size and complexity of the MPA
(j) The Governor and MPOs are encouraged to consider merging multiple MPAs into a single MPA when:
(1) Two or more urbanized areas are adjacent to each other;
(2) Two or more urbanized areas are expected to expand and become adjacent within a 20 year forecast period; or
(3) Two or more neighboring MPAs would otherwise both include the same non-urbanized area that is expected to become urbanized within a 20-year forecast period.
(k) Following MPA boundary approval by the MPO(s) and the Governor, the MPA boundary descriptions shall be provided for informational purposes to the FHWA and the FTA. The MPA boundary descriptions shall be submitted either as a geo-spatial database or described in sufficient detail to enable the boundaries to be accurately delineated on a map.
(a) The MPO, the State(s), and the providers of public transportation shall cooperatively determine their mutual responsibilities in carrying out the metropolitan transportation planning process. These responsibilities shall be clearly identified in written agreements among the MPO(s), the State(s), and the providers of public transportation serving the MPA. To the extent possible, a single agreement between all responsible parties should be developed. The written agreement(s) shall include specific provisions for the development of financial plans that support the metropolitan transportation plan (see § 450.324) and the metropolitan TIP (see § 450.326), and development of the annual listing of obligated projects (see § 450.334).
(b) The MPO(s), the State(s), and the providers of public transportation should periodically review and update the agreement, as appropriate, to reflect effective changes.
(c) If the MPA does not include the entire nonattainment or maintenance area, there shall be a written agreement among the State department of transportation, State air quality agency, affected local agencies, and the MPO(s) describing the process for cooperative planning and analysis of all projects outside the MPA within the nonattainment or maintenance area. The agreement must also indicate how the total transportation-related emissions for the nonattainment or maintenance area, including areas outside the MPA, will be treated for the purposes of determining conformity in accordance with the EPA's transportation conformity regulations (40 CFR part 93, subpart A). The agreement shall address policy mechanisms for resolving conflicts concerning transportation-related emissions that may arise between the MPA and the portion of the nonattainment or maintenance area outside the MPA.
(d) In nonattainment or maintenance areas, if the MPO is not the designated agency for air quality planning under section 174 of the Clean Air Act (42 U.S.C. 7504), there shall be a written agreement between the MPO and the designated air quality planning agency describing their respective roles and responsibilities for air quality related transportation planning.
(e) If more than one MPO has been designated to serve an MPA, there shall be a written agreement among the MPOs, the State(s), and the public transportation operator(s) describing how the metropolitan transportation planning processes will be coordinated to assure the development of a single metropolitan transportation plan and TIP for the MPA. In cases in which a proposed transportation investment extends across the boundaries of more than one MPA, the MPOs shall coordinate to assure the development of consistent metropolitan transportation plans and TIPs. If any part of the urbanized area is a nonattainment or maintenance area, the agreement also shall include State and local air quality agencies. If more than one MPO has been designated to serve an MPA, the metropolitan transportation planning processes for affected MPOs must reflect coordinated data collection, analysis, and planning assumptions across the MPA. Coordination of data collection, analysis, and planning assumptions is also strongly encouraged for neighboring MPOs that are not within the same MPA. Coordination efforts and outcomes shall be documented in subsequent transmittals of the UPWP and other planning products, including the metropolitan transportation plan and TIP, to the State(s), the FHWA, and the FTA.
(f) Where the boundaries of the MPA extend across two or more States, the Governors with responsibility for a portion of the multistate MPA, the appropriate MPO(s), and the public transportation operator(s) shall coordinate transportation planning for the entire multistate MPA, including jointly developing planning products for the MPA. States involved in such multistate transportation planning may:
(1) Enter into agreements or compacts, not in conflict with any law of the United States, for cooperative efforts and mutual assistance in support of activities authorized under this section as the activities pertain to interstate areas and localities within the States; and
(2) Establish such agencies, joint or otherwise, as the States may determine desirable for making the agreements and compacts effective.
(g) If an MPA includes an urbanized area that has been designated as a TMA in addition to an urbanized area that is not designated as a TMA, the non-TMA urbanized area shall not be treated as a TMA. However, if more than one MPO serves the MPA, a written agreement shall be established between the MPOs within the MPA boundaries, which clearly identifies the roles and responsibilities of each MPO in meeting specific TMA requirements (
(h) The MPO(s), State(s), and the providers of public transportation shall jointly agree upon and develop specific written provisions for cooperatively developing and sharing information related to transportation performance data, the selection of performance targets, the reporting of performance targets, the reporting of performance to be used in tracking progress toward attainment of critical outcomes for the region of the MPO (see § 450.306(d)), and the collection of data for the asset management plans for the NHS for each of the following circumstances: When one MPO serves an urbanized area, when more than one MPO serves an urbanized area, and when an MPA includes an urbanized area that has been designated as a TMA as well as an
The revisions read as follows:
(c) If more than one MPO has been designated to serve an MPA, those MPOs within the MPA shall:
(1) Jointly develop a single metropolitan transportation plan for the MPA;
(2) Jointly establish, for the MPA, the performance targets that address the performance measures described in 23 CFR part 490 (where applicable), 49 U.S.C. 5326(c) and 49 U.S.C. 5329(d); and
(3) Agree to a process for making a single conformity determination on the joint plan (in nonattainment or maintenance areas).
The revision reads as follows:
(a) The MPO, in cooperation with the State(s) and any affected public transportation operator(s), shall develop a TIP for the metropolitan planning area. If more than one MPO has been designated to serve an MPA, those MPOs within the MPA shall jointly develop a single TIP for the MPA and shall agree to a process for making a single conformity determination on the joint TIP (in nonattainment or maintenance areas). The TIP shall reflect the investment priorities established in the current metropolitan transportation plan and shall cover a period of no less than 4 years, be updated at least every 4 years, and be approved by the MPO(s) and the Governor. However, if the TIP covers more than 4 years, the FHWA and the FTA will consider the projects in the additional years as informational. The MPO(s) may update the TIP more frequently, but the cycle for updating the TIP must be compatible with the STIP development and approval process. The TIP expires when the FHWA/FTA approval of the STIP expires. Copies of any updated or revised TIPs must be provided to the FHWA and the FTA. In nonattainment and maintenance areas subject to transportation conformity requirements, the FHWA and the FTA, as well as the MPO, must make a conformity determination on any updated or amended TIP, in accordance with the Clean Air Act requirements and the EPA's transportation conformity regulations (40 CFR part 93, subpart A).
(h) States and MPOs shall comply with the MPA boundary and MPO boundaries agreement provisions in 450.310 and 450.312, shall document the determination of the Governor and MPO(s) whether the size and complexity of the MPA make multiple MPOs appropriate, and the MPOs shall comply with the requirements for jointly established performance targets, and a single metropolitan transportation plan and TIP for the entire MPA, before the next metropolitan transportation plan update that occurs on or after [date 2 years after the effective date of the final rule].
23 U.S.C. 134, 135, and 217(g); 42 U.S.C. 3334, 4233, 4332, 7410
Mine Safety and Health Administration, Labor.
Proposed rule; notice of change of starting time for public hearings.
The Mine Safety and Health Administration (MSHA) is announcing a change to the starting time for public hearings for the proposed rule addressing Examinations of Working Places in Metal and Nonmetal Mines, published on June 8, 2016. The start time for the previously announced public hearings for the proposed rule will be changed from 9:00 a.m. to 8:30 a.m. to accommodate the public meetings on MSHA's request for information on Exposure of Underground Miners to Diesel Exhaust. The hearing dates and locations are unchanged.
The public hearing dates and locations are listed in the
Comments, requests to speak, and informational materials for the rulemaking record may be sent to
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•
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Sheila A. McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at
The start time for the previously announced public hearings for the proposed is being changed from 9:00 a.m. to 8:30 a.m. to accommodate the public meetings on MSHA's request for information on Exposure of Underground Miners to Diesel Exhaust. The hearings will begin with an opening statement from MSHA, followed by an opportunity for members of the public to make oral presentations. Each hearing will end when the last speaker speaks. Persons do not have to make a written request to speak; however, persons wishing to speak are encouraged to notify MSHA in advance for scheduling purposes.
Speakers and other attendees may present information to MSHA for inclusion in the rulemaking record. The hearings will be conducted in an informal manner. Formal rules of evidence or cross examination will not apply.
A verbatim transcript of the proceedings will be prepared and made a part of the rulemaking record. The transcript may be viewed at
MSHA will accept comments and other appropriate information for the record from any interested party, including those not presenting oral statements, received by midnight Eastern Daylight Savings Time on September 6, 2016.
Mine Safety and Health Administration, Labor.
Request for information; notice of public meetings.
The Mine Safety and Health Administration (MSHA) is announcing the dates and locations of public meetings on the Agency's request for information on Exposure of Underground Miners to Diesel Exhaust, published on June 8, 2016. In the interest of efficiency, the public meetings will be held consecutively, on the same days in the same venues, as the public hearings announced in the MSHA's proposed rule addressing Examinations of Working Places in Metal and Nonmetal Mines, published on June 8, 2016.
The public meeting dates and locations are listed in the
Comments, requests to speak, and informational materials for the rulemaking record may be sent to MSHA by one of the following methods listed below:
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Sheila A. McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at
MSHA invites industry, labor and other interested parties to provide information and data on the effectiveness of the existing standards in controlling miners' exposures to diesel exhaust, including Diesel Particulate Matter (DPM). MSHA especially invites stakeholders to provide information and data on approaches that may enhance control of DPM and diesel exhaust exposures to improve protections for miners in underground coal and metal and nonmetal mines.
The public meetings will begin immediately following the conclusion of all testimony on the Examinations of Working Places in Metal and Nonmetal Mines proposed rule and conclude at 5 p.m., or until the last speaker speaks.
The meetings will be conducted in an informal manner. Speakers and other attendees may present information to MSHA for inclusion in the rulemaking record. The verbatim transcript may be viewed at
Comments must be received by midnight Eastern Daylight Savings Time on September 6, 2016.
Coast Guard, DHS.
Notice of public meeting and request for comments; extension of comment period.
The Coast Guard announces a public meeting to receive comments on an advance notice of proposed rulemaking entitled “Anchorage Grounds; Lower Chesapeake Bay, Cape Charles, VA” that was published in the
A public meeting will be held on Tuesday, July 19, 2016, from 6 p.m. to 7:30 p.m. and on July 20, 2016, from 6:30 to 8 p.m. to provide an opportunity for oral comments. Written comments and related material may also be submitted to Coast Guard personnel specified at that meeting. All comments and related material submitted after the meeting must be received by the Coast Guard on or before Wednesday, August 31, 2016.
The public meeting on July 19, 2016, from 6 p.m. to 7:30 p.m. will be held at Slover Public Library Meeting Room, 235 E. Plume St., Norfolk, VA 23510, telephone 757–617–7986. The public meeting on July 20, 2016, from 6:30 p.m. to 8 p.m. will be held at Eastern Shore Community College Lecture Hall, 29300 Lankford Highway, Melfa, VA, 23410.
This document serves to inform the public that the Coast Guard has extended the public comment period for advance notice of proposed rulemaking (ANPRM); Anchorage Grounds; Lower Chesapeake Bay, Cape Charles, VA to Wednesday, August 31, 2016. The public comment period for this ANPRM was originally scheduled to end on Monday, July 18, 2016.
You may submit written comments identified by docket number USCG–2015–1118 using the Federal eRulemaking Portal at
If your material cannot be submitted using
If you have questions concerning the meeting or the advance proposed rule, please call or email LCDR Barbara Wilk, Sector Hampton Roads Waterways Management Officer, Coast Guard; telephone 757–668–5581, email
We published an advance notice of proposed rulemaking (ANPRM) in the
In the ANPRM, we stated that the Coast Guard is considering amending the regulations for Hampton Roads, VA and adjacent waters anchorages by establishing a new anchorage, near Cape Charles, VA on the Lower Chesapeake Bay.
You may view the ANPRM in our online docket, in addition to supporting documents prepared by the Coast Guard (Illustration Contemplated Anchorage R), and comments submitted thus far by going to
We encourage you to participate in this rulemaking by submitting comments either orally at the meeting or in writing. If you bring written comments to the meeting, you may submit them to Coast Guard personnel specified at the meeting to receive written comments. These comments will be submitted to our online public docket. All comments received will be posted without change to
Comments submitted before or after the meetings must reach the Coast Guard on or before Wednesday, August 31, 2016. We encourage you to submit comments through the Federal eRulemaking Portal at
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the March 24, 2005, issue of the
The agenda includes the following:
(1) Introduction of panel members.
(2) Overview of meeting format.
(3) Background on proposed anchorage regulation.
(4) Comments from interested persons. Comments may be delivered in written form at the public meeting and made part of the docket or delivered orally not to exceed 10 minutes.
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact LCDR Barbara Wilk at the telephone number or email address indicated under the
The Coast Guard will hold a public meeting regarding its “Anchorage Grounds; Lower Chesapeake Bay, Cape Charles, VA” advance notice of proposed rulemaking on Tuesday, July 19, 2016, from 6 p.m. to 7:30 p.m. at Slover Public Library Meeting Room, 235 E. Plume St., Norfolk, VA 23510, telephone 757–617–7986. The public meeting on July 20, 2016, from 6:30 p.m. to 8 p.m. will be held at Eastern Shore Community College Lecture Hall, 29300 Lankford Highway, Melfa, VA, 23410. A written summary of the meeting and comments will be placed in the docket.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the Commonwealth of Kentucky, Energy and Environment Cabinet, Department for Environmental Protection, through the Kentucky Division for Air Quality (KDAQ), on April 26, 2013, to demonstrate that the Commonwealth meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour nitrogen dioxide (NO
Written comments must be received on or before July 27, 2016.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2014–0767 at
Richard Wong,
On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO
Today's action is proposing to approve Kentucky's infrastructure SIP submission for the applicable requirements of the 2010 1-hour NO
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 1-hour NO
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are listed below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2).”
EPA is acting upon the SIP submission from Kentucky that
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.
Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.
The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.
Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.
Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new
EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.
Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.
As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (
As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including greenhouse gases. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM
For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes,
With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is
EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
Kentucky's infrastructure submission addresses the provisions of sections 110(a)(1) and (2) in Kentucky Administrative Regulations (KAR), Title 401, and Kentucky Revised Statutes (KRS) as described below.
1. 110(a)(2)(A):
In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at
Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B)
3. 110(a)(2)(C)
Preconstruction PSD Permitting for Major
Regulation of Minor Sources and Modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source preconstruction program that regulates emissions of the 2010 1-hour NO
4. 110(a)(2)(D)(i)
110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) because Kentucky's 2010 1-hour NO
110(a)(2)(D)(i)(II)—prong 3: With respect to Kentucky's infrastructure SIP submission related to the interstate transport requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took final action to approve Kentucky's April 26, 2013, infrastructure SIP submission regarding prong 3 of D(i) for the 2010 1-hour NO
110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to visibility protection in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in relation to Kentucky's 2010 1-hour NO
5. 110(a)(2)(D)(ii)
6. 110(a)(2)(E)
To satisfy the requirements of sections 110(a)(2)(E)(i) and (iii), Kentucky's infrastructure SIP submission describes that KRS 224:10–100,
Section 110(a)(2)(E)(ii) requires that states comply with section 128 of the CAA. Section 128 of the CAA requires that states include provisions in their SIP to address conflicts of interest for state boards or bodies that oversee CAA permits and enforcement orders and disclosure of conflict of interest requirements. Specifically, CAA section 128(a)(1) necessitates that each SIP shall require that at least a majority of any board or body which approves permits or enforcement orders shall be subject to the described public interest service and income restrictions therein. Subsection 128(a)(2) requires that the members of any board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to conflict of interest disclosure requirements. For purposes of section 128(a)(1), Kentucky has no boards or bodies with authority over air pollution permits or enforcement actions. Such matters are instead handled by the Secretary of the KDAQ. As such, a “board or body” is not responsible for approving permits or enforcement orders in Kentucky, and the requirements of section 128(a)(1) are not applicable. For purposes of section 128(a)(2), KDAQ's SIP has been updated. On October 3, 2012, EPA finalized approval of Kentucky's July 17, 2012, SIP revision requesting incorporation of KRS 11A.020, 11A.030, 11A.040 and KRS 224.10–020 and 224.10–100 into the SIP to address the conflicts of interest disclosure requirements of section 128(a)(2).
7. 7. 110(a)(2)(F)
Additionally, Kentucky is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—NO
8. 110(a)(2)(G)
9. 110(a)(2)(H)
10. 110(a)(2)(J)
110(a)(2)(J) (121 Consultation)—
110(a)(2)(J) (127 Public Notification)—
110(a)(2)(J)—
11. 110(a)(2)(K)
12. 110(a)(2)(L)
Funding for the Kentucky air permit program comes from a processing fee, submitted by permit applicants, required by KAR 50:038,
13. 110(a)(2)(M)
With the exception of the preconstruction PSD permitting requirements for major sources of section 110(a)(2)(C), prong 3 of (D)(i), and (J), the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i), and the regulation of minor sources and minor modifications under section 110(a)(2)(C), EPA is proposing to approve that Kentucky's April 26, 2013, infrastructure SIP submission for the 2010 1-hour NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 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 (Public Law 104–4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Minnesota sulfur dioxide (SO
Comments must be received on or before July 27, 2016.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2015–0366 at
Anthony Maietta, Environmental Protection Specialist, Control Strategies Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–8777,
In the Final Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to make a determination, under the Clean Air Act, that the Cleveland, Ohio and St. Louis, Missouri-Illinois areas attained the 2008 ozone National Ambient Air Quality Standards by the applicable attainment date of July 20, 2016. This proposed determination for each area is based on complete, quality-assured and certified ozone monitoring data for 2013–2015.
Comments must be received on or before July 27, 2016.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2016–0276 at
Kathleen D'Agostino, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–1767,
Deborah Bredehoft, Air Planning and Development Branch, Environmental Protection Agency, Region 7, 11201 Renner Blvd., Lenexa, Kansas 66219, (913) 551–7164,
In the Rules and Regulations section of this
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve portions of the State Implementation Plan (SIP) submission, submitted by the State of South Carolina, through the South Carolina Department of Health and Environmental Control (SC DHEC) on April 30, 2014, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 nitrogen dioxide (NO
Written comments must be received on or before July 27, 2016.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2015–0251 at
Richard Wong,
On February 9, 2010, EPA published a new 1-hour primary NAAQS for NO
Today's action is proposing to approve South Carolina's infrastructure SIP submission for the applicable requirements of the 2010 1-hour NO
Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 1-hour NO
More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are listed below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act sections 110(a)(1) and (2).”
EPA is acting upon the SIP submission from South Carolina that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 NO
EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program
Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.
The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.
Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.
Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.
EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.
Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular
Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.
As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (
As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases. By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM
For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's implementation plan meets basic structural requirements. For example, section 110(a)(2)(C) includes,
With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.
EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are
For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
South Carolina's infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below.
1. 110(a)(2)(A):
In this action, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.
Additionally, in this action, EPA is not proposing to approve or disapprove any existing State rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.
2. 110(a)(2)(B)
3. 110(a)(2)(C)
Enforcement: SC DHEC cites to its SIP approved permit regulations for enforcement of NO
Preconstruction PSD Permitting for Major
Regulation of Minor Sources and Modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source program that regulates emissions of the 2010 1-hour NO
EPA has made the preliminary determination that South Carolina's SIP and practices are adequate for program enforcement of control measures and regulation of minor sources and modifications related to the 2010 1-hour NO
4. 110(a)(2)(D)(i)
110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) because South Carolina's 2010 1-hour NO
110(a)(2)(D)(i)(II)—prong 3: With respect to South Carolina's infrastructure SIP submission related to the interstate transport requirements for PSD of section 110(a)(2)(D)(i)(II) (prong 3), EPA took final action to approve South Carolina's April 30, 2014, infrastructure SIP submission regarding prong 3 of D(i) for the 2010 1-hour NO
110(a)(2)(D)(i)(II)—prong 4: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to visibility protection in other states of section 110(a)(2)(D)(i)(II) (prong 4) and will consider these requirements in relation South Carolina's 2010 1-hour NO
5. 110(a)(2)(D)(ii)
6. 110(a)(2)(E)
With respect to section 110(a)(2)(E)(i) and (iii), SC DHEC develops, implements and enforces EPA-approved SIP provisions in the State. S.C. Code Ann. Section 48, Title 1 and S.C. Code Ann § 1–23–40 (the Administrative Procedures Act), as referenced in South Carolina's infrastructure SIP submission, provides the SC DHEC's general legal authority to establish a SIP and implement related plans. In particular, S.C. Code Ann. Section 48–1–50(12) grants SC DHEC the statutory authority to “[a]ccept, receive and administer grants or other funds or gifts for the purpose of carrying out any of the purposes of this chapter; [and to] accept, receive and receipt for Federal money given by the Federal government under any Federal law to the State of South Carolina for air or water control activities, surveys or programs.” S.C. Code Ann. Section 48, Title 2 grants SC DHEC statutory authority to establish environmental protection funds, which provide resources for SC DHEC to carry out its obligations under the CAA. Specifically, in Regulation 61–30,
The requirements of 110(a)(2)(E)(i) and (iii) are further confirmed when EPA performs a completeness determination for each SIP submittal. This provides additional assurances that each submittal provides evidence that adequate personnel, funding, and legal authority under State law has been used to carry out the State's implementation plan and related issues. This information is included in all prehearings and final SIP submittal packages for approval by EPA.
As evidence of the adequacy of SC DHEC's resources, EPA submitted a letter to South Carolina on April 19, 2016, outlining section 105 grant commitments and the current status of these commitments for fiscal year 2015. The letter EPA submitted to South Carolina can be accessed at
Section 110(a)(2)(E)(ii) requires that states comply with section 128 of the CAA. Section 128 of the CAA requires that states include provisions in their SIP to address conflicts of interest for state boards or bodies that oversee CAA permits and enforcement orders and disclosure of conflict of interest requirements. Specifically, CAA section 128(a)(1) necessitates that each SIP shall require that at least a majority of any board or body which approves permits or enforcement orders shall be subject to the described public interest service and income restrictions therein. Subsection 128(a)(2) requires that the members of any board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to conflict of interest disclosure requirements.
With respect to 110(a)(2)(E)(ii), South Carolina satisfies the requirements of CAA section 128(a)(1) for the SC Board of Health and Environmental Control, which is the “board or body which approves permits and enforcement orders” under the CAA in South Carolina, through South Carolina statute 8–13–730. This statute provides that “[u]nless otherwise provided by law, no person may serve as a member of a governmental regulatory agency that regulates business with which that person is associated,” and statute 8–13–700(A) states in part that “[n]o public official, public member, or public employee may knowingly use his official office, membership, or employment to obtain an economic interest for himself, a member of his immediate family, an individual with whom he is associated, or a business with which he is associated.” South Carolina statute 8–13–700(B)(1)–(5) provides for disclosure of any conflicts of interest by public official, public member or public employee, which meets the requirement of CAA Section 128(a)(2) that “any potential conflicts of interest . . . be adequately disclosed.” State statutes 8–13–730, 8–13–700(A), and 8–13–700(B)(1)–(5) have been approved into the South Carolina SIP as required by CAA section 128. Thus, EPA has made the preliminary determination that South Carolina's SIP and practices are adequate for insuring compliance with the applicable requirements of section 110(a)(2)(E)(ii) relating to state boards for the 2010 NO
7. 110(a)(2)(F)
Additionally, South Carolina is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also
8. 110(a)(2)(G)
9. 110(a)(2)(H)
10. 110(a)(2)(J)
110(a)(2)(J) (121 Consultation)—
110(a)(2)(J) (127 Public Notification)—
110(a)(2)(J)—
11. 110(a)(2)(K)
12. 110(a)(2)(L)
Funding for the South Carolina air permit program comes from a fees submitted by permit applicants under Regulation 61–30,
13. 110(a)(2)(M)
With the exception of the preconstruction PSD permitting requirements for major sources of section 110(a)(2)(C), prong 3 of (D)(i), and (J) and the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility of prongs 1, 2, and 4 of section 110(a)(2)(D)(i), EPA is proposing to approve that South Carolina's April 30, 2014, infrastructure SIP submission for the 2010 1-hour NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 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 application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed action for the state of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation is located within the State of South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, South Carolina statute 27–16–120, “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” However, EPA has determined that because this proposed rule does not have substantial direct effects on an Indian Tribe because, as noted above, this action is not approving any specific rule, but rather proposing that South Carolina's already approved SIP meets certain CAA requirements. EPA notes this action will not impose substantial direct costs on Tribal governments or preempt Tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Extension of Comment Period.
EPA is extending the comment period for the notice, “National Pollutant Discharge Elimination System (NPDES): Applications and Program Updates.” In response to stakeholder requests, EPA is extending the comment period for an additional 15 days, from July 18, 2016 to August 2, 2016.
The comment period for the notice that was published on May 18, 2016 (81 FR 31344), is extended. Comments must be received on or before August 2, 2016.
Submit your comments, identified by Docket ID No. EPA–HQ–OW–2016–0145, to the
Erin Flannery-Keith, Water Permits Division, Office of Wastewater Management, Mail Code 4203M, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; (202) 566–0689;
On May 18, 2016 EPA published in the
Office of Advocacy and Outreach, USDA.
Funding Opportunity Announcement (FOA).
This notice announces the availability of funds and solicits applications from eligible entities to compete for financial assistance through the Outreach and Assistance for Socially Disadvantaged Farmers and Ranchers and Veteran Farmers and Ranchers Program (hereinafter known as the “2501 Program”).
The overall goal of the 2501 Program is to assist socially disadvantaged and veteran farmers and ranchers in owning and operating farms and ranches while increasing their participation in agricultural programs and services provided by the U.S. Department of Agriculture (USDA). This program will assist eligible community-based and non-profit organizations, higher education institutions, and tribal entities in providing outreach and technical assistance to socially disadvantaged and veteran farmers and ranchers.
Proposals must be received by July 29, 2016, at 11:59 p.m. EST, at
Send your completed complaint form or letter to USDA by mail, fax, or email:
U.S. Department of Agriculture, DM—Office of Advocacy and Outreach, Attn: Kenya Nicholas, Program Director, Whitten Building, Room 520–A, 1400 Independence Avenue SW., Washington, DC 20250, Phone: (202) 720–6350, Fax: (202) 720–7704, Email:
Funding will be awarded based on peer competition within the three categories described below along with the amount of funding OAO anticipates awarding to organizations within each category. OAO reserves the discretion to allocate funding between the three categories based upon the number and quality of applications received. There is no commitment by OAO to fund any particular application or to select a specific number of awardees within each category.
1. Category #1: Eligible entities described in Sections III.A.2, III.A.3, and III.A.4 (1890 Land Grant colleges and universities, 1994 Alaska Native and American Indian Tribal colleges and universities, and Hispanic-Serving colleges and universities).
2. Category #2: Eligible entities described in Sections III.A.1 and III.A.6 (
3. Category #3: Eligible entities described in Sections III.A.5 and III.A.7 (
OAO is committed to ensuring that socially disadvantaged and veteran farmers and ranchers are able to equitably participate in USDA programs. Differences in demographics, culture, economics, and other factors preclude a single approach to identifying solutions that can benefit our underserved farmers and ranchers. Community-based and non-profit organizations, higher education institutions, and eligible tribal entities can play a critical role in addressing the unique difficulties they face and can help improve their ability to start and maintain successful agricultural businesses. With 2501 Program funding, organizations can extend our outreach efforts to connect with and assist socially disadvantaged and veteran farmers and ranchers and to provide them with information on available USDA resources.
1. The 2501 Program was authorized by the Food, Agriculture, Conservation, and Trade Act of 1990. The Food, Conservation, and Energy Act of 2008
2. Organizations may only submit one proposal for funding.
The 2501 Program provides funding to eligible organizations for training and technical assistance projects designed to assist socially disadvantaged and veteran farmers and ranchers in owning and operating viable agricultural enterprises. Proposals must be consistent with requirements stated in 7 U.S.C. 2279(a)(2). Under this statute, “outreach and technical assistance shall be used exclusively:
(A) To enhance coordination of the outreach, technical assistance, and education efforts authorized under agriculture programs; and
(B) To assist the Secretary in:
(i) Reaching current and prospective socially disadvantaged farmers or ranchers and veteran farmers or ranchers in a linguistically appropriate manner; and
(ii) improving the participation of those farmers and ranchers in Department programs, as reported under section 2279–1 of this title”.
Proposal applications from eligible entities must address two or more of the following priority areas:
1. Assist socially disadvantaged or veteran farmers and ranchers in owning and operating successful farms and ranches;
2. Improve participation among socially disadvantaged or veteran farmers and ranchers in USDA programs;
3. Build relationships between current and prospective farmers and ranchers who are either socially disadvantaged or veterans and USDA's local, state, regional, and National offices;
4. Introduce agriculture-related information to socially disadvantaged or veteran farmers and ranchers through innovative training and technical assistance techniques; and
5. Introduce agricultural education targeting socially disadvantaged youth and/or socially disadvantaged beginning farmers and workers, including but not limited to StrikeForce and Promise Zone areas.
To encourage information sharing and to build capacity among awardees, the OAO may require Project Directors to attend an annual training conference that can be expensed with awarded grant funds not to exceed $1,000 for up to two authorized grantee personnel. The conference will allow awardees to share ideas and lessons learned, provide training on performance and financial reporting requirements, and provide information on USDA programs and services. In addition, Project Directors will have an opportunity to make contacts and gather information on best practices.
1. Outputs (Activities). The term “output” means an outreach, educational component or assistance activity, task, or associated work product related to improving the ability of socially disadvantaged and veteran farmers and ranchers to own and operate farms and ranches, assistance with agriculture related activities, or guidance for participation in USDA programs. Outputs may be quantitative or qualitative but must be measurable during the period of performance.
Examples of outputs from the projects to be funded under this announcement may describe an organization's activities and their participants such as: Number of workshops or meetings held and number of participants attending; frequency of services or training delivered, and to whom; and/or development of products, curriculum, or resources provided. Other examples include but are not limited to, the following:
a. Number of socially disadvantaged and veteran farmers or ranchers served;
b. number of conferences or training sessions held and number of socially disadvantaged and veteran farmers and ranchers who attended;
c. type and topic of educational materials distributed at outreach events;
d. creation of a program to enhance the operational viability of socially disadvantaged and veteran farmers and ranchers;
e. number of completed applications submitted for consideration for USDA programs; or
f. activity that supports increased participation of socially disadvantaged farmers and ranchers and veteran farmers and ranchers in USDA programs.
Creation of progress and final reports will be required, as specified in Section VI, Subsection D, “Reporting Requirement.”
2. Outcomes (Results). The term “outcome” means the difference or effect that has occurred as a result from carrying out an activity, workshop, meeting, or from delivery of services related to a programmatic goal or objective. Outcomes refer to the final impact, change, or result that occurs as a direct result of the activities performed in accomplishing the objectives and goals of your project. Outcomes may refer to results that are agricultural, behavioral, social, or economic in nature. Outcomes may reflect an increase in knowledge or skills, a greater awareness of available resources or programs, or actions taken by stakeholders as a result of learning.
Project Directors will be required to document anticipated outcomes that are funded under this announcement which should include but are not limited to:
a. Increase in participation in USDA programs among socially disadvantaged and veteran farmers and ranchers;
b. increase in receptiveness of socially disadvantaged and veteran farmers and ranchers to outreach efforts through effective communication;
c. increase in economic stability of socially disadvantaged and veteran farmers and ranchers within a defined geographic area;
d. increase in community marketing and sales opportunities for the products of socially disadvantaged and veteran farmers and ranchers; or
e. increase use of resource conservation and sustainability practices among socially disadvantaged and veteran farmers and ranchers.
3. Performance Measures. Performance measures are tied to the goals or objectives of each activity and ultimately the overall purpose of the project. They provide insight into the effectiveness of proposed activities by indicating areas where a project may need adjustments to ensure success. Applicants must develop performance measure expectations which will occur as a result of their proposed activities. These expectations will be used as a mechanism to track the progress and success of a project. Project performance measures should include statements such as: Whether workshops or technical assistance will meet the needs of farmers or ranchers in the service area and why; how much time will be spent in group training or individual hands-on training of farmers and ranchers in the service area; or whether activities will
Consider the following questions when developing performance measurement statements:
• What is the measurable short-term and long-term impact the project will have on servicing or meeting the needs of stakeholders?
• How will the organization measure the effectiveness and efficiency of their proposed activities to meet their overall goals and objectives?
The statutory authority for this action is 7 U.S.C. 2279, as amended, which authorizes award funding for projects designed to provide outreach and assistance to socially disadvantaged and veteran farmers and ranchers.
The total estimated funding expected to be available for awards under this competitive opportunity is $8.4 million. Funding will be awarded based on peer competition within the three categories listed below. OAO reserves the discretion to allocate funding between the categories based upon the number and quality of applications received. There is no commitment by OAO to fund any particular application or to make a specific number of awards within each category.
1. Category #1: Eligible entities described in Sections III.A.2, III.A.3, and III.A.4 (1890 Land Grant colleges and universities, 1994 Alaska Native and American Indian Tribal colleges and universities, and Hispanic-Serving colleges and universities). OAO anticipates making awards totaling at least $2 million for Category #1 applicants.
2. Category #2: Eligible entities described in Sections III.A.1 and III.A.6 (
3. Category #3: Eligible entities described in Sections III.A.5 and III.A.7 (
The performance period for projects selected from this solicitation will not begin prior to the effective award date and may not exceed
Funding for selected projects will be in the form of a grant which must be fully executed no later than September 30, 2016. The anticipated Federal involvement will be limited to the following activities:
1. Approval of awardees' final budget and statement of work accompanying the grant agreement;
2. Monitoring of awardees' performance through quarterly and final financial and performance reports; and
3. Evaluation of awardees' use of federal funds through desk audits and on-site visits.
1. Any community-based organization, network, or coalition of community-based organizations that:
• Demonstrates experience in providing agricultural education or other agricultural-related services to socially disadvantaged and veteran farmers and ranchers;
• provides documentary evidence of work with, and on behalf of, socially disadvantaged and veteran farmers and ranchers during the 3-year period preceding the submission of a proposal for assistance under this program; and
• does not or has not engaged in activities prohibited under Section 501(c)(3) of the Internal Revenue Code of 1986.
2. An 1890 or 1994 institution of higher education (as defined in 7 U.S.C. 7601).
3. An American Indian tribal community college or an Alaska Native cooperative college.
4. A Hispanic-Serving Institution of higher education (as defined in 7 U.S.C. 3103).
5. Any other institution of higher education (as defined in 20 U.S.C. 1001) that has demonstrated experience in providing agricultural education or other agricultural-related services to socially disadvantaged farmers and ranchers.
6. An Indian tribe (as defined in 25 U.S.C. 450b) or a National tribal organization that has demonstrated experience in providing agricultural education or other agriculturally-related services to socially disadvantaged farmers and ranchers.
7. All other organizations or institutions that received funding under this program before January 1, 1996, but only with respect to projects that the Secretary considers are similar to projects previously carried out by the entity under this program.
Matching is not required for this program.
Applications from eligible entities that meet all criteria will be evaluated as follows:
1. Proposals must comply with the submission instructions and requirements set forth in Section IV of this announcement. Pages in excess of the page limitation will not be considered.
2. Proposals must be received through
3. Proposals received after the submission deadline will not be considered. Please note that in order to submit proposals organizations must create accounts in
4. Proposals must address a minimum of two or more of the priority areas that provide outreach and assistance to socially disadvantaged or veteran farmers and ranchers as stated in section I, subsection B, Scope of Work.
It is a requirement to register for SAM (
Per 2 CFR part 200, applicants are required to: (i) Be registered in SAM before submitting an application; (ii) provide a valid unique entity identifier in the application; and (iii) continue to maintain an active SAM registration with current information at all times
SAM contains the publicly available data for all active exclusion records entered by the Federal government identifying those parties excluded from receiving Federal contracts, certain subcontracts, and certain types of Federal financial and non-financial assistance and benefits. All applicant organizations and their key personnel will be vetted through
Applicants may download individual grant proposal forms from
Applicants are required to submit proposals through
Federal agencies post funding opportunities on
Proposals must be submitted by July 29, 2016, via
All submissions must contain completed and electronically signed original application forms, as well as a Narrative Proposal, as described below:
1. Forms. The forms listed below can be found in the proposal package at
• Standard Form (SF) 424, Application for Federal Assistance;
• Standard Form (SF) 424A, Budget Information–Non-Construction Programs; and
• Standard Form (SF) 424B, Non-Construction Programs.
• Key Contacts Form
• Form AD–1047 Certification Regarding Debarment and Suspension
• Certification Regarding Lobbying
• Form AD–1049 Certification Regarding Drug-Free Workplace
2. Attachments. The elements listed below are required for all grant proposals and are included in the proposal package at
•
•
○ Discuss the merits of your proposed project. Specifically, proposals must: (1) Define and establish the existence of the needs of socially disadvantaged farmers and ranchers, veteran farmers and ranchers, or both in the defined geographic area; (2) identify the experience of the organization(s) taking part in the project; (3) identify the geographic area of service; and (4) discuss the potential impact of the project.
○ Identify the qualifications, relevant experience, education, and publications of each Project Director or collaborator. Also, specifically address the work to be completed by key personnel and the roles and responsibilities within the scope of the proposed project. This includes past completed projects and financial management experiences.
○ In an organized format, create a timeline for each task to be accomplished during the period of performance timeframe. Relate each task to one of the four priority areas in Section I, Subsection B. The timeline is part of the 15 page limit but can be as simple as a one-page description of tasks.
•
•
Checklist of documents to submit through
1. SF–424 Application for Federal Assistance
Note: Ensure this is completed with accuracy; particularly email addresses and phone numbers. OAO may not be able to reach you if your information is incorrect.
2. Project Summary Page (no more than 250 words).
3. Project Narrative including a timeline (no more than 15 pages, 12 point font, and 1 inch margins only).
To ensure fairness and uniformity for all applicants, Project Narratives not conforming to this stipulation may not be considered.
4. SF–424A Budget Information–Non-Construction Programs.
5. Budget Narrative (not to exceed 2 pages).
6. Key Contacts Form
Note: Please ensure these are completed with accuracy; individuals not on applicants' Key Contact Form will not receive information about or access to data that concerns the applicant organization.
7. Form AD–1047 Certification Regarding Debarment, Suspension and Other Responsibility Matters.
8. Certification Regarding Lobbying.
9. Form AD–1049 Certification Regarding Drug-Free Workplace Requirements (Grants).
10. Letters of Support, Letters of Recommendation, proof of 501(c)(3) status, résumés of key personnel, negotiated indirect cost rate agreements, etc.
Best practice notes:
* Only submit Adobe pdf file format documents to
* Name your documents with short titles to prevent issues with uploading/downloading documents from
* WHERE TO UPLOAD ATTACHMENTS ON YOUR APPLICATION: There are three blocks on the application where you may upload attachments: after block 14, after block 15, and after block 16. All attachments may be uploaded after each of these blocks on the tab that states: “Add Attachments.”
Funding may be used to provide sub-awards, which includes using sub-awards to fund partnerships; however, the awardee must utilize at least 50 percent of the total funds awarded, and no more than three subcontracts will be permitted. All sub-awardees must comply with applicable requirements for sub-awards. Applicants must provide documentation of a competitive bidding process for services, contracts, and products, including consultant contracts, and conduct cost and price analyses to the extent required by applicable procurement regulations.
The OAO awards funds to
The closing date and time for receipt of proposal submissions is July 29, 2016, at 11:59 p.m., EST via
In accordance with 2 CFR part 200, the names of entities submitting proposals, as well as proposal contents and evaluations, will be kept confidential to the extent permissible by law. If an applicant chooses to include confidential or proprietary information in the proposal, it will be treated in accordance with Exemption 4 of the Freedom of Information Act (FOIA). Exemption 4 of the FOIA protects trade secrets, and commercial and financial information obtained from a person that is privileged or confidential.
1. The OAO may not assist individual applicants by reviewing draft proposals or providing advice on how to respond to evaluation criteria. However, the OAO will respond to questions from individual applicants regarding eligibility criteria, administrative issues related to the submission of the proposal, and requests for clarification regarding the announcement. Any questions should be submitted to
2. The OAO will post questions and answers relating to this funding opportunity during its open period on the Frequently Asked Questions (FAQs) section of our Web site:
Only eligible entities whose proposals meet the threshold criteria in Section III of this announcement will be reviewed according to the evaluation criteria set forth below. Applicants should explicitly and fully address these criteria as part of their proposal package. Each proposal will be reviewed under the regulations established under 2 CFR part 200.
A review panel that is independent of OAO will use a point system to rate each proposal, awarding a maximum of 100 points (95 points, plus an additional 5 discretionary points for programmatic priorities). Each proposal will be reviewed by at least two members of the Independent Review Panel who will review and score all applications submitted. The Independent Review Panel will numerically score and rank each application within the three categories and funding decisions will be based on their recommendations to the designated approving official. Final funding decisions will be made by the designated approving official.
All applications will be reviewed by members of an Independent Review Panel. Panel members are selected based upon training and experience in relevant fields including outreach, technical assistance, cooperative extension services, civil rights, education, statistical and ethnographic data collection and analysis, and agricultural programs and are drawn from a diverse group of experts to create a balanced panel.
1. The successful applicant will be notified by the OAO via telephone, email, or postal mail. The notification will advise the applicant that its proposed project has been evaluated and recommended for award. The notification will be sent to the
2. The OAO will also send notification to unsuccessful applicants via email or postal mail. The notification will be sent to the
3. Within ten days of award status notification, unsuccessful applicants may request feedback on their application. Feedback will be provided as expeditiously as possible. Feedback sessions will be scheduled contingent upon the number of requests. 7 CFR 2500.026.
All awards resulting from this solicitation will be administered in accordance with the Office and Management and Budget (OMB) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards codified at 2 CFR part 200, as supplemented by USDA implementing regulations at 2 CFR parts 400 and 415, and OAO Federal Financial Assistance Programs—General Award Administrative Procedures, 7 CFR part 2500.
In compliance with its obligations under Title VI of the Civil Rights Act of 1964 and Executive Order 13166, it is the policy of the OAO to provide timely and meaningful access for persons with Limited English Proficiency (LEP) to projects, programs, and activities administered by Federal grant recipients. Recipient organizations must comply with these obligations upon acceptance of grant agreements as written in OAO's Terms and Conditions. Following these guidelines is essential to the success of our mission to improve access to USDA programs for socially disadvantaged and veteran farmers and ranchers.
In accordance with the Federal Funding Accountability and Transparency Act (FFATA) and the USDA implementation, all applicants must obtain and provide an identifying number from Dun and Bradstreet's (D&B) Data Universal Numbering System (DUNS). Applicants can receive a DUNS number, at no cost, by calling the toll-free DUNS Number request line at 1–866–705–5711, or visiting the D&B Web site at
In addition, FFATA requires applicants to register with the Central Contractor Registry (CCR) and the
In accordance with 2 CFR part 200, the following reporting requirements will apply to awards provided under this FOA. The OAO reserves the right to revise the schedule and format of reporting requirements as necessary in the award agreement.
1. Quarterly Progress Reports and Financial Reports will be required.
•
•
2. Final progress and financial reports will be required upon project completion. The final progress report should include a summary of the project or activity throughout the funding period, achievements of the project or activity, and a discussion of problems experienced in conducting the project or activity. The final financial report should consist of a complete SF–425 indicating the total costs of the project. Final progress and financial reports must be submitted to the designated OAO official within 90 days after the completion of the award period.
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by July 27, 2016 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),
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.
Please note that in the 60-day
Siuslaw National Forest, Forest Service, USDA.
Notice.
The Siuslaw National Forest is proposing to charge new fees at five recreation sites. Sites are undergoing new construction or amenities are being added to improve visitor services and experiences. Fees are assessed based on the level of amenities and services provided, cost of operation and maintenance, market assessment, and public comment. Fee receipts would be used for the operation and maintenance of these recreation sites.
Castle Rock and Rocky Bend campgrounds will be converted to group campgrounds offering a new opportunity for the public and available to reserve at $75/night. Major reconstruction of the historic Hebo Kitchen, a day use picnic shelter, at Hebo Lake is planned this year and would be available for groups to reserve at $50/day. A $5 day use fee at South Lake/Pioneer Indian Trailhead would be added and recreation passes honored. This site will have new interpretive materials and picnic tables as well as trash service. A $5 day use fee or recreation pass would also be honored at the new Cascade Head interpretive site along the Salmon River estuary within Cascade Head Scenic Research Area. This site is currently under construction and will be completed later this year.
People are invited to comment on this proposal.
Comments on the proposal will be accepted through September 15, 2016. New fees would begin after January 2017.
Jeremiah C. Ingersoll, Forest Supervisor, Siuslaw National Forest, 3200 SW Jefferson Way, Corvallis, OR 97333.
Dani Pavoni, Recreation Staff Officer, 541–750–7046 or email
The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108–447) directed the Secretary of Agriculture to publish a six month advance notice in the
Once public involvement is complete, these new fees will be reviewed and a
Visitors wanting to reserve Castle Rock, Rocky Bend or Hebo Kitchen group sites would need to do so through the national reservation system at
Forest Service, USDA.
Notice of intent to re-establish the Black Hills National Forest Advisory Board.
The U. S. Department of Agriculture (USDA), intends to re-establish the Black Hills National Forest Advisory Board (Board). In accordance with the provisions of the Federal Advisory Committee Act (FACA), the Board is being re-established to continue obtaining advice and recommendations on a broad range of forest issues such as forest plan revisions or amendments, forest health including fire management and mountain pine beetle infestations, travel management, forest monitoring and evaluation, recreation fees, and site-specific projects having forest wide implications.
Scott Jacobson, Board Coordinator, USDA, Black Hills National Forest, by telephone: 605–673–9216, by fax: 605–673–9208, or by email:
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.
The Board is a non-scientific program advisory board established by the Secretary of Agriculture in 2003 to provide advice and counsel to the U. S. Forest Service, Black Hills National Forest, in the wake of increasingly severe and intense wild fires and mountain pine beetle epidemics.
The purpose of the Board is to provide advice and recommendations on a broad range of forest issues such as forest plan revisions or amendments, travel management, forest monitoring and evaluation, and site-specific projects having forest-wide implications. The Board also serves to meet the needs of the Recreation Enhancement Act of 2005 as a Recreation Resource Advisory Committee (RRAC) for the Black Hills of South Dakota. The Board provides timely advice and recommendations to the regional forester through the forest supervisor regarding programmatic forest issues and project-level issues that have forest-wide implications for the Black Hills National Forest.
The Board meets approximately ten times a year, with one month being a field trip, held in August and focusing on both current issues and the educational value of seeing management strategies and outcomes on the ground. This Board has been established as a truly credible entity and a trusted voice on forest management issues and is doing often astonishing work in helping to develop informed consent for forest management.
For years, the demands made on the Black Hills National Forest have resulted in conflicts among interest groups resulting in both forest-wide and site-specific programs being delayed due to appeals and litigation. The Board provides a forum to resolve these issues to allow for the Black Hills National Forest to move forward in its management activities. The Board is believed to be one of the few groups with broad enough scope to address all of the issues and include all of the jurisdictional boundaries.
The Board's most significant accomplishments include:
1. A 2004 report on the Black Hills Fuels Reduction Plan, a priority following the major fires including the 86,000 acre Jasper Fire in 2000;
2. A 2004 initial Off-Highway Vehicle Travel Management Subcommittee report;
3. A report on their findings regarding the thesis, direction, and assumptions of Phase II of our Forest Plan produced in 2005;
4. The Invasive Species Subcommittee Report in 2005 covering recommendations to better stop invasive species from infiltrating the Forest;
5. A final Travel Management Subcommittee Report in 2006 in which the Board made 11 recommendations regarding characteristics of a designated motor vehicle trail system, the basis for our initial work to prepare our Motor Vehicle Use Map in 2010–2011;
6. The Board's annual work to attract funding through grants based on the Collaborative Landscape Forest Restoration Program (CFLRP), a program of the Secretary of Agriculture
7. A letter to the Secretary and the Chief of the Forest Service to work, restore and maintain open space for wildlife habitat and recreation needs like snowmobile trails; and
8. The annual reports to the Secretary detailing the Board's activities, issues, and accomplishments.
The Board is deemed to be among the most effective public involvement strategies in the Forest Service and continues to lead by example for Federal, State, and local government agencies working to coordinate and cooperate in the Black Hills of South Dakota and Wyoming.
Pursuant to the Federal Advisory Committee Act (5 U.S.C. App. II), the Secretary of Agriculture intends to re-establish the Black Hills National Forest Advisory Board. The Board provides advice and recommendations on a broad range of forest planning issues and, in accordance with the Federal Lands Recreation Enhancement Act (Pub. L. 108–447 (REA)), more specifically will provide advice and recommendations on Black Hills National Forest recreation fee issues (serving as the RRAC for the Black Hills National Forest). The Board membership consists of individuals representing commodity interests, amenity interests, and State and local government.
The Board has been determined to be in the public interest in connection with the duties and responsibilities of the Black Hills National Forest. National forest management requires improved coordination among the interests and governmental entities responsible for land management decisions and the public that the agency serves.
The Board consists of 16 members that are representative of the following interests (this membership is similar to the membership outlined by the Secure Rural Schools and Community Self Determination Act for Resource Advisory Committees (16 U.S.C. 500,
1. Economic development;
2. Developed outdoor recreation, off-highway vehicle users, or commercial recreation;
3. Energy and mineral development;
4. Commercial timber industry;
5. Permittee (grazing or other land use within the Black Hills area);
6. Nationally recognized environmental organizations;
7. Regionally or locally recognized environmental organizations;
8. Dispersed recreation;
9. Archeology or history;
10. Nationally or regionally recognized sportsmen's groups, such as anglers or hunters;
11. South Dakota State-elected offices;
12. Wyoming State-elected offices;
13. South Dakota or Wyoming county-or local-elected officials;
14. Tribal government elected or- appointed officials;
15. South Dakota State natural resource agency official; and
16. Wyoming State natural resource agency official.
The members of the Board will elect and determine the responsibilities of the Chairperson and the Vice-Chairperson. In the absence of the Chairperson, the Vice-Chairperson will act in the Chairperson's stead. The Forest Supervisor of the Black Hills National Forest serves as the Designated Federal Officer (DFO) under sections 10(e) and (f) of the Federal Advisory Committee Act (5 U.S.C. App. II).
Members will serve without compensation, but may be reimbursed for travel expenses while performing duties on behalf of the Board, subject to approval by the DFO.
Equal opportunity practices are followed in all appointments to the Board in accordance with USDA policies. To ensure that the recommendations of the Board have been taken into account the needs of diverse groups served by USDA, the membership shall include to the extent practicable, individuals with demonstrated ability to represent the needs of all racial and ethnic groups, women and men, and persons with disabilities.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The Apache-Sitgreaves, Coconino, and Tonto National Forests are proposing to conduct restoration activities within 1.24 million acres of ponderosa pine ecosystem over approximately 10 years. Treatment areas are located on the Black Mesa, and Lakeside Ranger Districts of the Apache-Sitgreaves National Forest, the Mogollon and Red Rock Ranger Districts of the Coconino National Forest, and the Payson and Pleasant Valley Ranger Districts of the Tonto National Forest. Project treatments would occur in the vicinity of Happy Jack, Payson, Young, Heber-Overgaard, Show Low, and Pinetop-Lakeside, Arizona. The objective of this project is to re-establish forest structure, pattern, and composition, which will lead to increased forest resilience and function. Resiliency increases the ability of ponderosa pine forests to survive natural disturbances such as insects and disease, fire, and climate change.
Comments concerning the proposed action in this notice must be received by August 11, 2016. The draft environmental impact statement is expected in July 2017 and the final environmental impact statement is expected in September 2018.
Send written comments to Coconino National Forest, Attention: 4FRI, 1824 S. Thompson Street, Flagstaff, Arizona 86001. Comments may also be sent via email to
Annette Fredette, 4FRI Planning Coordinator, at 928–226–4684, or
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The purpose of the Rim Country Project is to reestablish and restore forest structure and pattern, forest health, and vegetation composition and diversity in ponderosa pine ecosystems to conditions within the natural range of variation, thus moving the project area toward the desired conditions. The outcome of improving structure and function is increased system resiliency. Resiliency increases the ability of an ecosystem to survive natural disturbances such as fire, insects and disease, and climate change without changing its inherent function.
This project is needed to: Increase forest resiliency and sustainability, reduce risk of undesirable fire effects, improve terrestrial and aquatic species habitat, improve the condition and function of streams and springs, restore woody riparian vegetation, preserve cultural resources, and support sustainable forest products industries.
To meet the purpose and need for the Rim Country Project and move the project area toward desired conditions, the Apache-Sitgreaves, Coconino, and Tonto National Forests propose mechanical thinning, prescribed fire, and other restoration activities throughout the project area that would make the forest more resilient to natural disturbances such as fire, insects and disease, and climate change. Restoration activities are needed to maintain or restore forest structure and pattern, desired fire regimes, and watershed and ecosystem function in ponderosa pine, ponderosa pine-Gambel oak, ponderosa pine-evergreen oak, frequent fire mixed conifer (dry mixed conifer), aspen, and grassland cover types, moving them toward conditions within the natural range of variation. Facilitative operations may be needed in other cover types (such as pinyon juniper) to enable or complete treatments in target cover types, by reducing uncharacteristic fire risk, reducing ground disturbance from fireline construction, or improving operability. Restoration activities proposed for the Rim Country project area include:
• Mechanically thin trees and/or implement prescribed fire on approximately 952,330 acres.
○ Mechanically thin trees and implement prescribed fire on approximately 1,260 acres in the Long Valley Experimental Forest (in coordination with the Rocky Mountain Research Station).
○ Implement prescribed fire alone on approximately 45,290 acres.
○ Mechanically thin and/or implement prescribed fire on approximately 68,360 acres of Mexican spotted owl (MSO) protected activity centers (PACs), approximately 128,800 acres of MSO recovery habitat, and approximately 500,940 acres of northern goshawk habitat.
○ Mechanically thin trees and/or implement prescribed fire to restore approximately 40,760 acres of grasslands and meadows (includes 21,550 acres of grassland cover type).
○ Conduct facilitative operations (thin and/or burn) on up to 157,270 acres of non-target cover types to support treatments in target cover types.
○ Planting, burning, and other activities to encourage reforestation on approximately 69,360 acres of understocked areas that were previously forested.
• Decommission approximately 230 miles of existing system and unauthorized roads on the Coconino and Apache-Sitgreaves NFs.
• Decommission approximately 20 miles of unauthorized roads on the Tonto NF.
• Improve approximately 150 miles of existing non-system roads and construct approximately 350 miles of temporary roads for haul access; decommission when treatments are completed.
• Relocate and reconstruct existing open roads adversely affecting water quality and natural resources, or of concern to human safety.
• Restore hydrologic function and vegetation on approximately 9,570 acres of meadows.
• Restore approximately 184 springs.
• Restore function in up to 470 miles of riparian streams and intermittent and ephemeral stream channels (non-riparian).
• Restore up to 360 miles of stream habitat for threatened, endangered, and sensitive aquatic species.
• Construct up to 200 miles of protective barriers around springs, aspen, Bebb's willows, and big-tooth maples, as needed for restoration.
A full range of alternatives to the proposed action, including a no action alternative, will be considered. The no action alternative represents no change and serves as the baseline for the comparison of the action alternatives.
To meet the project's purpose and need, the existing Coconino and Tonto Forest Plans would need to be amended to provide for areas of grass, forbs, and shrubs interspersed with tree groups and allow for treatments to move tree group patterns, interspaces, and stand density toward the natural range of variability. Amending these forest plans would allow for treatments that improve MSO nesting and roosting habitat as defined in the Mexican spotted owl recovery plan. The desired conditions related in the project's purpose and need are consistent with the revised Apache-Sitgreaves Forest Plan. Amendments to the Coconino and Tonto Forest Plans would provide consistency in meeting desired conditions for ponderosa pine and mixed conifer forests across the Rim Country project area.
Cooperating Agency status has been designated to the Arizona Game and Fish Department (Department) to assist the Apache-Sitgreaves, Tonto, and Coconino National Forests in the preparation of the 4FRI Rim Country EIS, pursuant to the terms the Master Memorandum of Understanding (10–MU–11031600–019) between the Department and the Forest Service.
The responsible officials are the Apache-Sitgreaves, Coconino, and Tonto National Forest Supervisors.
Given the purpose and need of the project, the forest supervisors will review the proposed action, other alternatives, and the environmental effects analysis in order to determine: (1) Which alternative, or combination of alternatives, should be implemented; (2) the location and treatment methods for all restoration activities; (3) the design features, mitigation measures and monitoring requirements; and, (4) consistency with the forest plans in place at the time of the decision and the need for amendments.
This notice of intent initiates the scoping process for the 4FRI Rim Country Project, which guides the development of the environmental impact statement. Public meetings are planned during the scoping period for the purposes of discussing and gathering comments on the proposed action. Meetings are planned on Thursday, July 14 in Show Low, AZ, and on Thursday, July 21 in Payson, AZ. For times and locations and other scheduled meetings, please visit the 4FRI Web site:
The intent of this comment period is to provide those interested in or affected by this proposed action with an opportunity to make their concerns known. Written, hand-delivered, electronic, and facsimile comments concerning this proposed action will be accepted. We invite you to provide any substantive comments you might have regarding the proposed action for the 4FRI Rim Country Project, those that are within the scope of the project and the decision to be made, are specific to the proposed activities and the project area, and have a direct relationship to the project. Please provide supporting reasons for us to consider. If you cite or include references with your comments, you need to state specifically how those references relate to the proposed action. Please include hard copies or internet links to any references to which you refer. It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
This proposed project is an action implementing three land management plans and is subject to the objection process described in 36 CFR 218 Subparts A and B. As such, individuals and organizations wishing to be eligible to file a predecisional objection must meet the information requirements in 36 CFR 218. Names and contact information submitted with comments will become part of the public record and may be released under the Freedom of Information Act. However, comments submitted anonymously will also be accepted and considered.
First Responder Network Authority, U.S. Department of Commerce.
Notice of public meetings.
The Board of the First Responder Network Authority (FirstNet) will convene an open public meeting on June 30, 2016, preceded by open public meetings of the Board Committees on June 29, 2016.
On June 29, 2016 between 1 p.m. and 3:30 p.m. CST, there will be an open public joint meeting of the FirstNet Governance and Personnel, Finance, Technology, and Consultation and Outreach Committees. The full FirstNet Board will hold an open public meeting on June 30, 2016 between 8:30 a.m. and 12 p.m. CST.
The meetings on June 29–30, 2016, will be held at W Chicago—City Center, 172 West Adams Street, Chicago, IL 60603.
Karen Miller-Kuwana, Board Secretary, FirstNet, 12201 Sunrise Valley Drive, M/S 243, Reston, VA 20192; telephone: (571) 665–6177; email:
This notice informs the public that the Board of FirstNet will convene an open public meeting on June 30, 2016, preceded by open public meetings of the Board Committees on June 29, 2016.
The meetings are accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, are asked to notify Monica Welham, Executive Assistant, FirstNet, at (571) 665–6144 or
The meetings will also be webcast. Please refer to FirstNet's Web site at
Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89–651, as amended by Pub. L. 106–36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.
Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before July 18, 2016. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5:00 p.m. at the U.S. Department of Commerce in Room 3720.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On February 12, 2016, the Department of Commerce (the Department) received a countervailing
Effective on June 27, 2016.
Emily Halle, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–0176.
Section 703(e)(1) of the Tariff Act of 1930, as amended (the Act), provides that the Department will preliminarily determine that critical circumstances exist in CVD investigations if there is a reasonable basis to believe or suspect: (A) That “the alleged countervailable subsidy” is inconsistent with the Subsidies and Countervailing Measures (SCM) Agreement of the World Trade Organization, and (B) that there have been massive imports of the subject merchandise over a relatively short period. Section 19 CFR 351.206 provides that imports must increase by at least 15 percent during the “relatively short period” to be considered “massive” and defines a “relatively short period” as normally being the period beginning on the date the proceeding begins (
On March 25, 2016, the Department selected Ningbo Baoxin Stainless Steel Co., Ltd. (Ningbo Baoxin) and Shanxi Taigang Stainless Steel Co. Ltd. (Taigang) as mandatory respondents.
To determine whether an alleged countervailable subsidy is inconsistent with the SCM Agreement, in accordance with section 703(e)(1)(A) of the Act, the Department considered the evidence currently on the record of this investigation. Specifically, as determined in our initiation checklist, the following subsidy programs, alleged in the Petition and supported by information reasonably available to Petitioners, appear to be either export contingent or contingent upon the use of domestic goods over imported goods, which would render them inconsistent with the SCM Agreement: Preferential Lending to Stainless Sheet and Strip Producers and Exporters Classified As “Honorable Enterprises,”
In determining whether there are “massive imports” over a “relatively short period,” pursuant to sections 703(e)(1)(B) and 733(e)(1)(B) of the Act, the Department normally compares the import volumes of the subject merchandise for at least three months immediately preceding the filing of the petition (
Petitioners did not provide any argument or evidence pursuant to CFR 351.206(i), that importers, exporters or producers had a reason to believe, at some time prior to the filing of the petition, that a proceeding was likely. Thus, in order to determine whether there has been a massive surge in imports for the cooperating mandatory respondent, we have used a comparison period starting with the month the petition was filed in (
For “all other” exporters or producers, the Department compared Global Trade Atlas (GTA) data for the period February through April (the last month for which GTA data is currently available) with the proceeding three-month period of November 2015 through January 2016.
Because we do not have verifiable shipment data from the non-cooperating mandatory respondents (
Based on the criteria and findings discussed above, we preliminarily determine that critical circumstances exist with respect to imports of stainless sheet and strip shipped by Taigang, Ningbo Baoxin, Daming, and “all other” exporters or producers.
We will issue a final determination concerning critical circumstances when we issue our final subsidy determination. All interested parties will have the opportunity to address this determination in case briefs to be submitted after completion of the preliminary CVD determination.
In accordance with sections 703(f) and 733(f) of the Act, we will notify the ITC of our determination.
In accordance with sections 703(e)(2), because we have preliminarily found that critical circumstances exist with regard to imports exported by certain producers and exporters, if we make an affirmative preliminary determination that countervailable subsidies have been provided to these same producers/exporters at above
This notice is issued and published pursuant to section 777(i) of the Act and 19 CFR 351.206(c)(2).
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
The Department of Commerce (“Department”) is amending the
James Terpstra, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington DC 20230; telephone 202–482–3965.
On May 16, 2016, the Department disclosed to interested parties its calculations for the
The POR covered by this review is October 1, 2013, through September 30, 2014.
The merchandise subject to this order is carbon and certain alloy steel wire rod. The product is currently classified under the Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7213.91.3010, 7213.91.3090, 7213.91.4510, 7213.91.4590, 7213.91.6010, 7213.91.6090, 7213.99.0031, 7213.99.0038, 7213.99.0090, 7227.20.0010, 7227.20.0020, 7227.20.0090, 7227.20.0095, 7227.90.6051, 7227.90.6053, 7227.90.6058, and 7227.90.6059. Although the HTS numbers are provided for convenience and customs purposes, the written product description remains dispositive.
Section 751(h) of the Tariff Act of 1930, as amended (“the Act”), defines a “ministerial error” as including “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other unintentional error which the administering authority considers ministerial.” We analyzed Nucor's and Deacero's ministerial error comments and determined, in accordance with section 751(h) of the Act and 19 CFR 351.224(e), that there were ministerial
In accordance with section 751(h) of the Act and 19 CFR 351.224(e), we are amending the
As a result of correcting for these ministerial errors, we determine the following margin exists for the period October 1, 2012, through September 30, 2013.
Pursuant to section 751(a)(2)(C) of the Act, and 19 CFR 351.212(b), the Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the amended final results of this review. The Department intends to issue assessment instructions to CBP 41 days after the date of publication of these amended final results of review.
For assessment purposes, the Department applied the assessment rate calculation method adopted in
We calculated such rates based on the ratio of the total amount of dumping calculated for the examined sales to the total entered value of the sales for which entered value was reported. If an importer-specific assessment rate is zero or
For entries of subject merchandise during the POR produced by a respondent for which it did not know that its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this assessment practice, see
The following cash deposit requirements will be effective upon publication of the notice of amended final results of administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication of the amended final results of this administrative review, as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for Deacero will be the rate established in the amended final results of this administrative review; (2) for merchandise exported by manufacturers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 20.11 percent, the all-others rate established in the investigation.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent increase in antidumping duties by the amount of antidumping duties reimbursed.
This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We will disclose the calculations performed for these amended final results to interested parties within five business days of the date of publication of this notice in accordance with 19 CFR 351.224(b)
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.224(e).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to a July 17, 2015 request from Haixing Jingmei Chemical Products Sales Co., Ltd. (“Jingmei”), and its affiliated producer, Haixing Eno Chemical Co., Ltd. (“Eno”), the Department of Commerce (the Department) is conducting a new shipper review of Haixing Jingmei Chemical Products Sales Co., Ltd. (“Jingmei”), regarding the antidumping duty order on calcium hypochlorite from the People's Republic of China (“PRC”). The period of review (“POR”)
Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–2593.
On August 26, 2015, the Department published notice of initiation of a new shipper review of calcium hypochlorite from the PRC for the period July 25, 2014, through June 30, 2015.
The merchandise covered by the Order is calcium hypochlorite, regardless of form (
The Department is conducting this review in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.214. For a full description of the methodology underlying our conclusions,
The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (“ACCESS”). ACCESS is available to registered users at
For the reasons detailed in the Preliminary Decision Memorandum, the Department preliminarily finds that, as a result of Jingmei's customers' failure to provide necessary information, we cannot determine whether Jingmei's sales under review are
The Department will disclose the analysis performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Interested parties may submit written comments by no later than 30 days after the date of publication of these preliminary results of review.
Any interested party may request a hearing within 30 days of publication of this notice.
The Department intends to issue the final results of this new shipper review, which will include the results of its analysis of issues raised in any such comments, within 90 days of publication of these preliminary results, pursuant to section 751(a)(2)(B)(iv) of the Act.
Upon completion of the final results, pursuant to 19 CFR 351.212(b), the Department will determine, and the U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries. If we proceed to a final rescission of the new shipper review, Jingmei's entries will be assessed at the rate entered.
Effective upon publication of the final rescission or the final results of this new
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
The Department is issuing and publishing these results in accordance with sections 751(a)(2)(B) and 777(i)(l) of the Act, and 19 CFR 351.214 and 19 CFR 351.221(b)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Janice Straley, Ph.D., University of Alaska Southeast, 1332 Sward Ave., Sitka, AK 99835, has applied in due form for a permit to conduct research on 16 species of cetaceans.
Written, telefaxed, or email comments must be received on or before July 27, 2016.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713–0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Carrie Hubard or Amy Sloan, (301) 427–8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant proposes to further the understanding of large whales in Alaskan waters by conducting vessel research, including photo-identification, behavioral observations, acoustic playbacks, biopsy sampling, suction cup and dart tagging, underwater photography/video, and prey-mapping sonar. Prey samples, blow, sloughed skin and feces would also be collected. Research would occur in all Alaskan waters, including southeastern Alaska, Glacier Bay National Park and Preserve, Prince William Sound, Gulf of Alaska, Bering Sea, Chukchi Sea, and Beaufort Sea. Specific goals are to: (1) Continue and expand a study of humpback whales (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
The United States Patent and Trademark Office (USPTO) will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of Paperwork Reduction Act (44 U.S.C. Chapter 35).
Further information can be obtained by:
•
•
Written comments and recommendations for the proposed information collection should be sent on or before July 27, 2016 to Nicholas A. Fraiser, OMB Desk Officer, via email to
Department of the Army, DoD.
Notice; Request for Nominations.
The Advisory Committee on Arlington National Cemetery is an independent Federal advisory committee chartered to provide the Secretary of Defense, through the Secretary of the Army, independent advice and recommendations on Arlington National Cemetery, including, but not limited to cemetery administration, the erection of memorials at the cemetery, and master planning for the cemetery. The Secretary of the Army may act on the Committee's advice and recommendations. The Committee is comprised of no more than nine (9) members. Subject to the approval of the Secretary of Defense, the Secretary of the Army appoints no more than seven (7) of these members. The purpose of this notice is to solicit nominations from a wide range of highly qualified persons to be considered for appointment to the Committee. Nominees may be appointed as members of the Committee and its sub-committees for terms of service ranging from one to four years. This notice solicits nominations to fill Committee membership vacancies that may occur through 31 December, 2016. Nominees must be preeminent authorities in their respective fields of interest or expertise.
All nominations must be received at (see
Interested persons may submit a resume for consideration by the Department of the Army to the Committee's Designated Federal Officer at the following address: Advisory Committee on Arlington National Cemetery, ATTN: Designated Federal Officer (DFO) (Ms. Yates), Arlington National Cemetery, Arlington, VA 22211.
Ms. Renea C. Yates, Designated Federal Officer, by email at
The Advisory Committee on Arlington National Cemetery was established pursuant to Title 10, United States Code, Section 4723. The selection, service and appointment of members of the Committee are covered by the Committee Charter, available on the Arlington National Cemetery Web site
a.
By direction of the Secretary of the Army, all resumes submitted in response to this notice will be presented to and reviewed by a panel of three senior Army leaders. Potential nominees shall be prioritized after review and consideration of their resumes for: demonstrated technical/professional expertise; preeminence in a field(s) of interest or expertise; potential contribution to membership balance in terms of the points of view represented and the functions to be performed; potential organizational and financial conflicts of interest; commitment to our Nation's veterans and their families; and published points of view relevant to the objectives of the Committee. The panel will provide the DFO with a prioritized list of potential nominees for consideration by the Executive Director, Army National Military Cemeteries, in making an initial recommendation to the Secretary of the Army. The Executive Director, Army National Military Cemeteries; the Secretary of the Army; and the Secretary of Defense are not limited or bound by the recommendations of the Army senior leader panel. Sources in addition to this
b.
c.
Additional information about the Committee is available on the Internet at:
Assistant G–1 for Civilian Personnel, Non-Appropriated Funds Policy and Programs Division, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by August 26, 2016.
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 review/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 Department of the Army, Assistant G–1 for Civilian Personnel, Non-Appropriated Funds Policy and Programs Division, ATTN: DAPE–CPN, 6010 6th Street, Building 1465, Fort Belvoir, VA 33060, or call 703–806–3097.
Respondents are applicants seeking employment with Non-Appropriated Funds Instrumentalities. DA Form 3433, Application for Non-Appropriated Funds Employment, records employment history and qualifications of applicants to determine their eligibility for employment. The completed form is maintained electronically in the Official Personnel Folder system for the selected applicants upon appointment, and for non-selected applicants, the application is maintained in the staffing case file and destroyed after 1 year.
Department of the Army, DoD.
Notice to alter a System of Records.
The Department of the Army proposes to alter a system of records notice A0145–1 TRADOC, entitled “Army Reserve Officer's Training Corps (ROTC) and Financial Assistance Programs” to provide a central database of potential prospects for enrollment in the ROTC and the Senior Army ROTC program, provide training and commissioning of eligible cadets in active Army and to assist prospects by providing information concerning educational institutions having ROTC programs; scholarship information and applications, information on specialized programs such as nursing, Green to Gold and historically Black Colleges and Universities and information regarding other Army enlistment, reserve or National Guard programs. This program also administers the financial assistance program; renders the selection of recipients for 2, 3, and 4 year scholarships; monitor selectees performance (academic and ROTC) and also develop policies and procedures, compile statistics and render reports.
Comments will be accepted on or before July 27, 2016. 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:
•
Follow the instructions for submitting comments.
•
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 22325–3905; telephone (703) 428–6185.
The Department of the Army's 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 systems reports, as required by 5 U.S.C. 552a(r) of the Privacy Act, as amended, were submitted on June 8, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4 of Appendix I to OMB Circular No. A–130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” revised November 28, 2000 (December 12, 2000 65 FR 77677).
Army Reserve Officer's Training Corps (ROTC) and Financial Assistance Programs (May 10, 2001, 66 FR 23899)
Delete entry and replace with “A0145–1 AHRC.”
Delete entry and replace with “Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5500.”
Delete entry and replace with “Individual applications and/or prospect referrals for appointment which include personal data including: name, Social Security Number (SSN), sex, ethnicity, race, height, weight, date and place of birth, citizenship, home address, home and cell phone numbers, email address, marital status, number of dependents, parental information; parent/guardian home of record state, email address, mother's maiden name, name of high school, high school graduation date, grade point average, Scholastic Assessment Test, American College Testing, Preliminary Scholastic Assessment Testing scores, college admission status, college(s) expected to attend, desired academic major(s), academic transcripts and certificates of education to prior military service information, training, college board scores and test results, medical examination, acceptance/declination, interview board results, financial assistance document awards, ROTC contract and evaluation from Professor of Military Science commanding officer, photographs, references, correspondence between the member and the Army or other Federal agencies, letters of recommendation, inquiries regarding applicant's selection or non-selection, letter of appointment in Active Army on completion of ROTC status, security clearance documents, reports of Reserve Officer Training Corps Advanced, Ranger, or Basic Camp performance of applicant.”
Delete entry and replace with “10 U.S.C. 3013, Secretary of the Army; 10 U.S.C. 2031, Junior Reserve Officers' Training Corps; 10 U.S.C. 2104, Advanced training; eligibility for; 10 U.S.C 2107, Financial assistance program for specially selected members; Army Regulation 145–1, Senior Reserve Officers' Training Corps Program: Organization, Administration, and Training; Army Regulation 145–2, Junior Reserve Officers' Training Corps Program: Organization, Administration, Operation, and Support; and E.O. 9397 (SSN), as amended.”
Delete entry and replace with “In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the 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:
To the Federal Aviation Administration to obtain flight certification and/or licensing.
To the Department of Veterans Affairs for member Group Life Insurance and/or other benefits.
The DoD Blanket Routine Uses set forth at the beginning of the Army's compilation of systems of records notices may apply to this system. The complete list of DoD Blanket Routine Uses can be found online at:
Delete entry and replace with “Paper records and electronic storage media.”
Delete entry and replace with “By name and SSN.”
Delete entry and replace with “DoD Components and approved users ensure that electronic records collected and used are maintained in controlled areas accessible only to authorized personnel in the performance of their duties. Physical security differs from site to site, access to computerized data is restricted by use of common access cards (CACs) and is accessible only by users with an authorized account. The system and electronic backups are maintained in controlled facilities that employ physical restrictions and safeguards such as security guards,
Delete entry and replace with “CC Form 139–R, Cadet Enrollment Record is retained in the ROTC unit for 5 years after cadet leaves the institution or is disenrolled from the ROTC program.
Following successful completion of ROTC and academic programs and appointment as a commissioned officer with initial assignment to active duty for training, copy of pages 1 and 2 are reproduced and sent to the commandant of individual's basic branch course school. Records of rejected ROTC applicants are destroyed. Other records mentioned in preceding paragraphs are immediately destroyed unless the records are for financial assistance which are retained for 1 year then destroyed or if they are not required to become part of individual's Military Personnel Records Jacket.
ROTC QUEST records are retained for 3 years then destroyed. ROTC Scholarship application records are destroyed 1 year after graduation or disenrollment.
Paper records are destroyed by tearing, burning, melting, chemical decomposition, pulping, pulverizing, shredding, or mutilation. Electronic records and media are destroyed by overwriting, degaussing, disintegration, pulverization.”
Delete entry and replace with “Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5500.”
Delete entry and replace with “Individuals seeking to determine whether information about themselves is contained in this system should address written inquiries to the Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5500.
Individuals should provide their full name, current address, telephone number and signature.
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).' ”
Delete entry and replace with “Individuals seeking access to information about themselves contained in this system should address written inquiries to the Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Fort Knox, KY 40122–5500.
Individuals should provide their full name, current address, telephone number and signature.
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).' ”
Delete entry and replace with “The Army's rules for accessing records, contesting contents, and appealing initial agency determinations are contained in 32 CFR part 505, Army Privacy Program or may be obtained from the system manager.”
Delete entry and replace with “From the individual, civilian educational institutions and staff, college registrars, dormitory directors, national testing organizations, honor societies, boys' clubs, boy scout organizations, Future Farmers of America, minority and civil rights organizations, fraternity and church organizations; neighborhood youth centers, YMCA, YWCA, social clubs, athletic clubs, scholarship organizations, U.S. Army Recruiting Command, Military Academy Liaison officers, West Point non-select listing, previous employers, trade organizations, and military service.”
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 July 27, 2016.
Fred Licari, 571–372–0493.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, 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.
Pentagon Force Protection Agency, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by August 26, 2016.
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 review/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 Pentagon Force Protection Agency, Policy Office, 9000 Defense Pentagon, ATTN: John Rudaski, Washington, DC 20301–9000 or call (703) 695–0484.
Respondents are separating or separated Pentagon Force Protection Agency, Defense Protective Service, or other predecessor agency law enforcement officers applying for an identification card identifying them as a “qualified retired law enforcement officer” under 18 U.S.C. 926C and DoD Instruction 5525.12, “Implementation of the Amended Law Enforcement Officers Safety Act of 2004.”
Department of Education (ED), Federal Student Aid (FSA).
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 August 26, 2016.
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 Beth Grebeldinger, 202–377–4018.
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
Federal Student Aid (FSA), 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 August 26, 2016.
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 Beth Grebeldinger, 202–377–4018.
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.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of granting of interim waiver; notice of request for waiver; request for public comment.
This notice announces receipt of a petition for waiver from AGA Marvel seeking an exemption from specified portions of the U.S. Department of Energy (“DOE”) test procedure for determining the energy consumption of electric refrigerators and refrigerator-freezers. AGA Marvel seeks to apply an alternative test procedure for measuring the energy usage of combination cooler-refrigerator basic models. DOE has reviewed AGA Marvel's alternate procedure. Rather than permit the use of this alternative procedure, which would effectively alter both the test procedure and the standard that AGA Marvel's products would need to meet, DOE has tentatively concluded that it is more appropriate to apply the alternative procedure that other manufacturers of similar products have been permitted to use in prior waivers granted by DOE. This approach would allow AGA Marvel to measure the energy use of its products while alleviating the testing problems that prompted AGA Marvel's request. Accordingly, DOE is granting to AGA Marvel an interim waiver to permit it to use this alternative testing method to measure the energy usage of its combination cooler-refrigerator basic models. DOE notes that the method detailed in this interim waiver is consistent with the most recent approach that DOE outlined in an interim waiver issued earlier this year for other similar products. DOE solicits comments, data, and information concerning AGA Marvel's petition and suggestions on the alternate test procedure DOE is permitting AGA Marvel to use as a condition of its interim waiver.
DOE will accept comments, data, and information with regard to the proposed modification until July 27, 2016.
You may submit comments, identified by Case Number RF–045, by any of the following methods:
•
•
•
•
On January 26, 2016, AGA Marvel submitted a petition for waiver and application for interim waiver under 10 CFR 430.27 for its combination cooler-refrigerator models. (A subsequent email from AGA Marvel sent on March 9, 2016, identified the specific basic models addressed in its petition.) AGA Marvel's submission seeks to use an alternative to the test procedure found at appendix A to subpart B of 10 CFR part 430. The basic models at issue incorporate wine chiller/beverage compartments (referred to as cooler compartments) that prevent the manufacturer from testing these products in accordance with the applicable test procedure in appendix A. Specifically, the cooler compartments operate at temperatures higher than the standardized compartment temperatures used for testing in appendix A. Accordingly, these basic models cannot be rated based on the test procedure in appendix A. DOE is granting AGA Marvel with an interim waiver but modifying the alternative testing method approach outlined in AGA Marvel's petition to ensure consistency with the approach outlined in a recently issued interim waiver issued for similar products.
Title III, Part B of the Energy Policy and Conservation Act of 1975 (“EPCA”), Public Law 94–163 (42 U.S.C. 6291–6309, as codified) established the Energy Conservation Program for Consumer Products Other Than Automobiles, a program covering most major household appliances, which includes the electric refrigerators and refrigerator-freezers that are the focus of this notice.
DOE's regulations allow a person to seek a waiver from the test procedure requirements for a particular basic model of a type of covered consumer product when (1) the petitioner's basic model for which the petition for waiver was submitted contains one or more design characteristics that prevent testing according to the prescribed test procedure, or (2) when the prescribed test procedures may evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(a)(1). A petitioner must include
The granting of a waiver is subject to conditions, including adherence to alternate test procedures. 10 CFR 430.27(f)(2). As soon as practicable after the granting of any waiver, DOE will publish in the
A petitioner may request that DOE extend the scope of a waiver or an interim waiver to include additional basic models employing the same technology as the basic model(s) set forth in the original petition. DOE will publish any such extension in the
By letter dated January 26, 2016, AGA Marvel submitted a petition for waiver and application for interim waiver under 10 CFR 430.27(a) for 12 basic models of combination cooler-refrigerators that are required to be tested using the test procedure detailed at appendix A to subpart B of 10 CFR part 430. AGA Marvel supplemented its filing with a March 9, 2016, email identifying the basic models. Appendix A requires measuring the energy consumption of refrigerators using a standardized compartment temperature of 39 degrees Fahrenheit (°F), a temperature which AGA Marvel's products are not capable of achieving in all compartments. As a result, AGA Marvel seeks a waiver to appendix A's procedure to apply a standardized compartment temperature of 55 °F to the cooler compartments within its products. These compartments maintain a higher temperature typical for storing beverages. AGA Marvel also requested that the products be tested with a 0.55 usage factor, rather than with no usage factor as required according to appendix A, which is consistent with the test procedure approach recommended by the Miscellaneous Refrigeration Products (“MREF”) Working Group. The Working Group's approach, which was developed during a recent negotiated rulemaking, is detailed in the relevant October 20, 2015, Term Sheet (“Term Sheet #1”).
DOE notes that it previously granted a similar waiver to Panasonic Appliances Refrigeration Systems Corporation of America (“PAPRSA”) through an interim waiver (78 FR 35894 (June 14, 2013)) and a subsequent Decision and Order (78 FR 57139 (September 17, 2013)) under Case No. RF–031. DOE also granted an extension of waiver (79 FR 55769 (September 17, 2014)) to PAPRSA under Case No. RF–041. Additionally, DOE granted a similar waiver to Sanyo E&E Corporation (“Sanyo”) through an interim waiver (77 FR 19654 (April 2, 2012)) and a subsequent Decision and Order (77 FR 49443 (August 16, 2012)) under Case No. RF–022. On October 4, 2012, DOE issued a notice of correction to the Decision and Order incorporating a K-factor (correction factor) value of 0.85 when calculating the energy consumption (77 FR 60688). Sanyo E&E Corporation has since changed its corporate name to Panasonic Appliances Refrigeration Systems Corporation of America, meaning that it is the same manufacturer to which DOE granted the August 2012 waiver. More recently, DOE became aware of minor issues with regard to the equations detailed in the prior waiver decisions. On January 26, 2016, DOE issued a proposed modification of its prior waivers and granted PAPRSA with an interim waiver (81 FR 4270) under Case No. RF–043 to correct the known issues.
AGA Marvel's petition for waiver included an alternate test procedure to account for the energy consumption of its combination cooler-refrigerator products. Specifically, it proposed using the test procedure for combination cooler refrigeration products detailed in the MREF Working Group's Term Sheet #1 noted earlier. In AGA Marvel's view, the Working Group's test procedure calculations, when compared with the current DOE test procedure's calculations, are the most representative of the annual energy usage of its combination cooler refrigeration products. However, DOE's recent notice detailing a modified version of the calculation method used to measure and rate the energy use of products similar to AGA Marvel's combination cooler-refrigerators provides a simpler and equitable solution to the problems identified in AGA Marvel's petition. See 81 FR 4270 (proposal to modify PAPRSA's alternative test method for combination cooler refrigeration products). Accordingly, applying the test method outlined in the recent PAPRSA interim waiver to determine compliance with the existing refrigerator standards would follow an already-established approach and help ensure consistency when testing similar products.
AGA Marvel also requests an interim waiver from the existing DOE test procedure. An interim waiver may be granted if it appears likely that the petition for waiver will be granted, and/or if DOE determines that it would be desirable for public policy reasons to grant immediate relief pending a determination of the petition for waiver. See 10 CFR 430.27(e)(2).
DOE understands that absent an interim waiver, AGA Marvel's products cannot be tested and rated for energy consumption on a basis representative of their true energy consumption characteristics. DOE has reviewed the alternate procedure offered by AGA Marvel and concludes that whatever procedure AGA Marvel uses should be consistent with the approach taken with similar interim waivers that have been granted to other manufacturers to allow for the accurate measurement of the energy use of these products, while alleviating the testing problems that prompted AGA Marvel's request. Consequently, while DOE has determined that AGA Marvel's petition for waiver will likely be granted, based on similar waivers that have been granted in the past, in DOE's view, the alternate test procedure used by AGA Marvel should be consistent with the approach permitted by DOE for other manufacturers with similar products. Accordingly, DOE, is granting AGA Marvel an interim waiver based on the modified test approach detailed in Section III of this document. In addition to the revised test procedure, DOE clarifies in this document the specific basic models that would be tested under the alternate approach.
Under the interim waiver, the alternate test procedure must be used,
Therefore, DOE has issued an Order, stating:
After careful consideration of all the material submitted by AGA Marvel in this matter, DOE grants an interim waiver regarding 12 basic models identified below. Accordingly, it is ORDERED that:
(1) AGA Marvel must, going forward, test and rate the following AGA Marvel basic models as set forth in paragraph (2) below.
Basic models under the MARVEL brand:
Basic models under the MARVEL Outdoor brand:
Basic models under the MARVEL Professional brand:
Where (*) represents a character in the model number that corresponds to door swing, door style, color, or marketing features and has no impact on the number of compartments, compartment function, product class, or test method.
(2) The applicable method of test for the AGA Marvel basic models listed in paragraph (1) is the test procedure for electric refrigerator-freezers prescribed by DOE at 10 CFR part 430, appendix A, except that the test temperature for the “cooler compartment” (
The K-factor (
Therefore, the energy consumption is defined by:
If compartment temperatures are below their respective standardized temperatures for both test settings (according to 10 CFR part 430, subpart B, appendix A, sec. 6.2.2.1):
If compartment temperatures are not below their respective standardized temperatures for both test settings, the higher of the two values calculated by the following two formulas (according to 10 CFR part 430, subpart B, appendix A, sec. 6.2.2.2):
Energy consumption of the “cooler compartment”:
Energy consumption of the “fresh food compartment”:
If the optional test for models with two compartments and user operable controls is used (according to 10 CFR part 430, subpart B, appendix A, sec. 6.2.2.3):
(3) Representations. AGA Marvel may make representations about the energy use of its combination cooler-refrigerator products for compliance, marketing, or other purposes only to the extent that such products have been tested in accordance with the provisions set forth above and such representations fairly disclose the results of such testing in accordance with 10 CFR 429.14(a).
(4) This interim waiver shall remain in effect consistent with the provisions of 10 CFR 430.27(h), (k), and (l).
(5) This interim waiver is issued on the condition that the statements, representations, and documentary materials provided by the petitioner are valid. DOE may revoke or modify this waiver at any time if it determines the factual basis underlying the petition for waiver is incorrect, or the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics.
(6) Granting of this interim waiver does not release AGA Marvel from the certification requirements set forth at 10 CFR part 429.
Through this notice, DOE has granted AGA Marvel an interim waiver from the specified portions of the test procedure for certain basic models of AGA Marvel combination cooler-refrigerators and announces receipt of AGA Marvel's request for petition of waiver from those same portions of the test procedure. DOE is publishing AGA Marvel's request for a petition of waiver in its entirety pursuant to 10 CFR 430.27(b)(1)(iv). The petition contains no confidential information. The petition includes a suggested alternate test procedure to determine the energy consumption of AGA Marvel's specified combination cooler-refrigerators. AGA Marvel is required to follow this alternate procedure, as modified in Section III of this document, as a condition of its interim waiver. DOE will consider the continued use of this procedure in its subsequent Decision and Order.
DOE solicits comments from interested parties on all aspects of the petition, including the suggested alternate test procedure and calculation methodology. Pursuant to 10 CFR 430.27(d), any person submitting written comments to DOE must also send a copy of such comments to the petitioner. The contact information for the petitioner is Joshua Ambrose, Project Engineer, AGA Marvel, 1260 E. VanDeinse St., Greenville, MI 48838. All comment submissions to DOE must include the Case Number RF–045 for this proceeding. Submit electronic comments in Microsoft Word, Portable Document Format (PDF), or text (American Standard Code for Information Interchange (ASCII)) file format and avoid the use of special characters or any form of encryption. Wherever possible, include the electronic signature of the author. DOE does not accept telefacsimiles (faxes).
Pursuant to 10 CFR 430.27, AGA Marvel respectfully submits this Petition for Waiver and application for Interim Waiver for AGA Marvel combination cooler refrigerator models on the grounds that the affected models listed below contain one or more design characteristics that prevent testing of the basic model according to the test procedures prescribed in 10 CFR 430, subpart B, appendix A. Without this waiver, AGA Marvel is unable to certify models as compliant with 2014 DOE energy conservation standards. This request is similar to past petitions for waivers that have been granted by DOE to Sub-Zero (80 FR 7854), PAPRSA (78 FR 35894), and Sanyo (77 FR 49443), who make similar combination cooler refrigerator products.
10 CFR 430.27 states: “DOE will grant a waiver from the test procedure requirements if DOE determines either the basic model(s) for which the waiver was requested contains
In November 2011, the DOE began a process to consider whether to include as covered products, and establish energy conservation standards for certain types of refrigeration products, that largely fall outside of DOE's regulations pertaining to refrigerators, refrigerator-freezers, and freezers. To help better inform its potential regulation of these items, DOE established a negotiated rulemaking Working Group that would operate under the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC) with the purpose of exploring possible energy efficiency requirements for Miscellaneous Refrigeration Products (MREFs) (80 FR 17355). The Working Group ultimately reached consensus among its members on a variety of issues, including the potential scope of coverage, applicable definitions, test procedure details, and energy conservation standards that would apply to these products and compiled these recommendations into a term sheet for consideration by ASRAC (EERE–2011–BT–STD–0043).
In granting the most recent petition to Sub-Zero, DOE confirmed the previous rulings for Sanyo, and PAPRSA, that cooler compartments cannot be tested at the prescribed temperature of 39 °F because the minimum compartment temperature is higher than the standardized temperature of 39 °F. The Working Group has defined a cooler compartment as, “a refrigerated compartment designed exclusively for wine or other beverages within a consumer refrigeration product that is capable of maintaining compartment temperatures either (a) no lower than 39 °F (3.9 °C), or (b) in a range that extends no lower than 37 °F (2.8 °C) but at least as high as 60 °F (15.6 °C) as determined according to § 429.14(d)(2) or § 429.61(d)(2).”
The alternate test procedure used in all three previous waivers (originally submitted by Sanyo), accounts for the energy consumption of combination cooler refrigerator models. The procedure tests the wine storage compartment at 55 °F, instead of the prescribed 39 °F. 55 °F is presumed to be representative of expected consumer use, as it is the ideal long-term storage temperature for both red and white wine. 55 °F is also used in the test procedures for wine products adopted by the Association of Home Appliance Manufacturers (AHAM), California Energy Commission (CEC), and Natural Resources Canada (NRCan).
The test procedure recommended by the MREF Working Group is slightly modified from the test procedure used in the previous waivers, and has been agreed to in the final ASRAC Miscellaneous Refrigeration Products Term Sheet dated October 20, 2015.
The basic models affected that are manufactured by AGA Marvel use the following model number layout:
The * and ‸ characters have no impact on the number of compartments, compartment function, product class, or test method.
AGA Marvel is requesting a waiver to the test procedures for its combination cooler/refrigerator models that consist of one refrigerated storage compartment and one cooler compartment. The DOE considers combination cooler/refrigerator models as covered products to be tested according to DOE test procedures for All-Refrigerators prescribed in 10 CFR 430, subpart B, appendix A. The test conditions specify that energy consumption is to be determined using the fresh food compartment standardized temperature of 39 °F for both compartments.
It is not possible to test and rate these combination models under the existing testing procedures, as the cooler compartment of these models is not designed for, nor capable of meeting the standardized temperature of 39 °F. AGA Marvel has designed the cooler compartments of its products to achieve a temperature range ideal for wine storage, with the coldest temperature setting for the compartment being above 39 °F. Also, the current testing requirements do not measure energy usage in a manner that truly represents the energy-consumption characteristics of these products.
AGA Marvel requests an interim waiver until a waiver for the affected models is granted or a final ruling is made on the energy efficiency requirements and test procedures for this combination cooler refrigeration product under the MREF DOE ruling. It is essential that an interim waiver is granted, as AGA Marvel has planned sales volumes for the affected models in the annual budget, with a planned launch date of 3rd quarter of 2016.
AGA Marvel proposes to use the test procedure for combination cooler refrigeration products, listed in ASRAC Miscellaneous Refrigeration Products Term Sheet dated October 20, 2015, as the calculations are most representative of AGA Marvel's combination product annual energy usage. The affected basic models are defined as “cooler-all refrigerators” in Appendix 2 of the Term Sheet, as the basic models have one cooler compartment and one refrigerator compartment capable of maintaining compartment temperatures above 32 °F (0 °C) and below 39 °F (3.9 °C).
In section 4 subpart 4.2 of the Term Sheet, “The working group recommends product classes for combination cooler refrigeration products that are analogous to the 2014 refrigerator, refrigerator-freezer, and freezer product classes. A product would be classified into a product class of combination cooler refrigeration product based on how the product would be classified without a cooler compartment.” Without a cooler compartment, the affected basic models are covered by the 13A standard (Compact All-Refrigerator—Automatic Defrost).
Appendix 3 subpart 3.2 of the Term Sheet states the test shall use a standardized temperature of 39 °F for the fresh food compartment and a standardized temperature of 55 °F for the cooler compartment. The test sequence follows the same test sequence for all-refrigerators in 10 CFR 430, subpart B, appendix A.
Appendix 3 subpart 5.2.1.1 of the Term Sheet defines the energy consumption in kilowatt-hours per day as:
Appendix 3 subpart 6.2.4.2 of the Term Sheet defines the average per-cycle energy consumption as the higher of the two values calculated by the following two formulas:
Energy consumption of the wine compartment:
Energy consumption of the refrigerated beverage compartment:
Combination refrigerator coolers are currently certified to the 2014 DOE Energy Consumption Standards using the alternative test procedure established in the waivers granted to petitioning manufacturers. The 2014 13A standard needs to be adjusted to reflect the new .55 usage factor for coolers and combination cooler refrigerators. To do this the AEU equation must first be divided by .85(15% usage credit used in granted waivers) to establish the maximum allowable energy consumption of a combination product to the existing 2014 standard. That value is then multiplied by .55 to reflect the new energy consumption standard for combination product. In section 4 subpart 4.2 of the Term Sheet, to simplify conversion, the AEU equation is multiplied by a correction factor of .647(.55/.85).
Thus, the maximum AEU in kWh/year for a compact combination cooler refrigerator is defined as:
In conclusion, 2014 Energy Conservation Standards do not allow an energy use rating
AGA Marvel is the manufacturer of all models in the petition and all models are under the Marvel brand. In the Marvel brand we have (3) “series” of product, and the series associated with the model numbers are as follows:
Let me know if you need anything else.
Environmental Protection Agency (EPA).
Notice of availability.
This notice announces the availability of the Environmental Protection Agency's (EPA) Preliminary 2016 Effluent Guidelines Program Plan (Preliminary 2016 Plan) and solicits public comment. Section 304(m) of the Clean Water Act (CWA) requires EPA to biennially publish a plan for new and revised effluent limitations guidelines, after public review and comment. The Preliminary 2016 Plan identifies any new or existing industrial categories selected for effluent guidelines or pretreatment standards and provides a schedule for their development. EPA typically publishes a preliminary plan upon which the public is invited to comment, and then publishes a final plan thereafter. The information and analyses from the 2015 Annual Review were used in developing the Preliminary 2016 Plan.
Comments must be received on or before July 27, 2016.
Submit your comments, identified by Docket ID No. EPA–HQ–OW–2015–0665, to the
Mr. William F. Swietlik, Engineering and Analysis Division, Office of Water, 4303T, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 566–1129; fax number: (202) 566–1053; email address:
B.
1. Docket. EPA has established official public dockets for these actions under Docket ID No. EPA–HQ–OW–2015–0665. The official public docket is the collection of materials that are available for public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460.
2. Electronic Access. You can access this
3. Internet access. Copies of the supporting documents are available at
C.
Tips for Preparing Your Comments. When submitting comments, remember to:
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency might ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible.
• Make sure to submit your comments by the comment period deadline identified.
The outline of this notice follows.
This notice is published under the authority of the CWA, 33 U.S.C. 1251,
EPA prepared the Preliminary 2016 Plan pursuant to CWA section 304(m). The Preliminary 2016 Plan provides a summary of EPA's review of effluent guidelines and pretreatment standards, consistent with CWA sections 301(d), 304(b), 304(g), 304(m), and 307(b). From these reviews, the Preliminary 2016 Plan identifies any new or existing industrial categories selected for effluent guidelines or pretreatment standards rulemakings, and provides a schedule for such rulemakings. In addition, the Preliminary 2016 Plan presents any new or existing categories of industry selected for further review and analysis. The Preliminary 2016 Plan and 2015 Annual Effluent Guidelines Review Report can be found at
EPA requests comments and information on the following topics:
EPA solicits comments on the evaluation factors, criteria, and data sources used in conducting its 2015 Annual Review and in developing the Preliminary 2016 Plan. EPA also solicits comment on other data sources it might use in its annual reviews and biennial planning process.
EPA solicits comments on its Preliminary 2016 Plan, including the data and information used to support the findings, actions, and conclusions as stated in the Preliminary 2016 Plan. Specifically, EPA solicits public comment and stakeholder input, data and information on:
(a) Industry Reviews. EPA is initiating or continuing to review wastewater discharges for the following industry categories: Iron and Steel Manufacturing; Organic Chemicals, Plastics, and Synthetic Fibers; Pulp, Paper, and Paperboard; Battery Manufacturing; and Electrical and Electronic Components Manufacturing. EPA solicits data and information regarding the discharge and treatment of pollutants identified in the Preliminary 2016 Plan from these industrial processes, as well as any other information relevant to EPA's review.
(b) Continued Study of Centralized Waste Treatment (CWT) facilities. EPA gathered information about CWT facilities across the country and identified those facilities that currently accept or have in the past accepted oil and gas extraction wastewaters. EPA included a memorandum in the record that identifies these facilities. EPA requests comment on the accuracy and completeness of the information contained in this memorandum, as well as any other information relevant to EPA's study of CWT facilities.
(c) Conventional Extraction in the Oil and Gas Industry. EPA solicits data and information for the first time on known transfers of wastewater originating from conventional oil and gas extraction facilities to Publicly Owned Treatment Works (POTWs). In particular, EPA seeks information on the extent to which this practice is occurring, including the identification of conventional oil and gas facilities which discharge to POTWs. EPA also requests information on wastewater volumes transferred to POTWs as well as information on the pollutants in these wastewater (type, concentration, etc.) and any other known characteristics of the pollutants.
(d) Produced Water Discharges in the Oil and Gas Industry. EPA solicits information for the first time on the quantity, composition, and purpose of well treatment and workover fluids in produced water discharges authorized under 40 CFR part 435, subpart E (Agricultural and Wildlife Water Use Subcategory) which, if good enough quality, can be used for wildlife or livestock watering or other agricultural uses, and are actually put to such use during periods of discharge. EPA solicits information on both conventional and unconventional oil and gas extraction. For this solicitation, “Well treatment fluids” means any fluid used to restore or improve productivity by chemically or physically altering hydrocarbon-bearing strata after a well has been drilled. “Workover fluids” means salt solutions, weighted brines, polymers, or other specialty additives used in a producing well to allow for maintenance, repair, or abandonment procedures.
EPA solicits input on ideas, approaches and information on how to design smart regulations to support emerging technologies as described in “
Environmental Protection Agency (EPA).
Notice; request for public comment.
In accordance with section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (CERCLA) and section 7003 of the Resource Conservation and Recovery Act (RCRA), the Environmental Protection Agency (EPA) is hereby providing notice of a proposed administrative
EPA will receive written comments relating to the settlement until July 27, 2016. EPA will consider all comments it receives during this period, and may modify or withdraw consent to the settlement if any comments disclose facts or considerations indicating that the settlement is inappropriate, improper, or inadequate.
Written comments should be addressed to Casmalia Case Team, U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street (mail code SFD–7–1), San Francisco, California 94105–3901, or may be sent by email to
A copy of the settlement document and additional information about the Casmalia Resources Site and the proposed settlement may be obtained on the EPA-maintained Casmalia Resources Site Web site at:
3M/McGhan Medical Corporation; A&E Products Group, Inc.; Aberdeen American Petroleum Company; Advance Packaging Systems/Interamics; AGL Resources, Inc. and its subsidiaries; AHMC Healthcare, Inc.; Alhambra Unified School District; Amvac Chemical Corporation; Apache Nitrogen Products, Inc.; Applied Graphics Technologies; AVX Corporation; Bank of America, N.A., successor in interest to Security Pacific Corp—Brea Operations; Barclays American Business Credit; Bayer; Benge Trumpet Co.; BGN Fremont Square, LTD; BHP Billiton Petroleum; BMW of San Diego; Broadway So. Calif Crenshaw Shopping; Bulk Transportation; Burbank Plating Service Corporation; Burlington Engineering, Inc.; Canon, Inc.; Carmen Plaza Car Wash; Casitas Municipal Water District; CenterPoint Energy, Inc and it's wholly owned subsidiaries Primary Fuels, Inc.; Central Coast Analytical Services; Certified Freight Lines; City of Benicia; City of El Monte; City of Escondido; City of Piedmont; City of West Covina; Consolidated Container Company LP for itself and as an alleged successor in interest to Stewart/Walker Co; Consolidated Oil & Gas, Inc.; Cooper Companies, Inc.; County of Napa; County of Solano; County of Stanislaus; Creative Press; Danco Metal Surfacing; Data General Corp; Davlin Paint Co.; Daylight Transport, LLC; Deep Water Oil and Gas Corp; Dignity Health; Dole Food Company; Dura Tech Processes, Inc.; EKC Technology, Inc.; El Dorado Newspapers dba McClatchy Printing Co; ENGS Motor Truck Company; Ennis Business Forms; Excellon Automation; Farrar Grinding; Federal Envelope Company; Foster Lumber; Fujitsu; Gardena Specialized Processing; Genstar Roofing Products Company; GEO Western Drilling Fluids; Gerald V. Dicker Commercial Properties; Gooch & Housego PLC; Gorham Manufacturing Company; Granitize Products, Inc.; H Koch & Sons Div; Handy & Harman Electronic Materials Corp; Helix Water District; Henry Soss & Co; Hordis Brothers, Inc.; Hycor Biomedical, Inc.; Immunetech Pharmaceuticals, Inc.; Inamed Corporation; Industrial Process & Chemical Co., Inc.; International Paper Company; Interstate Consolidation; J B Hunt; J E Dewitt, Inc.; J.C. Penneys; John Deere Parts Depot; John L. Armitage & Co.; Kasler Continental Heller; Kester Solder; Knape & Vogt Mfg.; Knight Foundry, Inc.; Lehigh Hanson, Inc.; Levins Metal Corp; LH Research, Inc.; Lincoln Blvd. Car Wash; Liquid Air Corporation; Loma Linda Foods Co.; Ludlow Saylor n/k/a Metso Minerals Industries, Inc.; Marbro Lamp Company; McClatchy Newspaper Inc.; Mission Kleensweep Products, Inc.; Model Lands, Inc.; MWH Global; Myers Electronic Products, Inc.; National Airmotive Corporation; New Mexico Institute of Technology; New Mexico State University; Newpark Resources, Inc.; Newport Adhesive; Newport Specialty Hospital for itself and on behalf of Prospect Medical Holdings; Nike, Inc.; North American Philips; North American Van Lines; NuSil Technology, LLC; Opto Electronics; Overton Moore & Associates, Inc.; P.T.I. Technologies, Inc.; Pacific Wood Preserving Co.; PacOrd, Inc.; Palomar Systems & Machine; Paramount Machine Co.; Peen Rite, Inc.; Pell Development Company; Petoseed Company; Petrol Transport, Inc.; Petrominerals Corp.; Pfizer; Pharm-Eco Laboratories, Inc.; Pick-A-Part Auto Recycling; Pirelli Cable; Placentia-Yorba Linda Unified School District; Pomona Valley Hospital Medical Center; Providence Health & Services; Public Service Marine, Inc.; Pure Fishing, Inc.; Quality Heat Treating; R E Hazard Contracting Company; R F White Company, Inc.; R&G Sloane Maintenance; Rally Chevrolet; Ramser Development Company; Red Lions Inn; Reid Metal Finishing; Richmond Technology; Roadway Express; Rossi Enterprises; S&P Company; Santa Barbara New Press; Santa Clara University; Schurgin Development Company; Sea World; Security Pacific Bank; SESCO; Setzer Forest Products, Inc.; Sierra Pacific Power Co.; Sonoco Products Company; SPS Technologies; State of Arizona; Superior Metal Finishing, Inc.; Telic Corporation; The E.W. Scripps Company, as successor to New Chronicle; The Toro Company; Thoratec Laboratories Corporation; Time Warner, Inc. including its former subsidiaries, Warner Music Group Inc., Westland Graphics Inc., Allied Record Company & Allied Record Company.; True Value Hardware Simi Valley; TW Graphics; U S Divers (USD Corp); United Oil Company; UVP, Inc.; Ventura Townehouse; Ventura Transfer Company; Vulcan Materials Company; Weatherford BMW; Weber Nameplate; Williams Bros Market; Winonics, Inc.; Winters Industrial Cleaning; XIK, LLC a Delaware LLC, as successor by merger to Arwood Corporation; Zep, Inc.
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
Written PRA comments should be submitted on or before August 26, 2016. 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.
Based upon the foregoing, the Receiver has determined that the continued existence of the receivership will serve no useful purpose. Consequently, notice is given that the receivership shall be terminated, to be effective no sooner than thirty days after the date of this Notice. If any person wishes to comment concerning the termination of the receivership, such comment must be made in writing and sent within thirty days of the date of this Notice to: Federal Deposit Insurance Corporation, Division of Resolutions and Receiverships, Attention: Receivership Oversight Department 34.6, 1601 Bryan Street, Dallas, TX 75201.
No comments concerning the termination of this receivership will be considered which are not sent within this time frame.
Federal Deposit Insurance Corporation.
Federal Election Commission.
Thursday, June 30, 2016 at 10:00 a.m.
999 E Street, NW., Washington, DC (Ninth Floor).
This meeting will be open to the public.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Shawn Woodhead Werth, Secretary and Clerk, at (202) 694–1040, at least 72 hours prior to the meeting date.
Judith Ingram, Press Officer, Telephone: (202) 694–1220.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than July 23, 2016.
A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480–0291:
1.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than July 13, 2016.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
1.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to
An Assessment of the State Public Health Actions (“1305”) Program—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
In 2013, the NCCDPHP developed a new program funding opportunity to support states in the design and implementation of strategies to reduce complications from multiple chronic diseases and associated risk factors. The funding opportunity was announced as “
Through this cooperative agreement, CDC currently provides over $100 million to state health departments in all 50 United States and the District of Columbia. Due to the funding, complexity, coordination, and collaboration needed to implement State Public Health Actions 1305, there are a number of semi-annual and annual reporting requirements related to categorical spending, chronic disease outcomes, efficiencies, and accomplishments. These routine reporting requirements allow CDC to monitor awardee progress towards programmatic goals, but do not collect specific information about the processes that support program implementation plans.
The overall evaluation of State Public Health Actions 1305 examines the efficiency and effectiveness of the program to provide accountability,
CDC proposes to conduct an assessment to better understand synergy within and across State Public Health Actions 1305 funded programs. The assessment is designed to examine changes in processes; organizational structure; capacity; states' ability to implement a coordinated approach across the different chronic disease areas; challenges and benefits; and measurable positive outcomes.
CDC plans to administer a web-based survey to health departments receiving funding through the State Public Health Actions 1305 cooperative agreement, including 50 states and the District of Columbia. CDC plans to administer the survey in 2016 (program year 4) and 2018 (program year 5) to explore changes in partnerships and synergy throughout the 5-year cooperative agreement. Surveys will be administered to health department staff directly involved in planning and/or implementation of the State Public Health Actions 1305 program, including principal investigators, chronic disease directors, program evaluators, epidemiologists, and program staff with subject matter expertise in one or more of the four categorical areas. CDC will recruit approximately 8 individuals from each funded program for a total of approximately 408 respondents.
CDC will use survey findings to (1) inform future CDC technical assistance provision to State Public Health Actions 1305 funded programs, and (2) inform future cross-cutting, coordinated funding models. In addition, findings will complement existing routine reporting by gathering information about the specific processes that support program implementation plans. Findings will be disseminated via grantee webinars, grantee annual meetings, reports to CDC leadership, and U.S. Congressional reports.
OMB approval is requested for two years. Participation is voluntary and there are no costs to respondents other than their time. The total estimated burden hours are 306.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to
EEOICPA Special Exposure Cohort Petitions (OMB No. 0920–0639 exp. 7/31/2016)—Extension—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
On October 30, 2000, the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA), 42 U.S.C. 7384–7385 [1994, supp. 2001] was enacted. The Act established a compensation program to provide a lump sum payment of $150,000 and medical benefits as compensation to covered employees suffering from designated illnesses incurred as a result of their exposure to radiation, beryllium, or silica while in the performance of duty for the Department of Energy and certain of its vendors, contractors and subcontractors. This legislation also provided for payment of compensation for certain survivors of these covered employees. This program has been mandated to be in effect until Congress ends the funding.
Among other duties, the Department of Health and Human Services (HHS) was directed to establish and implement procedures for considering petitions by classes of nuclear weapons workers to be added to the “Special Exposure
The HHS rule authorizes a variety of respondents to submit petitions. Petitioners are required to provide the information specified in the rule to qualify their petitions for a complete evaluation by HHS and the Board. HHS has developed two forms to assist the petitioners in providing this required information efficiently and completely. Form A is a one-page form to be used by EEOICPA claimants for whom NIOSH has attempted to conduct dose reconstructions and has determined that available information is not sufficient to complete the dose reconstruction. Form B, accompanied by separate instructions, is intended for all other petitioners. Forms A and B can be submitted electronically as well as in hard copy. Respondent/petitioners should be aware that HHS is not requiring respondents to use the forms. Respondents can choose to submit petitions as letters or in other formats, but petitions must meet the informational requirements stated in the rule. NIOSH expects, however, that all petitioners for whom Form A would be appropriate will actually use the form, since NIOSH will provide it to them upon determining that their dose reconstruction cannot be completed and encourage them to submit the petition. NIOSH expects the large majority of petitioners for whom Form B would be appropriate will also use the form, since it provides a simple, organized format for addressing the informational requirements of a petition.
NIOSH will use the information obtained through the petition for the following purposes: (a) Identify the petitioner(s), obtain their contact information, and establish that the petitioner(s) is qualified and intends to petition HHS; (b) establish an initial definition of the class of employees being proposed to be considered for addition to the Cohort; (c) determine whether there is justification to require HHS to evaluate whether or not to designate the proposed class as an addition to the Cohort (such an evaluation involves potentially extensive data collection, analysis, and related deliberations by NIOSH, the Board, and HHS); and, (d) target an evaluation by HHS to examine relevant potential limitations of radiation monitoring and/or dosimetry-relevant records and to examine the potential for related radiation exposures that might have endangered the health of members of the class.
Finally, under the rule, petitioners may contest the proposed decision of the Secretary to add or deny adding classes of employees to the cohort by submitting evidence that the proposed decision relies on a record of either factual or procedural errors in the implementation of these procedures. NIOSH estimates that the time to prepare and submit such a challenge is 5 hours. Because of the uniqueness of this submission, NIOSH is not providing a form. The submission will typically be in the form of a letter to the Secretary.
The estimated annual Burden Hours are 41. There are no costs to respondents unless a respondent/petitioner chooses to purchase the services of an expert in dose reconstruction, an option provided for under the rule.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) 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; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to
Evaluation of Enhancing HIV Prevention Communication and Mobilization Efforts through Strategic Partnerships—New—National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
In an effort to refocus attention on domestic HIV and AIDS, CDC launched the Act Against AIDS (AAA) initiative in 2009 with the White House and the U.S. Department of Health and Human Services. AAA is a multifaceted national communication initiative that supports reduction of HIV incidence in the U.S. through multiple, concurrent communication and education campaigns for a variety of audiences including, the general public, populations most affected by HIV and health care providers. All campaigns support the comprehensive HIV prevention efforts of CDC and the National HIV/AIDS Strategy.
Within this context, the CDC's Division of HIV/AIDS Prevention (DHAP) is implementing various partnership activities to increase HIV awareness among the general public, reduce new HIV infections among disproportionately impacted populations, and improve health outcomes for people living with HIV and AIDS in United States and its territories. For example, DHAP is funding the “Enhancing HIV Prevention Communication and Mobilization Efforts through Strategic Partnerships” program. Partners funded under the partnership program will (1) support the dissemination of Act Against AIDS (AAA) campaign materials, messaging, and other CDC resources that support HIV prevention and (2) implement national engagement efforts focusing on HIV prevention and awareness. Partners represent civil, media, and LGBT-focused organizations.
In addition, DHAP will continue to support the Business Responds to AIDS (BRTA) program. Founded in 1992, the purpose of the BRTA program is to engage and support the private sector in promoting HIV education, awareness, and policies in the workplace. This partnership between CDC, business, labor, and the public health sector aims to encourage businesses to implement HIV/AIDS policies and education programs in the workplace with the overarching goal of increasing public understanding of, involvement in, and support for HIV prevention. Other partnership efforts serve the same purpose: To increase HIV awareness among the general public, reduce new HIV infections among disproportionately impacted populations, and improve health outcomes for people living with HIV and AIDS in the United States and its territories.
The project will evaluate the extent to which activities implemented by partners meet the initiative's goals for disseminating, communicating, and engaging the public in HIV prevention and education activities. We will collect information from partners on their activities for disseminating HIV messages through materials distribution at national and local events, media and advertising, HIV testing facilitation, and formation and coordination of strategic partnerships; barriers and facilitators to implementation of these activities, and factors that may help contextualize their progress towards meeting the initiative's goals; and their involvement in promoting HIV education, awareness, and policies in their organization. We will collect this information through these five sources: (a) Metrics Database: Partners will be required to report quarterly data to CDC and CDC's evaluation contractor through a metrics database. (b) Biannual key informant interviews: The point of contacts from some partner organizations will be interviewed twice yearly via telephone. (c) Interim Progress Reports: Partners will complete a standardized progress report on a biannual basis via a user-friendly electronic form. The progress reports will gather information on key successes, facilitators and barriers, and major achievements. (d) Partner Survey: Partners will complete a brief online survey to assess their involvement in promoting HIV education, awareness, and policies in their organization. (e) Partnerships Activities Form: Partners may be asked to complete a brief electronic form to provide information on each partner activity that they complete. The form will collect information on information such as the type of event, the audience, and key highlights; the number of HIV tests administered (if any) and the number of preliminary positives; the number and type of materials distributed. This information will allow CDC to know what partners are doing to advance HIV prevention and education, and how CDC can alter their partnership efforts to facilitate HIV prevention and education in the future. The organization (and not the individual) will be the unit of analysis. As such, no personally individually identifiable information will be collected.
There is no cost to participants other than their time. The total estimated annualized burden hours are 5,083.
The requirement for grantees to report on performance is OMB grants policy. Specific citations are contained in: (1) 2 CFR 215 Uniform Administrative Requirements, cost Principles, and Audit Requirements for Federal Awards and (2) 45 CFR 75, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Department of Health and Human Services Awards.
DOL revised part B to conform with changes to the currently approved part A and is seeking a three-year approval from OMB. To avoid burdening the State child support enforcement agencies with potential reprogramming at varying times due to future changes in part A or B, ACF is resubmitting an unchanged information collection package and requesting an extension to the current OMB approval of NMSN part A to synchronize the expiration date with NMSN part B.
Estimated Total Annual Burden Hours: 702,261.
Additional Information: Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of
OMB Comment: OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
Food and Drug Administration, HHS.
Notice; extension of the comment period.
The Food and Drug Administration (FDA or we) is extending the comment period for the notice of availability, published in the
Submit either electronic or written comments by July 19, 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.”
• 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
Amalia Himaya, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6439, Silver Spring, MD 20993–0002, 301–796–0700; or Stephen Ripley, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993–0002, 240–402–7911.
In the
Interested persons were originally given until July 5, 2016, to comment on the draft guidance for industry entitled “Special Protocol Assessment.”
From July 1 through July 5, 2016, the Federal eRulemaking Portal,
Food and Drug Administration, HHS.
Notice of availability; request for comment.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a Technical Specifications Document entitled “Quality Metrics Technical Conformance Guide, Version 1.0.” This Guide provides technical recommendations for the submission of quality metric data. It serves as the technical reference for implementation of the draft FDA guidance for industry, when finalized, on “Request for Quality Metrics,” dated July 28, 2015.
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 September 26, 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.”
• 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 guide to the Division of Drug Information, Center for Drug Evaluation and Research (CDER), Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993–0002; or 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. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Tara Gooen Bizjak, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 2109, Silver Spring, MD 20993–0002,
FDA is announcing the availability of a Technical Specifications Document for industry entitled “Quality Metrics Technical Conformance Guide, Version 1.0.” This Guide supplements the draft FDA guidance for industry on “Request for Quality Metrics,” available at
The purpose of this Guide is to provide technical recommendations for the submission of quality metric data. It is intended to ensure clear expectations for industry on the submission of quality metric data as described in the “Request for Quality Metrics” draft guidance. We note that the comment period for that draft guidance closed in November 2015 and that the comments that were received are undergoing evaluation. This Guide is intended to be a companion document to the July 28, 2015, draft guidance. There may be modifications to the draft guidance and this guide based on our evaluation of the submitted comments. Our goal is to institute efficient regulatory review, compliance oversight, and inspection policies established on risk-based methods, including quality metric reporting. This Guide is intended to facilitate collaboration between industry and FDA regarding the best methodologies to address all issues of implementation. Due to the inherent variability among reporting establishments' implementation of the process validation lifecycle and PQS assessment, it is difficult to identify and compare quality issues between firms. As such, FDA recognizes the importance of industry input and agreement regarding standardized indicators of manufacturing and product quality.
This guide is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The current version of the guide will represent the current thinking of FDA on this topic. 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 guide refers to previously approved collections of information that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). Relevant to this collection of information, FDA published a document entitled “Request for Quality Metrics; Notice of Draft Guidance and Public Meeting; Request for Comments” in the
Persons with access to the Internet may obtain the draft guide at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing a publication containing modifications the Agency is making to the list of standards FDA recognizes for use in premarket reviews (FDA Recognized Consensus Standards). This publication, entitled “Modifications to the List of Recognized Standards, Recognition List Number: 043” (Recognition List Number: 043), will assist manufacturers who elect to declare conformity with consensus standards to meet certain requirements for medical devices.
Submit electronic or written comments concerning this document at any time. These modifications to the list of recognized standards are effective June 27, 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.”
• 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
An electronic copy of Recognition List Number: 043 is available on the Internet at
Scott A. Colburn, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 5514, Silver Spring, MD 20993, 301–796–6287,
Section 204 of the Food and Drug Administration Modernization Act of 1997 (FDAMA) (Pub. L. 105–115) amended section 514 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360d). Amended section 514 allows FDA to recognize consensus standards developed by international and national organizations for use in satisfying portions of device premarket review submissions or other requirements.
In a notice published in the
Modifications to the initial list of recognized standards, as published in the
These notices describe the addition, withdrawal, and revision of certain standards recognized by FDA. The Agency maintains hypertext markup language (HTML) and portable document format (PDF) versions of the list of FDA Recognized Consensus Standards. Both versions are publicly accessible at the Agency's Internet site. See section VI of this document for electronic access information. Interested persons should review the supplementary information sheet for the standard to understand fully the extent to which FDA recognizes the standard.
FDA is announcing the addition, withdrawal, correction, and revision of certain consensus standards the Agency will recognize for use in premarket submissions and other requirements for devices. FDA will incorporate these modifications in the list of FDA Recognized Consensus Standards in the Agency's searchable database. FDA will use the term “Recognition List Number: 043” to identify these current modifications.
In table 1, FDA describes the following modifications: (1) The withdrawal of standards and their replacement by others, if applicable; (2) the correction of errors made by FDA in listing previously recognized standards; and (3) the changes to the supplementary information sheets of recognized standards that describe revisions to the applicability of the standards.
In section III, FDA lists modifications the Agency is making that involve the initial addition of standards not previously recognized by FDA.
In table 2, FDA provides the listing of new entries and consensus standards added as modifications to the list of recognized standards under Recognition List Number: 043.
FDA maintains the Agency's current list of FDA Recognized Consensus Standards in a searchable database that may be accessed directly at FDA's Internet site at
Any person may recommend consensus standards as candidates for recognition under section 514 of the FD&C Act by submitting such recommendations, with reasons for the recommendation, to
You may obtain a copy of “Guidance on the Recognition and Use of Consensus Standards” by using the Internet. The Center for Devices and Radiological Health (CDRH) maintains a site on the Internet for easy access to information including text, graphics, and files that you may download to a personal computer with access to the Internet. Updated on a regular basis, the CDRH home page,
Food and Drug Administration, HHS.
Notice; extension of the comment period.
The Food and Drug Administration (FDA or we) is extending the comment period for the notice of availability, published in the
Submit either electronic or written comments by July 19, 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.”
• 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
Jeffrey Murray, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6360, Silver Spring, MD 20993–0002, 301–796–1500.
In the
Interested persons were originally given until July 5, 2016, to comment on the draft guidance for industry entitled “Chronic Hepatitis C Virus Infection: Developing Direct-Acting Antiviral Drugs for Treatment.”
From July 1 through July 5, 2016, the Federal eRulemaking Portal,
Health Resources and Services Administration, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Health Resources and Services Administration (HRSA) has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received no later than July 27, 2016.
Submit your comments, including the ICR Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email the HRSA Information Collection Clearance Officer at
Health Resources and Services Administration, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Health Resources and Services Administration (HRSA) has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received no later than July 27, 2016.
Submit your comments, including the ICR Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email the HRSA Information Collection Clearance Officer at
To achieve the goals and objectives of the program, the SCDTDP uses quality improvement (QI) methods in a collective impact model which supports cross-sector collaboration for achieving measurable effects on major social issues. The collective impact model requires shared measurement which facilitates tracking progress in a standardized method to promote learning and enhance continuous improvement.
The data collected for the SCDTDP will consist of administrative medical claims data collected from State Medicaid Programs and Medicaid Managed Care Organizations that administer Medicaid on behalf of states. The data is collected either for or by State Medicaid offices for delivery of services subject to Medicaid reimbursement.
The data collection strategy will provide an effective and efficient mechanism to do the following: (1) Assess the improvements in access to care for sickle cell patients provided by activities in the SCDTDP; (2) collect, coordinate, and distribute data, best practices, and findings from regional grantee sites to drive improvement on
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit a new Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, OS seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
July 27, 2016.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS–OS–0990–New–30D for reference.
OS specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
The Indian Health Service (IHS), an agency which is part of the Department of Health and Human Services (HHS), is accepting competitive grant applications for a four-year funding cycle of the Methamphetamine and Suicide Prevention Initiative (Short Title: MSPI)—Generation Indigenous (GEN–I) Initiative Support to continue the planning, development and implementation of the current grant funding cycle for the MSPI Purpose Area #4 (GEN–I Initiative Support) that focuses on promoting early intervention strategies and the implementation of positive youth development programming to reduce risk factors for suicidal behavior and substance abuse by working with Native youth up to and including age 24. This program was first established by the Consolidated Appropriations Act of 2008, Public Law 110–161, 121 Stat. 1844, 2135, and has been continued in the annual appropriations acts since that time. This program is authorized under the authority of the Snyder Act, 25 U.S.C. 13 and the Indian Health Care Improvement Act, 25 U.S.C. 1601–1683. The amounts made available for MSPI funding shall be allocated at the discretion of the Director of IHS and shall remain available until expended. IHS utilizes a national funding formula developed in consultation with Tribes and the National Tribal Advisory Committee on behavioral health, as well as conferring with urban Indian organizations (UIOs). The funding formula provides the allocation methodology for each IHS service area. This program is described in the Catalog of Federal Domestic Assistance under 93.933.
IHS funded 128 Tribal, UIOs, and IHS Federal facilities for a five-year national program focusing on substance abuse and suicide prevention efforts for Indian Country. There are six overall goals of MSPI. The overall goals of MSPI is to: (1) Increase Tribal, UIO, and Federal capacity to operate successful methamphetamine prevention, treatment, and aftercare and suicide prevention, intervention, and postvention services through implementing community and organizational needs assessment and strategic plans; (2) develop and foster data sharing systems among Tribal, UIO, and Federal behavioral health service providers to demonstrate efficacy and impact; (3) identify and address suicide ideations, attempts, and contagions among American Indian and Alaska Native (AI/AN) populations through the development and implementation of culturally appropriate and community relevant prevention, intervention, and postvention strategies; (4) identify and address methamphetamine use among AI/AN populations through the development and implementation of culturally appropriate and community relevant prevention, treatment, and aftercare strategies; (5) identify provider and community education on suicide and methamphetamine use by offering appropriate trainings; and (6) promote positive AI/AN youth development and family engagement through the implementation of early intervention strategies to reduce risk factors for suicidal behavior and substance abuse. Currently funded projects were not required to address all of the six goals listed, only those relevant to the Purpose Area for which they were awarded. A total of 59 projects (Tribes, Tribal organizations, UIOs, and IHS Federal facilities) are currently funded for MSPI Purpose Area #4. IHS requested additional funding in the Fiscal Year (FY) 2016 President's Budget to expand MSPI Purpose Area #4, specifically to hire additional behavioral health staff to assist with the project.
The primary purpose of this IHS grant is to focus on MSPI goal #6, “to promote positive AI/AN youth development and family engagement through the implementation of early intervention strategies to reduce risk factors for suicidal behavior and substance abuse.” Projects will accomplish this by focusing specifically on MSPI Purpose Area #4: GEN–I Initiative Support.
The focus of Purpose Area #4 is to promote early intervention strategies and implement positive youth development programming to reduce risk factors for suicidal behavior and substance abuse. IHS is seeking applicants to address MSPI overarching goal #6 by working with Native youth up to and including age 24, on the following broad objectives:
1. Implement evidence-based and practice-based approaches to build resiliency, promote positive development, and increase self-sufficiency behaviors among Native youth;
2. Promote family engagement;
3. Increase access to prevention activities for youth to prevent methamphetamine use and other substance use disorders that contribute to suicidal behaviors, in culturally appropriate ways; and
4. Hire additional behavioral health staff (
This FOA is specifically open to projects that are currently funded for MSPI Purpose Area #4 (GEN–I Initiative Support). If the applicant does not know if they are a currently funded MSPI Purpose Area #4 grantee, please click on the following link to view all currently funded projects:
Currently funded MSPI Purpose Area #4 grantees should note the following requirements:
1. If the applicant is a current grantee under MSPI Purpose Area #4, and the applicant will be applying under this FOA for additional funding, the applicant is NOT required to address all of the broad objectives listed. The applicant is only required to address the
• Hire additional behavioral health staff (
2. If the applicant is a current MSPI grantee funded for Purpose Area #4, the applicant is not allowed to duplicate current, approved activities, however the applicant can increase or supplement activities and provide that information in the Project Narrative scope of work.
IHS strongly emphasizes the use of data and evidence in policymaking and program development and implementation. Applicants must identify one or more evidence-based practice, practice-based evidence, best or promising practice, and/or local effort that they plan to implement in the Project Narrative section of the application. The MSPI Program Web site (
This section is only required if the applicant has included a “conference” in the proposed scope of work and intends on using funding to plan and conduct a conference or meeting during the project period. For definitions of what constitutes a “conference,” please see the policy at the link provided below. The awardee is required to comply with the “HHS Policy on Promoting Efficient Spending: Use of Appropriated Funds for Conferences and Meeting Space, Food, Promotional Items, and Printing and Publications,” dated December 16, 2013 (“Policy”), as applicable to conferences funded by grants and cooperative agreements. The Policy is available at
The awardee is required to:
Provide a separate detailed budget justification and narrative for each conference anticipated. The cost categories to be addressed are as follows: (1) Contract/Planner, (2) Meeting Space/Venue, (3) Registration Web site, (4) Audio Visual, (5) Speakers Fees, (6) Non-Federal Attendee Travel, (7) Registration Fees, and (8) Other (explain in detail and cost breakdown). For additional questions please contact Audrey Solimon, National Program Coordinator in the IHS Division of Behavioral Health, at
Grant.
The total amount of funding identified for awards is approximately $8,685,000. Individual award amounts are anticipated to be between $70,000 and $300,000. IHS expects to allocate funding for the 12 IHS service areas and UIOs as described in detail below. Applicants will be awarded according to their location within their respective IHS service area and will not compete with applicants from other IHS service areas. UIO applicants will be selected from a category set aside for UIO applicants only. The amount of funding available for competing and continuation awards issued under this announcement are subject to the availability of appropriations and budgetary priorities of the agency. IHS is under no obligation to make awards that are selected for funding under this announcement.
Approximately 25 awards will be issued under this funding opportunity announcement. The funding breakdown by area is as follows:
IHS expects to provide approximately $1,117,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $300,000.
IHS expects to provide approximately $433,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
IHS expects to provide approximately $539,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
IHS expects to provide approximately $487,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
IHS expects to provide approximately $382,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
IHS expects to provide approximately $875,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $175,000.
IHS expects to make two awards in the amount of $106,500 each, for a total of $213,000.
IHS expects to provide approximately $1,419,000 in total awards. Individual award amounts are anticipated to be between $200,000 and $300,000.
IHS expects to provide approximately $1,335,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $300,000.
IHS expects to provide approximately $875,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $175,000.
IHS expects to make two awards in the amount of $132,334 each, for a total of $264,668.
IHS expects to make two awards in the amount of $73,000 each, for a total of $146,000.
IHS expects to provide approximately $600,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
The project period is for four years and will run consecutively from September 30, 2016, to September 29, 2020.
Eligibility is limited to currently funded MSPI Purpose Area #4 grantees, who must be one of the following as defined by 25 U.S.C. 1603:
i. A Federally-recognized Indian Tribe 25 U.S.C. 1603(14).
ii. A Tribal organization 25 U.S.C. 1603(26).
iii. An urban Indian organization, 25 U.S.C. 1603(29); a nonprofit corporate body situated in an urban center, governed by an urban Indian controlled board of directors, and providing for the maximum participation of all interested Indian groups and individuals, which body is capable of legally cooperating with other public and private entities for the purpose of performing the activities described in 25 U.S.C. 1653(a). Applicants must provide proof of non-profit status with the application,
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
Applications will be deemed ineligible and not considered for review if application budgets exceed the maximum funding amount listed for the applicant's IHS area breakdown outlined under the “Estimated Funds Available” section within this funding announcement. If deemed ineligible, IHS will not return the application. The applicant will be notified by email by the Division of Grants Management (DGM) of this decision.
Grantees/awardees are required to send the project director and/or project coordinator (the individual who runs the day-to-day project operations) to an annual MSPI meeting. Participation will be in-person or via virtual meetings. The grantee/awardee is required to include travel for this purpose in the budget and narrative of the project proposal. At these meetings, grantees/awardees will present updates and results of their projects including note of significant or ongoing concerns related to project implementation or management. Federal staff will provide updates and technical assistance to grantees/awardees in attendance.
Tribal resolutions are required from all Tribes and Tribal organizations. An Indian Tribe or Tribal organization that is proposing a project affecting another Indian Tribe must include
An official signed Tribal resolution must be received by the DGM prior to a Notice of Award being issued to any applicant selected for funding. However, if an official signed Tribal resolution cannot be submitted with the electronic application submission prior to the official application deadline date, a draft Tribal resolution must be submitted by the deadline in order for the application to be considered complete and eligible for review. The draft Tribal resolution is not in lieu of the required signed resolution, but is acceptable until a signed resolution is received. If an official signed Tribal resolution is not received by DGM when funding decisions are made, then a Notice of Award will not be issued to that applicant and the applicant will not receive any IHS funds until such time as the applicant a signed resolution has been submitted to the Grants Management Specialist listed in this funding announcement.
Organizations claiming non-profit status must submit proof. A copy of the 501(c)(3) Certificate must be received with the application submission by the Application Deadline Date listed under the Key Dates section on page one of this announcement.
An applicant submitting any of the above additional documentation after the initial application submission due date is required to ensure the information was received by the IHS DGM by obtaining documentation confirming delivery (
The application package and detailed instructions for this announcement can be found at
Questions regarding the electronic application process may be directed to Mr. Paul Gettys at (301) 443–2114 or (301) 443–5204.
The applicant must include the project narrative as an attachment to the application package. Mandatory documents for all applicants include:
• Table of Contents.
• Abstract (must be single-spaced and not exceed one page) summarizing the project.
• Application forms:
○ SF–424, Application for Federal Assistance.
○ SF–424A, Budget Information—Non-Construction Programs.
○ SF–424B, Assurances—Non-Construction Programs.
• Statement of Need (must be single-spaced and not exceed two pages).
○ Includes the Tribe, Tribal organization, or UIO background information.
• Project Narrative (must be single-spaced and not exceed 20 pages).
○ Proposed scope of work, objectives, and activities that provide a description of what will be accomplished, including a one-page Timeline Chart, and a Local Data Collection Plan.
• Budget and Budget Narrative (must be single-spaced and not exceed four pages).
• Tribal Resolution(s) (only required for Indian Tribes and Tribal organizations).
• Letter(s) of Support:
○
○
○
○
• 501(c)(3) Certificate (if applicable).
• Biographical sketches for all key personnel (
• Contractor/consultant qualifications and scope of work.
• Disclosure of Lobbying Activities (SF–LLL).
• Certification Regarding Lobbying (GG-Lobbying Form).
• Copy of current Negotiated Indirect Cost rate (IDC) agreement (required) in order to receive IDC.
• Documentation of current Office of Management and Budget (OMB) Audit as required by 45 CFR 75, Subpart F or other required Financial Audit (if applicable).
Acceptable forms of documentation include:
○ Email confirmation from Federal Audit Clearinghouse (FAC) that audits were submitted; or
○ Face sheets from audit reports. These can be found on the FAC Web site:
All Federal-wide public policies apply to IHS grants and cooperative agreements with exception of the discrimination policy.
The statement of need describes the history and current situation in the applicant's Tribal community (“community” means the applicant's Tribe, village, Tribal organization, or consortium of Tribes or Tribal organizations). The statement of need provides the facts and evidence that support the need for the project and established that the Tribe/Tribal organization or UIO understands the problems and can reasonably address them and provides background information on the Tribe, Tribal organization, or UIO. The statement of need must not exceed two, single-spaced pages and must be type written, have consecutively number pages, use black type not smaller than 12 characters per one inch, and printed on one side of standard size 8
A. Project Narrative: This narrative, or proposed approach, should be a separate Word document that is no longer than 20 pages and must: Be single-spaced, be type written, have consecutively numbered pages, use black type not smaller than 12 characters per one inch, and be printed on one side only of standard size 8
Be sure to succinctly address and answer all questions listed under the Project Narrative section and place them under the evaluation criteria (refer to Section V.1, Evaluation criteria in this announcement) and place all responses and required information in the correct section (noted below), or they shall not be considered or scored. These narratives will assist the Objective Review Committee (ORC) in becoming familiar with the applicant's activities and accomplishments prior to this grant award. If the narrative exceeds the page limit, only the first 20 pages will be reviewed. The 20-page limit for the narrative does not include the table of contents, abstract, statement of need, work plan, standard forms, Tribal resolutions, budget or budget narrative, and/or other appendix items.
There are five (5) parts to the project narrative:
• Part A—Goals and Objectives;
• Part B—Project Activities;
• Part C—Timeline Chart (template provided);
• Part D—Organizational Capacity and Staffing/Administration; and
• Part E—Plan for Local Data Collection.
See below for additional details about what must be included in the narrative.
• Describe the purpose of the proposed project that includes a clear statement of goals and objectives.
• Current MSPI Purpose Area #4 grantees should only address the one new broad objective (“Hire additional behavioral health staff specializing in child, adolescent, and family services who will be responsible for implementing the project's activities that address all the broad objectives listed”) in the Project Narrative. (Note: if you are a current grantee, you are already addressing the first three broad objectives in your current scope of work). The objective should be clearly outlined in the project narrative. If the application does not address the one, new broad objective, the application will be considered ineligible and will not be reviewed for further consideration.
• Current MSPI Purpose Area #4 grantees are not allowed to duplicate current, approved activities, however you can increase or supplement current, approved activities and provide that information in the Project Narrative scope of work.
• Describe how project activities will increase the capacity of the identified community to plan and improve the coordination of a collaborative behavioral health and wellness service systems.
• Describe anticipated barriers to progress of the project and how the barriers will be addressed.
• Discuss how the proposed approach addresses the local language, concepts, attitudes, norms and values about suicide, and/or substance use.
• Describe how the proposed project will address issues of diversity within the population of focus including age, race, gender, ethnicity, culture/cultural identity, language, sexual orientation, disability, and literacy.
• If the applicant plans to include an advisory body in the project, describe its membership, roles and functions, and frequency of meetings.
• Describe how the efforts of the proposed project will be coordinated with any other related Federal grants, including IHS, the Substance Abuse and Mental Health Services Administration (SAMHSA), or Bureau of Indian Affairs (BIA) services provided in the community (if applicable).
• Identify any other organization(s) that will participate in the proposed project. Describe roles and responsibilities and demonstrate their commitment to the project. Include a
• Provide a one-year (first project year) timeline chart depicting a realistic timeline for the project period showing key activities, milestones, and responsible staff. These key activities should include the requirements outlined for MSPI Purpose Area #4. [Note: The timeline chart should be included as part of the Project Narrative as specified here. It should not be placed as an attachment.]. The timeline chart should not exceed one-page.
• Describe the management capability and experience of the applicant Tribe, Tribal organization, or UIO and other participating organizations in administering similar grants and projects.
• Discuss the applicant Tribe, Tribal organization, or UIO experience and capacity to provide culturally appropriate/competent services to the community and specific populations of focus.
• Describe the resources available for the proposed project (
• Describe how project continuity will be maintained if/when there is a change in the operational environment (
• Include a position description for the behavioral health staff as an attachment to the project proposal/application for the behavioral health staff. The position description should not exceed one page. [Note: Attachments will not count against the 20 page maximum].
• For individuals that are identified and currently on staff, include a biographical sketch (not to include personally identifiable information) for the behavioral health staff as an attachment to the project proposal/application. Each biographical sketch should not exceed one page. Reviewers will not consider information past page one. [Note: Attachments will not count against the 20 page maximum]. Do not include any of the following:
Personally identifiable information;
Resumes; or
Curriculum Vitae.
• Describe the applicant's plan for gathering local data, submitting data requirements, and document the applicant's ability to ensure accurate data tracking and reporting. Describe how members of the community (including youth and families that may receive services) will be involved in the planning, implementation, and data collection.
Funded projects are required to coordinate data collection efforts with their assigned regional Technical Assistance (TA) Provider for evaluation. The regional TA Providers for evaluation are the Tribal Epidemiology Centers (TECs) for each IHS Area and additionally, the National Indian Health Board and the National Council of Urban Indian Health will also provide TA for evaluation. The TA Providers for evaluation are funded by IHS. Awardees will work with their assigned regional TA Provider for evaluation to measure and track the core processes, outcomes, impacts, and benefits associated with the MSPI. Awardees shall collect local data related to the project and submit it in annual progress reports to IHS and will assist the national MSPI evaluation. The purpose of the national evaluation is to assess the extent to which the projects are successful in achieving project goals and objectives and to determine the impact of MSPI-related activities on individuals and the larger community.
Progress reporting will be required on national data elements related to program outcomes and financial reporting for all awardees. Progress reports will be collected annually throughout the project on a web-based data portal. Progress reports include the compilation of quantitative (numerical) data (
The reporting portal will be open to project staff on a 24 hour/7 day week basis for the duration of each reporting period. In addition, Federal financial report forms (SF–425), which document funds received and expended during the reporting period, will be available. Required financial forms will be available from the IHS DGM and other required forms will be provided throughout the funding period by DGM or the IHS Division of Behavioral Health (DBH). All document/materials are to be submitted online. Technical assistance for web-based data entry and for the completion of required fiscal documents will be timely and readily available to awardees by assigned IHS project officers.
B. Budget and Budget Narrative: The applicant is required to include a line item budget for all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative for Project Year 1 only. The budget should match the scope of work described in the project narrative for the first project year expenses only. The page limitation should not exceed four single-spaced pages.
Current MSPI grantees funded for Purpose Area #4 are not allowed to duplicate current, approved budget costs, however you can increase funding in your current, approved line item(s) to supplement your current, approved budget and provide that information and clarification in the Budget Narrative/justification.
The applicant must provide a narrative justification for all items included in the proposed line item budget supporting the mission and goals of MSPI, as well as a description of existing resources and other support the applicant expects to receive for the proposed project. Other support is defined as funds or resources, whether Federal, non-Federal or institutional, in direct support of activities through fellowships, gifts, prizes, in-kind contributions or non-Federal means. (This should correspond to Item #18 on the applicant's SF–424, Estimated Funding.) Provide a narrative justification supporting the development or continued collaboration with other partners regarding the proposed activities to be implemented.
Templates are provided for the project narrative, timeline chart, budget and budget narrative, and biographical sketch. These templates can be located and download at the MSPI Web site at:
Applications must be submitted electronically through
If technical challenges arise and assistance is required with the electronic application process, contact
If the applicant needs to submit a paper application instead of submitting electronically through
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are not allowable.
• The available funds are inclusive of direct and appropriate indirect costs.
• Only one grant/cooperative agreement will be awarded per applicant.
• IHS will not acknowledge receipt of applications.
All applications must be submitted electronically. Please use the
If the applicant receives a waiver to submit paper application documents, the applicant must follow the rules and timelines that are noted below. The applicant must seek assistance at least ten days prior to the Application Deadline Date listed in the Key Dates section on page one of this announcement.
Applicants that do not adhere to the timelines for System for Award Management (SAM) and/or
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application electronically, please contact
• Upon contacting
• If it is determined that a waiver is needed, the applicant must submit a request in writing (emails are acceptable) to
• If the waiver is approved, the application should be sent directly to the DGM by the Application Deadline Date listed in the Key Dates section on page one of this announcement.
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through
• Please use the optional attachment feature in
• All applicants must comply with any page limitation requirements described in this Funding Announcement.
• After electronically submitting the application, the applicant will receive an automatic acknowledgment from
• Email applications will not be accepted under this announcement.
All IHS applicants and grantee organizations are required to obtain a DUNS number and maintain an active registration in the SAM database. The DUNS number is a unique 9-digit identification number provided by D&B which uniquely identifies each entity. The DUNS number is site specific; therefore, each distinct performance site may be assigned a DUNS number. Obtaining a DUNS number is easy, and there is no charge. To obtain a DUNS number, please access it through
All HHS recipients are required by the Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), to report information on sub-awards. Accordingly, all IHS grantees must notify potential first-tier sub-recipients that no entity may receive a first-tier sub-award unless the entity has provided its DUNS number to the prime grantee organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Organizations that were not registered with Central Contractor Registration and have not registered with SAM will need to obtain a DUNS number first and then
Additional information on implementing the Transparency Act, including the specific requirements for DUNS and SAM, can be found on the IHS Grants Management, Grants Policy Web site:
The instructions for preparing the application narrative also constitute the evaluation criteria for reviewing and scoring the application. Weights assigned to each section are noted in parentheses. The 20 page narrative should include only the first year of activities. The narrative section should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to understand the project fully. Points will be assigned to each evaluation criteria adding up to a total of 100 points. A minimum score of 65 points is required for funding. Points are assigned as follows:
Applications will be reviewed and scored according to the quality of responses to the required application components in Sections A–E below. In developing the required sections of this application, use the instructions provided for each section, which have been tailored to this program. The application must use the five sections (Sections A–E) listed below in developing the application. The applicant must place the required information in the correct section or it will not be considered for review. The application will be scored according to how well the applicant addresses the requirements for each section listed below. The number of points after each heading is the maximum number of points the review committee may assign to that section. Although scoring weights are not assigned to individual bullets, each bullet is assessed deriving the overall section score.
The statement of need should not exceed two single-spaced pages.
(1) Identify the proposed catchment area and provide demographic information on the population(s) to receive services through the targeted systems or agencies,
(2) Based on the information and/or data currently available, document the prevalence of suicide ideations, attempts, clusters (groups of suicides or suicide attempts or both that occurred close together in time and space), completions, and substance use rates. For this Purpose Area, the data should be geared toward AI/AN children and youth.
(3) Based on the information and/or data currently available, document the need for an enhanced infrastructure to increase the capacity to implement, sustain, and improve effective substance abuse prevention and/or behavioral health services in the proposed catchment area that is consistent with the purpose of the program and the funding opportunity announcement. Based on available data, describe the service gaps and other problems related to the need for infrastructure development. Identify the source of the data. Documentation of need may come from a variety of qualitative and quantitative sources. Examples of data sources for the quantitative data that could be used are local epidemiologic data (TECs, IHS area offices), state data (
(4) Describe the current suicide prevention, substance abuse prevention, trauma-related, and mental health promotion activities happening in the applicant's community/communities for Native youth up to and including age 24 and their families. Indicate which organizations/entities are currently offering these activities and where the resources come from to support them.
(5) Describe the current service gaps, including disconnection between available services and unmet needs of Native youth up to and including age 24 and their families.
(6) Describe potential project partners and community resources in the catchment area that can participate in the planning process and infrastructure development.
The project narrative required components (listed as the six components in “Requirements for Project Narrative”) together should not exceed 20 single-spaced pages.
(1) Describe the purpose of the proposed project, including a clear statement of goals and objectives. The proposed project narrative is required to address the one additional broad objective listed for MSPI Purpose Area #4. Describe how achievement of goals will increase system capacity to support the goals and objectives or activities for MSPI Purpose Area #4 by showing how the project will work with Native youth up to and including age 24.
(2) Describe how project activities will increase the capacity of the identified community to plan and improve the coordination of a collaborative behavioral health and wellness service system. Describe anticipated barriers to progress of the project and how these barriers will be addressed.
(3) Discuss how the proposed approach addresses the local language, concepts, attitudes, norms and values about suicide, and/or substance use.
(4) Describe how the proposed project will address issues of diversity for Native youth up to and including age 24 including race/ethnicity, gender, culture/cultural identity, language, sexual orientation, disability, and literacy.
(5) Describe how Native youth up to and including ages 24 and families may receive services and how they will be involved in the planning, implementation, and data collection and regional evaluation of the project.
(6) Describe how the efforts of the proposed project will be coordinated with any other related Federal grants, including IHS, SAMHSA, or BIA services provided in the community (if applicable).
(7) Provide a timeline chart depicting a realistic timeline for 1-year project period showing key activities, milestones, and responsible staff. [Note: The timeline chart should be part of the project narrative as specified in the “Requirements for Project Proposals”
(8) If the applicant plans to include an advisory body in the project, describe its membership, roles and functions, and frequency of meetings.
(9) Identify any other organization(s) that will participate in the proposed project. Describe their roles and responsibilities and demonstrate their commitment to the project. Include a list of these organizations as an attachment to the project proposal/application. In the attached list, indicate the organizations that the Tribe/Tribal organization or UIO has worked with or currently works with. [Note: The attachment will not count as part of the 20-page maximum.].
(1) Describe the management capability and experience of the applicant Tribe, Tribal organization, or UIO and other participating organizations in administering similar grants and projects.
(2) Identify the department/division that will administer this project. Include a description of this entity, its function and its placement within the organization (Tribe, Tribal organization, or UIO). If the program is to be managed by a consortium or Tribal organization, identify how the project office relates to the member community/communities.
(3) Discuss the applicant Tribe, Tribal organization, or UIO experience and capacity to provide culturally appropriate/competent services to the community and specific populations of focus.
(4) Describe the resources available for the proposed project (
(5) Describe how project continuity will be maintained if/when there is a change in the operational environment (
(6) Demonstrate successful project implementation for the level of effort budgeted for the behavioral health staff and provide qualifications.
(7) Include a position description as an attachment to the application for the behavioral health staff. The position description should not exceed one page each. [Note: Attachments will not count against the 20 page maximum].
(8) For individuals that are currently on staff, include a biographical sketch (not to include personally identifiable information) for the behavioral health staff. Describe the experience of identified staff in mental health promotion, suicide and substance abuse prevention work in the community/communities. Include the biographical sketch as an attachment to the project proposal/application. Biographical sketches should not exceed one page per staff member. Reviewers will not consider information past page one. [
Personally identifiable information;
Resumes; or
Curriculum Vitae.
Describe the applicant's plan for gathering local data, submitting data requirements, and document the applicant's ability to ensure accurate data tracking and reporting. Describe how members of the community (including Native youth up to and including age 24 and families that may receive services) will be involved in the planning, implementation, and data collection.
Funded projects are required to coordinate data collection efforts with their assigned regional TA Provider for evaluation. The regional TA Providers for evaluation are the Tribal Epidemiology Centers (TECs) for each IHS Area and additionally, the National Indian Health Board and the National Council of Urban Indian Health will also provide TA for evaluation. The TA Providers for evaluation are funded by IHS. Awardees will work with their assigned regional TA Provider for evaluation to measure and track the core processes, outcomes, impacts, and benefits associated with the MSPI. Awardees shall collect local data related to the project and submit it in annual progress reports to IHS and will assist the national MSPI evaluation. The purpose of the national evaluation is to assess the extent to which the projects are successful in achieving project goals and objectives and to determine the impact of MSPI-related activities on individuals and the larger community.
Progress reporting will be required on national selected data elements related to program outcomes and financial reporting for all awardees. Progress reports will be collected annually throughout the project on a web-based data portal. Progress reports include the compilation of quantitative (numerical) data (
The applicant is required to include a line item budget for all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative for Project Year 1 only. The budget should match the scope of work described in the project narrative for the first project year expenses only. The budget and budget narrative must not exceed four single-spaced pages.
Current MSPI grantees funded for Purpose Area #4 are not allowed to duplicate current, approved budget costs; however the grantee can increase funding in the current, approved line item(s) to supplement the current, approved budget and provide that information and clarification in the Budget Narrative/justification.
The applicant must provide a narrative justification of the items included in the proposed line item budget supporting the mission and goals of MSPI, as well as a description of existing resources and other support the applicant expects to receive for the proposed project. Other support is defined as funds or resources, whether Federal, non-Federal or institutional, in direct support of activities through fellowships, gifts, prizes, in-kind contributions or non-Federal means (this should correspond to Item #18 on the applicant's SF–424, Estimated Funding). Provide a narrative justification supporting the development or continued collaboration with other partners regarding the proposed activities to be implemented.
The Budget and Budget Narrative the applicant provides will be considered by reviewers in assessing the applicant's submission, along with the material in the Project Narrative. Applicants should ensure that the budget and budget narrative are aligned with the project narrative.
Additional documents can be uploaded as Appendix Items in
• Work plan, logic model and/or time line for proposed objectives.
• Position descriptions for other key staff.
• Resumes of other key staff that reflect current duties.
• Consultant or contractor proposed scope of work and letter of commitment (if applicable).
• Current Indirect Cost Agreement.
• Organizational chart.
• Map of area identifying project location(s).
• Additional documents to support narrative (
Each application will be prescreened by the DGM staff for eligibility and completeness as outlined in the funding announcement. Applications that meet the eligibility criteria shall be reviewed for merit by the ORC based on evaluation criteria in this funding announcement. The ORC could be composed of both Tribal and Federal reviewers appointed by the IHS program to review and make recommendations on these applications. The technical review process ensures selection of quality projects in a national competition for limited funding. Incomplete applications and applications that are non-responsive to the eligibility criteria will not be referred to the ORC. The applicant will be notified via email of this decision by the Grants Management Officer of the DGM. Applicants will be notified by DGM, via email, to outline minor missing components (
To obtain a minimum score for funding by the ORC, applicants must address all program requirements and provide all required documentation.
The Notice of Award (NoA) is a legally binding document signed by the grants management officer and serves as the official notification of the grant award. The NoA will be initiated by the DGM in our grant system, GrantSolutions (
Applicants who received a score less than the recommended funding level for approval, 65 points, and were deemed to be disapproved by the ORC, will receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC outlining the strengths and weaknesses of their application submitted. The IHS program office will also provide additional contact information as needed to address questions and concerns as well as provide technical assistance if desired.
Approved but unfunded applicants that met the minimum scoring range and were deemed by the ORC to be “Approved”, but were not funded due to lack of funding, will have their applications held by DGM for a period of one year. If additional funding becomes available during the course of FY 2016 the approved but unfunded application may be re-considered by the awarding program office for possible funding. The applicant will also receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC.
Grants are administered in accordance with the following regulations and policies:
A. The criteria as outlined in this program announcement.
B. Administrative Regulations for Grants:
• Uniform Administrative Requirements for HHS Awards, located at 45 CFR part 75.
C. Grants Policy:
• HHS Grants Policy Statement, Revised 01/07.
D. Cost Principles:
• Uniform Administrative Requirements for HHS Awards, “Cost Principles,” located at 45 CFR part 75, subpart E.
E. Audit Requirements:
• Uniform Administrative Requirements for HHS Awards, “Audit Requirements,” located at 45 CFR part 75, subpart F.
This section applies to all grant recipients that request reimbursement of indirect costs (IDC) in their grant application. In accordance with HHS Grants Policy Statement, Part II–27, IHS requires applicants to obtain a current IDC rate agreement prior to award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate is provided to the DGM.
Generally, IDC rates for IHS grantees are negotiated with the Division of Cost Allocation (DCA)
The grantee must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in one or both of the following: (1) The imposition of special award provisions; and (2) the non-funding or non-award of other eligible projects or activities. This requirement applies whether the delinquency is attributable to the failure of the grantee organization or the individual responsible for preparation of the reports. Per DGM policy, all reports are required to be submitted electronically by attaching them as a “Grant Note” in GrantSolutions. Personnel responsible for submitting reports will be required to obtain a login and password for GrantSolutions. Please see the Agency Contacts list in section VII for the systems contact information.
The reporting requirements for this program are noted below.
Program progress reports are required annually, within 30 days after the budget period ends. These reports must include a brief comparison of actual accomplishments to the goals established for the period, a summary of progress to date or, if applicable, provide sound justification for the lack of progress, and other pertinent information as required. A final program progress report must be submitted within 90 days of expiration of the budget/project period at the end of the funding cycle. Additional information for reporting and associated requirements will be included in the
Federal Financial Report FFR (SF–425), Cash Transaction Reports are due 30 days after the close of every calendar quarter to the Payment Management Services, HHS at
Grantees are responsible and accountable for accurate information being reported on all required reports: The Progress Reports and Federal Financial Report.
The following requirements were enacted in Section 3003 of the Consolidated Continuing Appropriations Act, 2013, and Section 119 of the Continuing Appropriations Act, 2014;
This award may be subject to the Transparency Act sub-award and executive compensation reporting requirements of 2 CFR part 170.
The Transparency Act requires the OMB to establish a single searchable database, accessible to the public, with information on financial assistance awards made by Federal agencies. The Transparency Act also includes a requirement for recipients of Federal grants to report information about first-tier sub-awards and executive compensation under Federal assistance awards.
IHS has implemented a Term of Award into all IHS Standard Terms and Conditions, NoAs and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 sub-award obligation dollar threshold met for any specific reporting period. Additionally, all new (discretionary) IHS awards (where the project period is made up of more than one budget period) and where: (1) the project period start date was October 1, 2010 or after and (2) the primary awardee will have a $25,000 sub-award obligation dollar threshold during any specific reporting period will be required to address the FSRS reporting. For the full IHS award term implementing this requirement and additional award applicability information, visit the DGM Grants Policy Web site at:
Recipients of federal financial assistance (FFA) from HHS must administer their programs in compliance with federal civil rights law. This means that recipients of HHS funds must ensure equal access to their programs without regard to a person's race, color, national origin, disability, age and, in some circumstances, sex and religion. This includes ensuring your programs are accessible to persons with limited English proficiency. HHS provides guidance to recipients of FFA on meeting their legal obligation to take reasonable steps to provide meaningful access to their programs by persons with limited English proficiency. Please see
The HHS Office for Civil Rights (OCR) also provides guidance on complying with civil rights laws enforced by HHS. Please see
Pursuant to 45 CFR 80.3(d), an individual shall not be deemed subjected to discrimination by reason of his/her exclusion from benefits limited by Federal law to individuals eligible for benefits and services from the IHS.
Recipients will be required to sign the HHS–690 Assurance of Compliance form which can be obtained from the following Web site:
The IHS is required to review and consider any information about the applicant that is in the Federal Awardee Performance and Integrity Information System (FAPIIS) before making any award in excess of the simplified acquisition threshold (currently $150,000) over the period of performance. An applicant may review and comment on any information about itself that a Federal awarding agency previously entered. IHS will consider any comments by the applicant, in addition to other information in FAPIIS in making a judgment about the applicant's integrity, business ethics, and record of performance under Federal awards when completing the review of risk posed by applicants as described in 45 CFR 75.205.
As required by 45 CFR part 75 Appendix XII of the Uniform Guidance, non-federal entities (NFEs) are required to disclose in FAPIIS any information about criminal, civil, and administrative proceedings, and/or affirm that there is no new information to provide. This applies to NFEs that receive Federal awards (currently active grants, cooperative agreements, and procurement contracts) greater than $10,000,000 for any period of time during the period of performance of an award/project.
As required by 2 CFR part 200 of the Uniform Guidance, and the HHS implementing regulations at 45 CFR part 75, effective January 1, 2016, the IHS must require a non-federal entity or an
Submission is required for all applicants and recipients, in writing, to the IHS and to the HHS Office of Inspector General all information related to violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award. 45 CFR 75.113.
Disclosures must be sent in writing to:
Failure to make required disclosures can result in any of the remedies described in 45 CFR 75.371 Remedies for noncompliance, including suspension or debarment (See 2 CFR parts 180 & 376 and 31 U.S.C. 3321).
1. Questions on the programmatic issues may be directed to: Audrey Solimon, Public Health Analyst, National MSPI/DVPI Program Coordinator, Division of Behavioral Health, 5600 Fishers Lane, Mail Stop: 08N34–A, Rockville, MD 20857, Phone: (301) 590–5421, Fax: (301) 594–6213 Email:
2. Questions on grants management and fiscal matters may be directed to: Willis Grant, Grants Management Specialist, Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, Phone: (301) 443–2214, Fax: (301) 594–0899, Email:
3. Questions on systems matters may be directed to: Paul Gettys, Grant Systems Coordinator, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, Phone: (301) 443–2114; or the DGM main line (301) 443–5204, Fax: (301) 594–0899, E-Mail:
The Public Health Service strongly encourages all cooperative agreement and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103–227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
The Indian Health Service (IHS) is accepting competitive cooperative agreement applications for Human Immunodeficiency Virus/Acquired Immunodeficiency Syndrome (HIV/AIDS) Prevention and Engagement in Care. This program is funded by the Division of Sexually Transmitted Disease Prevention, Centers for Disease Control and Prevention (CDC). Funding for the HIV/AIDS award will be provided by CDC via an Interagency Agreement dated 06/10/2016 to IHS to permit obligation of funding appropriated by the Department of Defense, Military Construction and Veterans Affairs, and Full-Year Continuing Appropriations Act, 2013, Public Law 113–6. This program is described in the Catalog of Federal Domestic Assistance (CFDA) under 93.933.”
The IHS Office of Clinical and Preventive Services (OCPS), HIV/AIDS Program serves as the primary source for national education, policy development, budget development, and allocation for clinical, preventive, and public health HIV/AIDS programs for the IHS, area offices, and service units. It provides leadership in articulating the clinical, preventive, and public health needs of American Indian/Alaska Native (AI/AN) communities and developing, managing, and administering program functions related to HIV/AIDS.
The purpose of this cooperative agreement is to meet AI/AN community's needs in achieving the goals of the National HIV/AIDS Strategy: Updated to 2020 (Strategy), released in July 2015. Specifically, this agreement seeks to increase local activities to move the Nation forward toward improving its HIV prevention and care outcomes with special emphasis in one of five areas:
(1) Increasing access to comprehensive Pre-Exposure Prophylaxis (PrEP) services for those whom it is appropriate and desired;
(2) Identifying local-level priorities for HIV care needs and creating tools and resources appropriate to meet those priorities;
(3) Improving engagement and retention in care among People Living with HIV/AIDS (PLWHA);
(4) Supporting and educating communities on risk reduction activities for persons who inject drugs and extend access to services for medication-assisted therapies for persons with opioid addiction in accordance with Federal, state, Tribal, and local laws; and,
(5) Increasing local-level delivery of age-appropriate HIV and Sexually Transmitted Infections (STI) prevention education.
Cooperative Agreement.
The total amount of funding identified for the current fiscal year (FY) 2016 is approximately $500,000. Individual award amounts are anticipated to be between $20,000 and $100,000. The amount of funding available for competing and continuation awards issued under this announcement are subject to the availability of appropriations and budgetary priorities of the Agency. The IHS is under no obligation to make awards that are selected for funding under this announcement.
Approximately five awards will be issued under this program announcement. OS and IHS will concur on the final decision as to who will receive awards.
The project period is for five years and will run consecutively from September 30, 2016 to September 29, 2021.
Cooperative agreements awarded by CDC are administered under the same policies as a grant. The funding agency is required to have substantial programmatic involvement in the project during the entire award segment. Below is a detailed description of the level of involvement required for both the funding agency and the grantee. OS, through IHS will be responsible for activities listed under section A and the grantee will be responsible for activities listed under section B as stated:
(1) Interpretation of current scientific literature related to epidemiology, statistics, surveillance, and other HIV disease control activities;
(2) Design and implementation of program components (including, but not limited to, program implementation methods, surveillance, epidemiologic analysis, outbreak investigation, development of programmatic evaluation, development of disease control programs, and coordination of activities);
(3) Implementation of program management best practices;
(4) Conduct site visits to assess program progress and provide programmatic technical assistance as travel funds allow; and
(5) Coordination of these activities with all IHS HIV activities on a national basis.
(1) Develop and deploy a plan of action to reduce disparities and increase services relevant to at least one of the above-named five areas of interest relevant to the updated Strategy.
(2) Provide a three page mid-year report and no more than a ten page summary annual report at the end of each project year. The report should include the HHS HIV common indicators and establish the impact and outcomes of activities undertaken during the funding period. For more information on the Common Indicators, please see:
To be eligible for this “New Announcement” under this announcement, an applicant must be one of the following as defined by 25 U.S.C. 1603: i. An Indian Tribe, 25 U.S.C. 1603(14); operating an Indian health program operated pursuant to a contract, grant, cooperative agreement, or compact with IHS pursuant to the Indian Self-Determination and Education Assistance Act (ISDEAA), (Pub. L. 93–638).
ii. A Tribal organization 25 U.S.C. 1603(26); operating an Indian health program operated pursuant to as contract, grant, cooperative agreement, or compact with the IHS pursuant to the ISDEAA, (Pub. L. 93–638).
iii. An Urban Indian organization, 25 U.S.C. 1603(29); operating a Title V Urban Indian health program that currently has a grant or contract with the IHS under Title V of the Indian Health Care Improvement Act, (Pub. L. 93–437). Applicants must provide proof of non-profit status with the application,
Please refer to Section IV.2 (Application and Submission Information/Subsection 2, Content and Form of Application Submission) for additional proof of applicant status documents required such as Tribal resolutions, proof of non-profit status, etc.
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
If application budgets exceed the highest dollar amount outlined under the “Estimated Funds Available” section within this funding announcement, the application will be considered ineligible and will not be reviewed for further consideration. If deemed ineligible, IHS will not return the application. The applicant will be notified by email by the Division of Grants Management (DGM) of this decision.
The following documentation is required:
An Indian Tribe or Tribal organization that is proposing a project affecting another Indian Tribe must include
An official signed Tribal resolution must be received by the DGM prior to a Notice of Award being issued to any applicant selected for funding. However, if an official signed Tribal resolution cannot be submitted with the electronic application submission prior to the official application deadline date, a draft Tribal resolution must be submitted by the deadline in order for the application to be considered complete and eligible for review. The draft Tribal resolution is not in lieu of the required signed resolution, but is acceptable until a signed resolution is received. If an official signed Tribal resolution is not received by DGM when funding decisions are made, then a Notice of Award will not be issued to that applicant and they will not receive any IHS funds until such time as they have submitted a signed resolution to the Grants Management Specialist listed in this funding announcement.
Organizations claiming non-profit status must submit proof. A copy of the 501(c)(3) Certificate must be received with the application submission by the Application Deadline Date listed under the Key Dates section on page one of this announcement.
An applicant submitting any of the above additional documentation after the initial application submission due date is required to ensure the information was received by the IHS by obtaining documentation confirming delivery (
The application package and detailed instructions for this announcement can be found at
Questions regarding the electronic application process may be directed to Mr. Paul Gettys at (301) 443–2114 or (301) 443–5204.
The applicant must include the project narrative as an attachment to the application package. Mandatory documents for all applicants include:
• Table of contents.
• Abstract (one page) summarizing the project.
• Application forms:
○ SF–424, Application for Federal Assistance.
○ 424A, Budget Information—Non-Construction Programs.
○ 424B, Assurances—Non-Construction Programs.
• Budget Justification and Narrative (must be single spaced and not exceed five pages).
• Project Narrative (must be single spaced and not exceed 15 pages).
○ Background information on the organization.
○ Proposed scope of work, objectives, and activities that provide a description of what will be accomplished, including a one-page Timeframe Chart.
• Tribal Resolution(s).
• 501(c)(3) Certificate (if applicable).
• Biographical sketches for all key personnel.
• Contractor/consultant resumes or qualifications and scope of work.
• Disclosure of Lobbying Activities (SF–LLL).
• Certification Regarding Lobbying (GG-Lobbying Form).
• Copy of current Negotiated Indirect Cost rate (IDC) agreement (required) in order to receive IDC.
• Organizational chart (optional).
• Documentation of current Office of Management and Budget (OMB) Audit as required by 45 CFR 75, Subpart F or other required Financial Audit (if applicable).
• Acceptable forms of documentation include:
○ Email confirmation from Federal Audit Clearinghouse (FAC) that audits were submitted; or
○ Face sheets from audit reports. These can be found on the FAC Web site:
All Federal-wide public policies apply to IHS grants and cooperative agreements with exception of the discrimination policy.
A. Project Narrative: This narrative should be a separate Word document that is no longer than 15 pages and must: Be single-spaced, be type written, have consecutively numbered pages, use black type not smaller than 12 characters per one inch, and be printed on one side only of standard size 8
Be sure to succinctly address and answer all questions listed under the narrative and place them under the evaluation criteria (refer to Section V.1, Evaluation criteria in this announcement) and place all responses and required information in the correct section (noted below), or they shall not be considered or scored. These narratives will assist the Objective Review Committee (ORC) in becoming familiar with the applicant's activities and accomplishments prior to this cooperative agreement award. If the narrative exceeds the page limit, only the first 15 pages will be reviewed. The 15-page limit for the narrative does not include the work plan, standard forms, Tribal resolutions, table of contents, budget, budget justifications, narratives, and/or other appendix items.
There are three parts to the narrative: Part A—Program Information; Part B—Program Planning and Evaluation; and Part C—Program Report. See below for additional details about what must be included in the narrative.
Describe how the Indian Tribe or organization has determined it has the administrative infrastructure to support activities to increase HIV/AIDS activities and assist individuals. Explicitly state which major element from the Strategy that will be addressed and how this element is important to the needs of the community. Explain any previous planning activities the Tribe or organization has completed relevant to this or similar goals.
Describe fully and clearly the direction the Indian Tribe plans to meet its goals, including how the Tribe plans to demonstrate improved health and services to the community it serves. Include proposed timelines.
Describe fully and clearly the improvements that will be made by the Indian Tribe to manage the health care system and identify the anticipated or expected benefits for the Tribe or AI/AN people served.
Please identify and describe significant program achievements associated with the delivery of quality health services or outreach services in the past 24 months in implementing previous grants, cooperative agreements, or other related activities. Provide a comparison of the actual accomplishments to the goals established for the project period, or if applicable, provide justification for the lack of progress.
Section 2: Describe major activities over the last 24 months. Please identify and summarize recent major health related project activities of the work done during the project period.
B. Budget Narrative: This narrative must include a line item budget with a narrative justification for all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative. Budget should match the scope of work described in the project narrative. The page limitation should not exceed five pages.
Applications must be submitted electronically through
If technical challenges arise and assistance is required with the electronic application process, contact
If the applicant needs to submit a paper application instead of submitting electronically through
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are not allowable.
• The available funds are inclusive of direct and appropriate indirect costs.
• Only one grant/cooperative agreement will be awarded per applicant.
• IHS will not acknowledge receipt of applications.
All applications must be submitted electronically. Please use the
If the applicant receives a waiver to submit paper application documents, the applicant must follow the rules and timelines that are noted below. The applicant must seek assistance at least ten days prior to the Application Deadline Date listed in the Key Dates section on page one of this announcement.
Applicants that do not adhere to the timelines for System for Award Management (SAM) and/or
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application electronically, please contact
• Upon contacting
• If it is determined that a waiver is needed, the applicant must submit a request in writing (emails are acceptable) to
• If the waiver is approved, the application should be sent directly to the DGM by the Application Deadline Date listed in the Key Dates section on page one of this announcement.
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through
• Please use the optional attachment feature in
• All applicants must comply with any page limitation requirements described in this funding announcement.
• After electronically submitting the application, the applicant will receive an automatic acknowledgment from
• Email applications will not be accepted under this announcement.
All IHS applicants and grantee organizations are required to obtain a DUNS number and maintain an active registration in the SAM database. The DUNS number is a unique 9-digit identification number provided by D&B which uniquely identifies each entity. The DUNS number is site specific; therefore, each distinct performance site may be assigned a DUNS number. Obtaining a DUNS number is easy, and there is no charge. To obtain a DUNS number, please access it through
All HHS recipients are required by the Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), to report information on sub-awards. Accordingly, all IHS grantees must notify potential first-tier sub-recipients that no entity may receive a first-tier sub-award unless the entity has provided its DUNS number to the prime grantee organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Organizations that were not registered with Central Contractor Registration and have not registered with SAM will need to obtain a DUNS number first and then access the SAM online registration through the SAM home page at
Additional information on implementing the Transparency Act, including the specific requirements for DUNS and SAM, can be found on the IHS Grants Management, Grants Policy Web site:
The instructions for preparing the application narrative also constitute the evaluation criteria for reviewing and scoring the application. Weights assigned to each section are noted in parentheses. The 15 page narrative should include only the first year of activities; information for multi-year projects should be included as an appendix. See “Multi-year Project Requirements” at the end of this section for more information. The narrative section should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to understand the project fully. Points will be assigned to each evaluation criteria adding up to a total of 100 points. A minimum score of 60 points is required for funding. Points are assigned as follows:
(1) Define the project's target population, identify unique characteristics, and describe the impact of HIV on the population.
(2) Describe challenges to providing HIV care and retaining patients in care in the population.
(3) Describe the gaps/barriers in awareness and access to PrEP for the population.
(4) Describe the cultural or sociological barriers of the target population in seeking or accessing services, including HIV prevention services.
i. Describe the objectives of the program and how they will improve HIV care and prevention outcomes in the community served. Identify which areas of HIV prevention and care will be addressed, particularly as they relate to:
a. Increasing access to comprehensive PrEP services for those whom it is appropriate and desired;
b. Identifying local-level priorities for HIV care needs and creating tools and resources appropriate to meet those priorities;
c. Improving engagement and retention in care among People Living with HIV/AIDS (PLWHA);
d. Supporting and educating communities on risk reduction activities for persons who inject drugs and extend access to services for medication-assisted therapies for persons with opioid addiction in accordance with Federal, state, Tribal, and local laws; and,
e. Increasing local-level delivery of age-appropriate HIV and STI prevention education.
a. Identify the proposed program activities and explain how these activities will increase and sustain HIV prevention and/or care activities.
b. Provide a clear timeline with quarterly milestones for project activities.
i. Describe how the program will be implemented to address the areas of interest identified in the objectives.
ii. Describe how program will increase access to PrEP services for the community served.
iii. Describe the program strategies to linking seropositive patients to care and effectively engaging them in care.
iv. Describe program strategies to improve other HIV care and prevention outcomes.
v. Describe the program quality assurance strategies.
vi. Describe how the program will ensure client confidentiality.
vii. Describe how the program will ensure that services are culturally sensitive and relevant.
viii. Describe how the program will conduct harm-reduction activities relevant to the needs of persons who inject drugs.
ix. Describe how the program will develop and disseminate age-appropriate HIV and STI prevention education.
(1) Grantee shall provide a plan for monitoring and evaluating proposed activities.
(2) Evaluation planning must include reporting on the HHS HIV Core indicators relevant to the program's objectives and be aligned with updated NHAS indicators.
(3) Optional Measures:
i. Sustainability measures undertaken to continue testing following the end of this funding.
This section outlines the broader capacity of the organization to complete the project outlined in the work plan. It includes the identification of personnel responsible for completing tasks and the chain of responsibility for successful completion of the project outlined in the work plan.
(1) Describe the organizational structure.
(2) Describe what equipment (
a. Include information about any equipment not currently available that will be purchased throughout the agreement.
(3) List key personnel who will work on the project.
i. Identify staffing plan, existing personnel and new program staff to be hired.
ii. In the appendix, include position descriptions and resumes for all key personnel. Position descriptions should clearly describe each position and duties indicating desired qualifications, experience, and requirements related to the proposed project and how they will be supervised. Resumés must indicate that the proposed staff member is qualified to carry out the proposed project activities and who will determine if the work of a contractor is acceptable.
iii. If the project requires additional personnel beyond those covered by the supplemental grant, (
iv. If personnel are to be only partially funded by this supplemental grant, indicate the percentage of time to be allocated to this project and identify the resources used to fund the remainder of the individual's salary.
i. Briefly describe the facility and user population.
ii. Describe the Tribe or the organization's ability to conduct this initiative.
Provide a clear estimate of the project program costs and justification for expenses for the entire grant period. The budget and budget justification should be consistent with the tasks identified in the work plan. The budget focus should be on increasing and sustaining HIV testing services as well as supporting entry and retention into care.
(1) Budget narrative that serves as justification for all costs, explaining why each line item is necessary or relevant to the proposed project. Include sufficient details to facilitate the determination of allowable costs.
(2) If indirect costs are claimed, indicate and apply the current negotiated rate to the budget. Include a
Projects requiring a second, third, fourth, and/or fifth year must include a brief project narrative and budget (one additional page per year) addressing the developmental plans for each additional year of the project.
• Work plan, logic model and/or time line for proposed objectives.
• Position descriptions for key staff.
• Resumés of key staff that reflect current duties.
• Consultant or contractor proposed scope of work and letter of commitment (if applicable).
• Current Indirect Cost Agreement.
• Organizational chart.
• Map of area identifying project location(s).
• Additional documents to support narrative (
Each application will be prescreened by the DGM staff for eligibility and completeness as outlined in the funding announcement. Applications that meet the eligibility criteria shall be reviewed for merit by the ORC based on evaluation criteria in this funding announcement. The ORC could be composed of both Tribal and Federal reviewers appointed by the IHS program to review and make recommendations on these applications. The technical review process ensures selection of quality projects in a national competition for limited funding. Incomplete applications and applications that are non-responsive to the eligibility criteria will not be referred to the ORC. The applicant will be notified via email of this decision by the Grants Management Officer of the DGM. Applicants will be notified by DGM, via email, to outline minor missing components (
To obtain a minimum score for funding by the ORC, applicants must address all program requirements and provide all required documentation.
The Notice of Award (NoA) is a legally binding document signed by the Grants Management Officer and serves as the official notification of the grant award. The NoA will be initiated by the DGM in our grant system, GrantSolutions (
Applicants who received a score less than the recommended funding level for approval, 60 points, and were deemed to be disapproved by the ORC, will receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC outlining the strengths and weaknesses of their application submitted. The IHS program office will also provide additional contact information as needed to address questions and concerns as well as provide technical assistance if desired.
Approved but unfunded applicants that met the minimum scoring range and were deemed by the ORC to be “Approved”, but were not funded due to lack of funding, will have their applications held by DGM for a period of one year. If additional funding becomes available during the course of FY 2016 the approved but unfunded application may be re-considered by the awarding program office for possible funding. The applicant will also receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC.
Any correspondence other than the official NoA signed by an IHS grants management official announcing to the project director that an award has been made to their organization is not an authorization to implement their program on behalf of IHS.
Cooperative agreements are administered in accordance with the following regulations, policies, and OMB cost principles:
A. The criteria as outlined in this program announcement.
B. Administrative Regulations for Grants:
• Uniform Administrative Requirements for HHS Awards, located at 45 CFR part 75.
C. Grants Policy:
• HHS Grants Policy Statement, Revised 01/07.
D. Cost Principles:
• Uniform Administrative Requirements for HHS Awards, “Cost Principles,” located at 45 CFR part 75, subpart E.
E. Audit Requirements:
• Uniform Administrative Requirements for HHS Awards, “Audit Requirements,” located at 45 CFR part 75, subpart F.
This section applies to all grant recipients that request reimbursement of indirect costs (IDC) in their grant application. In accordance with HHS Grants Policy Statement, Part II–27, IHS requires applicants to obtain a current IDC rate agreement prior to award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate is provided to the DGM.
Generally, IDC rates for IHS grantees are negotiated with the Division of Cost Allocation (DCA)
The grantee must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in one or both of the following: (1) The imposition of special award provisions; and (2) the non-funding or non-award of other eligible projects or activities. This requirement applies whether the
The reporting requirements for this program are noted below.
Program progress reports are required semi-annually, within 30 days after the budget period ends. These reports must include a brief comparison of actual accomplishments to the goals established for the period, a summary of progress to date or, if applicable, provide sound justification for the lack of progress, and other pertinent information as required. A final report must be submitted within 90 days of expiration of the budget/project period.
Federal Financial Report (FFR) (SF–425), Cash Transaction Reports are due 30 days after the close of every calendar quarter to the Payment Management Services, HHS at:
Grantees are responsible and accountable for accurate information being reported on all required reports: The Progress Reports and Federal Financial Report.
This award may be subject to the Transparency Act sub-award and executive compensation reporting requirements of 2 CFR part 170.
The Transparency Act requires the OMB to establish a single searchable database, accessible to the public, with information on financial assistance awards made by Federal agencies. The Transparency Act also includes a requirement for recipients of Federal grants to report information about first-tier sub-awards and executive compensation under Federal assistance awards.
IHS has implemented a Term of Award into all IHS Standard Terms and Conditions, NoAs and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 sub-award obligation dollar threshold met for any specific reporting period. Additionally, all new (discretionary) IHS awards (where the project period is made up of more than one budget period) and where: (1) The project period start date was October 1, 2010 or after and (2) the primary awardee will have a $25,000 sub-award obligation dollar threshold during any specific reporting period will be required to address the FSRS reporting. For the full IHS award term implementing this requirement and additional award applicability information, visit the DGM Grants Policy Web site at:
Recipients of federal financial assistance (FFA) from HHS must administer their programs in compliance with federal civil rights law. This means that recipients of HHS funds must ensure equal access to their programs without regard to a person's race, color, national origin, disability, age and, in some circumstances, sex and religion. This includes ensuring your programs are accessible to persons with limited English proficiency. HHS provides guidance to recipients of FFA on meeting their legal obligation to take reasonable steps to provide meaningful access to their programs by persons with limited English proficiency. Please see
The HHS Office for Civil Rights also provides guidance on complying with civil rights laws enforced by HHS. Please see
Pursuant to 45 CFR 80.3(d), an individual shall not be deemed subjected to discrimination by reason of his/her exclusion from benefits limited by federal law to individuals eligible for benefits and services from the Indian Health Service.
Recipients will be required to sign the HHS–690 Assurance of Compliance form which can be obtained from the following Web site:
The IHS, is required to review and consider any information about the applicant that is in the Federal Awardee Performance and Integrity Information System (FAPIIS) before making any award in excess of the simplified acquisition threshold (currently $150,000) over the period of performance. An applicant may review and comment on any information about itself that a federal awarding agency previously entered. IHS will consider any comments by the applicant, in addition to other information in FAPIIS in making a judgment about the applicant's integrity, business ethics, and record of performance under federal awards when completing the review of risk posed by applicants as described in 45 CFR 75.205.
As required by 45 CFR part 75 Appendix XII of the Uniform Guidance, non-federal entities (NFEs) are required to disclose in FAPIIS any information about criminal, civil, and administrative proceedings, and/or affirm that there is no new information to provide. This applies to NFEs that receive federal awards (currently active grants, cooperative agreements, and procurement contracts) greater than $10,000,000 for any period of time during the period of performance of an award/project.
As required by 2 CFR part 200 of the Uniform Guidance, and the HHS
Submission is required for all applicants and recipients, in writing, to the IHS and to the HHS Office of Inspector General all information related to violations of federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the federal award. 45 CFR 75.113.
Disclosures must be sent in writing to:
U.S. Department of Health and Human Services, Indian Health Service, Division of Grants Management, ATTN: Robert Tarwater, Director, 5600 Fishers Lane, Mailstop 09E70, Rockville, Maryland 20857. (Include “Mandatory Grant Disclosures” in subject line)
U.S. Department of Health and Human Services, Office of Inspector General, ATTN: Mandatory Grant Disclosures, Intake Coordinator, 330 Independence Avenue SW., Cohen Building, Room 5527, Washington, DC 20201.
Failure to make required disclosures can result in any of the remedies described in 45 CFR 75.371 Remedies for noncompliance, including suspension or debarment (See 2 CFR parts 180 & 376 and 31 U.S.C. 3321).
1. Questions on the programmatic issues may be directed to: Lisa C. Neel, MPH, HIV Program Coordinator, Office of Clinical and Preventive Services, 5600 Fishers Lane, Mailstop: 08N34A, Rockville, Maryland 20857,
2. Questions on grants management and fiscal matters may be directed to: Willis Grant, Grants Management Specialist, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, 301–443–2214, 301–594–0899,
3. Questions on systems matters may be directed to: Paul Gettys, Grant Systems Coordinator, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857,
The Public Health Service strongly encourages all cooperative agreement and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103–227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
The Indian Health Service (IHS), an agency which is part of the Department of Health and Human Services (HHS), is accepting competitive grant applications for a four-year funding cycle of the Methamphetamine and Suicide Prevention Initiative (Short Title: MSPI)—Generation Indigenous (GEN–I) Initiative Support to continue the planning, development and implementation of the current grant funding cycle for the MSPI Purpose Area #4 (GEN–I Initiative Support) that focuses on promoting early intervention strategies and the implementation of positive youth development programming to reduce risk factors for suicidal behavior and substance abuse by working with Native youth up to and including age 24. This program was first established by the Consolidated Appropriations Act of 2008, Public Law 110–161, 121 Stat. 1844, 2135, and has been continued in the annual appropriations acts since that time. This program is authorized under the authority of the Snyder Act, 25 U.S.C. 13 and the Indian Health Care Improvement Act, 25 U.S.C. 1601–1683. The amounts made available for MSPI funding shall be allocated at the discretion of the Director of IHS and shall remain available until expended. IHS utilizes a national funding formula developed in consultation with Tribes and the National Tribal Advisory Committee on behavioral health, as well as conferring with urban Indian organizations (UIOs). The funding formula provides the allocation methodology for each IHS service area. This program is described in the Catalog of Federal Domestic Assistance under 93.933.
IHS funded 128 Tribal, UIOs, and IHS Federal facilities for a five-year national program focusing on substance abuse and suicide prevention efforts for Indian Country. There are six overall goals of MSPI. The overall goals of MSPI are to: (1) Increase Tribal, UIO, and Federal capacity to operate successful methamphetamine prevention, treatment, and aftercare and suicide prevention, intervention, and postvention services through implementing community and organizational needs assessment and strategic plans; (2) develop and foster data sharing systems among Tribal, UIO, and Federal behavioral health service providers to demonstrate efficacy and impact; (3) identify and address suicide ideations, attempts, and contagions among American Indian and Alaska Native (AI/AN) populations through the development and implementation of culturally appropriate and community relevant prevention, intervention, and postvention strategies; (4) identify and address methamphetamine use among AI/AN populations through the development and implementation of culturally appropriate and community relevant prevention, treatment, and aftercare strategies; (5) identify provider
The primary purpose of this IHS grant is to focus on MSPI goal #6, “to promote positive AI/AN youth development and family engagement through the implementation of early intervention strategies to reduce risk factors for suicidal behavior and substance abuse.” Projects will accomplish this by focusing specifically on MSPI Purpose Area #4: GEN–I Initiative Support.
The focus of Purpose Area #4 is to promote early intervention strategies and implement positive youth development programming to reduce risk factors for suicidal behavior and substance abuse. IHS is seeking applicants to address MSPI overall goal #6 by working with Native youth up to and including age 24, on the following broad objectives:
1. Implement evidence-based and practice-based approaches to build resiliency, promote positive development, and increase self-sufficiency behaviors among Native youth;
2. Promote family engagement;
3. Increase access to prevention activities for youth to prevent methamphetamine use and other substance use disorders that contribute to suicidal behaviors, in culturally appropriate ways; and
4. Hire additional behavioral health staff (
All four of the broad objectives listed for MSPI Purpose Area #4 must be addressed in the application Project Narrative scope of work for new applicants. If an application submission does not address all the required broad objectives in the Project Narrative scope of work the application will not be considered for funding.
IHS strongly emphasizes the use of data and evidence in policymaking and program development and implementation. Applicants must identify one or more evidence-based practice, practice-based evidence, best or promising practice, and/or local effort that the applicant plans to implement in the Project Narrative section of the application. The MSPI Program Web site (
This section is only required if the applicant has included a “conference” in the proposed scope of work and intends on using funding to plan and conduct a conference or meeting during the project period. For definitions of what constitutes a “conference,” please see the policy at the link provided below. The awardee is required to comply with the “HHS Policy on Promoting Efficient Spending: Use of Appropriated Funds for Conferences and Meeting Space, Food, Promotional Items, and Printing and Publications,” dated December 16, 2013 (“Policy”), as applicable to conferences funded by grants and cooperative agreements. The Policy is available at
The awardee is required to:
Provide a separate detailed budget justification and narrative for each conference anticipated. The cost categories to be addressed are as follows: (1) Contract/Planner, (2) Meeting Space/Venue, (3) Registration Web site, (4) Audio Visual, (5) Speakers Fees, (6) Non-Federal Attendee Travel, (7) Registration Fees, and (8) Other (explain in detail and cost breakdown). For additional questions please contact Audrey Solimon, National Program Coordinator in the IHS Division of Behavioral Health, at
Grant.
The total amount of funding identified for awards is approximately $8,685,000. Individual award amounts are anticipated to be between $70,000 and $300,000. IHS expects to allocate funding for the 12 IHS service areas and UIOs as described in detail below. Applicants will be awarded according to their location within their respective IHS service area and will not compete with applicants from other IHS service areas. UIO applicants will be selected from a category set aside for UIO applicants only. The amount of funding available for competing and continuation awards issued under this announcement are subject to the availability of appropriations and budgetary priorities of the agency. IHS is under no obligation to make awards that are selected for funding under this announcement.
Approximately 25 awards will be issued under this funding opportunity announcement. The funding breakdown by area is as follows:
IHS expects to provide approximately $1,117,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $300,000.
IHS expects to provide approximately $433,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
IHS expects to provide approximately $539,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
IHS expects to provide approximately $487,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
IHS expects to provide approximately $382,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
IHS expects to provide approximately $875,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $175,000.
IHS expects to make two awards in the amount of $106,500 each, for a total of $213,000.
IHS expects to provide approximately $1,419,000 in total awards. Individual award amounts are anticipated to be between $200,000 and $300,000.
IHS expects to provide approximately $1,335,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $300,000.
IHS expects to provide approximately $875,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $175,000.
IHS expects to make two awards in the amount of $132,334 each, for a total of $264,668.
IHS expects to make two awards in the amount of $73,000 each, for a total of $146,000.
IHS expects to provide approximately $600,000 in total awards. Individual award amounts are anticipated to be between $100,000 and $200,000.
The project period is for four years and will run consecutively from September 30, 2016, to September 29, 2020.
Eligible Applicants must be one of the following as defined by 25 U.S.C. 1603:
i. A Federally-recognized Indian Tribe 25 U.S.C. 1603(14).
ii. A Tribal organization 25 U.S.C. 1603(26).
iii. An urban Indian organization, 25 U.S.C. 1603(29); a nonprofit corporate body situated in an urban center, governed by an urban Indian controlled board of directors, and providing for the maximum participation of all interested Indian groups and individuals, which body is capable of legally cooperating with other public and private entities for the purpose of performing the activities described in 25 U.S.C. 1653(a). Applicants must provide proof of non-profit status with the application,
Please refer to Section IV.2 (Application and Submission Information/Subsection 2, Content and Form of Application Submission) for additional proof of applicant status documents required, such as Tribal resolutions, proof of non-profit status, etc.
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
Applications will be deemed ineligible and not considered for review if application budgets exceed the maximum funding amount listed for the applicant's IHS area breakdown outlined under the “Estimated Funds Available” section within this funding announcement. If deemed ineligible, IHS will not return the application. The applicant will be notified by email by the Division of Grants Management (DGM) of this decision.
Grantees/awardees are required to send the project director and/or project coordinator (the individual who runs the day-to-day project operations) to an annual MSPI meeting. Participation will be in-person or via virtual meetings. The grantee/awardee is required to include travel for this purpose in the budget and narrative of the project proposal. At these meetings, grantees/awardees will present updates and results of their projects including note of significant or ongoing concerns related to project implementation or management. Federal staff will provide updates and technical assistance to grantees/awardees in attendance.
Tribal resolutions are required from all Tribes and Tribal organizations. An Indian Tribe or Tribal organization that is proposing a project affecting another Indian Tribe must include
An official signed Tribal resolution must be received by the DGM prior to a Notice of Award being issued to any applicant selected for funding. However, if an official signed Tribal resolution cannot be submitted with the electronic application submission prior to the official application deadline date, a draft Tribal resolution must be submitted by the deadline in order for the application to be considered complete and eligible for review. The draft Tribal resolution is not in lieu of the required signed resolution, but is acceptable until a signed resolution is received. If an official signed Tribal resolution is not received by DGM when funding decisions are made, then a Notice of Award will not be issued to that applicant and that applicant will not receive any IHS funds until such time as a signed resolution has been submitted to the Grants Management Specialist listed in this funding announcement.
Organizations claiming non-profit status must submit proof. A copy of the 501(c)(3) Certificate must be received with the application submission by the Application Deadline Date listed under the Key Dates section on page one of this announcement.
An applicant submitting any of the above additional documentation after the initial application submission due date is required to ensure the information was received by the IHS DGM by obtaining documentation confirming delivery (
The application package and detailed instructions for this announcement can be found at
Questions regarding the electronic application process may be directed to Mr. Paul Gettys at (301) 443–2114 or (301) 443–5204.
The applicant must include the project narrative as an attachment to the application package. Mandatory documents for all applicants include:
• Table of Contents.
• Abstract (must be single-spaced and not exceed one page) summarizing the project.
• Application forms:
○ SF–424, Application for Federal Assistance.
○ SF–424A, Budget Information—Non-Construction Programs.
○ SF–424B, Assurances—Non-Construction Programs.
• Statement of Need (must be single-spaced and not exceed two pages).
○ Includes the Tribe, Tribal organization, or UIO background information.
• Project Narrative (must be single-spaced and not exceed 20 pages).
○ Proposed scope of work, objectives, and activities that provide a description of what will be accomplished, including a one-page Timeline Chart, and a Local Data Collection Plan.
• Budget and Budget Narrative (must be single-spaced and not exceed four pages).
• Tribal Resolution(s) (only required for Indian Tribes and Tribal organizations).
• Letter(s) of Support:
○ For all applicants: Local organizational partners;
○ For all applicants: Community partners;
○ For Tribal organizations: From the board of directors (or relevant equivalent);
○ For urban Indian organizations: From the board of directors (or relevant equivalent).
• 501(c)(3) Certificate (if applicable).
• Biographical sketches for all key personnel (
• Contractor/consultant qualifications and scope of work.
• Disclosure of Lobbying Activities (SF–LLL).
• Certification Regarding Lobbying (GG-Lobbying Form).
• Copy of current Negotiated Indirect Cost rate (IDC) agreement (required) in order to receive IDC.
• Documentation of current Office of Management and Budget (OMB) Audit as required by 45 CFR 75, Subpart F or other required Financial Audit (if applicable).
Acceptable forms of documentation include:
○ Email confirmation from Federal Audit Clearinghouse (FAC) that audits were submitted; or
○ Face sheets from audit reports. These can be found on the FAC Web site:
All Federal-wide public policies apply to IHS grants and cooperative agreements with exception of the discrimination policy.
The statement of need describes the history and current situation in the applicant's Tribal community (“community” means the applicant's Tribe, village, Tribal organization, or consortium of Tribes or Tribal organizations). The statement of need provides the facts and evidence that support the need for the project and established that the Tribe/Tribal organization or UIO understands the problems and can reasonably address them and provides background information on the Tribe, Tribal organization, or UIO. The statement of need must not exceed two single-spaced pages and must be type written, have consecutively number pages, use black type not smaller than 12 characters per one inch, and printed on one side of standard size 8
A.
Be sure to succinctly address and answer all questions listed under the Project Narrative section and place them under the evaluation review criteria (refer to Section V.1, Evaluation criteria in this announcement) and place all responses and required information in the correct section (noted below), or they shall not be considered or scored. These narratives will assist the Objective Review Committee (ORC) in becoming familiar with the applicant's activities and accomplishments prior to this grant award. If the narrative exceeds the page limit, only the first 20 pages will be reviewed. The 20-page limit for the narrative does not include the table of contents, abstract, statement of need, work plan, standard forms, Tribal resolutions, budget or budget narrative, and/or other appendix items.
There are five (5) parts to the project narrative:
• Part A—Goals and Objectives;
• Part B—Project Activities;
• Part C—Timeline Chart (template provided);
• Part D—Organizational Capacity and Staffing/Administration; and
• Part E—Plan for Local Data Collection.
See below for additional details about what must be included in the narrative.
• Describe the purpose of the proposed project that includes a clear statement of goals and objectives.
• Address the four (4) broad objectives listed for MSPI Purpose Area #4 and the objectives should be clearly outlined in the project narrative. If the application does not address all four broad objectives, the application will be considered ineligible and will not be reviewed for further consideration.
• Describe how project activities will increase the capacity of the identified community to plan and improve the coordination of a collaborative behavioral health and wellness service systems.
• Describe anticipated barriers to progress of the project and how the barriers will be addressed.
• Discuss how the proposed approach addresses the local language, concepts, attitudes, norms and values about suicide, and/or substance use.
• Describe how the proposed project will address issues of diversity within the population of focus including age, race, gender, ethnicity, culture/cultural identity, language, sexual orientation, disability, and literacy.
• If the applicant plans to include an advisory body in the project, describe its membership, roles and functions, and frequency of meetings.
• Describe how the efforts of the proposed project will be coordinated with any other related Federal grants, including IHS, the Substance Abuse and Mental Health Services Administration (SAMHSA), or Bureau of Indian Affairs (BIA) services provided in the community (if applicable).
• Identify any other organization(s) that will participate in the proposed project. Describe their roles and responsibilities and demonstrate their commitment to the project. Include a list of these organizations as an
• Provide a one-year (first project year) timeline chart depicting a realistic timeline for the project period showing key activities, milestones, and responsible staff. These key activities should include the requirements outlined for MSPI Purpose Area #4. [Note: The timeline chart should be included as part of the Project Narrative as specified here. It should not be placed as an attachment.]. The timeline chart should not exceed one-page.
• Describe the management capability and experience of the applicant Tribe, Tribal organization, or UIO and other participating organizations in administering similar grants and projects.
• Discuss the applicant Tribe, Tribal organization, or UIO experience and capacity to provide culturally appropriate/competent services to the community and specific populations of focus.
• Describe the resources available for the proposed project (
• Describe how project continuity will be maintained if/when there is a change in the operational environment (
• Provide a complete list of staff positions for the project, including the Project director, project coordinator, and other key personnel, showing the role of each and their level of effort and qualifications.
• Include position descriptions as
• For individuals that are identified and currently on staff, include a biographical sketch (not to include personally identifiable information) for the project director, project coordinator, and other key positions as
Personally Identifiable Information;
Resumes; or
Curriculum Vitae.
• Describe the applicant's plan for gathering local data, submitting data requirements, and document the applicant's ability to ensure accurate data tracking and reporting. Describe how members of the community (including youth and families that may receive services) will be involved in the planning, implementation, and data collection.
Funded projects are required to coordinate data collection efforts with their assigned regional Technical Assistance (TA) Provider for evaluation. The regional TA Providers for evaluation are the Tribal Epidemiology Centers (TECs) for each IHS Area and additionally, the National Indian Health Board and the National Council of Urban Indian Health will also provide TA for evaluation. The TA Providers for evaluation are funded by IHS. Awardees will work with their assigned regional TA Provider for evaluation to measure and track the core processes, outcomes, impacts, and benefits associated with the MSPI. Awardees shall collect local data related to the project and submit it in annual progress reports to IHS and will assist the national MSPI evaluation. The purpose of the national evaluation is to assess the extent to which the projects are successful in achieving project goals and objectives and to determine the impact of MSPI-related activities on individuals and the larger community.
Progress reporting will be required on national data elements related to program outcomes and financial reporting for all awardees. Progress reports will be collected annually throughout the project on a web-based data portal. Progress reports include the compilation of quantitative (numerical) data (
The reporting portal will be open to project staff on a 24 hour/7 day week basis for the duration of each reporting period. In addition, Federal financial report forms (SF–425), which document funds received and expended during the reporting period, will be available. Required financial forms will be available from the IHS DGM, and other required forms will be provided throughout the funding period by DGM or the IHS Division of Behavioral Health (DBH). All document/materials are to be submitted online. Technical assistance for web-based data entry and for the completion of required fiscal documents will be timely and readily available to awardees by assigned IHS Project Officers.
B. Budget and Budget Narrative: The applicant is required to include a line item budget for all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative for Project Year 1 only. The budget should match the scope of work described in the project narrative for the first project year expenses only. The page limitation should not exceed four single-spaced pages.
The applicant must provide a narrative justification for all items included in the proposed line item budget supporting the mission and goals of MSPI, as well as a description of existing resources and other support the applicant expects to receive for the proposed project. Other support is defined as funds or resources, whether Federal, non-Federal or institutional, in direct support of activities through fellowships, gifts, prizes, in-kind contributions or non-Federal means. (This should correspond to Item #18 on the applicant's SF–424, Estimated Funding.) Provide a narrative justification supporting the development or continued collaboration with other partners regarding the proposed activities to be implemented.
Templates are provided for the project narrative, timeline chart, budget and budget narrative, and biographical sketch. These templates can be located and download at the MSPI Web site at:
Applications must be submitted electronically through
If technical challenges arise and assistance is required with the electronic application process, contact
If the applicant needs to submit a paper application instead of submitting electronically through
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are not allowable.
• The available funds are inclusive of direct and appropriate indirect costs.
• Only one grant/cooperative agreement will be awarded per applicant.
• IHS will not acknowledge receipt of applications.
All applications must be submitted electronically. Please use the
If the applicant receives a waiver to submit paper application documents, the applicant must follow the rules and timelines that are noted below. The applicant must seek assistance at least ten days prior to the Application Deadline Date listed in the Key Dates section on page one of this announcement.
Applicants that do not adhere to the timelines for System for Award Management (SAM) and/or
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application electronically, please contact
• Upon contacting
• If it is determined that a waiver is needed, the applicant must submit a request in writing (emails are acceptable) to
• If the waiver is approved, the application should be sent directly to the DGM by the Application Deadline Date listed in the Key Dates section on page one of this announcement.
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through
• Please use the optional attachment feature in
• All applicants must comply with any page limitation requirements described in this funding announcement.
• After electronically submitting the application, the applicant will receive an automatic acknowledgment from
• Email applications will not be accepted under this announcement.
All IHS applicants and grantee organizations are required to obtain a DUNS number and maintain an active registration in the SAM database. The DUNS number is a unique 9-digit identification number provided by D&B which uniquely identifies each entity. The DUNS number is site specific; therefore, each distinct performance site may be assigned a DUNS number. Obtaining a DUNS number is easy, and there is no charge. To obtain a DUNS number, please access it through
All HHS recipients are required by the Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), to report information on sub-awards. Accordingly, all IHS grantees must notify potential first-tier sub-recipients that no entity may receive a first-tier sub-award unless the entity has provided its DUNS number to the prime grantee organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Organizations that were not registered with Central Contractor Registration and have not registered with SAM will need to obtain a DUNS number first and then access the SAM online registration through the SAM home page at
Additional information on implementing the Transparency Act, including the specific requirements for DUNS and SAM, can be found on the IHS Grants Management, Grants Policy Web site:
The instructions for preparing the application narrative also constitute the evaluation criteria for reviewing and scoring the application. Weights assigned to each section are noted in parentheses. The 20 page narrative should include only the first year of activities. The narrative section should be written in a manner that is clear to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to understand the project fully. Points will be assigned to each evaluation criteria adding up to a total of 100 points. A minimum score of 65 points is required for funding. Points are assigned as follows:
Applications will be reviewed and scored according to the quality of responses to the required application components in Sections A–E below. In developing the required sections of this application, use the instructions provided for each section, which have been tailored to this program. The application must use the five sections (Sections A–E) listed below in developing the application. The applicant must place the required information in the correct section or it will not be considered for review. The application will be scored according to how well the applicant addresses the requirements for each section listed below. The number of points after each heading is the maximum number of points the review committee may assign to that section. Although scoring weights are not assigned to individual bullets, each bullet is assessed deriving the overall section score.
The statement of need should not exceed two single-spaced pages.
(1) Identify the proposed catchment area and provide demographic information on the population(s) to receive services through the targeted systems or agencies,
(2) Based on the information and/or data currently available, document the prevalence of suicide ideations, attempts, clusters (groups of suicides or suicide attempts or both that occurred close together in time and space), and completions, and substance use rates. For this Purpose Area, the data should be geared toward AI/AN children and youth.
(3) Based on the information and/or data currently available, document the need for an enhanced infrastructure to increase the capacity to implement, sustain, and improve effective substance abuse prevention and/or behavioral health services in the proposed catchment area that is consistent with the purpose of the program and the funding opportunity announcement. Based on available data, describe the service gaps and other problems related to the need for infrastructure development. Identify the source of the data. Documentation of need may come from a variety of qualitative and quantitative sources. Examples of data sources for the quantitative data that could be used are local epidemiologic data (TECs, IHS area offices), state data (
(4) Describe the current suicide prevention, substance abuse prevention, trauma-related, and mental health promotion activities happening in the applicant's community/communities for Native youth up to and including age 24 and their families. Indicate which organizations/entities are currently offering these activities and where the resources come from to support them.
(5) Describe the current service gaps, including disconnection between available services and unmet needs of Native youth up to and including age 24 and their families.
(6) Describe potential project partners and community resources in the catchment area that can participate in the planning process and infrastructure development.
The project narrative required components (listed as the six components in “Requirements for Project Narrative”) together should not exceed 20 single-spaced pages.
(1) Describe the purpose of the proposed project, including a clear statement of goals and objectives. The proposed project narrative is required to address all four objectives listed for MSPI Purpose Area #4. Describe how achievement of goals will increase system capacity to support the goals and objectives or activities for MSPI Purpose Area #4 by showing how the project will work with Native youth up to and including age 24.
(2) Describe how project activities will increase the capacity of the identified community to plan and improve the coordination of a collaborative behavioral health and wellness service systems. Describe anticipated barriers to progress of the project and how these barriers will be addressed.
(3) Discuss how the proposed approach addresses the local language, concepts, attitudes, norms and values about suicide, and/or substance use.
(4) Describe how the proposed project will address issues of diversity for Native youth up to and including age 24 including race/ethnicity, gender, culture/cultural identity, language, sexual orientation, disability, and literacy.
(5) Describe how Native youth up to and including ages 24 and families may receive services and how they will be involved in the planning, implementation, and data collection and regional evaluation of the project.
(6) Describe how the efforts of the proposed project will be coordinated with any other related Federal grants, including IHS, SAMHSA, or BIA services provided in the community (if applicable).
(7) Provide a timeline chart depicting a realistic timeline for the 1-year project period showing key activities, milestones, and responsible staff. [Note: The timeline chart should be part of the project narrative as specified in the “Requirements for Project Proposals” section. It should not be placed as an attachment.].
(8) If the applicant plans to include an advisory body in the project, describe its membership, roles and functions, and frequency of meetings.
(9) Identify any other organization(s) that will participate in the proposed project. Describe their roles and responsibilities and demonstrate their commitment to the project. Include a list of these organizations as an
(1) Describe the management capability and experience of the applicant Tribe, Tribal organization, or UIO and other participating organizations in administering similar grants and projects.
(2) Identify the department/division that will administer this project. Include a description of this entity, its function and its placement within the organization (Tribe, Tribal organization, or UIO). If the program is to be managed by a consortium or Tribal organization, identify how the project office relates to the member community/communities.
(3) Discuss the applicant Tribe, Tribal organization, or UIO experience and capacity to provide culturally appropriate/competent services to the community and specific populations of focus.
(4) Describe the resources available for the proposed project (
(5) Describe how project continuity will be maintained if/when there is a change in the operational environment (
(6) Provide a list of staff positions for the project, including the Behavioral Health staff, project director, project coordinator, and other key personnel, showing the role of each and their level of effort and qualifications. Demonstrate successful project implementation for the level of effort budgeted for the behavioral health staff, project director, project coordinator, and other key staff.
(7) Include position descriptions as
(8) For individuals that are currently on staff, include a biographical sketch (not to include personally identifiable information) for each individual that will be listed as the behavioral health staff, project director, project coordinator, and other key positions. Describe the experience of identified staff in mental health promotion, suicide and substance abuse prevention work in the community/communities. Include each biographical sketch as
Personally Identifiable Information;
Resumes; or
Curriculum Vitae.
Describe the applicant's plan for gathering local data, submitting data requirements, and document the applicant's ability to ensure accurate data tracking and reporting. Describe how members of the community (including Native youth up to and including age 24 and families that may receive services) will be involved in the planning, implementation, and data collection.
Funded projects are required to coordinate data collection efforts with their assigned regional TA Provider for evaluation. The regional TA Providers for evaluation are the Tribal Epidemiology Centers (TECs) for each IHS Area and additionally, the National Indian Health Board and the National Council of Urban Indian Health will also provide TA for evaluation. The TA Providers for evaluation are funded by IHS. Awardees will work with their assigned regional TA Provider for evaluation to measure and track the core processes, outcomes, impacts, and benefits associated with the MSPI. Awardees shall collect local data related to the project and submit it in annual progress reports to IHS and will assist the national MSPI evaluation. The purpose of the national evaluation is to assess the extent to which the projects are successful in achieving project goals and objectives and to determine the impact of MSPI-related activities on individuals and the larger community.
Progress reporting will be required on national selected data elements related to program outcomes and financial reporting for all awardees. Progress reports will be collected annually throughout the project on a web-based data portal. Progress reports include the compilation of quantitative (numerical) data (
The applicant is required to include a line item budget for all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative for Project Year 1 only. The budget should match the scope of work described in the project narrative for the first project year expenses only. The budget and budget narrative must not exceed four single-spaced pages.
The applicant must provide a narrative justification of the items included in the proposed line item budget supporting the mission and goals of MSPI, as well as a description of existing resources and other support the applicant expects to receive for the proposed project. Other support is defined as funds or resources, whether Federal, non-Federal or institutional, in direct support of activities through fellowships, gifts, prizes, in-kind contributions or non-Federal means (this should correspond to Item #18 on the applicant's SF–424, Estimated Funding). Provide a narrative justification supporting the development or continued collaboration with other partners regarding the proposed activities to be implemented.
The Budget and Budget Narrative the applicant provides will be considered by reviewers in assessing the applicant's submission, along with the material in the Project Narrative. Applicants should ensure that the budget and budget narrative are aligned with the project narrative.
Additional documents can be uploaded as Appendix Items in
• Work plan, logic model and/or time line for proposed objectives.
• Position descriptions for key staff.
• Resumes of key staff that reflect current duties.
• Consultant or contractor proposed scope of work and letter of commitment (if applicable).
• Current Indirect Cost Agreement.
• Organizational chart.
• Map of area identifying project location(s).
• Additional documents to support narrative (
Each application will be prescreened by the DGM staff for eligibility and completeness as outlined in the funding announcement. Applications that meet the eligibility criteria shall be reviewed for merit by the ORC based on evaluation criteria in this funding announcement. The ORC could be composed of both Tribal and Federal reviewers appointed by the IHS program to review and make recommendations on these applications. The technical review process ensures selection of quality projects in a national competition for limited funding.
To obtain a minimum score for funding by the ORC, applicants must address all program requirements and provide all required documentation.
The Notice of Award (NoA) is a legally binding document signed by the grants management officer and serves as the official notification of the grant award. The NoA will be initiated by the DGM in our grant system, GrantSolutions (
Applicants who received a score less than the recommended funding level for approval, 65 points, and were deemed to be disapproved by the ORC, will receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC outlining the strengths and weaknesses of their application submitted. The IHS program office will also provide additional contact information as needed to address questions and concerns as well as provide technical assistance if desired.
Approved but unfunded applicants that met the minimum scoring range and were deemed by the ORC to be “Approved”, but were not funded due to lack of funding, will have their applications held by DGM for a period of one year. If additional funding becomes available during the course of FY 2016 the approved but unfunded application may be re-considered by the awarding program office for possible funding. The applicant will also receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC.
Any correspondence other than the official NoA signed by an IHS grants management official announcing to the project director that an award has been made to their organization is not an authorization to implement their program on behalf of IHS.
Grants are administered in accordance with the following regulations and policies:
A. The criteria as outlined in this program announcement.
B. Administrative Regulations for Grants:
• Uniform Administrative Requirements for HHS Awards, located at 45 CFR part 75.
C. Grants Policy:
• HHS Grants Policy Statement, Revised 01/07.
D. Cost Principles:
• Uniform Administrative Requirements for HHS Awards, “Cost Principles,” located at 45 CFR part 75, subpart E.
E. Audit Requirements:
• Uniform Administrative Requirements for HHS Awards, “Audit Requirements,” located at 45 CFR part 75, subpart F.
This section applies to all grant recipients that request reimbursement of indirect costs (IDC) in their grant application. In accordance with HHS Grants Policy Statement, Part II–27, IHS requires applicants to obtain a current IDC rate agreement prior to award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate is provided to the DGM.
Generally, IDC rates for IHS grantees are negotiated with the Division of Cost Allocation (DCA)
The grantee must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in one or both of the following: (1) The imposition of special award provisions; and (2) the non-funding or non-award of other eligible projects or activities. This requirement applies whether the delinquency is attributable to the failure of the grantee organization or the individual responsible for preparation of the reports. Per DGM policy, all reports are required to be submitted electronically by attaching them as a “Grant Note” in GrantSolutions. Personnel responsible for submitting reports (
The reporting requirements for this program are noted below.
Program progress reports are required annually, within 30 days after the budget period ends. These reports must include a brief comparison of actual accomplishments to the goals established for the period, a summary of progress to date or, if applicable, provide sound justification for the lack of progress, and other pertinent information as required. A final program progress report must be submitted within 90 days of expiration of the budget/project period at the end of the funding cycle. Additional information for reporting and associated requirements will be included in the “Programmatic Terms and Conditions” in the official NoA, if funded.
Federal Financial Report FFR (SF–425), Cash Transaction Reports are due 30 days after the close of every calendar quarter to the Payment Management Services, HHS at
Grantees are responsible and accountable for accurate information being reported on all required reports: The Progress Reports and Federal Financial Report.
This section is only required if the applicant has included a “conference” in the proposed scope of work and intends on using funding to plan and conduct a conference or meeting during the project period. The following requirements were enacted in Section 3003 of the Consolidated Continuing Appropriations Act, 2013, and Section 119 of the Continuing Appropriations Act, 2014;
This award may be subject to the Transparency Act sub-award and executive compensation reporting requirements of 2 CFR part 170.
The Transparency Act requires the OMB to establish a single searchable database, accessible to the public, with information on financial assistance awards made by Federal agencies. The Transparency Act also includes a requirement for recipients of Federal grants to report information about first-tier sub-awards and executive compensation under Federal assistance awards.
IHS has implemented a Term of Award into all IHS Standard Terms and Conditions, NoAs and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 sub-award obligation dollar threshold met for any specific reporting period. Additionally, all new (discretionary) IHS awards (where the project period is made up of more than one budget period) and where: (1) The project period start date was October 1, 2010 or after and (2) the primary awardee will have a $25,000 sub-award obligation dollar threshold during any specific reporting period will be required to address the FSRS reporting. For the full IHS award term implementing this requirement and additional award applicability information, visit the DGM Grants Policy Web site at:
Recipients of federal financial assistance (FFA) from HHS must administer their programs in compliance with federal civil rights law. This means that recipients of HHS funds must ensure equal access to their programs without regard to a person's race, color, national origin, disability, age and, in some circumstances, sex and religion. This includes ensuring your programs are accessible to persons with limited English proficiency. HHS provides guidance to recipients of FFA on meeting their legal obligation to take reasonable steps to provide meaningful access to their programs by persons with limited English proficiency. Please see
The HHS Office for Civil Rights (OCR) also provides guidance on complying with civil rights laws enforced by HHS. Please see
Pursuant to 45 CFR 80.3(d), an individual shall not be deemed subjected to discrimination by reason of his/her exclusion from benefits limited by Federal law to individuals eligible for benefits and services from the IHS.
Recipients will be required to sign the HHS–690 Assurance of Compliance form which can be obtained from the following Web site:
The IHS is required to review and consider any information about the applicant that is in the Federal Awardee Performance and Integrity Information System (FAPIIS) before making any award in excess of the simplified acquisition threshold (currently $150,000) over the period of performance. An applicant may review and comment on any information about itself that a Federal awarding agency previously entered. IHS will consider any comments by the applicant, in addition to other information in FAPIIS in making a judgment about the applicant's integrity, business ethics, and record of performance under Federal awards when completing the review of risk posed by applicants as described in 45 CFR 75.205.
As required by 45 CFR part 75 Appendix XII of the Uniform Guidance, non-federal entities (NFEs) are required to disclose in FAPIIS any information about criminal, civil, and administrative proceedings, and/or affirm that there is no new information to provide. This applies to NFEs that receive Federal awards (currently active grants, cooperative agreements, and procurement contracts) greater than $10,000,000 for any period of time during the period of performance of an award/project.
As required by 2 CFR part 200 of the Uniform Guidance, and the HHS implementing regulations at 45 CFR part 75, effective January 1, 2016, the IHS must require a non-federal entity or an applicant for a Federal award to disclose, in a timely manner, in writing to the IHS or pass-through entity all violations of Federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the Federal award.
Submission is required for all applicants and recipients, in writing, to
Disclosures must be sent in writing to:
U.S. Department of Health and Human Services, Indian Health Service, Division of Grants Management, ATTN: Robert Tarwater, Director, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, Maryland 20857. (Include “Mandatory Grant Disclosures” in subject line),
U.S. Department of Health and Human Services, Office of Inspector General, ATTN: Mandatory Grant Disclosures, Intake Coordinator, 330 Independence Avenue SW., Cohen Building, Room 5527, Washington, DC 20201. URL:
Failure to make required disclosures can result in any of the remedies described in 45 CFR 75.371 Remedies for noncompliance, including suspension or debarment (See 2 CFR parts 180 & 376 and 31 U.S.C. 3321).
1. Questions on the programmatic issues may be directed to: Audrey Solimon, Public Health Analyst, National MSPI/DVPI Program Coordinator, Division of Behavioral Health, 5600 Fishers Lane, Mail Stop: 08N34–A, Rockville, MD 20857,
2. Questions on grants management and fiscal matters may be directed to: Donald Gooding, Grants Management Specialist, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857,
3. Questions on systems matters may be directed to: Paul Gettys, Grant Systems Coordinator, 5600 Fishers Lane, Mail Stop: 09E70, Rockville, MD 20857, e3(301) 443–2114; or the DGM main line (301) 443–5204,
The Public Health Service strongly encourages all cooperative agreement and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103–227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Institutes of Health.
Notice.
The invention listed below is owned by an agency of the U.S. Government and is available for licensing and/or co-development in the U.S. in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing and/or co-development.
Invention Development and Marketing Unit, Technology Transfer Center, National Cancer Institute, 9609 Medical Center Drive, Mail Stop 9702, Rockville, MD 20850–9702.
Information on licensing and co-development research collaborations, and copies of the U.S. patent applications listed below may be obtained by contacting: Attn. Invention Development and Marketing Unit, Technology Transfer Center, National Cancer Institute, 9609 Medical Center Drive, Mail Stop 9702, Rockville, MD 20850–9702, Tel. 240–276–5515 or email
Technology description follows.
Alterations in microRNAs (miRNAs), a type of small non-coding RNAs, have been reported in cells/tumors subjected to radiation exposure, implying that miRNAs play an important role in cellular stress response to radiation.
Researchers at the National Cancer Institute evaluated small non-coding RNAs, long non-coding RNAs (lncRNA), and mRNA as potential non-invasive biomarkers for radiation biodosimetry. While the use of miRNAs as radiation biomarkers has been reported, the integrated use of miRNAs, mRNAs and lncRNAs to accurately determine radiation doses is novel and has not been published. The researchers characterized a unique method of examining miRNA levels along with levels of its target mRNA and lncRNA to determine radiation exposure using whole blood samples from mice exposed to 2, 4, 8, 12 and 15 Gy irradiation. In doing so, they discovered distinct miRNA, mRNA and lncRNA biomarker signatures that inform degree of radiation exposure.
Integrated analysis of miRNA, mRNAs, and lncRNAs to assess radiation exposure after mass-casualty incidents could provide a valuable tool in identifying biomarkers, and in the development and appropriate implementation of effective medical countermeasures. This application could potentially also be used to immediately detect, and therefore circumvent or mitigate non-specific injury from cancer radiotherapy treatments.
• Diagnostic for radiation exposure, including for therapeutic procedures.
• Blood-based biomarker assay for circulating miRNAs.
• Could be developed as part of point-of-care and high-throughput screening platforms.
• Immediate medical care based on amount of radiation exposure is critical for giving appropriate care to affected individuals.
In-vivo testing.
Molykutty Aryankalayil (NCI), Norman Coleman (NCI), Adeola Makinde (NCI).
HHS Reference No. E–066–2015/0–US–01 US Provisional Application 62/244,044 (HHS Reference No. E–066–2016/0–US–01) filed October 20, 2015 entitled “Biomarker signature development: microRNAs as biodosimetry markers”
Requests for copies of the patent application or inquiries about licensing, research collaborations, and co-development opportunities should be sent to John D. Hewes, Ph.D., email:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the National Advisory Neurological Disorders and Stroke Council.
The meeting will be open to the public as indicated below, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
The invention listed below is co-owned by an agency of the U.S. Government and is available for licensing and/or co-development in the U.S. in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing and/or co-development.
Invention Development and Marketing Unit, Technology Transfer Center, National Cancer Institute, 9609 Medical Center Drive, Mail Stop 9702, Rockville, MD 20850–9702.
Information on licensing and co-development research collaborations, and copies of the U.S. patent applications listed below may be obtained by contacting: Attn. Invention Development and Marketing Unit, Technology Transfer Center, National Cancer Institute, 9609 Medical Center Drive, Mail Stop 9702, Rockville, MD 20850–9702, Tel. 240–276–5515 or email
Technology description follows.
Description of Technology: Multiple Myeloma is a subtype of leukemia that originates in bone marrow, where normal plasma cells are produced. Although FDA-approved antibody-based therapy is available for other B-cell malignancies, no effective antibody-based therapies are available for MM due to the lack of specific target antigen on MM cells. BCMA (B-Cell Maturation Antigen), is a membrane antigen selectively expressed on mature B-lymphocytes and in all MM cells from patients. Thus, BCMA shows promise as a target for immune-based therapy.
This technology concerns the generation of several monoclonal antibodies against BCMA. These antibodies can be utilized therapeutically in several ways, including as recombinant immunotoxins, chimeric antigen receptors (CARs), antibody-drug conjugates (ADCs), bispecific antibodies, and as unconjugated antibodies. The antibodies can also be use in diagnostic applications. It is important to note that several conjugated immunotoxins using the antibodies of this invention have
Development Stage: In-vitro testing.
Inventor(s): Ira Pastan (NCI), Tapan Bera (NCI), Satoshi Nagata (Sanford Research Center), and Tomoko Ise (Sanford Research Center).
Contact Information: Requests for copies of the patent application or inquiries about licensing, and co-development research collaborations should be sent to John D. Hewes, Ph.D. email:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before June 4, 2016, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by July 12, 2016.
Comments may be sent via U.S. Postal Service to the National
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before June 4, 2016. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
60.13 of 36 CFR part 60.
National Park Service, Interior.
Notice.
The Museum of Anthropology at Washington State University has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Museum of Anthropology at Washington State University. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Museum of Anthropology at Washington State University at the address in this notice by July 27, 2016.
Mary Collins, Director Emeritus of the Museum of Anthropology at Washington State University, Pullman, WA 99164–49140, phone (509) 592–6929, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Museum of Anthropology at Washington State University in conjunction with the Native Village of Goodnews Bay, and the Platinum Traditional Village.
In 1962, human remains representing, at minimum, three individuals were removed from the archeological site known in the Alaska system as site XHI–001, in Chagvan Bay, AK. The burial was found eroding out of the south spit area of the Bay and was collected by archeologists from Washington State University, led by Dr. Robert Ackerman, who was doing studies in the vicinity. The human remains have been in Dr. Ackerman's research lab since 1962. No published description or analysis of the human remains has been done. No known individuals were identified. The four associated funerary objects are 1 semi-lunar metal knife blade, 1 metal knife blade, and 2 tabular stones.
The human remains represent one female and two males, all of whom are adults. All were found in a single burial box. The associated funerary objects are of historic manufacture, dating the human remains to the historic period. Geographical, archeological, and historical information suggest that the area of Chagvan Bay is within the traditional subsistence territory of the communities of the Native Village of Goodnews Bay and the Platinum Traditional Village.
Officials of the Museum of Anthropology at Washington State University have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of three individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the four objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Native Village of Goodnews Bay and Platinum Traditional Village.
Lineal descendants or representatives of any Indian tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Mary Collins, Director of the Museum of Anthropology at Washington State University, Pullman, WA 99164–49140, telephone (509) 592–6929, email
The Museum of Anthropology at Washington State University is responsible for notifying the Native Village of Goodnews Bay and Platinum Traditional Village that this notice has been published.
National Park Service, Interior.
Notice.
The National Park Service is soliciting comments on the significance of properties nominated before June 11, 2016, for listing or related actions in the National Register of Historic Places.
Comments should be submitted by July 12, 2016.
Comments may be sent via U.S. Postal Service to the National Register of Historic Places, National Park Service, 1849 C St. NW., MS 2280, Washington, DC 20240; by all other carriers, National Register of Historic Places, National Park Service, 1201 Eye St. NW., 8th floor, Washington, DC 20005; or by fax, 202–371–6447.
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before June 11, 2016. Pursuant to section 60.13 of 36 CFR part 60, written comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
A request for removal has been received for the following resources:
60.13 of 36 CFR part 60.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to not review the administrative law judge's (ALJ) initial determination (ID) (Order No. 8, the subject ID) granting a joint motion to terminate the above-referenced investigation on the basis of a settlement agreement.
Ron Traud, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, (202) 205–3427. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, (202) 205–2000. General information concerning the Commission may also be obtained at
The Commission instituted this investigation on December 28, 2015, based on a complaint filed by Federal-Mogul Motorparts Corporation (Federal-Mogul) of Southfield, MI. 80 FR 80798 (Dec. 28, 2015). The complaint alleged a violation of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, or the sale within the United States after importation of certain chassis parts incorporating movable sockets and components thereof by reason of infringement of one or more of claims 1–5 of U.S. Patent No. 6,202,280 patent.
On March 24, 2016, Federal-Mogul and Mevotech filed a motion to terminate this Investigation on the basis of a settlement agreement.
Also on May 24, 2016, the ALJ issued the Subject ID, which granted the private parties' motion to terminate the investigation on the basis of their settlement. Subject ID at 3. The ALJ concluded that the private parties complied with Commission Rule 210.21(b)(1), which governs termination based on a settlement agreement, and that terminating the investigation on the basis of the settlement poses no threat to the public interest.
The Commission hereby determines to not review the Subject ID. This investigation is terminated.
The authority for the Commission's determination is contained in Section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of antidumping and countervailing duty investigation Nos. 701–TA–549 and 731–TA–1299, 1300, 1302, and 1303 (Final) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of circular welded carbon-quality steel pipe from Oman, Pakistan, the United Arab Emirates, and Vietnam, provided for in subheadings 7306.19.10, 7306.19.51, 7306.30.10, 7306.30.50, 7306.50.10, and 7306.50.50
Effective June 8, 2016.
Jordan Harriman ((202) 205–2610), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.21 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
In accordance with the provisions of the Paperwork Reduction Act of 1995, the U.S. International Trade Commission (Commission) hereby gives notice that it plans to submit a request for approval of a questionnaire to the Office of Management and Budget for review and requests public comment on its draft collection.
To ensure consideration, written comments must be submitted on or before August 24, 2016.
Direct all written comments to Karl Tsuji, Project Leader, or Mihir Torsekar, Deputy Project Leader, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436 (or via email at
(1) Number of forms submitted: 1.
(2) Title of form: Aluminum: Competitive Conditions Affecting the U.S. Industry Questionnaire.
(3) Type of request: New.
(4) Frequency of use: Industry questionnaire, single data gathering, scheduled for 2016.
(5) Description of respondents: U.S. producers of unwrought and wrought aluminum.
(6) Estimated number of respondents: 260.
(7) Estimated total number of hours to complete the questionnaire per respondent: 12 hours.
(8) Information obtained from the questionnaire that qualifies as confidential business information will be so treated by the Commission and not disclosed in a manner that would reveal the individual operations of a firm.
The House Committee on Ways and Means (the Committee) has directed the Commission to produce a report that examines relevant factors affecting global competitiveness of the U.S. aluminum industry. The Committee has requested that the report (1) provide an overview of the aluminum industry in the United States and other major global producing and exporting countries; (2) describe recent trends and developments in the global market for aluminum; (3) compare competitive strengths and weaknesses of aluminum production and exports in the United States and other major producing and exporting countries; (4) identify factors driving capacity and related production changes in countries where unwrought aluminum capacity has significantly increased; and (5) assess the impact of government policies and programs in major foreign aluminum producing and exporting countries. The Committee has anticipated the need for questionnaires in order to develop detailed information on the domestic aluminum market and industry.
Respondents will be mailed a letter directing them to download and fill out a form-fillable PDF questionnaire. Respondents will also receive a follow-up email. Once complete, respondents may submit it by uploading it to a secure Webserver, emailing it to the study team, faxing it, or mailing a hard copy to the Commission.
Comments are invited on (1) whether the proposed collection of information is necessary; (2) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The draft questionnaire and other supplementary documents may be downloaded from the USITC Web site at
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they will also become a matter of public record.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the presiding administrative law judge (“ALJ”) has issued a Final Initial Determination on Violation of Section 337 and Recommended Determination on Remedy and Bonding in the above-captioned investigation. The Commission is soliciting comments on public interest issues raised by the recommended relief should the Commission find a violation of section 337, as amended, 19 U.S.C. 1337. The ALJ recommended a limited exclusion order directed against certain resealable packages with slider devices imported by respondents Inteplast Group, Ltd. of Livingston, New Jersey and Minigrip, LLC of Alpharetta, Georgia, and a cease and desist order directed against respondents. This notice is soliciting public interest comments from the public only. Parties are to file public interest submissions pursuant to 19 CFR 210.50(a)(4).
Clint A. Gerdine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–2310. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
Section 337 of the Tariff Act of 1930 provides that if the Commission finds a violation it shall exclude the articles concerned from the United States:
The Commission is interested in further development of the record on the public interest in its investigations. Accordingly, members of the public are invited to file submissions of no more than five (5) pages, inclusive of attachments, concerning the public interest in light of the administrative law judge's Recommended Determination on Remedy and Bonding issued in this investigation on June 20, 2016. Comments should address whether issuance of an exclusion order and/or cease and desist orders in this investigation could affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the recommended orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the recommended orders;
(iii) indicate the extent to which like or directly competitive articles are produced in the United States or are otherwise available in the United States, with respect to the articles potentially subject to the recommended orders;
(iv) indicate whether Complainant, Complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the recommended orders within a commercially reasonable time; and
(v) explain how the recommended orders would impact consumers in the United States.
Written submissions must be filed no later than by close of business on July 27, 2016.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to Commission rule 210.4(f), 19 CFR 210.4(f). Submissions should refer to the investigation number (“Inv. No. 337–TA–962”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document (or portion thereof) to the Commission in confidence must request confidential treatment unless the information has already been granted such treatment during the proceedings. All such requests should be directed to the Secretary of the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under authority of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of
Comments are encouraged and will be accepted for 60 days until August 26, 2016.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Shawn Stevens, ATF Industry Liaison, Federal Explosives Licensing Center, 244 Needy Road, Martinsburg, WV 25405, at telephone: 1–877–283–3352. Written comments and/or suggestions can also be directed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention Department of Justice Desk Officer, Washington, DC 20503 or sent to
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Evaluate whether and if so how the quality, utility, and clarity of the information to be collected can be enhanced; 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,
1.
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If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E–405B, Washington, DC 20530.
On June 20, 2016, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of Massachusetts, in the lawsuit entitled
The United States filed this lawsuit under Section 112(r)(1) of the Clean Air Act, 42 U.S.C. 7412(r)(1), Sections 304, 311 and 312 of the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. 11004, 11021, and 11022, and Section 103 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9603. The United States' complaint seeks civil penalties and injunctive relief in connection with the use and handling of anhydrous ammonia and sulfuric acid at two JSB baked goods facilities located in Chelsea and Lawrence, Massachusetts, respectively.
The Consent Decree requires the defendants to pay a civil penalty of $156,000, plus interest, and perform a supplemental environmental project, projected to cost $119,000, involving the provision of emergency response equipment to the fire departments serving the Chelsea and Lawrence communities.
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 $6.50 (25 cents per page reproduction cost) payable to the United States Treasury.
On June 22, 2016, the Department of Justice lodged a proposed Consent Judgment with the United States District Court for the Eastern District of New York in the lawsuit entitled
The proposed Consent Judgment resolves certain claims of the United States, on behalf of the Environmental Protection Agency (“EPA”), under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9601
The publication of this notice opens a period for public comment on the Consent Judgment. 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 Judgment may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $77.75 (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 $12.00.
On June 9, 2016, the Department of Justice lodged a proposed First Amendment to a Consent Decree with the United States District Court for the Eastern District of Michigan in the lawsuit entitled
Under the First Amendment to the Consent Decree, Marathon Petroleum Company, LP (“MPC”) will install seven flare gas recovery systems (“FGRSs”) on thirteen flares at five refineries and operate those FGRSs with minimal downtime. MPC will maintain two extra, interchangeable FGRS compressors for delivery to any of the five refineries on short notice. MPC will shut down one fence line flare at its Detroit Refinery and install nitrogen oxides controls on heaters at its Garyville, Louisiana, and Canton, Ohio refineries as mitigation projects. Marathon will receive deadline extensions for compliance with certain hydrogen sulfide limits at nine flares so that compliance lines up with major turnarounds that are necessary to finalize installation of the FGRSs. Marathon will pay a civil penalty of $326,500.
The publication of this notice opens a period for public comment on the First Amendment to 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 First Amendment to the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $8.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice.
The Department of Labor (DOL) is submitting the Occupational Safety and Health Administration (OSHA) sponsored information collection request (ICR) titled, “Walking-Working Surfaces Standard,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501
The OMB will consider all written comments that agency receives on or before July 27, 2016.
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
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–OSHA, 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:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or by email at
This ICR seeks to extend PRA authority for the Walking-Working Surfaces Standard information collection requirements codified in regulations 29 CFR part 1910, subpart D. The information collection requirements in the Standard protect workers by making them aware of load limits of the floors of buildings, defective portable metal ladders, and the specifications of outrigger scaffolds used. Specifically, regulations 29 CFR 1910.22(d)(1) requires that in every building or other structure, or part thereof, used for mercantile, business, industrial, or storage purposes, the loads approved by the building official be marked on plates of approved design that shall be supplied and securely affixed by the owner of the building, or a duly authorized agent, in a conspicuous place in each space to which they relate. Such plates shall not be removed or defaced but, if lost, removed, or defaced, shall be replaced by the owner or his agent. Under section 1910.26(c)(2)(vii), portable metal ladders having defects must be marked and taken out of service until repaired by either the maintenance department or the manufacturer. Section 1910.28(e)(3) specifies that, unless outrigger scaffolds are designed by a licensed professional engineer, they shall be constructed and erected in accordance with table D–16 of the section. It is mandatory that a copy of the detailed drawings and specifications showing the sizes and spacing of members be kept on the job. Occupational Safety and Health Act of 1970 sections 2(b)(9), 6(b)(7), and 8(c) 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.
OMB authorization for an ICR cannot be for more than three (3) years without renewal, and the current approval for this collection is scheduled to expire on June 30, 2016. The DOL seeks to extend PRA authorization for this information collection for three (3) more years, without any change to existing requirements. The DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Office of the Assistant Secretary for Policy, Chief Evaluation Office, Department of Labor.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a preclearance consultation program to provide the general public and federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents is properly assessed.
A copy of the proposed Information Collection Request (ICR) can be obtained by contacting the office listed in the addressee section of this notice.
Written comments must be submitted to the office listed in the addressee's section below on or before August 26, 2016.
You may submit comments by either one of the following methods: Email:
Molly Irwin by telephone at 202–693–5091 (this is not a toll-free number) or by email at
The Chief Evaluation Office (CEO), U.S. Department of Labor (DOL), is proposing a data collection activity as part of the Cascades Job Corps College and Career Academy Evaluation Pilot Evaluation. The goal of the evaluation is to determine the effectiveness of the Pilot program in improving employment and educational outcomes for youth ages 21 and under. The impact study will randomly assign individuals to receive program services or to a group that cannot access these services but who can participate in other similar programs. The impact study will compare the employment and educational outcomes of the groups to determine the effectiveness of the pilot program. The evaluation also includes an implementation study that will describe the services participants receive through the pilot program as well as provide operational lessons.
This
The baseline survey and discussion guides will provide vital data for the evaluation. The postcards will provide the evaluation with accurate locating information for sample members and thereby improve response rates for the follow-on survey.
DOL is soliciting comments concerning the above data collection for the Cascades Job Corps College and Career Academy Pilot Evaluation. DOL is particularly interested in comments that do the following:
• Evaluate whether the proposed collection of information is necessary for the proper performance functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's burden estimate of the proposed information collection, 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 (for example, permitting electronic submissions of responses).
DOL is requesting clearance for the baseline survey of sample members, discussion guides for stakeholder interviews, and postcards mailed to sample members of the Cascades Job Corps College and Career Academy Pilot Evaluation.
Comments submitted in response to this comment request will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
Nuclear Regulatory Commission.
Confirmatory order; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing a confirmatory order (Order) to CampCo,
Please refer to Docket ID NRC–2016–0125 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:
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Susanne Woods, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555–001; telephone: 301–415–2740, email:
The text of the Order is attached.
For the Nuclear Regulatory Commission.
CampCo, Inc., (CampCo or Licensee) is the holder of Materials License No. 04–23910–01E issued on October 2, 2014, by the U.S. Nuclear Regulatory Commission (NRC) pursuant to Part 30 of title 10 of the
This Confirmatory Order is the result of an agreement reached during an alternative dispute resolution (ADR) mediation session conducted on March 22, 2016.
The NRC Office of Investigations (OI) conducted investigations in 2013 and 2014 (OI case number report 3–2013–021 and the supplemental report) related to apparent violations by CampCo regarding the distribution of watches containing byproduct material (hydrogen-3) without the required licensing authorization.
On July 7, 2015, the NRC issued a letter to CampCo that detailed the results of the investigation and outlined four apparent violations. The apparent violations involved:
(1) Distributing watches containing tritium (hydrogen-3) without (a) obtaining NRC approval of an amendment for the CampCo's existing license, or (b) obtaining a separate exempt distribution license for these watches, prior to transferring the watches containing byproduct material to unlicensed persons; (2) failing to submit timely required annual reports to the NRC, as required by 10 CFR 32.16(c)(1); (3) failing to provide required information in the annual reports, when the reports were provided upon NRC request; and (4) failing to provide certificates, required by the CampCo license, with each lot distributed.
The failure to either comply with license requirements or obtain a license for the distribution of these watches prior to distributing these products is significant because it resulted in the NRC not being able to conduct its regulatory responsibilities to ensure that the products were safe for distribution to members of the general public. The requirements in 10 CFR 30.3(a) provide reasonable assurance that the transfers and the products intended for use by persons exempt from the regulations meet the applicable requirements. The failure to submit complete and timely required annual reports is significant because it inhibits the process of regulatory oversight. The information in these reports is necessary for the NRC to evaluate potential doses to the public and impact to the environment from the collective dose due to multiple sources. The failure to ensure that each lot of tritium timepieces received is accompanied by the required certificates is significant because these certificates are necessary to ensure and document that the watches distributed were manufactured properly and meet the regulatory requirements for distribution to persons exempt from the regulations.
In the July 7, 2015, letter, the NRC offered CampCo the choice to: (1) Request a Pre-decisional Enforcement Conference (PEC); or (2) request ADR. CampCo chose a PEC. CampCo and NRC conducted a PEC on August 31, 2015.
On December 10, 2015, the NRC issued a Notice of Violation (NOV) and proposed $28,000 civil penalty to CampCo. In the letter transmitting the NOV and proposed civil penalty, the NRC offered CampCo the choice to: (1) Pay the proposed civil penalty and respond in writing to two of the four violations, within 30 days of the date of the letter; or (2) request ADR. CampCo chose ADR.
The NRC determined CampCo actions regarding the first two violations identified in the NOV to be willful. The finding of willfulness in this case was not based on a finding that CampCo deliberately intended to violate NRC requirements, but rather on CampCo's careless disregard in failing to pursue necessary actions to ensure CampCo's compliance.
For all four violations identified in the NOV, the NRC considered whether corrective actions were taken to restore and maintain compliance. CampCo's corrective actions included submitting an application and receiving NRC license approval for exempt-distribution of the subject timepieces and submitting annual reports identified by NRC. Based on its assessment of CampCo's corrective actions, the NRC determined that CampCo took adequate corrective action for Violations 1 and 2. However, for Violations 3 and 4, corrective actions
In response to the NRC's December 10, 2015, letter and NOV, CampCo requested ADR. On March 22, 2016, CampCo and the NRC met in an ADR session mediated by a professional mediator, arranged through Cornell University's Institute on Conflict Resolution. The ADR process is one in which a neutral mediator, with no decision-making authority, assists the parties in reaching an agreement on resolving any differences regarding the dispute. This Confirmatory Order is issued pursuant to the agreement reached during the ADR process.
During the ADR session, CampCo and the NRC reached a preliminary settlement agreement. The elements of the agreement included corrective actions that CampCo stated were completed as described below and agreed to future actions as follows:
1. CampCo submitted an application and received an NRC license approval for exempt distribution of the subject timepieces.
2. CampCo provided annual reports to NRC for calendar years 2010 through 2015 and on February 4, 2016, provided an updated annual report for calendar year 2015 that contained all the information specified by the requirements.
1. The President of CampCo will submit an article via social media outlets (
a. Within 6 months, the President of CampCo will submit a draft of the article to NRC for review and approval.
b. The article will summarize the existence of NRC and Agreement State requirements for watches containing tritium, emphasize the importance of compliance with NRC and Agreement State requirements, and raise awareness of a potential consumer safety hazard for non-compliant watches.
c. Within 15 calendar days of receipt, NRC will approve or provide comments to CampCo.
d. CampCo will incorporate any NRC comments.
e. For further iterations, CampCo will provide updated versions and NRC will provide comments or approval within 15 calendar days of receipt.
f. Within 15 calendar days of NRC approval, CampCo will circulate the article via social media outlets (
2. The President of CampCo will send written notification to watch manufacturers and assemblers in China, and other international locations as identified by CampCo.
a. Within 6 months, the President of CampCo will submit a draft of the notification to NRC for review and approval, and will submit to NRC a list of proposed recipients.
b. The notification will summarize the violations issued to CampCo, the existence of NRC requirements for watches containing tritium, the existence of an Agreement State program, and the importance of compliance with NRC and Agreement State requirements.
c. Within 15 calendar days of receipt, NRC will approve or provide comments on the notification to CampCo.
d. CampCo will incorporate any NRC comments.
e. For further iterations, CampCo will provide updated versions and NRC will provide comments or approval within 15 calendar days of receipt.
f. Within 15 calendar days of NRC approval, CampCo will send written notification to watch manufacturers and assemblers in China, and other international locations as identified by CampCo.
3. The President of CampCo will submit an article for industry publication.
a. Within 1 year, the President of CampCo will submit a draft of the article to NRC for review and approval, and will submit to NRC a list of proposed recipients.
b. The article will summarize the existence of NRC and Agreement State requirements for watches containing tritium and emphasize the importance of compliance with NRC and Agreement State requirements.
c. Within 15 calendar days of receipt, NRC will approve or provide comments on the article to CampCo.
d. CampCo will incorporate any NRC comments.
e. For further iterations, CampCo will provide updated versions and NRC will provide comments or approval within 15 calendar days of receipt.
f. Within 15 calendar days of NRC approval, CampCo will submit an article for industry publication.
4. Within 60 calendar days, the President of CampCo will hold meetings with key employees to outline the NRC requirements, and to emphasize and reinforce NRC and Agreement State compliance expectations.
a. Key employees will include those employees who are responsible for the sale and distribution of tritium watches and compliance with the requirements (
b. CampCo will maintain written documentation of attendance demonstrating that each key employee has attended.
5. Within 60 calendar days, the President of CampCo will hold meetings company-wide regarding general awareness of requirements and reinforcing NRC and Agreement State compliance expectations. CampCo will maintain written documentation of attendance, demonstrating that all employees have attended a meeting.
6. CampCo will engage a third party independent consultant to provide initial training to key employees on NRC compliance responsibilities for exempt distribution licenses, as well as the specific requirements and obligations associated with CampCo's NRC license.
a. Key employees will include those employees who are responsible for the sale and distribution of tritium watches and compliance with the requirements (
b. Within 9 months, CampCo will submit a draft of the training content to NRC for review and approval.
c. The training will address NRC compliance responsibilities for exempt distribution licenses per the regulations, the specific requirements and obligations associated with CampCo's NRC license, importance of compliance with NRC and Agreement State requirements, and any applicable CampCo procedures.
d. Within 30 calendar days of receipt, NRC will approve or provide comments on the draft of the training content related to NRC licensed activities to CampCo.
e. CampCo will incorporate any NRC comments.
f. For further iterations, CampCo will provide updated versions and NRC will provide comments or approval within 15 calendar days of receipt.
g. Within 90 calendar days of NRC approval, CampCo will complete the training for key employees.
h. CampCo will maintain written documentation of attendance demonstrating that each key employee has received training.
7. CampCo will provide annual refresher training for key employees on
a. This training will be based on the initial training provided by the consultant, and will incorporate any changes in the regulations and/or license that occur after approval of the initial training.
b. This may be accomplished as a read-and-sign.
c. CampCo will maintain written documentation of completion.
8. CampCo will provide initial training for new key employees on NRC compliance responsibilities for exempt distribution licenses, as well as the specific requirements and obligations associated with CampCo's NRC license.
a. This training will be based on the initial training provided by the consultant, and will incorporate any changes in the regulations and/or license that occur after approval of the initial training.
b. This may be accomplished as a read-and-sign.
c. CampCo will maintain written documentation of completion.
9. Within 6 months, CampCo will engage an independent third party consultant to review CampCo processes, provide a written assessment and make any written recommendations for maintaining and improving compliance.
10. CampCo will engage an independent third-party consultant to conduct annual compliance audits prior to the submittal of the required annual reports for the 2017 and 2018 calendar years.
11. Within 9 months, CampCo will develop written procedures and/or checklists identifying NRC compliance responsibilities for exempt distribution licenses per the regulations, as well as the specific requirements and obligations associated with CampCo's NRC license. These written procedures and/or checklists will include, but not be limited to, the process to be followed should there be a change in sources or watches to be distributed by CampCo, as well as the timing and content of annual reports.
12. Within 9 months, CampCo will specify in Purchase Orders NRC and Agreement State requirements and mandate that suppliers provide necessary information required to meet CampCo's license conditions in a timely manner, including the manufacturer(s) and model number(s) of the source(s) in the watches.
13. Within 90 calendar days, CampCo will provide updated annual reports to NRC for calendar years 2010 through 2014, using the updated annual report for calendar year 2015, submitted on February 4, 2016, as the template.
14. The finding of willfulness in this case was not based on a finding that CampCo deliberately intended to violate NRC requirements, but rather on CampCo's careless disregard in failing to pursue necessary actions to ensure CampCo's compliance.
15. The NRC agrees not to pursue any further enforcement action in connection with the NRC's December 10, 2015, letter to CampCo.
16. The Confirmatory Order will constitute escalated enforcement action.
17. In the event of the transfer of the possession and/or distribution licenses of CampCo, Inc. to another entity, the terms and conditions set forth hereunder shall continue to apply to the new entity and accordingly survive any transfer of ownership or license.
18. Unless otherwise specified, all dates are from the date of issuance of the Confirmatory Order.
19. In consideration of the commitments delineated above, the NRC agrees to refrain from imposing a civil penalty.
20. Unless otherwise specified, all documents required to be submitted to the NRC will be sent to: Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852–2738, with copies to the Director Material Safety, State, Tribal, and Rulemaking Programs (MSTR), Two White Flint North, 11545 Rockville Pike, Rockville, MD 20852–2738, and to the Branch Chief Materials Safety Licensing Branch, MSTR, Two White Flint North, 11545 Rockville Pike, Rockville, MD 20852–2738. CampCo will also endeavor to provide courtesy electronic copies to the above individuals.
On June 6, 2016, CampCo consented to issuing this Confirmatory Order with the commitments, as described in Section V below. CampCo further agreed that this Confirmatory Order is to be effective upon issuance, the agreement memorialized in this Confirmatory Order settles the matter between the parties, and that it has waived its right to a hearing.
I find that the CampCo actions completed, as described in Section III above, combined with the commitments as set forth in Section V are acceptable and necessary, and conclude that with these commitments the public health and safety are reasonably assured. In view of the foregoing, I have determined that public health and safety require that CampCo's commitments be confirmed by this Confirmatory Order. Based on the above and CampCo's consent, this Confirmatory Order is effective upon issuance.
Accordingly, pursuant to Sections 81, 161b, 161i, 161o, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.202 and 10 CFR part 30, IT IS HEREBY ORDERED, EFFECTIVE UPON ISSUANCE, THAT LICENSE NO. 04–23910–01E IS MODIFIED AS FOLLOWS:
1. The President of CampCo will submit an article via social media outlets (
a. Within 6 months, the President of CampCo will submit a draft of the article to NRC for review and approval.
b. The article will summarize the existence of NRC and Agreement State requirements for watches containing tritium, emphasize the importance of compliance with NRC and Agreement State requirements, and raise awareness of a potential consumer safety hazard for non-compliant watches.
c. Within 15 calendar days of receipt, NRC will approve or provide comments to CampCo.
d. CampCo will incorporate any NRC comments.
e. CampCo will provide updated versions of the article to NRC for review and approval prior to CampCo submittal for publication.
f. Within 15 calendar days of NRC approval, CampCo will circulate the article via social media outlets (
2. The President of CampCo will send written notification to watch manufacturers and assemblers in China, and other international locations as identified by CampCo.
a. Within 6 months, the President of CampCo will submit a draft of the notification to NRC for review and approval, and will submit to NRC a list of proposed recipients.
b. The notification will summarize the violations issued to CampCo, the existence of NRC requirements for watches containing tritium, the existence of an Agreement State
c. CampCo will incorporate any NRC comments.
d. CampCo will provide updated versions of the article to NRC for review and approval prior to CampCo submittal for publication.
e. Within 15 calendar days of NRC approval, CampCo will send written notification to watch manufacturers and assemblers in China, and other international locations as identified by CampCo.
3. The President of CampCo will submit an article for industry publication.
a. Within 1 year, the President of CampCo will submit a draft of the article to NRC for review and approval, and will submit to NRC a list of proposed recipients.
b. The article will summarize the existence of NRC and Agreement State requirements for watches containing tritium and emphasize the importance of compliance with NRC and Agreement State requirements.
c. CampCo will incorporate any NRC comments.
d. CampCo will provide updated versions and NRC will provide comments or approval within 15 calendar days of receipt.
e. Within 15 calendar days of NRC approval, CampCo will submit an article for industry publication.
4. Within 60 calendar days, the President of CampCo will hold meetings with key employees to outline the NRC requirements, and to emphasize and reinforce NRC and Agreement State compliance expectations.
a. Key employees will include those employees who are responsible for the sale and distribution of tritium watches and compliance with the requirements (
b. CampCo will maintain written documentation of attendance demonstrating that each key employee has attended.
5. Within 60 calendar days, the President of CampCo will hold meetings company-wide regarding general awareness of requirements and reinforcing NRC and Agreement State compliance expectations. CampCo will maintain written documentation of attendance, demonstrating that all employees have attended a meeting.
6. CampCo will engage a third party independent consultant to provide initial training to key employees on NRC compliance responsibilities for exempt distribution licenses, as well as the specific requirements and obligations associated with CampCo's NRC license.
a. Key employees will include those employees who are responsible for the sale and distribution of tritium watches and compliance with the requirements (
b. Within 9 months, CampCo will submit a draft of the training content to NRC for review and approval.
c. The training will address NRC compliance responsibilities for exempt distribution licenses per the regulations, the specific requirements and obligations associated with CampCo's NRC license, importance of compliance with NRC and Agreement State requirements, and any applicable CampCo procedures.
d. CampCo will incorporate any NRC comments.
e. CampCo will provide updated versions and NRC will provide comments or approval within 15 calendar days of receipt.
f. Within 90 calendar days of NRC approval, CampCo will complete the training for key employees.
g. CampCo will maintain written documentation of attendance demonstrating that each key employee has received training.
7. CampCo will provide annual refresher training for key employees on NRC compliance responsibilities for exempt distribution licenses, as well as the specific requirements and obligations associated with CampCo's NRC license.
a. This training will be based on the initial training provided by the consultant, and will incorporate any changes in the regulations and/or license that occur after approval of the initial training.
b. This may be accomplished as a read-and-sign training document.
c. CampCo will maintain written documentation of completion.
8. CampCo will provide initial training for new key employees on NRC compliance responsibilities for exempt distribution licenses, as well as the specific requirements and obligations associated with CampCo's NRC license.
a. This training will be based on the initial training provided by the consultant, and will incorporate any changes in the regulations and/or license that occur after approval of the initial training.
b. This may be accomplished as a read-and-sign training document.
c. CampCo will maintain written documentation of completion.
9. Within 6 months, CampCo will engage an independent third party consultant to review CampCo processes, provide a written assessment and make any written recommendations for maintaining and improving compliance.
10. CampCo will engage an independent third-party consultant to conduct annual compliance audits prior to the submittal of the required annual reports for the 2017 and 2018 calendar years.
11. Within 9 months, CampCo will develop written procedures and/or checklists identifying NRC compliance responsibilities for exempt distribution licenses per the regulations, as well as the specific requirements and obligations associated with CampCo's NRC license. These written procedures and/or checklists will include, but not be limited to, the process to be followed should there be a change in sources or watches to be distributed by CampCo, as well as the timing and content of annual reports.
12. Within 9 months, CampCo will specify in Purchase Orders NRC and Agreement State requirements and mandate that suppliers provide necessary information required to meet CampCo's license conditions in a timely manner, including the manufacturer(s) and model number(s) of the source(s) in the watches.
13. Within 90 calendar days, CampCo will provide updated annual reports to NRC for calendar years 2010 through 2014, using the calendar year 2015 updated annual report as provided to the NRC on February 4, 2015, as the template for content and format of the reports. Future annual reports will use the 2015 annual report as template, with adjustments to this template as needed to comply with any future changes to NRC requirements.
In the event of the transfer of the possession and/or distribution licenses of CampCo, Inc. to another entity, the terms and conditions set forth hereunder shall continue to apply to the new entity and accordingly survive any transfer of ownership or license.
Unless otherwise specified, all dates are from the date of issuance of the Confirmatory Order.
Unless otherwise specified, all documents required to be submitted to the NRC will be sent to: Director, Office of Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852–2738, with copies to the Director Material Safety, State, Tribal, and
The Director, Office of Enforcement, may, in writing, relax or rescind any of the above conditions upon demonstration by CampCo or its successors of good cause.
In accordance with 10 CFR 2.202 and 2.309, any person adversely affected by this Confirmatory Order, other than CampCo, may request a hearing within 30 days of the issuance date of this Confirmatory Order. Where good cause is shown, consideration will be given to extending the time to request a hearing. A request for extension of time must be directed to the Director, Office of Enforcement, NRC, and include a statement of good cause for the extension.
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, as amended by 77 FR 46562; August 3, 2012), codified in pertinent part at 10 CFR part 2, subpart C. 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 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 (EIE) 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 through the EIE System. Submissions should be in Portable Document Format 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 Web site at
Participants who believe that they have a good cause for not submitting documents electronically must, in accordance with 10 CFR 2.302(g), file an exemption request with their initial paper filing showing good cause as to why they cannot file electronically and 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, 16th 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
If a person other than CampCo requests a hearing, that person shall set forth with particularity the manner in which his interest is adversely affected by this Confirmatory Order and shall address the criteria set forth in 10 CFR 2.309(d) and (f).
If a hearing is requested by a person whose interest is adversely affected, the Commission will issue a separate Order designating the time and place of any hearings, as appropriate. If a hearing is held, the issue to be considered at such hearing shall be whether this Confirmatory Order should be sustained.
In the absence of any request for hearing, or written approval of an extension of time in which to request a hearing, the provisions specified in Section V above shall be final 30 days after issuance of the Confirmatory Order without further order or proceedings. If an extension of time for requesting a hearing has been approved, the provisions specified in Section V shall be final when the extension expires if a hearing request has not been received.
Dated at Rockville, Maryland, this 20th day of June, 2016.
For the Nuclear Regulatory Commission,
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption in response to a February 23, 2016, request from Exelon Generation Company, LLC, requesting an exemption to allow use of a different fuel rod cladding material (Optimized ZIRLO
Please refer to Docket ID NRC–2016–0124 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:
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Joel S. Wiebe, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–6606, email:
Exelon Generation Company, LLC (Exelon or the licensee) is the holder of renewed Facility Operating License Nos. STN 50–456, STN 50–457, STN 50–454 and STN 50–455, which authorize operation of the Braidwood Station (Braidwood), Units 1 and 2, and the Byron Station (Byron) Unit Nos. 1 and 2, respectively. The license provides, among other things, that the facility is subject to all rules, regulations, and orders of the NRC now or hereafter in effect.
The Braidwood facility consists of two pressurized-water reactors located in Will County in Illinois and the Byron facility consists of two pressurized-water reactors located in Ogle County in Illinois.
Pursuant to section 50.12 of title 10 of the
The exemption request relates solely to the cladding material specified in these regulations (
Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50 when: (1) The exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) when special circumstances are present. Under 10 CFR 50.12(a)(2)(ii), special circumstances include, among other things, when application of the specific regulation in the particular circumstance would not serve, or is not necessary to achieve, the underlying purpose of the rule.
Special circumstances, in accordance with 10 CFR 50.12(a)(2)(ii), are present whenever application of the regulation in the particular circumstances is not necessary to achieve the underlying purpose of the rule. The underlying purpose of 10 CFR 50.46 and appendix K to 10 CFR part 50 is to establish acceptance criteria for ECCS performance to provide reasonable assurance of safety in the event of a loss-of-coolant accident (LOCA). Although the regulations in 10 CFR 50.46 and appendix K are not expressly applicable to Optimized ZIRLO
This exemption would allow the use of Optimized ZIRLO
Section 10 CFR 50.46 requires that each boiling or pressurized light-water nuclear power reactor fueled with uranium dioxide pellets within cylindrical zircaloy or ZIRLO
Westinghouse, in letters dated January 4, 2007 (ADAMS Accession Nos. ML070100385 and ML070100388), November 6, 2007 (ADAMS Accession Nos. ML073130556 and ML073130560), December 30, 2008 (ADAMS Accession Nos. ML080390451 and ML080390452), February 5, 2009 (ADAMS Accession Nos. ML090080380 and ML090080381), July 26, 2010 (ADAMS Accession Nos. ML102140213 and ML102140214), February 25, 2013 (ADAMS Accession Nos. ML13070A188 and ML13070A189), and February 9, 2015 (ADAMS Accession Nos. ML15051A427 and ML15051A429), provided information that confirmed the models' applicability for burnups up to 62 GWD/MTU for Westinghouse fuels.
In addition, the provisions of 10 CFR 50.46 require the licensee to periodically evaluate the performance of the ECCS, using currently approved LOCA models and methods, to ensure that the fuel rods will continue to satisfy 10 CFR 50.46 acceptance criteria. In its letter dated February 23, 2016, the licensee stated that it will evaluate fuel assemblies using Optimized ZIRLO
Paragraph I.A.5 of Appendix K to 10 CFR part 50 states that the rates of energy release, hydrogen concentration, and cladding oxidation from the metal-water reaction shall be calculated using the Baker-Just equation. Since the Baker-Just equation presumes the use of zircaloy clad fuel, strict application of this provision of the rule would not permit use of the equation for Optimized ZIRLO
The licensee's exemption request is to allow the application of an improved fuel rod cladding material to the regulations in 10 CFR 50.46 and paragraph I.A.5 of appendix K to 10 CFR part 50. In its letter dated February 23, 2016, the licensee stated that all the requirements and acceptance criteria will be maintained. The licensee is required to handle and control special nuclear material in these assemblies in accordance with its approved procedures. This change to reactor core internals is adequately controlled by NRC requirements and is not related to security issues. Therefore, the NRC staff determined that this exemption does not impact, and thus is consistent with, the common defense and security.
The NRC staff determined that the exemption discussed herein meets the eligibility criteria for the categorical exclusion set forth in 10 CFR 51.22(c)(9) because it is related to a requirement concerning the installation or use of a facility component located within the restricted area, as defined in 10 CFR part 20, and issuance of this exemption involves: (i) No significant hazards consideration, (ii) no significant change in the types or a significant increase in the amounts of any effluents that may be released offsite, and (iii) no significant increase in individual or cumulative occupational radiation exposure. Therefore, in accordance with 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared in connection with the NRC's consideration of this exemption request. The basis for the NRC staff's determination is discussed as follows with an evaluation against each of the requirements in 10 CFR 51.22(c)(9)(i) through (iii).
The NRC staff evaluated whether the exemption involves no significant hazards consideration using the standards described in 10 CFR 50.92(c), as presented below:
1. Does the proposed exemption involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed exemption would allow the use of Optimized ZIRLO
Therefore, the proposed exemption does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed exemption create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The use of Optimized ZIRLO
Therefore, the proposed exemption does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed exemption involve a significant reduction in a margin of safety?
Response: No.
The proposed exemption will not involve a significant reduction in the margin of safety because it has been demonstrated that the material properties of the Optimized ZIRLO
Therefore, the proposed exemption does not involve a significant reduction in a margin of safety.
Based on the above evaluation of the standards set forth in 10 CFR 50.92(c), the NRC staff concludes that the proposed exemption involves no significant hazards consideration. Accordingly, the requirements of 10 CFR 51.22(c)(9)(i) are met.
The proposed exemption would allow the use of Optimized ZIRLO
The proposed exemption would allow the use of Optimized ZIRLO
Based on the above, the NRC staff concludes that the proposed exemption meets the eligibility criteria for the categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, in accordance
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12, the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances pursuant to 10 CFR 50.12(a)(2)(ii) are present. Therefore, the Commission hereby grants Exelon an exemption from the requirements of 10 CFR 50.46 and appendix K to 10 CFR part 50, to allow the application of those criteria to, and the use of, Optimized ZIRLO
This exemption is effective upon issuance.
For the Nuclear Regulatory Commission.
U.S. Nuclear Waste Technical Review Board.
Notice.
Section 4314(c)(1) through (5) of title 5 of the United States Code, requires each agency to establish in accordance with regulations prescribed by the Office of Personnel Management, one or more SES Performance Review Boards. Section 4314(c)(4) of title 5 requires that notice of appointment of board members be published in the
Effectively immediately and until December 31, 2016.
For further information about the formation of the U.S. Nuclear Waste Technical Review Board's Performance Review Board, please contact Debra L. Dickson at 703.235.4480, or via email at
42 U.S.C. 10262
U.S. Office of Personnel Management.
60-Day notice and request for comments.
The Office of Personnel Management (OPM) offers the general public and other Federal agencies the opportunity to comment on a new information collection request (ICR) 3206–NEW, the OPM.GOV Feedback tab survey. As required by the Paperwork Reduction Act of 1995, (Pub. L. 104–13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104–106), OPM is soliciting comments for this collection.
Comments are encouraged and will be accepted until August 26, 2016. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the U.S. Office of Personnel Management, 1900 E Street NW., Room 3316, Washington, DC 20415, Attention: Strategic Goal 2 Team or sent via email to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the U.S. Office of Personnel Management, 1900 E Street NW., Room 3316, Washington, DC 20415, Attention: Strategic Goal 2 Team or sent via email to
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
U.S. Office of Personnel Management.
30-Day notice and request for comments.
The Retirement Services, Office of Personnel Management (OPM) offers the general public and other federal agencies the opportunity to comment on a revised information collection request (ICR) 3206–0140, Representative Payee Application (RI 20–7) and Information Necessary for a Competency Determination (RI 30–3). As required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. chapter 35) as amended by the Clinger-Cohen Act (Pub. L. 104–106), OPM is soliciting comments for this collection. The information collection was previously published in the
Comments are encouraged and will be accepted until July 27, 2016. This process is conducted in accordance with 5 CFR 1320.1.
Interested persons are invited to submit written comments on the proposed information collection to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
A copy of this ICR, with applicable supporting documentation, may be obtained by contacting the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Officer for the Office of Personnel Management or sent via electronic mail to
The Office of Management and Budget is particularly interested in comments that:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
RI 20–7, Representative Payee Application, is used by the Civil Service Retirement System (CSRS) and the Federal Employees Retirement System (FERS) to collect information from persons applying to be fiduciaries for annuitants or survivor annuitants who appear to be incapable of handling their own funds or for minor children. RI 30–3, Information Necessary for a Competency Determination, collects medical information regarding the annuitant's competency for OPM's use in evaluating the annuitant's condition.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's Web site (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
1.
2.
3.
This notice will be published in the
Notice of Request for Information.
Artificial intelligence (AI) technologies offer great promise for creating new and innovative products, growing the economy, and advancing national priorities in areas such as education, mental and physical health, addressing climate change, and more. Like any transformative technology, however, AI carries risks and presents complex policy challenges along a number of different fronts. The Office of Science and Technology Policy (OSTP) is interested in developing a view of AI across all sectors for the purpose of recommending directions for research and determining challenges and opportunities in this field. The views of the American people, including stakeholders such as consumers, academic and industry researchers, private companies, and charitable foundations, are important to inform an understanding of current and future needs for AI in diverse fields. The purpose of this RFI is to solicit feedback on overarching questions in AI, including AI research and the tools, technologies, and training that are needed to answer these questions.
Responses must be received by July 22, 2016 to be considered.
You may submit comments by any of the following methods:
•
•
•
On May 3, 2016, the White House Office of Science and Technology Policy announced a number of new actions related to AI:
The Administration is working to leverage AI as an emergent technology for public good and toward a more effective government. Applications in AI to areas of government that are not traditionally technology-focused are especially significant; there are myriad opportunities to improve government services in areas related to urban systems and smart cities, mental and physical health, social welfare, criminal justice, and the environment. There is also tremendous potential in AI-driven improvements to programs that help disadvantaged and vulnerable populations.
OSTP is particularly interested in responses related to the following topics: (1) The legal and governance implications of AI; (2) the use of AI for public good; (3) the safety and control issues for AI; (4) the social and economic implications of AI; (5) the most pressing, fundamental questions in AI research, common to most or all scientific fields; (6) the most important research gaps in AI that must be addressed to advance this field and benefit the public; (7) the scientific and technical training that will be needed to
Terah Lyons, (202) 456–4444,
On April 28, 2016, the International Securities Exchange, LLC (“ISE”), ISE Gemini, LLC (“ISE Gemini”), and ISE Mercury, LLC (“ISE Mercury”) (collectively, the “Exchanges”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Currently, the Exchanges are wholly owned subsidiaries of International Securities Exchange Holdings, Inc. (“ISE Holdings”). ISE Holdings, in turn, is a wholly owned subsidiary of U.S. Exchange Holdings, which is wholly owned together by Deutsche Börse AG (“Deutsche Börse”) and Eurex Frankfurt AG (“Eurex Frankfurt”).
Following the closing of the Transaction, Deutsche Börse and Eurex Frankfurt will cease to be upstream owners of the Exchanges.
In order to consummate the Transaction and reflect Nasdaq's proposed ownership of U.S. Exchange Holdings, the Exchanges propose, upon closing of the Transaction, to eliminate certain corporate resolutions of Deutsche Börse and Eurex Frankfurt that were previously filed with the Commission as rules of the Exchanges and adopt Nasdaq's Amended and Restated Certificate of Incorporation (“Nasdaq COI”) and Bylaws (“Nasdaq Bylaws”, and together with the Nasdaq COI, the “Nasdaq governing documents”) as rules of the Exchanges.
After careful review, the Commission finds that the proposed rule changes are consistent with the requirements of the Act and rules and regulations thereunder applicable to a national securities exchange.
Each of the Exchanges represents that it will continue to operate and conduct its regulated activities (including operating and regulating its market and members) in the manner currently conducted and will not make any changes to its regulated activities in connection with the Transaction.
Section 19(b) of the Act,
Following the close of the Transaction, however, Deutsche Börse and Eurex Frankfurt will both cease to be non-U.S. upstream owners of the Exchanges. Accordingly, the Exchanges propose to delete the Non-U.S. Upstream Owner Resolutions, such that, as of the closing date of the Transaction, they will no longer be rules of the Exchanges. The Commission finds the deletion to be consistent with the Act. The deletion of the Non-U.S. Upstream Owner Resolutions as rules of the Exchanges is necessary to reflect the change in the upstream ownership of the Exchanges after the consummation of the Transaction.
Following the closing of the Transaction, Nasdaq will replace Deutsche Börse and Eurex Frankfurt as the ultimate parent company of the Exchanges. Although Nasdaq will not carry out regulatory functions as an SRO, as with Deutsche Börse and Eurex Frankfurt, its activities with respect to the operation of the Exchanges must be consistent with, and not interfere with, the Exchanges' self-regulatory obligations. As a result, following the closing of the Transaction, certain provisions of the Nasdaq governing documents will become stated policies, practices, or interpretations of the Exchanges, and must therefore be filed as rules with the Commission pursuant to Section 19(b)(4) of the Act and Rule 19b–4 thereunder.
The Nasdaq governing documents include certain provisions that are designed to maintain the independence of each of its self-regulatory
The Nasdaq governing documents provide the following provisions, which are designed to ensure that each self-regulatory subsidiary can carry out its self regulatory obligations. The Nasdaq Bylaws specify that Nasdaq and its officers, directors, and employees irrevocably submit to the jurisdiction of the United States federal courts, the Commission, and each self-regulatory subsidiary for the purposes of any suit, action, or proceeding pursuant to the United States federal securities laws, and the rules and regulations thereunder, arising out of, or relating to, the activities of any self-regulatory subsidiary.
Nasdaq must also comply with federal securities laws and the rules and regulations thereunder. Further, it agrees to cooperate with the Commission and each of the self-regulatory subsidiaries pursuant to, and to the extent of, their respective regulatory authority. Moreover, Nasdaq's officers, directors, and employees are deemed to agree to cooperate with the Commission and each self-regulatory subsidiary in respect of the Commission's oversight responsibilities regarding Nasdaq's SROs and the self-regulatory functions and responsibilities of such SROs.
In addition, similar to the ISE Holdings COI,
For the foregoing reasons, the Commission believes that the Nasdaq governing documents are reasonably designed to facilitate the Exchanges' ability to fulfill their self-regulatory obligations and are, therefore, consistent with the Act. Additionally, as discussed further below, the Commission also believes that the provisions in the Nasdaq governing documents should minimize the potential that a person could improperly interfere with, or restrict the ability of, the Commission or the Exchanges to effectively carry out their regulatory oversight responsibilities under the Act. In this regard, the Commission finds that the proposals are consistent with Section 6(b)(1) of the Act
The Commission also notes that, even in the absence of the governance provisions described above, under Section 20(a) of the Act, any person with a controlling interest in one of the Exchanges would be jointly and severally liable with and to the same extent that the respective Exchange is liable under any provision of the Act, unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.
The Exchanges propose to amend the U.S. Exchange Holdings COI to recognize that, following the closing of the Transaction, Nasdaq will own all of the capital stock (whether common stock or preferred stock) of U.S. Exchange Holdings. The Exchanges also propose to amend the ISE Holdings COI to replace its current ownership limitations and voting limitations with a new restriction that will reinforce ISE Holdings' current ownership by U.S. Exchanges Holdings and will require U.S. Exchange Holdings to own all of the capital stock of ISE Holdings.
Currently, pursuant to the limited liability company agreements of ISE, ISE Gemini, and ISE Mercury, ISE Holdings is the sole member of each of the Exchanges.
In turn, the current ISE Holdings COI contains certain ownership limits (“Ownership Limits”) and voting limits (“Voting Limits”) with respect to the outstanding capital stock of ISE Holdings.
To facilitate compliance with the Ownership Limits and Voting Limits, the U.S. Exchange Holdings COI also provides that U.S. Exchange Holdings shall take reasonable steps necessary to cause ISE Holdings to be in compliance with the Ownership Limits and Voting Limits.
As proposed, Nasdaq would acquire all of the capital stock of U.S. Exchange Holdings. In turn, U.S. Exchange Holdings would be required to continue to hold 100% of the capital stock of ISE Holdings. To reflect this revised ownership structure, the Exchanges propose to amend Article THIRTEENTH of the U.S. Exchange Holdings COI to provide that, for so long as U.S. Exchange Holdings controls, directly or indirectly, one or more national securities exchanges, including, but not limited to, the Exchanges (each, a “Controlled National Securities Exchange”) or a facility thereof, all authorized shares of stock of U.S. Exchange Holdings that are issued and outstanding will be held by Nasdaq.
The Exchanges also propose that, for so long as U.S. Exchange Holdings controls, directly or indirectly, one or more Controlled National Securities Exchange or a facility thereof, Nasdaq will be entitled to vote or cause the voting of all authorized shares of stock of U.S. Exchange Holdings that are issued and outstanding.
The Exchanges also propose to delete certain provisions in the U.S. Exchange Holdings COI that are no longer applicable as a result of the above changes. Specifically, the Exchanges propose to delete the U.S. Exchange Holdings Acquisition Notice Requirement because it would no longer be relevant, given that any change in ownership of U.S. Exchange Holdings would be subject to a Commission rule filing and approval pursuant to Section 19 of the Act and the rules thereunder.
Additionally, the Exchanges propose to eliminate the current Ownership Limits and Voting Limits in Section III(a) and (b) of Article FOURTH of the ISE Holdings COI. In place of these restrictions, the Exchanges propose to adopt new restrictions on the transfer or assignment of any shares of capital stock of ISE Holdings. Specifically, the Exchanges propose to amend Article FOURTH, Section III(a)(i) to provide that, for so long as ISE Holdings shall control, directly or indirectly, one or more Controlled National Securities Exchange, or a facility thereof, all authorized shares of capital stock of ISE Holdings that are issued and outstanding shall be held by U.S. Exchange Holdings. Additionally, U.S. Exchange Holdings may not transfer or assign any shares of capital stock of ISE Holdings, in whole or in part, to any Person,
Furthermore, for so long as ISE Holdings shall control, directly or indirectly, one or more Controlled National Securities Exchanges or a facility thereof, U.S. Exchange Holdings shall be entitled to vote or cause the voting of all authorized shares of capital stock of ISE Holdings that are issued and outstanding.
The Commission previously approved the existing Ownership Limits and Voting Limits to enable the Exchanges to carry out their self-regulatory responsibilities, and to enable the Commission to fulfill its responsibilities under the Act.
Accordingly, the Commission finds that the elimination of the Ownership Limits and Voting Limits and the adoption of new controls on the ownership, transfer, assignment, and voting of the capital stock of U.S. Exchange Holdings and ISE Holdings, together with the voting limitations in Nasdaq's governing documents, are reasonably designed to prevent any shareholder from exercising undue control over the operation of the Exchanges. The Commission also believes that the proposed rule changes are reasonably designed to ensure that the Exchanges and the Commission are able to carry out their regulatory obligations under the Act and thereby should minimize the potential that a person could improperly interfere with or restrict the ability of the Commission or the Exchanges to effectively carry out their respective regulatory oversight responsibilities under the Act.
As described above, Section 19(b) of the Act and Rule 19b–4 thereunder require an SRO to file proposed rule changes with the Commission. Although the ISE Trust is not an SRO, because the provisions of the Trust Agreement, pursuant to which the ISE Trust operates, are stated policies, practice, or interpretations of the Exchanges, they are rules of the Exchanges, as defined in Rule 19b–4 under the Act.
The Trust Agreement was entered into in 2007 to provide for an automatic transfer of ISE Holdings shares to the ISE Trust if a Person
The purpose for which the ISE Trust was formed will no longer be relevant after the closing of the Transaction. As described above, the Exchanges propose to remove the Ownership Limits and Voting Limits in the ISE Holdings COI and instead propose a new requirement that Nasdaq be the holder of 100% of the capital stock of U.S. Exchange Holdings, which in turn, must hold 100% of the capital stock of ISE Holdings, unless approved by the Commission.
The Commission believes that repealing the Trust Agreement and removing related provisions from the ISE Holdings and U.S. Exchange Holdings COIs is appropriate given the adoption of new controls on the ownership, transfer, assignment, and voting of U.S. Exchange Holdings and ISE Holdings capital stock, together with the voting limitations in the Nasdaq governing documents, discussed above.
Each of the Exchanges also proposes to amend its rules to prohibit its members or persons associated with such members from beneficially owning, directly or indirectly, greater than 20% of the (i) then-outstanding voting Limited Liability Company Interest of ISE, ISE Gemini, or ISE Mercury, as applicable, or (ii) then-outstanding voting securities of Nasdaq (the “Member Ownership Restrictions”).
As the Commission has noted in the past, a member's interest in an exchange could rise to a level as to cast doubt on whether the exchange can fairly and objectively exercise its self-regulatory responsibilities with respect to that member.
Interested persons are invited to submit written data, views, and arguments concerning: Amendment No. 1 to File Nos. SR–ISE–2016–11, SR–ISE Gemini–2016–05, and SR–ISE Mercury–2016–10, including whether Amendment No. 1 is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File Numbers SR–ISE–2016–11, SR–ISE Gemini–2016–05, SR–ISE Mercury–2016–10, as applicable. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
The Commission, pursuant to Section 19(b)(2) of the Act,
IT IS THEREFORE ORDERED, pursuant to Section 19(b)(2) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at 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 parts of such statements.
The Exchange previously filed a proposed rule change with the Commission to include a Non-Displayed
The Exchange proposes to implement these amendments to its Fee Schedule effective immediately.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
In particular, the Exchange believes that the proposed fee codes represent an equitable allocation of reasonable dues, fees, and other charges. The proposed fees are similar to and based on the fees and rebates assessed or provided to Bats Trading when routing to away Trading Centers. For instance, like proposed fee code NA, the NYSE, NYSE Arca, and Nasdaq charge no fee nor provide a rebate for non-displayed orders that add liquidity.
The Exchange notes that routing through Bats Trading is voluntary. The Exchange is providing a service to allow Members to post orders with a Non-Displayed instruction to these destinations and that those Members seeking to post such orders to away destinations may connect to those destinations directly and be charged the fee or provided the rebate from that destination. Therefore, the Exchange believes the rates for proposed fee codes NA and NB are equitable and reasonable because they are related to the rates provided by the away exchange and reasonably account for the routing service provided for by the Exchange. Lastly, the Exchange believes that the proposed amendments are non-discriminatory because it applies uniformly to all Members and that the proposed rates are directly related to rates provided by the destinations to which the orders may be routed.
The Exchange does not believe its proposed amendment to its Fee Schedule would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed changes represents a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors. Additionally, Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value. For example, routing through Bats Trading is voluntary and Members seeking to post such orders to away destinations may connect to those destinations directly and be charged the fee or provide the rebate from that destination. Accordingly, the Exchange does not believe that the proposed changes will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets. The Exchange believes that its proposal would not burden intramarket competition because the proposed rate would apply uniformly to all Members.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from Members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to adopt a new options rule to clearly prohibit disruptive quoting and trading activity on the Exchange, as further described below.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is filing this proposal to adopt an options rule to clearly prohibit disruptive quoting and trading activity on the Exchange and to permit the Exchange to take prompt action to suspend Members or their clients that violate such rule pursuant to Rule 9400.
As a national securities exchange registered pursuant to Section 6 of the Act, the Exchange is required to be organized and to have the capacity to enforce compliance by its members and persons associated with its members, with the Act, the rules and regulations thereunder, and the Exchange's Rules. Further, the Exchange's Rules are required to be “designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade . . . and, in general, to protect investors and the public interest.”
The process described above, from the identification of disruptive and potentially manipulative or improper quoting and trading activity to a final resolution of the matter, can often take several years. The Exchange believes that this time period is generally necessary and appropriate to afford the subject Member adequate due process, particularly in complex cases. However, as described below, the Exchange believes that there are certain obvious and uncomplicated cases of disruptive and manipulative behavior or cases where the potential harm to investors is so large that the Exchange should have the authority to initiate an expedited suspension proceeding in order to stop the behavior from continuing on the Exchange.
In recent years, several cases have been brought and resolved by the Exchange and other SROs that involved allegations of wide-spread market manipulation, much of which was ultimately being conducted by foreign persons and entities using relatively rudimentary technology to access the markets and over which the Exchange and other SROs had no direct jurisdiction. In each case, the conduct involved a pattern of disruptive quoting and trading activity indicative of manipulative layering
The following two examples are instructive on the Exchange's rationale for the proposed rule change.
In July 2012, Biremis Corp. (formerly Swift Trade Securities USA, Inc.) (the “Firm”) and its CEO were barred from the industry for, among other things, supervisory violations related to a failure by the Firm to detect and prevent disruptive and allegedly manipulative trading activities, including layering, short sale violations, and anti-money laundering violations.
In September of 2012, Hold Brothers On-Line Investment Services, Inc. (the “Firm”) settled a regulatory action in connection with the Firm's provision of a trading platform, trade software and trade execution, support and clearing
The Exchange also notes the current criminal proceedings that have commenced against Navinder Singh Sarao. Mr. Sarao's allegedly manipulative trading activity, which included forms of layering and spoofing in the futures markets, has been linked as a contributing factor to the “Flash Crash” of 2010, and yet continued through 2015.
The Exchange believes that the activities described in the cases above provide justification for the proposed rule change, which is described below. In addition, while the examples provided are related to the equities market, the Exchange believes that this type of conduct should be prohibited for all Exchange members, equities and options. The Exchange believes that these patterns of disruptive and allegedly manipulative quoting and trading activity need to be addressed and the product should not limit the action taken by the Exchange. For this reason, the Exchange now proposes a corresponding options rule.
The Exchange adopted Rule 9400 to set forth procedures for issuing suspension orders, immediately prohibiting a Member from conducting continued disruptive quoting and trading activity on the Exchange. Importantly, these procedures provide the Exchange the authority to order a Member to cease and desist from providing access to the Exchange to a client of the Member that is conducting disruptive quoting and trading activity in violation of Rule 2170. Paragraph (a) of Rule 9400, with the prior written authorization of the Chief Regulatory Officer (“CRO”) or such other senior officers as the CRO may designate, the Office of General Counsel or Regulatory Department of the Exchange (such departments generally referred to as the “Exchange” for purposes of Rule 9400) and may initiate an expedited suspension proceeding with respect to alleged violations of Rule 2170. Paragraph (a) also sets forth the requirements for notice and service of such notice pursuant to the Rule, including the required method of service and the content of notice.
Paragraph (b) of Rule 9400 governs the appointment of a Hearing Panel as well as potential disqualification or recusal of Hearing Officers. The Exchange's Rules provide for a Hearing Officer to be recused in the event he or she has a conflict of interest or bias or other circumstances exist where his or her fairness might reasonably be questioned in accordance with Rules 9233(a). In addition to recusal initiated by such a Hearing Officer, a party to the proceeding will be permitted to file a motion to disqualify a Hearing Officer. However, due to the compressed schedule pursuant to which the process would operate under Rule 9400, the rule requires such motion to be filed no later than 5 days after the announcement of the Hearing Panel and the Exchange's brief in opposition to such motion would be required to be filed no later than 5 days after service thereof. Pursuant to existing Rule 9233(c), a motion for disqualification of a Hearing Officer shall be decided by the Chief Hearing Officer based on a prompt investigation. The applicable Hearing Officer shall remove himself or herself and request the Chief Executive Officer to reassign the hearing to another Hearing Officer such that the Hearing Panel still meets the compositional requirements described in Rule 9231(b). If the Chief Hearing Officer determines that the Respondent's grounds for disqualification are insufficient, it shall deny the Respondent's motion for disqualification by setting forth the reasons for the denial in writing and the Hearing Panel will proceed with the hearing.
Under paragraph (c) of the Rule, the hearing would be held not later than 15 days after service of the notice initiating the suspension proceeding, unless otherwise extended by the Chairman of the Hearing Panel with the consent of the Parties for good cause shown. In the event of a recusal or disqualification of a Hearing Officer, the hearing shall be held not later than five days after a replacement Hearing Officer is appointed. Paragraph (c) also governs how the hearing is conducted, including the authority of Hearing Officers, witnesses, additional information that may be required by the Hearing Panel, the requirement that a transcript of the proceeding be created and details related to such transcript, and details regarding the creation and maintenance of the record of the proceeding. Paragraph (c) also states that if a Respondent fails to appear at a hearing for which it has notice, the allegations in the notice and accompanying declaration may be deemed admitted, and the Hearing Panel may issue a suspension order without further proceedings. Finally, if the Exchange fails to appear at a hearing for which it has notice, the Hearing Panel may order that the suspension proceeding be dismissed.
Under paragraph (d) of the Rule, the Hearing Panel would be required to issue a written decision stating whether a suspension order would be imposed. The Hearing Panel would be required to issue the decision not later than 10 days after receipt of the hearing transcript, unless otherwise extended by the Chairman of the Hearing Panel with the consent of the Parties for good cause shown. The Rule states that a suspension order shall be imposed if the Hearing Panel finds by a preponderance of the evidence that the alleged violation specified in the notice has occurred and that the violative conduct or continuation thereof is likely to result in significant market disruption or other significant harm to investors.
Paragraph (d) also describes the content, scope and form of a suspension order. A suspension order shall be limited to ordering a Respondent to cease and desist from violating Rule 2170 and/or to ordering a Respondent to cease and desist from providing access to the Exchange to a client of Respondent that is causing violations of Rule 2170. Under the rule, a suspension order shall also set forth the alleged violation and the significant market
Paragraph (e) of Rule 9400 states that at any time after the Hearing Officers served the Respondent with a suspension order, a Party could apply to the Hearing Panel to have the order modified, set aside, limited, or revoked. If any part of a suspension order is modified, set aside, limited, or revoked, paragraph (e) of Rule 9400 provides the Hearing Panel discretion to leave the cease and desist part of the order in place. For example, if a suspension order suspends Respondent unless and until Respondent ceases and desists providing access to the Exchange to a client of Respondent, and after the order is entered the Respondent complies, the Hearing Panel is permitted to modify the order to lift the suspension portion of the order while keeping in place the cease and desist portion of the order. With its broad modification powers, the Hearing Panel also maintains the discretion to impose conditions upon the removal of a suspension—for example, the Hearing Panel could modify an order to lift the suspension portion of the order in the event a Respondent complies with the cease and desist portion of the order but additionally order that the suspension will be re-imposed if Respondent violates the cease and desist provisions of the modified order in the future. The Hearing Panel generally would be required to respond to the request in writing within 10 days after receipt of the request. An application to modify, set aside, limit or revoke a suspension order would not stay the effectiveness of the suspension order.
Finally, paragraph (f) provides that sanctions issued under Rule 9400 would constitute final and immediately effective disciplinary sanctions imposed by the Exchange, and that the right to have any action under the Rule reviewed by the Commission would be governed by Section 19 of the Act. The filing of an application for review would not stay the effectiveness of a suspension order unless the Commission otherwise ordered.
The Exchange currently has authority to prohibit and take action against manipulative trading activity, including disruptive quoting and trading activity, pursuant to its general market manipulation rules, including Rules 2110, 2111, 2120 and 2170. The Exchange proposes to adopt a new rule at Chapter III, Section 16, which would more specifically define and prohibit disruptive options quoting and trading activity on the Exchange. As noted above, the Exchange also proposes to apply the proposed suspension rules to Chapter III, Section 16.
Proposed Chapter III, Section 16, would prohibit Members from engaging in or facilitating disruptive options quoting and trading activity on the Exchange, as described in proposed Chapter III, Section 16(i) and (ii), including acting in concert with other persons to effect such activity. The Exchange believes that it is necessary to extend the prohibition to situations when persons are acting in concert to avoid a potential loophole where disruptive quoting and trading activity is simply split between several brokers or customers. The Exchange believes, that with respect to persons acting in concert perpetrating an abusive scheme, it is important that the Exchange have authority to act against the parties perpetrating the abusive scheme, whether it is one person or multiple persons.
To provide proper context for the situations in which the Exchange proposes to utilize its authority, the Exchange believes it is necessary to describe the types of disruptive options quoting and trading activity that would cause the Exchange to use its authority. Accordingly, the Exchange proposes to adopt Chapter III, Section 16(i) and (ii) providing additional details regarding disruptive options quoting and trading activity. Proposed Chapter III, Section 16(i)(a) describes disruptive options quoting and trading activity containing many of the elements indicative of layering. It would describe disruptive options quoting and trading activity as a frequent pattern in which the following facts are present: (i) A party enters multiple limit orders on one side of the market at various price levels (the “Displayed Orders”); and (ii) following the entry of the Displayed Orders, the level of supply and demand for the security changes; and (iii) the party enters one or more orders on the opposite side of the market of the Displayed Orders (the “Contra-Side Orders”) that are subsequently executed; and (iv) following the execution of the Contra-Side Orders, the party cancels the Displayed Orders. Proposed Chapter III, Section 16(i)(b) describes disruptive options quoting and trading activity containing many of the elements indicative of spoofing and would describe disruptive quoting and trading activity as a frequent pattern in which the following facts are present: (i) A party narrows the spread for a security by placing an order inside the national best bid or offer; and (ii) the party then submits an order on the opposite side of the market that executes against another market participant that joined the new inside market established by the order described in proposed (b)(i) that narrowed the spread. The Exchange believes that the proposed descriptions of disruptive quoting and trading activity articulated in the rule are consistent with the activities that have been identified and described in the client access cases described above.
The Exchange proposes to make clear in proposed Chapter III, Section 16(ii), unless otherwise indicated, the descriptions of disruptive options quoting and trading activity do not require the facts to occur in a specific order in order for the rule to apply. For instance, with respect to the pattern defined in proposed Chapter III, Section 16(i)(a) it is of no consequence whether a party first enters Displayed Orders and then Contra-side Orders or vice-versa. However, as proposed, supply and demand must change following the entry of the Displayed Orders. The Exchange also proposes to make clear that disruptive options quoting and trading activity includes a pattern or practice in which some portion of the disruptive options quoting and trading activity is conducted on the Exchange and the other portions of the disruptive options quoting and trading activity are conducted on one or more other
Below is an example of how the proposed rule would operate.
Assume that through its surveillance program, Exchange staff identifies a pattern of potentially disruptive options quoting and trading activity. After an initial investigation the Exchange would then contact the Member responsible for the orders that caused the activity to request an explanation of the activity as well as any additional relevant information, including the source of the activity. If the Exchange were to continue to see the same pattern from the same Member and the source of the activity is the same or has been previously identified as a frequent source of disruptive options quoting and trading activity then the Exchange could initiate an expedited suspension proceeding by serving notice on the Member that would include details regarding the alleged violations as well as the proposed sanction. In such a case the proposed sanction would likely be to order the Member to cease and desist providing access to the Exchange to the client that is responsible for the disruptive quoting and trading activity and to suspend such Member unless and until such action is taken.
The Member would have the opportunity to be heard in front of a Hearing Panel at a hearing to be conducted within 15 days of the notice. If the Hearing Panel determined that the violation alleged in the notice did not occur or that the conduct or its continuation would not have the potential to result in significant market disruption or other significant harm to investors, then the Hearing Panel would dismiss the suspension order proceeding.
If the Hearing Panel determined that the violation alleged in the notice did occur and that the conduct or its continuation is likely to result in significant market disruption or other significant harm to investors, then the Hearing Panel would issue the order including the proposed sanction, ordering the Member to cease providing access to the client at issue and suspending such Member unless and until such action is taken. If such Member wished for the suspension to be lifted because the client ultimately responsible for the activity no longer would be provided access to the Exchange, then such Member could apply to the Hearing Panel to have the order modified, set aside, limited or revoked. The Exchange notes that the issuance of a suspension order would not alter the Exchange's ability to further investigate the matter and/or later sanction the Member pursuant to the Exchange's standard disciplinary process for supervisory violations or other violations of Exchange rules or the Act.
The Exchange reiterates that it already has broad authority to take action against a Member in the event that such Member is engaging in or facilitating disruptive or manipulative trading activity on the Exchange. For the reasons described above, and in light of recent cases like the client access cases described above, as well as other cases currently under investigation, the Exchange believes that it is equally important for the Exchange to have the authority to promptly initiate expedited suspension proceedings against any Member who has demonstrated a clear pattern or practice of disruptive options quoting and trading activity, as described above, and to take action including ordering such Member to terminate access to the Exchange to one or more of such Member's clients if such clients are responsible for the activity.
The Exchange recognizes that its authority to issue a suspension order is a powerful measure that should be used very cautiously. Consequently, the rules have been designed to ensure that the proceedings are used to address only the most clear and serious types of disruptive quoting and trading activity and that the interests of Respondents are protected. For example, to ensure that proceedings are used appropriately and that the decision to initiate a proceeding is made only at the highest staff levels, the rules require the CRO or another senior officer of the Exchange to issue written authorization before the Exchange can institute an expedited suspension proceeding. In addition, the rule by its terms is limited to violations of Chapter III, Section 16, when necessary to protect investors, other Members and the Exchange. The Exchange will initiate disciplinary action for violations of Chapter III, Section 16, pursuant to Rule 9400. Further, the Exchange believes that the expedited suspension provisions described above that provide the opportunity to respond as well as a Hearing Panel determination prior to taking action will ensure that the Exchange would not utilize its authority in the absence of a clear pattern or practice of disruptive options quoting and trading activity.
The Exchange also notes that that it may impose temporary restrictions upon the automated entry or updating of orders or quotes/orders as the Exchange may determine to be necessary to protect the integrity of the Exchange's systems pursuant to Rule 4611(c).
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
Further, the Exchange believes that the proposal is consistent with Sections 6(b)(1) and 6(b)(6) of the Act,
As explained above, the Exchange notes that it has defined the prohibited disruptive quoting and trading activity by modifying the traditional definitions of layering and spoofing
Through this proposal, the Exchange does not intend to modify the definitions of spoofing and layering that have generally been used by the Exchange and other regulators in connection with actions like those cited above. The Exchange believes that the pattern of disruptive and allegedly manipulative quoting and trading activity was widespread across multiple exchanges, and the Exchange, FINRA, and other SROs identified clear patterns of the behavior in 2007 and 2008 in the equities markets.
Further, the Exchange believes that adopting a rule applicable to Options Participants is consistent with the Act because the Exchange believes that this type of behavior should be prohibited for all members, not just equities members. The type of product should not be the determining factor, rather the behavior which challenges the market structure is the primary concern for the Exchange. While this behavior may not be as prevalent on the options market today, the Exchange does not believe that the possibility of such behavior in the future would not have the same market impact and thereby warrant an expedited process. The Exchange believes that treating all members, equities and options, in a uniform manner with respect to the type of disciplinary action that would be taken for violations of manipulative quoting and trading activity is consistent with the Act.
The Exchange further believes that the proposal is consistent with Section 6(b)(7) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the Exchange believes that each self-regulatory organization should be empowered to regulate trading occurring on its market consistent with the Act and without regard to competitive issues. The Exchange is requesting authority to take appropriate action if necessary for the protection of investors, other Members and the Exchange. The Exchange also believes that it is important for all exchanges to be able to take similar action to enforce their rules against manipulative conduct thereby leaving no exchange prey to such conduct.
The Exchange does not believe that the proposed rule change imposes an undue burden on competition, rather this process will provide the Exchange with the necessary means to enforce against violations of manipulative quoting and trading activity in an expedited manner, while providing Members with the necessary due process. The Exchange believes that adopting a rule applicable to Options Participants does not impose an undue burden on competition because this type of behavior should be prohibited for all members, not just equities members. The Exchange's proposal would treat all members, equities and options, in a uniform manner with respect to the type of disciplinary action that would be taken for violations of manipulative quoting and trading activity.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) 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 proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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.
It appears to the Securities and Exchange Commission (“Commission”) that there is a lack of current and accurate information concerning the securities of Caspian International Oil Corporation (“CIOC
It appears to the Commission that there is a lack of current and accurate information concerning the securities of Elevate, Inc. (“ELEV”) (CIK No. 1424415), a defaulted Nevada corporation located in San Clemente, California with a class of securities registered with the Commission pursuant to Exchange Act Section 12(g) because it is delinquent in its periodic filings with the Commission, having not filed any periodic reports since it filed a Form 10–Q for the period ended February 29, 2012. On January 28, 2016, Corporation Finance sent a delinquency letter to ELEV requesting compliance with its periodic filing requirements but ELEV did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission Issuer Address Rules. As of June 16, 2016, the common stock of ELEV was quoted on OTC Link, had six market makers, and was eligible for the “piggyback” exception of Exchange Act Rule 15c2–11(f)(3).
It appears to the Commission that there is a lack of current and accurate information concerning the securities of Frawley Corporation (“FRWL”) (CIK No. 38824), a void Delaware corporation located in Agoura Hills, California with a class of securities registered with the Commission pursuant to Exchange Act Section 12(g) because it is delinquent in its periodic filings with the Commission, having not filed any periodic reports since it filed a Form 10–K for the period ended December 31, 2011. On November 21, 2011, Corporation Finance sent a delinquency letter to FRWL requesting compliance with its periodic filing requirements but FRWL did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission Issuer Address Rules. As of June 16, 2016, the common stock of FRWL was quoted on OTC Link, had four market makers, and was eligible for the “piggyback” exception of Exchange Act Rule 15c2–11(f)(3).
It appears to the Commission that there is a lack of current and accurate information concerning the securities of Groen Brothers Aviation, Inc. (“GNBA”) (CIK No. 870743), an expired Utah corporation located in Salt Lake City, Utah with a class of securities registered with the Commission pursuant to Exchange Act Section 12(g) because it is delinquent in its periodic filings with the Commission, having not filed any periodic reports since it filed a Form 10–K for the period ended June 30,
It appears to the Commission that there is a lack of current and accurate information concerning the securities of Logic Devices, Incorporated (“LOGC”) (CIK No. 802851), a suspended California corporation located in Sunnyvale, California with a class of securities registered with the Commission pursuant to Exchange Act Section 12(g) because it is delinquent in its periodic filings with the Commission, having not filed any periodic reports since it filed a Form 10–Q for the period ended June 30, 2012. On November 14, 2013, Corporation Finance sent a delinquency letter to LOGC requesting compliance with its periodic filing requirements but LOGC did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission Issuer Address Rules. As of June 16, 2016, the common stock of LOGC was quoted on OTC Link, had five market makers, and was eligible for the “piggyback” exception of Exchange Act Rule 15c2–11(f)(3).
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on June 23, 2016, through 11:59 p.m. EDT on July 7, 2016.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange seeks to update certain order marking requirements. The text of the proposed rule change is provided below.
A Trading Permit Holder or TPH organization representing an order respecting an option traded on the Exchange (an “original order”), including a spread, combination, or straddle order as defined in Rule 6.53, a stock-option order as defined in Rule 1.1(ii), a security future-option order as defined in Rule 1.1(zz), or any other complex order as defined in Rule 6.53C, may solicit a Trading Permit Holder or TPH organization or a non-Trading Permit Holder customer or broker-dealer (the “solicited person”) to transact in-person or by order (a “solicited order”) with the original order. In addition, whenever a floor broker who is aware of, but does not represent, an original order solicits one or more persons or orders in response to an original order, the persons solicited and any resulting orders are solicited persons or solicited orders subject to this Rule. Original orders and solicited orders are subject to the following conditions.
(a)–(e) No change.
(f) All orders initiated as a result of a solicitation must be marked [“SL.”]
One or more of the following order types may be made available on a class-by-class basis. Certain order types may not be made available for all Exchange systems. The classes and/or systems for which the order types shall be available will be as provided in the Rules, as the context may indicate, or as otherwise specified via Regulatory Circular.
(a)–(f) No change.
(g) Not Held Order. A not held order is an order marked “not held”, “take time” or which bears any qualifying notation giving discretion as to the price or time at which such order is to be executed. An order entrusted to a Floor Broker will be considered a Not Held Order, unless otherwise specified by a Floor Broker's client or the order was received by the Exchange electronically and subsequently routed to a Floor Broker or PAR Official pursuant to the order entry firm's routing instructions.
The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed
The Exchange proposes to update order marking requirements applicable to solicited orders under Rule 6.9(f) and Not Held Orders under Rule 6.53(g).
Rule 6.9 governs the procedures and priority applicable to the open outcry execution of an order solicited (a “solicited order”) by a Trading Permit Holder or TPH organization representing an order respecting an option traded on the Exchange (an “original order”).
The Exchange, through a third-party vendor, is in the process of updating the Exchange provided Floor Broker Workstation (“FBW2”)
Rule 6.53(g) defines a “Not Held Order” as an order marked “not held”, “take time” or which bears any qualifying notation giving discretion as to the price or time at which such order is to be executed.
Although SR–CBOE–2015–047 provides that orders entrusted to Floor Brokers are by default Not Held Orders, the Exchange currently requires Not Held Orders to be proactively marked as Not Held Orders.
The Exchange will announce the implementation date of this rule filing via Regulatory Circular at least 30 days prior to the implementation date. The implementation date will be within 180 days of the effective date of this filing.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of Section 6(b) of the Act.
In particular, the proposed amendment to Rule 6.9(f) would promote just and equitable principles of trading by enhancing the Exchange's audit trail. An enhanced audit trail will help the Exchange to regulate these kinds of orders more thoroughly, which should serve to promote just and equitable trading of solicited orders on the Exchange. The Exchange also believes the proposed rule change is consistent with Section 6(b)(1) of the Act,
The proposed addition to Rule 6.53(g) removes impediments to and perfects the mechanism of a free and open market and a national market system, and, in general, protects investors and the public interest by eliminating any
CBOE does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. In particular, the proposed rule change will not impose any burden on any intramarket competition as it will be applied to similarly situated groups trading on the Exchange equally. The Exchange does not believe the proposed rule change will impose any burden on intermarket competition as the proposed changes merely amends existing TPH obligations related to the marking of solicited orders, “held” orders, and Not Held Orders.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not:
A. Significantly affect the protection of investors or the public interest;
B. impose any significant burden on competition; and
C. become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission.
Notice of meeting of Securities and Exchange Commission Dodd-Frank Investor Advisory Committee.
The Securities and Exchange Commission Investor Advisory Committee, established pursuant to Section 911 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, is providing notice that it will hold a public meeting. The public is invited to submit written statements to the Committee.
The meeting will be held on Thursday, July 14, 2016 from 9:00 a.m. until 3:30 p.m. (ET). Written statements should be received on or before July 14, 2016.
The meeting will be held in Multi-Purpose Room LL–006 at the Commission's headquarters, 100 F Street NE., Washington, DC 20549. The meeting will be webcast on the Commission's Web site at
Use the Commission's Internet submission form (
Send an email message to
Send paper statements to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Statements also will be available for Web site viewing and printing in the Commission's Public Reference Room,
Marc Oorloff Sharma, Senior Special Counsel, Office of the Investor Advocate, at (202) 551–3302, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
The meeting will be open to the public, except during that portion of the meeting reserved for an administrative work session during lunch. Persons needing special accommodations to take part because of a disability should notify the contact person listed in the section above entitled
The agenda for the meeting includes: Remarks from Commissioners; the nomination of candidates for open officer positions; a discussion regarding investment company reporting modernization; a discussion of the state of sustainability reporting; the announcement of election results for open officer positions; a discussion of Electronic Communications Privacy Act amendments; and a nonpublic administrative work session during lunch.
It appears to the Securities and Exchange Commission (“Commission”) that there is a lack of current and accurate information concerning the securities of Rebornne (USA) Inc. (“RBOR
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed company is suspended for the period from 9:30 a.m. EDT on June 23, 2016, through 11:59 p.m. EDT on July 7, 2016.
By the Commission.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend the Exchange's Pricing Schedule (“Pricing Schedule”) at Section B, entitled “Customer Rebates,” and Section IV, Part E., entitled “Market Access and Routing Subsidy (“MARS”)”
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of this filing is to amend the Exchange's Pricing Schedule at Section IV, Part E. to propose two MARS Payment levels and at Section B to propose a MARS incentive to obtain higher rebates.
The Exchange proposes to amend the MARS Eligible Contracts to remove the “at least 30,000 Eligible Contracts” requirement and replace it with two-tier pricing in the MARS Payment section.
The Exchange proposes to amend the MARS Payment to offer two tiers for MARS Payment. Proposed Tier 1 would offer a MARS Payment of $0.01 per contract to Phlx members that have executed 1,000 average daily volume (“ADV”) or more contracts.
Proposed Tier 2, which is similar to the current MARS Payment threshold of at least 30,000 contracts in a month, would offer a MARS Payment of $0.10 per contract to Phlx members that have executed 30,000 ADV in a month or more contracts. In each instance all of the contracts have to be executed on Phlx.
For the purpose of qualifying for the Tier 1 or Tier 2 MARS Payment, Eligible Contracts would continue to include Firm,
MARS is a subsidy program that pays Phlx members that provide certain order routing functionalities to other Phlx members and/or use such functionalities
To qualify for MARS, a Phlx member's order routing functionality is required to complete a form
Section IV, Part E. of the Exchange's Pricing Schedule provides that Phlx members that have executed the required MARS Eligible Contracts (“Eligible Contracts”) may receive the MARS Payment on all their Eligible Contracts. The Exchange proposes to make the MARS Payment tiered according to ADV, as discussed.
The Exchange believes that the proposed change will incentivize market participants to bring liquidity and order flow to the Exchange for the benefit of all market participants. Liquidity benefits all market participants by providing more trading opportunities.
Currently, Section IV, Part E. in the Pricing Schedule states that a MARS Payment is made to Phlx members that have System Eligibility and have routed and executed at least 30,000 Eligible Contracts daily in a month on Phlx.
For the purpose of qualifying for the MARS Payment, Eligible Contracts include the following: Firm, Broker-Dealer, JBO, or Professional equity option orders that are electronically delivered and executed. Eligible Contracts do not include floor-based orders, qualified contingent cross or “QCC” orders,
Today, Phlx members that have System Eligibility and have executed the Eligible Contracts in a month may receive the MARS Payment of $0.10 per contract. No payment is made with respect to orders that are routed to Phlx, but not executed.
The Exchange believes that the MARS Payment will subsidize the costs of Phlx members in providing the routing services. The Exchange does not propose to amend the MARS System Eligibility.
In addition to amending the MARS Eligible Contracts section to remove the “at least 30,000 Eligible Contracts” requirement and replace it with two-tier pricing payments in the MARS Payment section, as described above, the Exchange also proposes to add a sentence that summarizes when MARS Payments will be paid.
The proposed sentence indicates, in one place, that a MARS Payment will be paid on all executed Eligible Contracts that are routed to Phlx through a
The proposed summary sentence is similar to another options market with MARS Payments, namely the NASDAQ Options Market LLC (“NOM”).
The Exchange believes that the fees and rebates in its Pricing Schedule are structured to attract liquidity. The Exchange believes that the proposed tiered MARS Payment schedule will further encourage Phlx members to transact additional liquidity on the Exchange.
Currently, the Exchange has a Customer Rebate Program consisting of five tiers that pay Customer rebates on three Categories, A,
The Exchange now pays the following rebates:
The Exchange proposes to pay a $0.05 per contract Category C rebate in addition to the applicable Tier 2 and 3 rebates to members or member organizations or member or member organization affiliate under Common Ownership provided the member or member organization qualified for a Tier 1 or 2 MARS Payment in Section IV, Part E. The Exchange's proposal is intended to attract additional Customer volume to the Exchange to the benefit of all market participants that are able to interact with this Customer liquidity.
The Exchange believes that its proposal to amend its Pricing Schedule is consistent with Section 6(b) of the Act,
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention in determining prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues and, also, recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Further, “[n]o one disputes that competition for order flow is `fierce.' . . . As the SEC explained, `[i]n the U.S. national market system, buyers and sellers of securities, and the broker-dealers that act as their order-routing agents, have a wide range of choices of where to route orders for execution'; [and] `no exchange can afford to take its market share percentages for granted' because `no exchange possesses a monopoly, regulatory or otherwise, in the execution of order flow from broker dealers'. . . .”
In Change 1 the Exchange proposes to specify two tiers for MARS Payment. The Exchange also proposes to add a sentence that summarizes when MARS Payments will be paid. Today, Phlx members that have System Eligibility and have executed the Eligible Contracts in a month may receive the MARS Payment of $0.10 per contract if they have routed at least 30,000 System Eligible Contracts. The Exchange proposes to make the current requirement into the Tier 2 $0.10 per contract MARS Payment; and proposes a new Tier 1 $0.01 per contract MARS Payment for Phlx members that bring a smaller number of Eligible Contracts, namely 1,000 daily contracts, to the Exchange. As discussed, the current 30,000 daily ADV and MARS Payment amount of $0.10 per contract is simply moved from the current MARS Payment standard to Tier 2. The Exchange believes that the proposed changes are reasonable, equitable and not unfairly discriminatory for the following reasons.
The Exchange proposes to expand MARS Payments by structuring a tiered system of payments. The proposed tiered MARS Payment system is reasonable because it will encourage additional Phlx members to participate in MARS and deliver an even greater amount of liquidity on the Exchange. The proposed change would allow qualifying MARS volume to receive a MARS Payment, at two different levels. With the proposed change, all Phlx members that have executed MARS Eligible Contracts may receive the MARS Payment of $0.01 or $0.10 per contract. The Exchange believes that this is reasonable because it will incentivize more Phlx members to route Eligible Contracts for execution on the Exchange.
The Exchange believes that the proposed change is equitable and not unfairly discriminatory because the increased ability to receive MARS Payment will be applied uniformly to all. In addition, any Phlx member is permitted to apply for MARS, provided the requirements are met, including a robust and reliable System. Thus, a $0.01 per contract MARS Payment will be made pursuant to Tier 1 to those Phlx members that have System Eligibility and have executed at least 1,000 daily ADV contracts; and a $0.10 per contract MARS Payment will be made pursuant to Tier 2 to those Phlx members that have System Eligibility and have executed at least 30,000 ADV contracts. In each instance, the Eligible Contracts must be properly routed and executed on Phlx in order to get MARS Payment.
The proposed tiered MARS Payment for Phlx is reasonable because, as discussed, it is similar to the existing MARS Payment system on NOM.
The Exchange believes that the proposed 1,000 contract and 30,000 contract ADV levels are reasonable because the Exchange is only counting volume from Firms, Broker-Dealers, JBOs and Professionals which are electronically delivered and executed. The Exchange believes that these numbers reflect an appropriate level of commitment from Phlx members to earn the MARS Payment. The Exchange believes that these levels are equitable and not unfairly discriminatory because they will be uniformly applied to all qualifying Phlx members.
The Exchange believes that it is reasonable, equitable, and not unfairly discriminatory to pay the proposed MARS Payment to Phlx members that have System Eligibility and have executed the Eligible Contracts, even when a different Phlx member may be liable for transaction charges resulting from the execution of the orders upon which the subsidy might be paid. The Exchange notes that this sort of arrangement already exists on the Exchange with respect to QCC rebates for floor QCC transactions and results in a situation where the floor broker is earning a rebate and one or more different Phlx members are potentially liable for the Exchange transaction charges applicable to QCC Orders.
The Exchange also proposes to add a sentence that summarizes when MARS Payments will be paid. The added sentence is reasonable, equitable, and not unfairly discriminatory because it is simply a way to summarize, in one place, that a MARS Payment has to be properly routed and executed and has to add a certain amount of liquidity. The proposed summary sentence is similar to that of NOM.
The Exchange desires to continue to incentivize members and member organizations, through the Exchange's rebate and fee structure, to select Phlx as a venue for bringing liquidity and trading by offering competitive pricing. Such competitive, differentiated pricing exists today on other options exchanges. The Exchange's goal is creating and increasing incentives to attract orders to the Exchange that will, in turn, benefit all market participants through increased liquidity at the Exchange. The Exchange believes that the proposed change promotes the goal of creating and increasing incentives to attract liquidity.
The Exchange's proposal to amend Section B to offer members and member organizations an additional $0.05 per contract Category C rebate in Tiers 2 and 3 provided the member or member organization qualified for a Tier 1 or 2 MARS Payment in Section IV, Part E is reasonable because it will encourage
The Exchange's proposal to amend Section B to offer members and member organizations an additional $0.05 per contract Category C rebate in Tiers 2 and 3 provided the member or member organization qualified for a Tier 1 or 2 MARS Payment in Section IV, Part E is equitable and not unfairly discriminatory because it will
Additionally, the Exchange believes that it is reasonable, equitable and not unfairly discriminatory to pay market participants different rebates for transacting Simple versus Complex Orders. Today, the Exchange pays different Category A (Simple Order) and Category B (Complex Order) rebates. The Exchange also differentiates pricing for Simple and Complex Orders transaction fees in Section I as do other options exchanges.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In terms of inter-market competition, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges and with alternative trading systems that have been exempted from compliance with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees in response and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. The Exchange believes that its proposal to establish MARS Payment tiers will continue to encourage eligible market participants to transact orders on the Exchange in order to obtain MARS Payments.
The Exchange operates in a highly competitive market, comprised of fourteen options exchanges, in which market participants can easily and readily direct order flow to competing venues if they deem fee levels at a particular venue to be excessive or rebates to be inadequate. Accordingly, the fees that are assessed and the rebates paid by the Exchange described in the above proposal are influenced by these robust market forces and therefore must remain competitive with fees charged and rebates paid by other venues and therefore must continue to be reasonable and equitably allocated to those members that opt to direct orders to the Exchange rather than competing venues.
The Exchange believes that the proposal to amend MARS Payments to offer tiers will continue to encourage order flow to be directed to the Exchange. Certain market participants will receive $0.10 per contract Tier 2 MARS Payments for transacting the same order flow as today, while other market participants may become eligible for new lower $0.01 per contract Tier 1 MARS Payments for transacting a smaller amount of order flow. The Exchange believes that MARS Payments will continue to encourage order flow to be directed to the Exchange. Any Phlx member is permitted to apply for MARS, provided the requirements are met, including a robust and reliable System. All Phlx members are eligible to qualify for a MARS Payments. By incentivizing members to route Eligible Contracts, the Exchange desires to attract liquidity to the Exchange, which in turn benefits all market participants.
The Exchange does not believe that this proposal will impose an undue burden on intra-market competition because it will be applied to all market participants in a uniform manner. All Phlx members are eligible to receive MARS Payments provided they submit a qualifying number of Eligible Contracts. In addition, any Phlx member is permitted to apply for MARS, provided the requirements are met, including a robust and reliable System. The Exchange believes this pricing amendment does not impose a burden on competition but rather that the proposed rule change will continue to promote competition on the Exchange.
The Exchange believes that the Customer Rebate Program will continue to encourage Customer order flow to be directed to the Exchange. Certain market participants will receive higher Tier 4 and 5 Category B rebates for transacting the same Customer order flow as today, while other market participants may become eligible for higher Customer Rebates in Section B of the Pricing Schedule. The Exchange believes that the Customer Rebate Program will continue to encourage Customer order flow to be directed to the Exchange. By incentivizing members to route Customer orders, the Exchange desires to attract liquidity to the Exchange, which in turn benefits all market participants. All market participants are eligible to qualify for a Customer Rebate.
The Exchange does not believe that this proposal will impose an undue burden on intra-market competition because it will be applied to all market participants in a uniform matter. All members are eligible to receive the rebate provided they submit a qualifying number of electronic Customer volume. In addition, any Phlx member is permitted to apply for MARS, provided the requirements are met, including a robust and reliable System. The Exchange believes this pricing amendment does not impose a burden on competition but rather that the proposed rule change will continue to promote competition on the Exchange.
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
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to modify the NYSE Amex Options Fee Schedule (“Fee Schedule”). The Exchange proposes to implement the fee change effective June 9, 2016. The proposed 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 purpose of this filing is to amend Sections I. E. and G. of the Fee Schedule
Section I.E. of the Fee Schedule describes the Exchange's ACE Program, which features five tiers expressed as a percentage of total industry Customer equity and Exchange Traded Fund (“ETF”) option average daily volume
The Exchange proposes to modify the ACE Program by increasing certain of the credits available for Tiers 2 through 5 as illustrated in the table below, with proposed additions appearing underscored and proposed deletions appearing in brackets:
The proposed amendments to the ACE Program are designed to enhance the rebates, which the Exchange believes would attract more volume and liquidity to the Exchange to the benefit of Exchange participants through increased opportunities to trade as well as enhancing price discovery.
Section I.G. of the Fee Schedule sets forth the rates for per contract fees and credits for executions associated with a CUBE Auction. The Exchange is proposing to adjust rates for RFR Response fees and Initiating Credits and Rebates. Specifically, the Exchange proposes to adjust RFR Response fees for Non-Customers to $0.50 for symbols in the Penny Pilot, from $0.12; and to adjust RFR Response fees for Non-Customers for symbols not in the Penny Pilot to $1.05, from $0.12. The Exchange also proposes to adjust the Initiating Participant credits and rebates to $0.30 for symbols in the Penny Pilot, $0.70 for symbols not in the Penny Pilot, an increase from the $0.05 Initiating Participant credit in all names. The Exchange also proposes to increase the ACE Initiating Participant Rebate from $0.05 to $0.12.
The proposed changes are designed to increase incentives for submission of CUBE Orders, which should maximize price improvement opportunities for Customers.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed amendments to the ACE Program are reasonable, equitable and not unfairly discriminatory because they would enhance the incentives to Order Flow Providers to transact Customer orders on the Exchange, which would benefit all market participants by providing more trading opportunities and tighter spreads, even to those market participants that do not participate in the ACE Program. Additionally, the Exchange believes the proposed changes to the ACE Program are consistent with the Act because they may attract greater volume and liquidity to the Exchange, which would benefit all market participants by providing tighter quoting and better prices, all of which perfects the mechanism for a free and open market and national market system.
The Exchange believes that the proposed changes to CUBE Auction fees are reasonable, equitable and not unfairly discriminatory. Specifically, the proposed increases to both the Initiating Participant Credits (for both Penny Pilot and Non-Penny Pilot) as well as the fees associated with RFR Responses that participate in the CUBE are reasonable, equitable and non-discriminatory because they apply equally to all ATP Holders that choose to participate in the CUBE, and access to the Exchange is offered on terms that are not unfairly discriminatory.
The Exchange believes the proposed changes to CUBE are reasonable, as they are similar to fees charged for similar auction mechanisms on other markets, such as BOX Options Exchange LLC (“BOX”), which charges a total fee of $1.05 for a Market Maker response to a PIP auction in a non-Penny Pilot issue.
The Exchange likewise believes the proposed increase of the ACE Initiating Participant Credit is reasonable, equitable and not unfairly discriminatory for the following reasons. First, the ACE Initiating Participant Rebate is based on the amount of business transacted on the Exchange and is designed to attract more volume and liquidity to the Exchange generally, and to CUBE Auctions specifically, which would benefit all market participants (including those that do not participate
Finally, the Exchange believes the proposed changes are consistent with the Act because to the extent the modifications permit the Exchange to continue to attract greater volume and liquidity, the proposed change would improve the Exchange's overall competitiveness and strengthen its market quality for all market participants.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its 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.
All submissions should refer to File Number SR–NYSEMKT–2016–60. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Price List to adopt a fee waiver and a fee cap related to the Liquidity Provider Incentive Program on the NYSE Bonds
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its Price List to adopt a fee waiver and a fee cap related to the Liquidity Provider Incentive Program on the NYSE Bonds system recently implemented by the Exchange.
To qualify for a rebate, a User is required to provide continuous two-sided quotes for at least eighty percent (80%) of the time during the Core Bond Trading Session for an entire calendar month.
Users that opt in to the Liquidity Provider Incentive Program are subject to a transaction fee for orders that provide liquidity to the NYSE Bonds Book of $0.50 per bond.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed changes to the Liquidity Provider Incentive Program are reasonable and equitable as they are intended to further incentivize Users to provide liquidity to the NYSE Bonds system. The proposed fee waiver for Users that provide liquidity in 800 or more qualifying CUSIPs and the proposed fee cap for Users that provide liquidity in the 400–599 qualifying CUSIP tier and in the 600–799 qualifying CUSIP tier, are both reasonable amendments to the Exchange's fee schedule and do not unfairly discriminate between customers, issuers, and brokers or dealers because all member organizations that opt in to the Liquidity Provider Incentive Program would benefit from the proposed fee changes. The Exchange believes that the proposed fee changes are also reasonable because they are designed to provide an incentive for member organizations to increase displayed liquidity at the Exchange, thereby increasing traded volume.
The Exchange is proposing to adopt a pricing model whereby Users providing liquidity in a minimum number of
The Exchange further believes that the proposed rule change is equitable and not unfairly discriminatory in that it will apply uniformly to all Users accessing the NYSE Bonds system. Each User will have the ability to determine the extent to which the Exchange's proposed structure will provide it with an economic incentive to use the NYSE Bonds system, and model its business accordingly.
In accordance with Section 6(b)(8) of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues that are not transparent. In such an environment, the Exchange must continually review, and consider adjusting its fees and rebates to remain competitive with other exchanges as well as with alternative trading systems and other venues that are not required to comply with the statutory standards applicable to exchanges. Because competitors are free to modify their own fees and credits in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited. As a result of all of these considerations, the Exchange does not believe that the proposed change will impair the ability of member organizations or competing order execution venues to maintain their competitive standing in the financial markets.
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 (the “Act”),
The Exchange filed a proposal to amend the fee schedule applicable to Members
The text of the proposed rule change is available at 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 parts of such statements.
The Exchange proposes to amend its Fee Schedule to: (i) Add fee codes NA and NB; and (ii) increase the standard rebate for orders that yield fee code B.
The Exchange previously filed a proposed rule change with the Commission to identify Non-Displayed Orders
Fee code B is appended to orders that provide liquidity in Tape B securities on the Exchange. Such orders that yield fee code B currently receive a standard rebate of $0.0020 per share. The Exchange proposes to increase this standard rebate applied to orders yielding fee code B to $0.0025 per share. The Exchange believes the increased rebate would incentivize the provision of displayed liquidity in Tape B securities on the Exchange.
The Exchange also currently provides two Tape B Volume and Quoting Tiers pursuant to footnote 13 that provide additional step-up rebates based on a member's Tape B ADAV
Finally, the Exchange proposes to update its Standard Rate table to include the proposed $0.0025 rebate with respect to pricing for adding liquidity for securities at or above $1.00.
The Exchange proposes to implement these amendments to its Fee Schedule effective immediately.
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act,
In particular, the Exchange believes that proposed fee codes NA and NB represent an equitable allocation of reasonable dues, fees, and other charges. The proposed fees are similar to and based on the fees and rebates assessed or provided to Bats Trading when routing to away Trading Centers. For instance, like proposed fee code NA, the NYSE, NYSE Arca, and Nasdaq charge no fee nor provide a rebate for non-displayed orders that add liquidity.
The Exchange notes that routing through Bats Trading is voluntary. The Exchange is providing a service to allow Members to post Non-Displayed Orders to these destinations and that those Members seeking to post such orders to away destinations may connect to those destinations directly and be charged the fee or provided the rebate from that destination. Therefore, the Exchange believes the rates for proposed fee codes NA and NB are equitable and reasonable because they are related to the rates provided by the away exchange and reasonably account for the routing service provided for by the Exchange. Lastly, the Exchange believes that the proposed amendments are non-discriminatory because it applies uniformly to all Members and that the proposed rates are directly related to rates provided by the destinations to which the orders may be routed.
The Exchange believes the increased rebate for orders adding liquidity yielding Fee Code B is a reasonable means to encourage Members to increase their liquidity on the Exchange in Tape B securities. The Exchange further believes that the rebate increase is an equitable and non-discriminatory allocation of reasonable dues, fees, and other charges because the increased rebate encourages Members to add increased liquidity to the BZX Book
The Exchange does not believe its proposed amendment to its Fee Schedule would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that the proposed change represents a significant departure from previous pricing offered by the Exchange or pricing offered by the Exchange's competitors. Additionally, Members may opt to disfavor the Exchange's pricing if they believe that alternatives offer them better value. For example, routing through Bats Trading is voluntary and Members seeking to post such orders to away destinations may connect to those destinations directly and be charged the fee or provide the rebate from that destination. The Exchange does not believe that the increased rebate applicable to orders yielding Fee Code B would burden competition, but instead, enhances competition, as it is intended to increase the competitiveness of and draw additional liquidity to the Exchange. The Exchange does not believe the increased rebate would burden intramarket competition as it would apply to all Members uniformly. Accordingly, the Exchange does not believe that the proposed change will impair the ability of Members or competing venues to maintain their competitive standing in the financial markets.
The Exchange has not solicited, and does not intend to solicit, comments on this proposed rule change. The Exchange has not received any unsolicited written comments from Members or other interested parties.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission (“Commission”) that there is a lack of current and accurate information concerning the securities of Coastal Pacific Mining Corp. (“CPMCF”
It appears to the Commission that there is a lack of current and accurate information concerning the securities of Petaquilla Minerals Ltd. (“PTQMF”) (CIK No. 947121), a British Columbia corporation located in Vancouver, British Columbia, Canada with a class of securities registered with the Commission pursuant to Exchange Act Section 12(g) because it is delinquent in its periodic filings with the Commission, having not filed any periodic reports since it filed a Form 20–F for the period ended June 30, 2013. On September 30, 2015, Corporation Finance sent a delinquency letter to PTQMF requesting compliance with its periodic filing requirements but PTQMF did not receive the delinquency letter due to its failure to maintain a valid address on file with the Commission as required by Commission rules (Rule 301 of Regulation S–T, 17 CFR 232.301 and Section 5.4 of EDGAR Filer Manual). As of June 16, 2016, the common shares of PTQMF were quoted on OTC Link, had six market makers, and were eligible for the “piggyback” exception of Exchange Act Rule 15c2–11(f)(3).
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed companies. Therefore, it is ordered, pursuant to Section 12(k) of the Securities Exchange Act of 1934, that trading in the securities of the above-listed companies is suspended for the period from 9:30 a.m. EDT on June 23, 2016, through 11:59 p.m. EDT on July 7, 2016.
By the Commission.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act” or “Act”),
CHX proposes to amend the Rules of the Exchange (“CHX Rules”) to update provisions regarding the fingerprinting of securities industry personnel associated with Participants.
CHX has designated this proposed rule change as non-controversial pursuant to section 19(b)(3)(A)
The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the
The Exchange proposes to amend Article 6, Rule 10 regarding the fingerprinting of security industry personnel. Current Article 6, Rule 10 provides that each Participant and Participant Firm is responsible for ensuring compliance with section 17(f) of the Exchange Act
The CRD is the central licensing and registration system for the U.S. securities industry. The CRD system enables individuals and firms seeking registration with multiple states and self-regulatory organizations to do so by submitting a single form, fingerprint card and a combined payment of fees to FINRA. Through the CRD system, FINRA maintains the qualification, employment and disciplinary histories of registered associated persons of broker dealers.
For those Participants that are not FINRA members, the Exchange collects the appropriate Web CRD fees from such Participants on behalf of FINRA.
The Exchange proposes to eliminate the reference to “Participant Firm,” as the definition of “Participant” includes Participant Firms
Moreover, as the Exchange no longer permits Participants to submit fingerprints to the Exchange directly,
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as the proposed rule change serves to clarify that the Exchange no longer accepts fingerprint submissions from Participants, which does not implicate competitive issues.
No written comments were either solicited or received.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, the proposed rule change has become effective pursuant to section 19(b)(3)(A) of the Act
The Exchange has asked the Commission to waive the 30-day operative delay so that the proposal may become operative upon filing. The Exchange states that the proposed change cleans up provisions that should have been amended at the time the Exchange filed SR–CHX–2011–19.
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 proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
All submissions should refer to File No. SR–CHX–2016–08. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Federal Transit Administration, DOT.
Notice to solicit TRACS nominees.
The Federal Transit Administration (FTA) is seeking nominations for individuals to serve as members for two-year terms on the Transit Advisory Committee for Safety (TRACS). TRACS provides information, advice, and recommendations to the U.S. Secretary of Transportation (Secretary) and FTA Administrator in response to tasks assigned to the committee. TRACS does not exercise program management responsibilities and makes no decisions directly affecting the programs on which it provides advice. The Secretary may accept or reject a recommendation made by TRACS and is not bound to pursue any recommendation from TRACS.
FTA is asking for all Nominations to be submitted by August 31, 2016.
Adrianne Malasky, Office of Transit Safety and Oversight, Federal Transit Administration, 1200 New Jersey Avenue SE., Washington, DC 20590–0001 (telephone: 202–366–5496; or email:
On December 8, 2009, the TRACS was originally chartered by the Secretary for the purpose of providing a forum for the development, consideration, and communication of information from knowledgeable and independent perspectives regarding modes of public transit safety. The TRACS consists of members representing key constituencies affected by transit safety requirements, including transit rail and bus safety experts, research institutions, industry associations, labor unions, transit agencies, and State Safety Oversight Agencies. TRACS currently has 29 members, which is the maximum number of members.
Pursuant to the mandates at 49 U.S.C. 5329, the FTA is required to develop an implement a national public transportation safety program to improve the safety of all public transportation systems that receive Federal financial assistance under 49 U.S.C. chapter 53. Therefore, TRACS membership is configured to reflect a broad range of safety constituents representative of the public transportation industry and include key constituencies affected by safety requirements for transit rail and/or transit bus. Individuals representing labor unions, rail and bus transit agencies, paratransit service providers (both general public and Americans with Disabilities Act complementary service), State Safety Oversight Agencies, State Departments of Transportation, transit safety research organizations and the rail and bus transit safety industry are invited to apply for membership.
The TRACS meets twice a year, usually in Washington, DC, but may meet more frequently or via conference call as needed. Members serve at their own expense and receive no salary from the Federal Government. The FTA retains authority to review the participation of any TRACS member and to recommend changes at any time. TRACS meetings are open to all members of the public. Interested parties may view information about the committee at:
The FTA invites qualified individuals interested in serving on this committee to apply to FTA for appointment. FTA's Administrator will recommend nominees for appointment by the Secretary. Appointments are for two-year terms; however, the Secretary may reappoint a member to serve additional terms. Nominees should be knowledgeable of trends or issues related to rail transit and bus transit
Each nomination should include the nominee's name and organizational affiliation, a cover letter describing the nominee's qualifications and interest in serving on the committee, a curriculum vitae or resume of the nominee's qualifications, and contact information including the nominee's name, address, phone number, fax number, and email address. Self-nominations are acceptable. FTA prefers electronic submissions for all applications to
In the near-term, the FTA expects to nominate up to twenty (20) representatives from the public transportation safety community for immediate TRACS membership. Interested persons must submit their nomination applications to FTA by August 31, 2016. The Secretary, in consultation with the FTA Administrator, will make the final selection decision.
National Highway Traffic Safety Administration (NHTSA), U.S. Department of Transportation.
Request for public comment on an extension of a currently approved collection of information.
Before a Federal agency can collect certain information from the public, it must receive approval from the Office of Management and Budget (OMB). Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections.
This document describes a collection of information for which NHTSA intends to seek OMB approval.
Comments must be received on or before August 26, 2016.
You may submit comments using any of the following methods. All comments must have the applicable DOT docket number (
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Alex Ansley, Recall Management Division (NVS–215), Room W48–301, NHTSA, 1200 New Jersey Ave., Washington, DC 20590. Telephone: (202) 493–0481.
Under the Paperwork Reduction Act of 1995, before an agency submits a proposed collection of information to OMB for approval, it must first publish a document in the
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) how to enhance the quality, utility, and clarity of the information to be collected; and
(iv) how 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,
In compliance with these requirements, NHTSA asks for public comments on the following collection of information:
Pursuant to the Act, motor vehicle and motor vehicle equipment manufacturers are obligated to notify, and then provide various information and documents, to NHTSA in the event a safety defect or noncompliance with Federal Motor Vehicle Safety Standards (FMVSS) is identified in products they manufactured.
Manufacturers are also required to file with NHTSA a plan explaining how they intend to reimburse owners and purchasers who paid to have their products remedied before being notified of the safety defect or noncompliance, and explain that plan in the notifications they issue to owners and purchasers about the safety defect or noncompliance.
The Act and Part 573 also contain numerous information collection requirements specific to tire recall and remedy campaigns. These requirements relate to the proper disposal of recalled tires, including a requirement that the manufacturer conducting the tire recall submit a plan and provide specific instructions to certain persons (such as dealers and distributors) addressing that disposal, and a requirement that those persons report back to the manufacturer certain deviations from the plan.
49 U.S.C. 30166(n), and its implementing regulation found at 49 CFR 573.10, mandates that anyone who knowingly and willfully sells or leases for use on a motor vehicle a defective tire or a tire that is not compliant with FMVSS, and with actual knowledge that the tire manufacturer has notified its dealers of the defect or noncompliance as required under the Act, is required to report that sale or lease to NHTSA no more than five working days after the person to whom the tire was sold or leased takes possession of it.
Our prior estimates of the number of manufacturers each year that would be required to provide information under 49 CFR part 573, the number of recalls for which 49 CFR part 573 information collection requirements would need to be met, and the number of burden hours associated with the requirements currently covered by this information collection require adjustment as explained below.
Based on current information, we now estimate 275 distinct manufacturers filing an average of 854 Part 573 Safety Recall Reports each year. This is a change from our previous estimate of 680 Part 573 Safety Recall Reports filed by 280 manufacturers each year.
We continue to estimate that it takes a manufacturer an average of 4 hours to complete each notification report to NHTSA and that maintenance of the required owner, purchaser, dealer, and distributors lists requires 8 hours a year per manufacturer. Accordingly, the subtotal estimate of annual burden hours related to the reporting to NHTSA of a safety defect or noncompliance and maintenance of owner and purchaser lists is 5,616 hours annually ((854 notices × 4 hours/report) + (275 MFRs × 8 hours)).
In addition, we continue to estimate an additional 2 hours will be needed to add to a manufacturer's Part 573 Safety Recall Report details relating to the intended schedule for notifying its dealers and distributors, and tailoring its notifications to dealers and distributors in accordance with the requirements of 49 CFR 577.13. This would total to an estimated 1,708 hours annually (854 notices × 2 hours/report).
49 U.S.C. 30166(f) requires vehicle manufacturers to provide to the Agency copies of all communications regarding defects and noncompliances sent to owners, purchasers, and dealerships. Manufactures must index these communications by the year, make, and model of the vehicle as well as provide a concise summary of the subject of the communication. We estimate this burden requires 30 minutes for each vehicle recall. This would total to an estimated 380 hours annually (760 vehicle recalls × .5 hours).
In the event a manufacturer supplied the defect or noncompliant product to independent dealers through independent distributors, that manufacturer is required to include in its notifications to those distributors an instruction that the distributors are to then provide copies of the manufacturer's notification of the defect or noncompliance to all known distributors or retail outlets further down the distribution chain within five working days.
As for the burden linked with a manufacturer's preparation of and notification concerning its reimbursement for pre-notification remedies, we continue to estimate that preparing a plan for reimbursement takes approximately 8 hours annually, and that an additional 2 hours per year is spent tailoring the plan to particular defect and noncompliance notifications to NHTSA and adding tailored language about the plan to a particular safety recall's owner notification letters. In sum, these required activities add an
The Safety Act and 49 CFR part 573 also contain numerous information collection requirements specific to tire recall and remedy campaigns, as well as a statutory and regulatory reporting requirement that anyone who knowingly and intentionally sells or leases a defective or noncompliant tire notify NHTSA of that activity.
Manufacturers are required to include specific information related to tire disposal in the notifications they provide NHTSA concerning identification of a safety defect or noncompliance with FMVSS in their tires, as well as in the notifications they issue to their dealers or other tire outlets participating in the recall campaign.
Manufacturer owned or controlled dealers are required to notify the manufacturer and provide certain information should they deviate from the manufacturer's disposal plan. Consistent with our previous analysis, we continue to ascribe zero burden hours to this requirement since to date no such reports have been provided and our original expectation that dealers would comply with manufacturers' plans has proven true.
Accordingly, we estimate 24 burden hours a year will be spent complying with the tire recall campaign requirements found in 49 CFR 573.6(c)(9).
Additionally, because the agency has yet to receive a single report of a defective or noncompliant tire being intentionally sold or leased, our previous estimate of zero burden hours remains unchanged with this notice.
The previous clearance for this information collection allowed for start-up costs for the Agency's VIN Look-up system and a new regulation that required manufacturers to create a VIN Look-up service on their respective Web sites. As these systems were launched successfully in August 2014, the start-up estimates for costs and burden will now be removed. The estimated costs to industry for one-time infrastructure expenses to create a VIN-based recalls lookup service consisting of 108 hours, and costing a total of $45,000, will now be removed from this information collection.
Each manufacturer was also required to establish requirements, analysis, and designs for their new recalls look-up tools. These additional burdens stemmed from: The creation of the VIN search interface; database setup to host the recall information; data refresh procedures to populate recall information; server side VIN code lookup and recall status retrieval; integration with existing manufacturer Web site; and application testing. We estimated these burdens to total 1,332 hours and $130,005 and these costs will now be removed from this information collection.
We continue to believe nine vehicle manufacturers, who did not operate VIN-based recalls lookup systems prior to August 2013, incur certain recurring burdens on an annual basis. We estimate that 100 burden hours will be spent on system and database administrator support. These 100 burden hours include: Backup data management and monitoring; database management, updates, and log management; and data transfer, archiving, quality assurance, and cleanup procedures. We estimate another 100 burden hours will be incurred on web/application developer support. These burdens include: operating system and security patch management; application/web server management; and application server system and log files management. We estimate these burdens will total 1,800 hours each year (9 MFRs × 200 hours). We estimate the recurring costs of these burden hours will be $30,000 per manufacturer.
The Agency previously estimated one-time startup costs that manufacturers would assume in order to meet certain technical access requirements to provide recall information to NHTSA's Web site. We estimated that the total one-time costs to the industry from these technical access requirements would require 1,914 burden hours (27 MFRs × 72 hours) and total $189,270 (27 MFRs × $7,010) and we are now removing these costs from this information collection.
The Agency previously estimated one-time startup costs manufacturers incurred to create a VIN list for 15 years of recall information. We estimated that the total one-time costs to the industry from this VIN list creation would require 1,620 hours (27 MFRs × 60 hours). We are now removing these costs from this information collection.
Changes to 49 CFR part 573 in 2013 required 27 manufacturers to update each recalled vehicle's repair status no less than every 7 days, for 15 years from the date the VIN is known to be included in the recall. This ongoing requirement to update the status of a VIN for 15 years continues to add a recurring burden on top of the one-time burden to implement and operate these online search tools. We calculate that 8 affected motorcycle manufacturers will make recalled VINs available for an average of 2 recalls each year and 19 affected light vehicle manufacturers will make recalled VINs available for an average of 8 recalls each year. We believe it will take no more than 1 hour, and potentially much less with automated systems, to update the VIN status of vehicles that have been remedied under the manufacturer's remedy program. We continue to estimate this will require 8,736 burden hours per year (1 hour × 2 recalls × 52 weeks × 8 MFRs + 1 hour × 8 recalls × 52 weeks × 19 MFRs) to support the requirement to update the recalls completion status of each VIN in a recall at least weekly for 15 years.
As the number of Part 573 Recall Reports has increased in recent years, so has the number of quarterly reports which track the completion of safety recalls. Our previous estimate of 3,000 quarterly reports received annually is now revised up to an average of 3,800 reports annually. The quarterly reporting burden now totals 15,200 hours (3,800 quarterly reports × 4 hours/report).
NHTSA's last update to this information collection established a new online recalls portal for the submission of recall documents. We continue to estimate a small burden of 2 hours annually in order to set up a manufacturer's online recalls portal account with the pertinent contact information and maintaining/updating their account information as needed. We estimate this will require a total of 550 hours annually (2 hours × 275 MFRs).
Also updated in the last revision to this information collection, NHTSA established a requirement that manufactures change or update recall components in their Part 573 Safety
As to the requirement that manufacturers notify NHTSA in the event of a bankruptcy, we expect this notification to take an estimated 2 hours to draft and submit to NHTSA. We continue to estimate that only 10 manufacturers might submit such a notice to NHTSA each year, so we calculate the total burden at 20 hours (10 MFRs × 2 hours).
We continue to estimate that it takes manufacturers an average of 8 hours to draft their notification letters, submit them to NHTSA for review, and then finalize them for mailing to their affected owners and purchasers. We estimate that the 49 CFR part 577 requirements result in 6,832 burden hours annually (8 hours per recall × 854 recalls per year).
The estimate associated with the regulation which requires owner notifications within 60 days of filing a Part 573 Safety Recall Report remains must similarly be revised with an increase in recalls. We previously calculated that about 25 percent of past recalls did not include an owner notification mailing within 60 days of the filing of the Part 573 Safety Recall Report. However, recent trends show that only about 10 percent of recalls require an interim owner notification mailing. Under the regulation, manufacturers must send two letters in these cases: An interim notification of the defect or noncompliance within 60 days and a supplemental letter notifying owners and purchasers of the available remedy. Accordingly, we estimate that 680 burden hours are associated with this 60-day interim notification requirement (854 recalls × .10 = 85 recalls; 85 recalls times 8 hours per recall = 680 hours).
As for costs associated with notifying owners and purchasers of recalls, we continue to estimate this costs $1.50 per first class mail notification, on average. This cost estimate includes the costs of printing, mailing, as well as the costs vehicle manufacturers may pay to third-party vendors to acquire the names and addresses of the current registered owners from state and territory departments of motor vehicles. In reviewing recent recall figures, we determined that an estimated 58.4 million letters are mailed yearly totaling $87,600,000 ($1.50 per letter × 58,400,000 letters). The requirement in 49 CFR part 577 for a manufacturer to notify their affected customers within 60 days would add an additional $8,760,000 (58,400,000 letters × .10 requiring interim owner notifications = 5,840,000 letters; 5,840,000 × $1.50 = $8,760,000). In total we estimate that the current 49 CFR part 577 requirements cost manufacturers a total of $96,360,000 annually ($87,600,000 owner notification letters + $8,760,000 interim notification letters = $96,360,000).
Due to the past burdens associated with the requirement that certain vehicle manufacturers setup VIN Look-up systems for their recalled vehicles, many burden hours have been removed from this information collection as these burdens and costs have already occurred. However, given the recent increase in the number of safety recalls the Agency administers yearly and the volume of products included in those recalls, this information collection burden hour total is increased from previous estimates. The 49 CFR part 573 and 49 CFR part 577 requirements found in today's rule will require 46,965 hours each year for OMB Control Number 2127–0004, an increase of 827 burden hours. Additionally, manufacturers impacted by 49 CFR part 573 and 49 CFR part 577 requirements will incur a recurring annual cost estimated at $96,630,000 total.
In summary, we estimate that there will be a total of 275 respondents per year associated with OMB No. 2127–0004.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice; request for comments.
PHMSA is seeking public comment on a PHMSA-authored report titled: “Background for Regulating the Transportation of Carbon Dioxide in a Gaseous State,” which is available in the docket at PHMSA–2016–0049. The report evaluates existing and potential future gaseous carbon dioxide (CO2) pipelines and outlines PHMSA's approach for establishing minimum pipeline safety standards for the transportation of carbon dioxide in a gaseous state to fulfill the requirements of section 15 of the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011 (the Act). The Act requires the Secretary of Transportation to “prescribe minimum safety standards for the transportation of carbon dioxide by pipeline in a gaseous state.” PHMSA is seeking to better understand the possible effects of the regulatory scenarios presented within the report, as well as the locations and extent of gaseous carbon dioxide pipelines, and is requesting feedback on the validity and applicability of these effects and the location and extent of these pipelines. As PHMSA does not currently regulate these pipelines, its ability to reach out and locate operators of gaseous carbon dioxide pipelines has been limited and it is unclear if PHMSA's current information is comprehensive.
The public comment period for this notice ends July 27, 2016.
You may submit comments identified by the Docket ID PHMSA–2016–0049 by any of the following methods:
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Comments will be posted without changes or edits to
Kenneth Lee, Director, Engineering and Research Division, at 202–366–2694 or
Section 15 of the Act requires the Secretary of Transportation to “prescribe minimum safety standards for the transportation of carbon dioxide by pipeline in a gaseous phase.”
The Act requires that in “establishing the standards, the Secretary shall consider whether applying the minimum safety standards in part 195 of title 49, Code of Federal Regulations, as in effect on the date of enactment of this paragraph, for the transportation of carbon dioxide in a liquid state to the transportation of carbon dioxide in a gaseous state would ensure safety.” Further, the Act limited this authority, stating: “Nothing in this subsection authorizes the Secretary to regulate piping or equipment used in the production, extraction, recovery, lifting, stabilization, separation, or treatment of carbon dioxide or the preparation of carbon dioxide for transportation by pipeline at production, refining, or manufacturing facilities.”
After carefully reviewing the available information with regard to gaseous carbon dioxide pipelines, PHMSA has been unable to identify specific gaseous carbon dioxide pipelines or pipeline operators that would potentially be subject to future regulation per section 15 of the Act. For instance, in PHMSA's aforementioned report, a 78-mile, low-pressure gaseous carbon dioxide pipeline was identified as being located within a gas gathering field. In that instance, the applicability of future regulations could be unclear. PHMSA's report outlines much of the information gathered and available to PHMSA, which appears to support the likelihood that a majority of the carbon dioxide transported over distances would be in the supercritical fluid state, thereby subjecting these lines to the existing part 195 regulations, where applicable.
PHMSA is seeking public comment to better understand the possible effects of the regulatory scenarios presented within the report, information considered within the report, conclusions that could be drawn from the report, information missing from the report, and to better understand the locations and extent of gaseous carbon dioxide pipelines (whether existing or planned). Since PHMSA does not currently regulate these pipelines, its ability to reach out and locate potentially affected operators has been limited. PHMSA welcomes views and updates on the necessity for and approach to regulations for gaseous carbon dioxide pipelines per section 15 of the Act. Some areas of interest include:
1. Comments and suggestions with respect to the information included within the report, including comments on gaseous carbon dioxide pipelines and their regulation in general, as well as any conclusions readers can draw from the information presented.
2. Identifying gaseous carbon dioxide pipelines or pipeline operators not already identified in the report that would potentially be subject to regulation if they are regulated as outlined in the report per the requirements of section 15 of the Act. Include details, if available, such as pipeline location and length.
3. Identifying and discussing likely locations for the future construction of gaseous carbon dioxide pipelines not already discussed in the report that would potentially be subject to regulation if regulated as outlined in the report per the requirements of section 15 of the Act.
4. Comments on the two potential options for regulating gaseous carbon dioxide outlined in the report. These options would:
• Regulate the transport of gaseous CO2 entirely under part 192, or
• Regulate the transport under part 192, where appropriate, with reference to applicable sections of part 195.
If a particular regulatory approach is more appropriate or preferable, please provide supporting examples and reasons why. If against either approach, please provide supporting examples and reasons for being against the approach.
5. The report identifies industry projections for carbon dioxide pipeline need and growth. Please discuss whether these projections are consistent and accurate with current data. If they have changed, please discuss how they have changed.
6. Please comment on any technical standards addressing gaseous carbon dioxide pipelines that PHMSA could consider incorporating into any potential regulations.
7. If PHMSA pursues one of the regulatory scenarios presented within the report, and as stated in Area #4 above, would a simpler approach be adequate and responsible at this time? Could PHMSA make a change to the scope of part 192 to include gaseous carbon dioxide without any further technical differentiations within the regulations or without referencing the regulations for carbon dioxide in the supercritical state per existing part 195 regulations?
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, PHMSA invites comments on an information collection pertaining to hazardous materials transportation for which PHMSA intends to request renewal from the Office of Management and Budget (OMB).
Interested persons are invited to submit comments on or before August 26, 2016.
You may submit comments identified by the docket number (PHMSA–2016–0066) by any of the following methods:
• Federal eRulemaking Portal: Go to
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Requests for a copy of an information collection should be directed to Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division (PHH–12), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., East Building, 2nd Floor, Washington, DC 20590–0001, Telephone (202) 366–8553.
Steven Andrews or T. Glenn Foster, Standards and Rulemaking Division (PHH–12), Pipeline and Hazardous Materials Safety Administration, 1200 New Jersey Avenue SE., East Building, 2nd Floor, Washington, DC 20590–0001, Telephone (202) 366–8553.
Section 1320.8(d), title 5, Code of Federal Regulations requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies an information collection request that PHMSA will be submitting to OMB for renewal and extension. This information collection is contained in 49 CFR 171.6 of the Hazardous Materials Regulations (HMR; 49 CFR parts 171–180). PHMSA has revised burden estimates, where appropriate, to reflect current reporting levels or adjustments based on changes in proposed or final rules published since the information collection was last approved. The following information is provided for the information collection: (1) Title of the information collection, including former title if a change is being made; (2) OMB control number; (3) summary of the information collection activity; (4) description of affected public; (5) estimate of total annual reporting and recordkeeping burden; and (6) frequency of collection. PHMSA will request a three-year term of approval for the information collection activity and, when approved by OMB, publish a notice of the approval in the
PHMSA requests comments on the following information collection:
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act, 5 U.S.C. App. 2, that the Health Services Research and Development Service Scientific Merit Review Board will conduct in-person and teleconference meetings of its seven Health Services Research (HSR) subcommittees on the dates below from 8:00 a.m. to approximately 5:00 p.m. (unless otherwise listed) at the Hilton Crystal City, 2399 Jefferson Davis Highway, Crystal City, VA 22202 (unless otherwise listed):
• HSR 1—Health Care and Clinical Management on August 23–24, 2016;
• HSR 2—Behavioral, Social, and Cultural Determinants of Health and Care on August 23–24, 2016;
• HSR 3—Healthcare Informatics on August 24–25, 2016;
• HSR 4—Mental and Behavioral Health on August 23–24, 2016;
• HSR 5—Health Care System Organization and Delivery on August 24–25, 2016;
• HSR 6—Post-Acute and Long-term Care on August 23, 2016;
• HSR 8—Randomized Program Evaluations from 8:00 a.m. to 12:00 p.m. on August 25, 2016; HSR 0—Precision Mental Health from 1:00 p.m. to 5:00 p.m. on August 25, 2016;
• CDA—Career Development Award Meeting on August 25–26, 2016; and
• NRI—Nursing Research Initiative from 1:00 p.m. to 5:00 p.m. on August 26, 2016.
** This notice is amended to reflect changes in one or more of the meetings (i.e. date, time, etc.).
The purpose of the Board is to review health services research and development applications involving: the measurement and evaluation of health care services; the testing of new methods of health care delivery and management; and nursing research. Applications are reviewed for scientific and technical merit, mission relevance, and the protection of human and animal subjects. Recommendations regarding funding are submitted to the Chief Research and Development Officer.
Each subcommittee meeting of the Board will be open to the public the first day for approximately one half-hour at the start of the meeting on August 23 (HSR 6), August 23–24 (HSR 1, 2, 4), August 24–25 (HSR 3, 5), August 25 (HSR 0, 6, 8), August 25–26 (CDA), and August 26 (NRI) to cover administrative matters and to discuss the general status of the program. Members of the public who wish to attend the open portion of the subcommittee meetings may dial 1–800–767–1750, participant code 10443#.
The remaining portion of each subcommittee meeting will be closed for the discussion, examination, reference to, and oral review of the intramural research proposals and critiques. During the closed portion of each subcommittee meeting, discussion and recommendations will include qualifications of the personnel conducting the studies (the disclosure of which would constitute a clearly unwarranted invasion of personal privacy), as well as research information (the premature disclosure of which would likely compromise significantly the implementation of proposed agency action regarding such research projects). As provided by subsection 10(d) of Public Law 92–463, as amended by Public Law 94–409, closing the meeting
No oral or written comments will be accepted from the public for either portion of the meetings. Those who plan to participate during the open portion of a subcommittee meeting should contact Ms. Liza Catucci, Administrative Officer, Department of Veterans Affairs, Health Services Research and Development Service (10P9H), 810 Vermont Avenue NW., Washington, DC, 20420, or by email at
Securities and Exchange Commission.
Proposed rule.
We are proposing revisions to the property disclosure requirements for mining registrants, and related guidance, currently set forth in Item 102 of Regulation S–K under the Securities Act of 1933 and the Securities Exchange Act of 1934 and in Industry Guide 7. The proposed revisions are intended to provide investors with a more comprehensive understanding of a registrant's mining properties, which should help them make more informed investment decisions. The proposed revisions would also modernize the Commission's disclosure requirements and policies for mining properties by aligning them with current industry and global regulatory practices and standards. In addition, we are proposing to rescind Industry Guide 7 and include the Commission's mining property disclosure requirements in a new subpart of Regulation S–K.
Comments should be received on or before August 26, 2016.
Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an Email to
• Use the Federal eRulemaking Portal (
• Send paper comments to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Studies, memoranda or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the SEC's Web site. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Elliot Staffin, Special Counsel, in the Division of Corporation Finance, at (202) 551–3450, or Dr. Kwame Awuah-Offei, Academic Mining Engineering Fellow, in the Division of Corporation Finance, at (202) 551–3790, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
We are proposing to rescind Industry Guide 7
The Commission's disclosure requirements and related guidance for properties owned or operated by mining companies are contained in Item 102 of Regulation S–K and Industry Guide 7. Item 102 sets forth the basic disclosure requirements for a registrant's “principal” mines that are “materially
Guide 7 sets forth the views of the staff of the Division of Corporation Finance on how mining company registrants can comply with the Commission's description of property disclosure requirements applicable to registrants.
Under both Item 102 and the Guide, a registrant may not disclose estimates for non-reserve deposits, such as mineral resources,
Guide 7 has not been updated for more than 30 years.
Over the years, as part of its filing review and comment process, the staff has provided supplemental guidance, including requesting clarifications or additional disclosure, to assist registrants in providing the appropriate disclosure about their mining operations and properties. For example, in contrast to the practice under the CRIRSCO standards, the staff historically has requested that a registrant obtain a specific type of feasibility study (
Because of the widespread adoption of the CRIRSCO standards, industry participants have requested revisions to Guide 7.
In light of these global developments and industry participants' concerns, we are proposing to modernize our disclosure rules for properties owned or operated by mining companies by more closely aligning those rules with the CRIRSCO-based codes in several respects. For example, the proposed rules would require a registrant with material mining operations to disclose, in addition to its mineral reserves, mineral resources that have been determined based upon information and supporting documentation by one or more qualified persons. Industry participants assert that such an alignment should help place U.S. mining registrants on a more level playing field with non-U.S. mining companies that are subject to one or more of the CRIRSCO-based mining codes.
As noted above, the Commission's current mining disclosure regime involves overlapping disclosure requirements and policies in different locations (Regulation S–K and Guide 7), with an instruction (Instruction 7 to Item 102) that registrants engaged in significant mining operations should “direct their attention” to Guide 7. The combination of the overlapping structure of the disclosure regime for mining registrants and the brevity of Guide 7 (which has led to a significant amount of staff interpretive guidance through the comment process) may have created some regulatory uncertainty among mining registrants, particularly new registrants.
To help address this uncertainty, we propose to rescind Guide 7 and create new Regulation S–K subpart 1300
Foreign private issuers that use Form 20–F to file their Exchange Act registration statements and annual reports, or that refer to Form 20–F when filing their Securities Act registration statements on Forms F–1 and F–4, are generally not subject to Regulation S–K. Because we believe that the same property disclosure requirements should apply to both domestic and foreign mining registrants, the proposed rules would amend Form 20–F to instruct registrants to refer to, and if required, provide the disclosure under subpart 1300 of Regulation S–K.
Having one source for mining disclosure obligations should facilitate mining registrants' compliance with their disclosure requirements by eliminating the complexity resulting from the existing structure of Commission disclosure obligations in Regulation S–K and staff disclosure guidance in Industry Guide 7. Moreover, consolidating the disclosure requirements from Guide 7 into Regulation S–K would eliminate any uncertainty about their authority.
1. The Commission's current mining disclosure regime consists of disclosure requirements located in Item 102 of Regulation S–K and disclosure policies located in Guide 7. Has this disclosure regime caused uncertainty for mining registrants? If so, would establishing a sole regulatory source for mining disclosure by rescinding Guide 7 and including the disclosure requirements for mining registrants in a new Regulation S–K subpart, as proposed, reduce this uncertainty?
2. Should we amend Item 102 of Regulation S–K by eliminating the instruction that refers mining registrants to the information called for in Guide 7 and instead instruct them to refer to, and if required, provide the disclosure under new Regulation S–K subpart 1300, as proposed? Should we instead retain Guide 7 and Item 102 of Regulation S–K as separate sources for mining disclosures? If so, how should they apply to registrants?
Under Item 102 of Regulation S–K, registrants are required to disclose principal mines, other materially important physical properties, and significant mining operations. Guide 7 only applies to registrants engaged or to be engaged in significant mining operations. When construed together, Item 102 and Guide 7 suggest that there are two levels of reporting under the Commission's current mining disclosure regime. For registrants that have one or
Guide 7 does not define “significant” mining operations while Item 102 does not specify the particular quantitative factors to be considered in determining the materiality of a mine. In the absence of specific guidance, the staff has historically used 10% of a registrant's total assets as the benchmark for determining the materiality of a registrant's mining operations.
We propose that a registrant be required to provide the disclosure under new subpart 1300 of Regulation S–K if its mining operations, as that term is defined in Instruction 1 to proposed Item 1301(b),
Under proposed new subpart 1300, when determining the materiality of its mining operations, a registrant would have to:
• Consider both quantitative and qualitative factors, assessed in the context of the registrant's overall business and financial condition;
• aggregate mining operations on all of its mining properties, regardless of size or type of commodity produced, including coal, metalliferous minerals, industrial materials, geothermal energy, and mineral brines;
• include, for each property, as applicable, all related mining operations from exploration through extraction to the first point of material external sale, including processing, transportation, and warehousing.
Consistent with current staff guidance, we are proposing to define “mining operations” to include all related activities from exploration through extraction to the first point of material external sale.
Proposed new subpart 1300 would instruct that a registrant's mining operations are presumed to be material if its mining assets constitute 10% or more of its total assets.
The proposed new subpart would further instruct that if a registrant's mining assets fall below the 10% total assets threshold, it would need to consider if there are other factors, quantitative or qualitative, which would render its mining operations material.
• Mining operations that constitute 10% or more of some other financial measure, such as the registrant's total revenues, net income or operating income;
• evidence that disclosure of a similar property or properties has had a significant impact on the price of a registrant's securities;
• public disclosure by the registrant discussing the importance to its operations (
• the unique or rare nature of the particular mineral or the importance of the mineral to the registrant's operations;
• the actual and projected expenditures on the registrant's mining properties as compared to its expenditures on non-mining business activities; and
• the amount of capital raised or planned to be raised by the registrant for its mining properties.
The proposed standard is generally consistent with the existing disclosure
Finally, because the proposed standard is generally consistent with the disclosure standard under the CRIRSCO-based mining codes, it should not alter the disclosure practices of the numerous mining companies that are listed and operate in multiple jurisdictions.
3. Should the disclosure standard under the revised mining disclosure rules be whether a registrant's mining operations are material to its business or financial condition, as proposed? Why or why not? If not, what standard should we adopt for determining whether a registrant must provide the mining disclosure under the revised rules? Why?
4. Are the quantitative and qualitative factors described in this section relevant to the determination of the materiality of a registrant's mining operations? Why or why not? Are there other factors, such as those identified in Canada's Companion Policy 43–101CP to National Instrument 43–101, General Guidance, that a registrant should consider for the materiality determination instead of or in addition to the factors described in this section? Should we include these or other factors as part of the rule provision governing the materiality determination? If so, which factors should we include in the rule?
5. Should we adopt the proposed presumption that a registrant's mining operations are material if they consist of 10% or more of its total assets? Would a percentage higher or lower than 10% be better than the proposed threshold? Why or why not? Should it be a presumption, as proposed, or should it be a bright line requirement? If the former, how might the presumption be rebutted? Is there another quantitative factor, such as revenues, that a registrant should consider instead of or in addition to the proposed asset test?
6. When assessing the materiality of its mining operations, should we require a registrant to aggregate all of its mining properties, regardless of size or type of commodity produced, including coal, metalliferous minerals, industrial materials, geothermal energy, and mineral brines,
7. When assessing the materiality of its mining operations, should we require a registrant to include, for each property, as applicable, all related activities from exploration through extraction to the first point of material external sale, including processing, transportation, and warehousing, as proposed? Why or why not? Is “the first point of material external sale” the appropriate cut-off or should we use some other measure? Are there certain activities that we should exclude from the materiality determination, even if they occur before the first point of material external sale? If so, which activities, for which minerals or companies, and why? Are there certain activities after the point of first material external sale that we should include? If so, which activities, for which minerals or companies, and why?
8. Are there specific qualitative or quantitative factors relating to the environmental or social impacts of a registrant's properties or operations that a registrant should consider in making its materiality determination?
Some companies have material mining operations that are secondary to or in support of their main non-mining business. For example, a metal manufacturer may operate iron ore or coal mines to supply raw material for its primary business. Neither Guide 7 nor Item 102 addresses whether or when a vertically-integrated manufacturer
Proposed new subpart 1300 would apply to all registrants with mining operations, including vertically-integrated manufacturers. Specifically, a mining operation owned by a registrant to support its primary business could be material and require disclosure. The fact that the registrant's primary business operation is something other than minerals extraction would not be determinative of whether disclosure would be required under the proposed subpart.
For example, the bauxite mining operations of an aluminum manufacturer, whose primary business is manufacturing, not mining, could be material and require disclosure if its bauxite operations represent ten percent or more of the registrant's assets, even though they are not the registrant's primary operations, or the primary source of the registrant's revenues. In addition, even if the bauxite or other mining operations of such a vertically-integrated manufacturer constitute less than ten percent of its total assets, its mining operations could still be material and trigger disclosure obligations if, for example, the manufacturer derives a competitive advantage from, or substantially relies upon, its ability to source that particular mineral from its mining operations.
Requiring disclosure of mining operations in such circumstances would be consistent with the disclosure currently provided in SEC filings and should not significantly alter existing disclosure practices. In addition, subjecting vertically-integrated companies to the proposed rules would align the disclosure requirements for such companies with those of companies primarily engaged in mining activities. Also, we note that most of the foreign jurisdictions that have CRIRSCO-based rules require disclosure for material mining properties and provide no exemptions for vertically-integrated companies.
9. Should we require vertically-integrated companies, such as manufacturers, to provide the disclosure required under new Regulation S–K subpart 1300, as proposed? Why or why not?
As discussed above, the primary focus of the current rules and guidance is on individually significant or material properties. It is, however, very common for registrants to own multiple mining properties. In some instances, the registrant will have multiple properties that all involve exploration, development or extraction of the same mineral. In other situations, the registrant's operations will primarily involve exploration, development or extraction of one mineral from several properties, but the registrant also will own one or more ancillary properties where it explores, develops or extracts small amounts (relative to the predominant mineral) of a different mineral. Neither Item 102 nor Guide 7 provides guidance concerning when or what disclosure is required in these situations. To address this, the staff has provided interpretive guidance about what, if any, disclosure is required by multiple or ancillary property owners.
Under the proposed rules, a registrant with multiple properties would be required to consider all of its mining properties individually and in the aggregate, regardless of size or commodity produced, when assessing whether it must provide the mining disclosure required by new subpart 1300 of Regulation S–K.
Under the proposed rules, a registrant could be required to provide disclosure for a particular property, depending on the facts and circumstances, even if ancillary to the registrant's predominant commodity. For example, a property on which a registrant explores, develops or extracts a relatively small amount of a particular mineral, compared to its predominant mineral, could be material based upon the amount of actual and projected expenditures on the property as compared to its expenditures on other properties.
We believe the proposed rules would provide a clear and consistent standard for registrants to apply in determining the scope of their disclosure obligations, while helping to ensure that investors receive relevant information about the operations and risks associated with registrants' mining operations.
10. Should we require a registrant with multiple properties to provide the disclosure required by proposed Regulation S–K subpart 1300, as proposed? Why or why not? Should we require a registrant with multiple properties, none of which is individually material, but which in the aggregate constitute material mining operations, to provide only summary disclosure concerning its combined mining activities, as proposed? Why or why not?
11. Are there difficulties that a registrant with multiple properties could face when determining if disclosure is required under the proposed rules? If so, how should our mining disclosure rules address such difficulties?
12. Should we require more detailed disclosure about individual properties that are material to a registrant's mining operations, as proposed? Why or why not?
Some registrants are royalty companies, which are companies that do not own or operate a property, but rather own the right to receive payments, called a royalty right, from the owner or operator of a property.
Under the proposed rules, consistent with prior staff guidance, a royalty company or other registrant that holds a similar economic interest would have to provide all applicable mining disclosure if the mining operations that generate the royalty or other payment (the underlying mining operations) are material to the royalty or similar company's operations as a whole. Similar to a producing mining company (that owns or operates properties), a royalty or similar company would have to assess both quantitative and qualitative factors to determine whether the underlying mining operations are material.
Investors in royalty and other similar companies need information about the material mining properties that generate the payments to the registrant, including mineral reserves and production, to be able to assess the amounts, soundness and sustainability of future payments. For the royalty or similar company and its investors, the mining property underlying the royalty or similar payments is the primary or only source of revenues and cash flow. As such, we believe royalty companies and other companies holding similar economic interests should provide the same type and amount of disclosure as registrants with mining operations.
The proposed rules would require a royalty or similar company to provide disclosure only for those underlying properties, or portions of underlying properties, that generate the registrant's royalties or similar payments, and only for the reserves and production that generated its payments in the reporting period.
A royalty or similar company would need to describe the material properties that generate its royalties or similar payments and file a technical report summary for each such property.
13. Should we require a royalty company, or a company holding a similar economic interest in another company's mining operations, to provide all applicable mining disclosure if the underlying mining operations are material to its operations as a whole, as proposed? Why or why not? Should disclosure for such companies be required under other circumstances?
14. Should we permit a royalty company, or other similar company holding an economic interest in another company's mining operations, to provide only the required disclosure for the reserves and production that generated its royalty payments, or other similar payments, in the reporting period, as proposed? Why or why not? If not, what additional disclosure should be required by such registrants?
15. Should we require a royalty company, or other similar company holding an economic interest in another company's mining operations, to describe its material properties and file a technical report summary for each such property, as proposed? Should we allow a royalty or other similar company to satisfy the technical report summary requirement by incorporating by reference a current technical report summary filed by the producing mining registrant for the underlying property, as proposed? Are there circumstances (
Guide 7 defines the stages used to describe mining operations, “exploration stage,” “development stage,” and “production stage,” as follows:
• Exploration Stage—includes all registrants engaged in the search for mineral deposits (reserves) which are not in either the development or production stage.
• Development Stage—includes all registrants engaged in the preparation of a determined commercially minable deposit (reserves) for its extraction which are not in the production stage.
• Production Stage—includes all registrants engaged in the exploitation of a mineral deposit (reserve).
Guide 7 applies these definitions to the registrant as a whole, however, and not on a property-by-property basis. As such, Guide 7 does not provide guidance as to when and how the definitions of exploration, development and production stage apply to registrants that own properties in different stages. To address this ambiguity and to help ensure that investors receive disclosure that accurately reflects a registrant's operational status, we are proposing to revise the Guide 7 definitions of exploration, development and production stage so that the definitions apply to individual properties, as follows:
• An exploration stage property is a property that has no mineral reserves disclosed;
• a development stage property is a property that has mineral reserves disclosed, but with no material extraction;
• a production stage property is a property with material extraction of mineral reserves.
We also are proposing to revise the Guide 7 definitions as they apply to issuers in order to recognize that issuers may have properties in differing stages, as follows:
• an exploration stage issuer is one that has no material property with mineral reserves;
• a development stage issuer is one that is engaged in the preparation of mineral reserves for extraction on at least one material property;
• a production stage issuer is one that is engaged in material extraction of mineral reserves on at least one material property.
Finally, we propose to specify that a registrant that does not have reserves on any of its properties, even if it has mineral resources or exploration results, or even if it is engaged in extraction without first disclosing mineral reserves,
We believe that these proposed changes would resolve the ambiguities in the Guide 7 definitions. They also would be consistent with prior staff guidance, which should minimize changes in disclosure practices for registrants and their investors. Under the proposed definitions, a registrant would be able to characterize its properties separately, but would be limited in when and how it can characterize its operational stage. Specifically, it would not be able to characterize itself as a development stage registrant unless it is engaged in the preparation of mineral reserves for extraction on at least one material property. We believe this would benefit investors by providing them with clearer, more accurate and consistent disclosure about the type of company and level of risk involved. In particular, prohibiting a registrant without any
Further, providing definitions that apply to specific properties would align the disclosure requirements with current accounting practices under U.S. GAAP and International Financial Reporting Standards (IFRS) as issued by the International Accounting Standards Board (IASB).
16. Should we define “exploration stage property,” “development stage property” and “production stage property,” as proposed? Why or why not? Would these definitions facilitate compliance by registrants with properties in more than one stage of operation?
17. Should we also revise the definitions of “exploration stage issuer,” “development stage issuer” and “production stage issuer,” as proposed? Why or why not? Should the definition of “development stage issuer” and “production stage issuer” depend on having “at least one material property”, as proposed? Should we instead base the definitions on consideration of the characteristics of all mining properties? For example, if a registrant has a single development-stage material property that constitutes 10% of its mining assets, with the remainder of the mining assets all constituting exploration stage properties, should the registrant be able to identify itself as a development stage issuer?
18. Would the two proposed sets of definitions appropriately classify the particular stage of a registrant's mining operations? Should the definitions be property-based and dependent on whether mineral resources or reserves have been disclosed, are being prepared for extraction, or are being extracted, as applicable, on one or more material properties? Would having two proposed sets of definitions create unnecessary complexity or investor confusion?
19. Should the proposed rules specify that a registrant that does not have mineral reserves on any of its properties, even if it has mineral resources or exploration results, or even if it is engaged in extraction without first disclosing mineral reserves, cannot characterize itself as a development or production stage company, as proposed? Why or why not?
All of the CRIRSCO-based codes require that any public report about a company's exploration results, mineral resources and mineral reserves be based on and fairly reflect information and supporting documentation prepared by a “competent” or “qualified person.”
We are proposing that every disclosure of mineral resources, mineral reserves and material exploration results reported in a registrant's filed registration statements and reports must be based on, and accurately reflect information and supporting documentation prepared by, a “qualified person,”
• Be responsible for determining that the person meets the qualifications specified under the new subpart's definition of “qualified person” and that the disclosure in the filing accurately reflects the information provided by the qualified person;
• obtain a dated and signed technical report summary from the qualified person, which identifies and summarizes for each material property the information reviewed and conclusions reached by the qualified person about the registrant's exploration results, mineral resources or mineral reserves;
• file the technical report summary with respect to every material mining property as an exhibit to the relevant registration statement or other Commission filing when the registrant is disclosing for the first time mineral reserves, mineral resources or material exploration results or when there is a material change in the mineral reserves, mineral resources or exploration results
• obtain the written consent of the qualified person to the use of the qualified person's name and any quotation or other use of the technical report summary in the registration statement or report prior to filing the document publicly with the Commission;
• identify the qualified person who prepared the technical report summary in the filed registration statement or report;
• state whether the qualified person is an employee of the registrant, and if the qualified person is not an employee of the registrant:
○ Name the qualified person's employer;
○ disclose whether the qualified person or the qualified person's employer is an affiliate
○ if the qualified person or the qualified person's employer is an affiliate, disclose the nature of the affiliation.
If the filing that requires the technical report summary is a Securities Act registration statement, the qualified person would be deemed an “expert” who must provide his or her written consent as an exhibit to the filing pursuant to Securities Act Rule 436.
The Securities Act and the Exchange Act each provide that the registration statements and periodic reports required under those statutes shall contain such information and documents as the Commission may require, as necessary or appropriate in the public interest and for the protection of investors.
First, this requirement could make the determination and reporting of material exploration results or estimates of mineral resources and reserves more reliable.
We propose to require the registrant to file the technical report summary as an exhibit (rather than in the body of the annual report or registration statement) in order to separate the underlying scientific and technical information in the technical report summary from the narrative disclosure concerning the registrant's operations.
The proposed requirement to obtain a signed and dated technical report summary would help establish the authenticity and relevance of the technical report summary. The proposed requirement to obtain the written consent of the qualified person to use his or her name and any quotation or other use of the technical report summary would help ensure that such information is not included in an SEC filing without the qualified person's actual knowledge. In addition, requiring the registrant to file the qualified person's written consent is consistent with the Commission's approach to the use of an expert's report in Securities Act filings
The proposed requirement that a registrant identify the qualified person that prepared the technical report summary and, if the qualified person is not an employee of the registrant, disclose whether the qualified person or the qualified person's employer is an affiliate would provide investors with relevant information to assess the reliability of the disclosure and align the Commission's mining rules with most of the CRIRSCO-based codes, which impose a similar identification requirement.
We are not proposing that a qualified person must be independent from the registrant for several reasons. First, we believe that our approach would help to limit the compliance burdens on registrants. Second, we believe that other aspects of the recommended proposals, such as disclosure of the qualified person's credentials and his or her affiliated status with the registrant or another entity having an ownership or similar interest in the subject property, along with the application of potential expert liability in Securities Act filings, should provide adequate safeguards for investors. Finally, as discussed above, our approach is consistent with most of the CRIRSCO-based codes,
20. Should we require, as proposed, that the determination of mineral resources, mineral reserves and material exploration results, as reported in a registrant's filed registration statements and reports, be based on and accurately reflect information and supporting documentation prepared by a qualified person? Why or why not? Would imposing a qualified person requirement help mitigate the risks associated with including disclosure about a registrant's mineral resources and exploration results in SEC filings, given that mineral resources and exploration results reflect a lower level of certainty about the economic value of mining properties? Why or why not?
21. Should the registrant be responsible for determining that the qualified person meets the qualifications specified under the new subpart's definition of “qualified person” as proposed? Why or why not? If not the registrant, who should be responsible for this determination?
22. Should we, as proposed, require a registrant to obtain a technical report summary from the qualified person, which identifies and summarizes the information reviewed and conclusions reached by the qualified person about the registrant's exploration results, mineral resources or mineral reserves, before it can disclose those results, resources or reserves in SEC filings? Why or why not? Should we instead require a registrant to obtain an unabridged technical report, rather than a technical report summary, before it can disclose exploration results, mineral resources or mineral reserves in SEC filings? Should we require the technical report summary to be dated and signed, as proposed? Why or why not?
23. If we require, as proposed, that a registrant obtain a technical report summary from the qualified person, should we also, as proposed, require that the registrant file the technical report summary as an exhibit to the relevant registrant statement or other Commission filing when one is required? Why or why not?
24. Should we require, as proposed, a registrant to file the technical report summary when the registrant is disclosing mineral reserves, mineral resources or material exploration results for the first time or when there is a material change in the mineral reserves, mineral resources or exploration results from the last technical report filed for the property? Why or why not? Should we instead require a registrant to file the technical report summary more frequently, such as with every Commission filing, or less frequently?
25. Should we require, as proposed, a registrant to obtain the written consent of the qualified person to the use of the qualified person's name and any quotation or other use of the technical report summary in the registration statement or report prior to filing the document publicly with the Commission? Why or why not?
26. Should we require that a registrant identify the qualified person that prepared the technical report summary and disclose whether the qualified person is an employee, as proposed? Why or why not? Should we also require a registrant to name the qualified person's employer if other than the registrant, and disclose whether the qualified person or the qualified person's employer is an affiliate of the registrant or another issuer that has an ownership, royalty or other interest in the property that is the subject of the technical report summary, as proposed? Why or why not?
27. Should we require a registrant to state whether the qualified person is independent of the registrant? Why or why not? If we were to require the registrant to state whether the qualified person is independent of the registrant, should we define “independent” for purposes of that requirement? If so, how? For example, should we base the definition of independence on comparable provisions under Canada's NI 43–101?
28. Should we require that a registrant's disclosure of exploration results, mineral resources or mineral reserves in a SEC filing be based on the determination of a qualified person that is independent of the registrant? If so, should we impose such a requirement only under certain circumstances, such as when the filing discloses resources or reserves by the registrant for the first time; a material change in previously disclosed resources or reserves that has occurred or is likely to occur; or a 100% or greater change in the total mineral
29. Alternatively, rather than requiring the qualified person to be independent, should we require, when the qualified person is affiliated with the registrant or another entity having an ownership or similar interest in the property, that a person independent of the registrant and qualified person review the qualified person's work? If so, what qualifications should the independent reviewer possess? If we require an independent review when the qualified person is affiliated with the registrant, should the review be for all disclosures of mineral resources, mineral reserves and material exploration results, or only those that are related to material properties? Should this review be required only in certain circumstances, such as when the filing discloses resources or reserves by the registrant for the first time; a material change in previously disclosed resources or reserves that has occurred or is likely to occur; or a 100% or greater change in the total mineral resources or reserves on a material property, when compared to the last disclosure? Should we instead adopt an independent review requirement for the work of an affiliated qualified person in all circumstances? In each case, why or why not?
30. Should we require the registrant to disclose any material conflicts of interest that could reasonably affect the judgment or decision making of the qualified person, such as material ongoing business relationships between the registrant and the qualified person or the qualified person's employer?
31. Would the proposed technical report summary filing requirement impose a significant burden on registrants? If so, which registrants and why? Are there changes that we could make to this proposed requirement to alleviate any such burden?
We are proposing to define a “qualified person” as a person who is a mineral industry professional with at least five years of relevant experience in the type of mineralization and type of deposit under consideration and in the specific type of activity that person is undertaking on behalf of the registrant. In addition, in order to be a qualified person, a person must be an eligible member or licensee in good standing of a recognized professional organization at the time the technical report is prepared.
For an organization to be a “recognized professional organization,” it must be either recognized within the mining industry as a reputable professional association,
• Admit eligible members primarily on the basis of their academic qualifications and experience;
• establish and require compliance with professional standards of competence and ethics;
• require or encourage continuing professional development;
• have and apply disciplinary powers, including the power to suspend or expel a member regardless of where the member practices or resides; and
• provide a public list of members in good standing.
This proposed definition is similar to the definition of competent or qualified person under the CRIRSCO-based codes.
In contrast, our proposed definition is more flexible while still providing assurance that the qualified person has the appropriate level of professional expertise to support disclosure of exploration results, mineral resources, or mineral reserves. Although this flexible approach would require registrants to exercise some judgment as to the qualified person's credentials, we believe it is a better option than requiring the person to be a member of one of several specifically identified organizations, as is the case under most of the CRIRSCO-based codes. Although the “approved organization” approach may be initially easier to apply, it could also become outdated as circumstances change. This could adversely impact the quality of disclosure. In contrast, our principles-based approach would provide flexibility to allow for ease of compliance and protection of investors.
As discussed above, an organization that is recognized “within the mining industry as a reputable professional association,” can be, if all the other conditions are satisfied, a “recognized professional organization.” We are not, however, proposing any specific factors that would indicate that a professional association is reputable. We are instead seeking comment on what factors we should consider, and whether such factors should be incorporated into the final rules. Examples could include the frequency and quality of an association's peer-reviewed publications, the number and global distribution of its members, and whether and to what extent the association publishes guides or standards that are accepted and used in the industry.
Regarding the minimum experience requirement, we believe five years would be an appropriate time frame to use for purposes of the definition of a qualified person. It ensures a prolonged period of professional experience without unduly restricting the pool of qualified experts. Furthermore, it is an accepted industry standard found in the corresponding definitions under the CRIRSCO-based codes.
To assist registrants in applying the “qualified person” definition, we are also proposing detailed instructions to the definition of “qualified person.”
Pursuant to the proposed instructions, a qualified person must also have relevant experience in evaluating the specific type of mineral deposit under consideration (
The proposed instructions would further state that it is not always necessary for a person to have five years' experience in each and every type of deposit in order to be an eligible qualified person if that person has relevant experience in similar deposit types. For example, a person with 20 years' experience in estimating mineral resources for a variety of metalliferous hard-rock deposit types may not require as much as five years of specific experience in porphyry-copper deposits to act as a qualified person. Relevant experience in the other deposit types could count towards the experience in relation to porphyry-copper deposits.
In addition to experience in the specific type of mineralization, if the qualified person is engaged in evaluating exploration results or preparing mineral resource estimates, the proposed instructions would require the qualified person to have sufficient experience with the sampling and analytical techniques, as well as extraction and processing techniques, relevant to the mineral deposit under consideration. As proposed, sufficient experience would mean that level of experience necessary to be able to identify, with substantial confidence, problems that could affect the reliability of data and issues associated with processing.
For a qualified person applying the modifying factors to convert mineral resources to mineral reserves, the proposed instructions would require that the person must have both sufficient knowledge and experience in the application of these factors to the mineral deposit under consideration and experience with the geology, geostatistics, mining, extraction and processing that is applicable to the type of mineral and mining under consideration.
These detailed instructions would help ensure that the qualified person has the appropriate level of experience for both the type of activity involved and the type of mineral deposit under consideration to make accurate assessments about the registrant's exploration results, mineral resources and mineral reserves. At the same time, we believe that the proposed definition of “qualified person,” taken together with the proposed instructions, would assist registrants in applying this definition and would provide sufficient flexibility in terms of the required level of experience and professional standing. Moreover, because the CRIRSCO-based codes provide similar guidance for the type of experience required for a competent or qualified person, the proposed definition should not significantly alter existing disclosure practices for registrants subject to those codes.
32. Should we define a qualified person in part to be a mineral industry professional with at least five years of relevant experience in the type of mineralization, as described here and in the proposed rule, and type of deposit under consideration and in the specific type of activity that person is undertaking on behalf of the registrant, as proposed? Why or why not? Should we specify the particular type of professional, such as a geologist, geoscientist or engineer, required under the definition? The years of experience required under the proposed definition is consistent with the CRIRSCO-based codes. Is five years the appropriate number of years to constitute the minimum amount of relevant experience required under the definition in our rules? Should we require a lesser or greater number of years of relevant experience (
33. Should we define a qualified person to be an individual, as proposed? Or should we expand the definition, in cases where the registrant engages an outside expert, to include legal entities, such as an engineering firm licensed by a board authorized by U.S. federal, state or foreign statute to regulate professionals in mining, geosciences or related fields? Why or why not? If we expand the definition in this manner, should the firm or the responsible individual sign the technical report summary and provide the required written consent? Similarly, what professional experience should be required and how would a firm satisfy the professional experience requirement? Should we adopt qualified person requirements for firms that are different than the proposed requirements for individual qualified persons? If so, what should these requirements be?
34. Do the proposed instructions provide the appropriate guidance for what may constitute the requisite relevant experience in the particular activity involved and in the particular type of mineralization and deposit under consideration? Is there different or additional guidance that we should provide in this regard?
35. Should we define a qualified person in part to be an eligible member or licensee in good standing of a recognized professional organization at the time the technical report is prepared, as proposed? Why or why not? Should we require an organization
36. What factors should we consider in determining whether a professional association is recognized as reputable with regards to the definition of a recognized professional organization? Are the examples we provided appropriate factors for determining whether a professional association is recognized as reputable or are other factors more appropriate? Should any of these factors be incorporated into the final rules?
37. Instead of the proposed flexible approach, should we require that a qualified person be a member of an approved organization listed in an appendix to the mining disclosure rules or in a document posted on the Commission's Web site? If so, how should the Commission determine which organizations to approve and how frequently should the Commission update the approved organization list?
38. Should we, as proposed, require a registrant to disclose the recognized professional organization(s) that the qualified person is a member of, and confirm that the qualified person is a member in good standing of the organization(s)?
39. Are there different or additional conditions that a person should have to satisfy in order to meet the definition of qualified person? For example, should we require that a person have attained a particular level of formal education (bachelor's degree, master's degree, or doctorate) in order to be a qualified person? If so, what level of education would be appropriate? Would such a minimum education requirement disqualify a significant percentage of persons from being considered as qualified persons who otherwise possess the requisite relevant experience?
40. Is the definition of qualified person too restrictive, thus increasing the cost and difficulty associated with finding a qualified person? Alternatively, should the definition be more restrictive, to help ensure a qualified person has an appropriate level of training and expertise? In either case, why?
41. Instead of prescribing qualifications for the qualified person, should we instead require a registrant to provide detailed disclosure regarding the qualifications of the individual who prepared the technical report summary? Why or why not?
Neither Guide 7 nor Item 102 addresses the disclosure of exploration results in Commission filings.
We are proposing to require that a registrant disclose material exploration results for each of its material properties.
The proposed rules would preclude the use of exploration results, by themselves, to derive estimates of tonnage, grade, and production rates, or in an assessment of economic viability
Despite these limitations, we believe that disclosure of material exploration results would provide investors with a more comprehensive picture of a registrant's mining operations and help them make more informed investment decisions. A company engaged in mining activities frequently uses exploration results, prior to a determination of mineral resources, to assess the economic potential of its property as part of its decision to develop a property. In addition, a
Requiring the disclosure of material exploration results would align our disclosure rules with most foreign mining codes,
At this time, we are not proposing to require the disclosure of exploration results by a registrant that has material mining operations in the aggregate but no individual properties that are material.
42. Should we require a registrant to disclose material exploration results for each of its material properties, as proposed? Why or why not? Alternatively, should we permit registrants to provide exploration results in a summary form?
43. Should we define exploration results as data and information generated by mineral exploration programs (
44. What are the risks that could result from requiring disclosure of material exploration results? Should we prohibit the use of exploration results to derive estimates of tonnage, grade, and production rates, or in an assessment of economic viability, as proposed? Why or why not? Would prohibiting the use of exploration results for these purposes, as proposed, adequately protect investors from the increased risk associated with including information having a lower level of certainty about the economic value of mining properties?
45. When determining whether exploration results are material, should a registrant consider their importance in assessing the value of a material property or in deciding whether to develop the property, as proposed? Why or why not? Are there other circumstances that would better define when exploration results are material? If so, what are those circumstances?
46. We are proposing to require the disclosure of material exploration results for each material property. Should we also require disclosure of material exploration results when the registrant has determined that it has in the aggregate material mining operations but no individual properties are material? Would disclosure of material exploration results for its properties in the aggregate (when none is individually material) provide additional meaningful disclosure for investors? If so, how should a registrant disclose such exploration results? Should it provide such results in summary form? Or should it provide detailed disclosure about all material exploration results for all of its properties?
The determination of mineral resources is the second step, after mineral exploration, that geoscientists and engineers use to assess the value of a mining property.
We are proposing to require a registrant with material mining operations to disclose specified information in its Securities Act and Exchange Act filings concerning any mineral resources, as defined in the proposed rules, that have been determined based on information and supporting documentation from a qualified person. As proposed, a registrant with material mining operations that has multiple properties would have to provide both summary disclosure about its mineral resources and more detailed disclosure concerning its mineral resources for each material property.
Under the proposed rules, a registrant could not disclose that it has determined that a mineral deposit constitutes a “mineral resource” (or, for that matter, a “mineral reserve”) unless that determination is based upon information and supporting documentation
Requiring a mining registrant with material mining operations to disclose mineral resources in addition to mineral reserves would provide investors with additional important information concerning the registrant's operations and prospects. The importance of this information is demonstrated by the fact that most foreign mining codes require the disclosure of mineral resources, U.S. registrants routinely disclose mineral resource information on their Web sites, and many mining company analysts consider mineral resource information as an important factor in their valuations and recommendations. Requiring the disclosure of mineral resources would also place U.S. registrants on a level playing field with Canadian mining registrants and non-U.S. mining companies that are subject to one or more of the other CRIRSCO-based mining codes.
Requiring disclosure of mineral resources in Commission filings could increase the reporting costs for those mining companies that do not currently disclose mineral resource information. We believe, however, that any such increase would be minimal as most mining companies already assess mineral resources in order to determine reserves.
As previously noted, Item 102 and Guide 7 preclude the disclosure of estimates other than reserves in SEC filings unless such information is required to be disclosed by foreign or state law. Since we are proposing to require the disclosure of estimates for mineral resources in addition to mineral reserves by a registrant with material mining operations, the foreign or state law exception would no longer be necessary. Therefore, the proposed rules would eliminate this exception.
47. Should we require a registrant with material mining operations to disclose mineral resources in addition to mineral reserves, as proposed? Why or why not?
48. What are the risks that could result from requiring a registrant with material mining operations to disclose its mineral resources? How could the Commission mitigate those risks?
49. Under the proposed rules, a registrant with material mining operations could choose not to engage a qualified person to determine whether a mineral deposit is a mineral resource, with the result that the registrant would not be required to disclose mineral resources that may exist. Should the rules, as proposed, preclude a registrant from disclosing mineral resources in an SEC filing if it has elected not to engage a qualified person to make the resource determination? Alternatively, should the rules permit a registrant to disclose mineral resources in an SEC filing, despite not having engaged a qualified person to make the resource determination, in certain instances? If so, in what instances would it be appropriate to permit such disclosure?
Because both Item 102 and Guide 7 prohibit the disclosure of non-reserve estimates except as required under foreign or state law, there currently is no Commission definition of “mineral resource.” The proposed rules would define “mineral resource” as a concentration or occurrence of material of economic interest in or on the earth's crust in such form, grade or quality, and quantity that there are reasonable prospects for its economic extraction.
The proposed rules would further specify that, when determining the existence of a mineral resource, a qualified person must be able to estimate or interpret the location, quantity, grade or quality continuity, and other geological characteristics of the mineral resource from specific geological evidence and knowledge, including sampling.
Similar to the CRIRSCO-based codes, the proposed definition of mineral resource would state that it is not to be merely an inventory
As proposed, the definition of mineral resource would include non-solid matter, such as geothermal fields and mineral brines, in addition to mineralization. We believe this is appropriate because the scientific and engineering principles used to characterize mineral brine and geothermal resources and reserves are substantially similar to those used to characterize solid mineral resources and reserves. By definition, extracting minerals from mineral brines is mining.
As such, we believe that including these non-solid materials in the proposed definition of mineral resource would provide a workable and reasonable framework for disclosure related to these activities. Moreover, including minerals extracted from mineral brines and energy extracted from geothermal fields within the definition should provide clarity and consistency for the disclosure obligations of registrants engaged in these activities.
The proposed definition of “mineral resource” also would include dumps and tailings in recognition of the fact that, under certain circumstances, these byproducts from older mining operations possess value. We also note that the inclusion of dumps and tailings in the definition of mineral resource reflects industry practice and is consistent with the CRIRSCO-based codes.
We are proposing to exclude oil and gas resources as defined by Regulation S–X from the definition of mineral resource because the Commission has adopted separate rules for oil and gas disclosure.
As noted above, we are proposing to require that in order to classify a deposit as a resource, a qualified person must establish that there are reasonable prospects of economic extraction by estimating or interpreting key geological characteristics from specific geological evidence. We believe that requiring an analysis based on specific geological evidence to establish prospects of economic extraction would provide an appropriately exacting standard, and importantly, one that is more exacting than what we propose to require for the disclosure of exploration results. A qualified person should have a higher level of confidence to determine that a deposit is properly classified as a mineral resource (which is an estimate of tonnage and grade that has prospects of economic extraction) than to report exploration results (which may not indicate the existence of any tonnage with reasonable prospects of economic extraction) because of the relatively greater weight that investors are likely to place on estimates of mineral resources. This in turn should help mitigate the uncertainty inherent in the determination of mineral resources. Moreover, because the CRIRSCO-based codes impose a substantially similar requirement, we do not believe this aspect of the proposed definition of mineral resources would significantly alter existing disclosure practices of registrants subject to these codes.
50. Should we define the term “mineral resource,” as proposed? Why or why not? In order for material to be classified as a mineral resource, should there be reasonable prospects for its economic extraction, as proposed? Why or why not?
51. Should the definition of mineral resource include mineralization, including dumps and tailings, as proposed? Should the definition of mineral resource also include geothermal fields and mineral brines, as proposed? Why or why not? Is there any other material that should be explicitly included in the definition of mineral resource?
52. Should the definition of mineral resource exclude oil and gas resources as defined in Regulation S–X,
53. Should the definition of mineral resource include the requirement that a qualified person estimate or interpret the location, quantity, grade or quality continuity, and other geological characteristics of the mineral resource from specific geological evidence and knowledge, including sampling, as proposed? Why or why not? Are there other geological characteristics that we should explicitly require a qualified person to estimate or interpret when determining the existence of mineral resources?
The proposed rules would adopt the CRIRSCO-based classification of mineral
Similar to the CRIRSCO-based codes,
The proposed rules would establish the level of certainty that a qualified person must strive to achieve when determining the existence of an inferred mineral resource. First, the qualified person must have a reasonable expectation that the majority of inferred mineral resources could be upgraded to indicated or measured mineral resources with continued exploration. Second, the qualified person should be able to defend the basis of this expectation before his or her peers.
We understand that, because inferred mineral resources have the lowest level of geologic confidence, requiring their disclosure in a mining registrant's SEC filing could lead to investor misunderstanding about the nature of a registrant's mining operations (that would not be present absent such disclosure). We believe, however, that the proposed definition of inferred mineral resource
We note that our proposal differs from the CRIRSCO-based codes, which allow a qualified person to make limited use of inferred mineral resources in his or her technical and economic studies as long as certain cautionary language is included in the disclosure.
We propose to define “indicated mineral resource” as that part of a mineral resource for which quantity and grade or quality are estimated on the basis of adequate geological evidence and sampling.
We propose to define “measured mineral resource” as that part of a mineral resource for which quantity and grade or quality are estimated on the basis of conclusive geological evidence and sampling.
The proposed definitions of “indicated mineral resource” and “measured mineral resource” are substantially similar to the corresponding CRIRSCO-based definitions. We believe aligning the U.S. definitions with the foreign mining code provisions would benefit registrants and investors by promoting uniformity in mining disclosure standards. For those mining registrants that are dual-listed and already subject to the CRIRSCO-based requirements, such alignment should help to reduce any potential additional costs caused by the proposed requirement to disclose indicated and measured mineral resources. In addition, some registrants, even if not currently subject to the CRIRSCO-based requirements, nonetheless apply substantially similar definitions of indicated and measured mineral resources as part of the process of determining mineral reserves.
As noted above, geologic uncertainty directly affects the uncertainty associated with production quantities per period and related cash flows. As such, we believe that in addition to disclosure of resource estimates, it is appropriate to require disclosure of the level of geologic uncertainty associated with different classes of mineral resources. Specifically, we propose to require that the qualified person, as part of the initial assessment,
Specifically, for indicated and measured mineral resources, the qualified person would be required to provide the confidence limits of relative accuracy,
We are proposing
When estimating the geologic uncertainty associated with indicated and measured mineral resources, the qualified person would be required to consider the limitations of the data, assumptions, and models used to determine the resource estimates.
For example, if a qualified person uses geostatistics or simulation to estimate the uncertainty associated with a particular mineral resource as “±15% relative accuracy at 90% confidence level for annual production quantities,” then he or she, after determining that the risks associated with external risk factors are negligible, may report the numerically derived estimate without adjusting for any external risks. On the other hand, if the qualified person first determines that the risk factors external to the calculation are not negligible, then he or she would have to adjust the confidence limits to be wider than ±15% or use a confidence level less than 90% to account for the risk factors external to the calculation. In such case, the specific confidence limits (
We believe, therefore, that the qualified person should be required to justify, in the technical report summary, the final estimates of confidence limits he or she uses after adjusting for the external risk factors.
As noted above, a qualified person could use a method such as the inverse distance method to estimate mineral resources, determining that all the regions of the deposit that were estimated by means of drill holes with spacing of less than a certain distance are measured mineral resources.
Unlike the proposed rules, the CRIRSCO-based codes do not require the qualified person to disclose numerical estimates of the uncertainty associated with the different classes of mineral resources. Instead, those codes only require the qualified person to report fully the assumptions and factors considered in classifying mineral resources.
The disparity in practice in this area and the implications for investors have been discussed by many authors in the mining engineering literature.
Finally, as regards inferred mineral resources, we believe that they have
54. Should we require a registrant to classify its mineral resources into inferred, indicated and measured mineral resources, as proposed? Why or why not? If not, what classifications would be preferable and why?
55. Should we define “inferred mineral resource” as proposed? Why or why not? Should we require the disclosure of inferred mineral resources although quantity and grade or quality with respect to those mineral resources can be estimated only on the basis of limited geological evidence and sampling, as proposed? Should we require a qualified person to describe the level of risk associated with an inferred mineral resource based on the minimum percentage that he or she estimates would convert to indicated or measured mineral resources with further exploration, as proposed? Should we permit rather than require a registrant to disclose inferred mineral resources because of the high level of geologic uncertainty associated with that class of mineral resource? Should we prohibit the disclosure of inferred mineral resources for that reason?
56. Should we prohibit the use of inferred mineral resources to make a determination about the economic viability of extraction, and preclude the conversion of an inferred mineral resource into a mineral reserve, as proposed? Would these proposed prohibitions be sufficient to mitigate the added uncertainty that could result from the requirement to disclose inferred mineral resources? Are there circumstances that would justify a qualified person's use of inferred mineral resources to make a determination about the economic viability of extraction, or that would allow the conversion of an inferred mineral resource into a mineral reserve? Should we permit the use of inferred mineral resources to make a determination about the economic viability of extraction as long as the qualified person and registrant disclose the high level of risk associated with such mineral resources? If so, what would be the potential effects on registrants and investors?
57. Should the definition of “inferred mineral resource” provide that such mineral resource has the lowest level of geological confidence of all mineral resources, which prevents the application of the modifying factors in a manner useful for evaluation of economic viability, as proposed? Should we require a registrant, when disclosing inferred resources, to provide a legend or cautionary statement about the geological uncertainty associated with inferred resources? If so, what should such legend or cautionary statement say and where in the SEC filing should it be disclosed?
58. Should we define “indicated mineral resource,” as proposed? In particular, should the definition depend on a qualified person's ability to estimate quantity and grade or quality using adequate geological evidence and sampling, as proposed? Should the definition of “adequate geologic evidence” be based on a qualified person's ability to apply modifying factors in sufficient detail to support mine planning and evaluation of the economic viability of the deposit, as proposed? Should we require a qualified person to describe the level of risk associated with indicated mineral resources based on the confidence limits of relative accuracy at a particular confidence level for production estimates for one-year periods, as proposed? Should we, instead, allow the qualified person to provide a qualitative discussion of the uncertainties in place of confidence limits if he or she so chooses? Why or why not?
59. Should the definition of “indicated mineral resource” include that such mineral resource has a lower level of confidence than what applies to a measured mineral resource and may only be converted to a probable mineral reserve, as proposed?
60. Should we define “measured mineral resource,” as proposed? In particular, should the definition depend on a qualified person's ability to estimate quantity and grade or quality on the basis of conclusive geological evidence? Should we base the definition of “conclusive geologic evidence” on a qualified person's ability to apply modifying factors in sufficient detail to support detailed mine planning and final evaluation of the economic viability of the deposit, as proposed? Should we require a qualified person to describe the level of risk associated with measured mineral resources based on the confidence limits of relative accuracy at a particular confidence level for production estimates for periods of less than one year, as proposed? Should we, instead, allow the qualified person to provide a qualitative discussion of the uncertainties in place of confidence limits if he or she so chooses? Why or why not? Are there particular challenges to complying with the proposed requirement to disclose numerical estimates of the level of confidence for each class of mineral resource?
61. Should the definition of “measured mineral resource” include that such mineral resource has a higher level of confidence than what applies to either an indicated mineral resource or an inferred mineral resource and may be converted to a proven mineral reserve or to a probable mineral reserve, as proposed?
62. Should we require the disclosure of numerical estimates of the level of confidence associated with each class of mineral resource, as proposed? Why or why not? Should we instead follow the practice in the CRIRSCO-based codes and require only the disclosure of all material assumptions and the factors considered in classifying mineral resources? Why or why not?
As proposed, a registrant's disclosure of mineral resources must be based upon a qualified person's initial assessment supporting the determination of mineral resources.
In connection with the registrant's disclosure of mineral resources, the proposed rules would specify that the qualified person must provide the registrant with information and
We propose to define an “initial assessment” as a preliminary
An initial assessment, as proposed, is not a scoping
We are proposing instructions to the initial assessment requirement that are designed to elicit material information concerning the basis for the qualified person's conclusion that there are reasonable prospects for economic extraction. The first proposed instruction is that an initial assessment must include cut-off grade estimation, based on assumed unit costs for surface or underground operations and estimated mineral prices.
We believe that a discussion of cut-off grade is an appropriate requirement for a technical study that supports mineral resource estimation because, by definition, a mineral resource estimate is not just an inventory of all mineralization. It is an estimate of that part of the deposit that has reasonable prospects of economic extraction.
As part of the initial assessment, the qualified person would need to assume the cost to mine a typical unit of the specific material involved. We are not proposing to require the qualified person to estimate all specific operating and capital costs in detail in order to estimate unit cost as part of the initial assessment.
As proposed, a qualified person must base the unit cost estimate used in cut-off grade estimation in an initial assessment on assumed unit costs derived, for example, from historic data or factoring, for either underground or surface mining.
When estimating mineral prices for the cut-off grade estimation, the qualified person would have to use a commodity price that is no higher than the average spot price during the 24-month period prior to the end of the last fiscal year, determined as an unweighted arithmetic average of the daily closing price for each trading day within such period, unless prices are defined by contractual arrangements.
Commodity prices used to evaluate mineral resources and reserves should reflect the long term expectations of the qualified person conducting such analysis. The staff has provided guidance that commodity prices used in mineral reserve estimation should not exceed a 3-year trailing average. The use of a trailing average is also the Commission's standard for oil and gas reserves (although oil and gas reserves use a 12-month trailing average).
We believe the qualified person must use commodity price estimates that are reasonable and justifiable and represent long term
For the purpose of public disclosure, we believe a price model should be transparent, generally affordable, and promote comparability between mineral resources and reserves of different registrants. We also believe that the model should provide flexibility to registrants in selecting a price while helping to ensure that reserve estimates are based on prices that are realistic.
We believe that a pricing model using historical prices to prescribe a reasonable ceiling best meets all the stipulated criteria. For exchange-traded commodities, the qualified person would have to use a price based on the unweighted arithmetic average of the daily closing price for each trading day within the 24-month period preceding the last day of the fiscal year covered by the SEC filing. For commodities that are not traded on an exchange, the qualified person would have to use the 24-month average of prevailing prices in the region as the ceiling.
The sole exception to the 24-month trailing average ceiling price model would be when registrant has a sales contract in place that has defined the price of the commodity. In that case, the registrant may use the price stipulated by the sales contracts, provided that such price is reasonable
We are proposing an average over a 24-month period because we believe it is more responsive to price changes, compared to a 3-year average, based on the staff's experience with the 3-year average in SEC filings. In this regard, we believe the pricing time frame for mineral resource and reserve disclosure should be long enough to ensure the average reflects long term market trends but short enough to prevent the average from lagging behind market trends. On the one hand, a 3-year average lags farther behind market changes than, and is not as responsive as, a 2-year average. A 12-month average, on the other hand, could be too volatile and may not adequately reflect long term trends.
The second proposed instruction to the initial assessment requirement states that the qualified person must provide a qualitative assessment of all other relevant modifying factors to establish economic potential and justify why he or she believes that all issues can be resolved with further exploration and analysis.
This table sets forth the proposed minimum requirements for various factors that the qualified person must evaluate when preparing an initial assessment, pre-feasibility study, or feasibility study. We are presenting them all in this section, in one table, to facilitate a comparison of the modifying factors evaluation requirement across the three key technical studies proposed to be used for mineral resource and reserve disclosure. As this presentation demonstrates, the proposed modifying factors evaluative process becomes more exacting as mining property assessment progresses from mineral resource estimation to mineral reserve estimation.
At the initial assessment stage, as proposed, a qualified person would be required to evaluate, at a minimum, the following modifying factors:
• Site infrastructure (
• mine design and planning (
• processing plant (
• environmental compliance and permitting (
• any other reasonably assumed modifying factors, including socio-economic factors, necessary to demonstrate reasonable prospects for economic extraction.
We believe a qualitative evaluation of these listed factors, at a minimum, is necessary to determine the economic potential of a mining property. An assessment of the geological characteristics of the mined material would not be complete if it did not include a thorough evaluation and discussion of infrastructure, mine design, processing and environmental issues that could pose obstacles to the material's extraction.
To demonstrate the economic feasibility of mining projects, estimates of future cash flows are necessary because capital expenditures, operating costs and revenues vary over the life of a mine due to variations in mining conditions. We believe, however, that an initial assessment, the singular goal of which is to demonstrate reasonable prospects of economic extraction, not economic viability, need not contain such quantitative analysis.
Nevertheless, if the qualified person would like to demonstrate the economic potential of the mining property beyond the minimum requirements of an initial assessment
We believe that the proposed prohibition against using inferred mineral resources in an initial assessment's cash flow analysis is reasonable because of the high level of geological risk associated with such mineral resources. We further believe that the proposed accuracy and contingency requirements
We do not believe that other quantitative measures of economic potential that omit cash flows are appropriate and are concerned that they potentially could be misleading. As explained above, capital expenditures, operating costs and revenues vary over the life of a mine due to variations in mining conditions. Hence, economic analyses that do not account for these variations may not tell a complete story. For example, a gross profit evaluation that does not account for the timing of capital outlays and revenues could indicate that a project is viable, yet in actuality timely loan repayments may not be possible. Consequently, we are proposing that, to the extent a qualified person wants to include an economic analysis in an initial assessment, he or she would only be permitted to use a cash flow analysis; all other quantitative analyses would be prohibited.
The fourth proposed instruction to the initial assessment requirement refers the qualified person to Table 1 for the assumptions permitted to be made when preparing the initial assessment. These include assumptions concerning infrastructure location and the required plant area, type of power supply, site access roads and camp or town site, production rates, processing method and plant throughput, post-mining land uses, and plans for tailings disposal, reclamation, and mitigation. We believe that it is reasonable to permit assumptions to be made for these factors for the initial assessment. Allowing assumptions for a variety of factors at the resource determination stage is generally consistent with guidelines under the CRIRSCO-based codes.
63. Should we require that a registrant's disclosure of mineral resources be based upon a qualified person's initial assessment, which supports the determination of mineral resources, as proposed? Why or why not? Is there another form of analysis or means of disclosure that would be more appropriate for the determination and disclosure of mineral resources? Would disclosure of the material risks associated with mineral resource determination be an adequate substitute for the initial assessment requirement?
64. If we require an initial assessment to support the determination of mineral resources, should we define “initial assessment,” as proposed, to require the consideration of applicable modifying factors and relevant operational factors for the purpose of determining (at the resource evaluation stage) whether there are reasonable prospects for economic extraction? Should we instead only require consideration of modifying and operational factors at the reserve determination stage?
65. Should we require an initial assessment to include cut-off grade estimation, as proposed? Why or why not?
66. Should we require a qualified person to base cut-off grade estimation on assumed unit costs for surface or underground operations, as proposed? Is it appropriate to allow the qualified person to make an assumption about unit costs, as proposed, or should we require a more detailed estimate of unit costs at the resource determination stage? Is it appropriate to require the qualified person to disclose whether the unit cost estimates are for surface or underground operations, as proposed?
67. Should we also require a qualified person to base cut-off grade estimation on estimated mineral prices, as proposed? In this regard, should we require the qualified person to use a commodity price that is no higher than the average spot price during the 24-month period prior to the end of the last fiscal year, determined as an unweighted arithmetic average of the daily closing price for each trading day within such period, unless prices are defined by contractual arrangements, as proposed? Does a ceiling model based on historical prices best meet the goals of transparency, cost efficiency and comparability? Why or why not? Is there another model that would better meet these goals? If another price model better meets these goals, what should be the basis of estimated mineral prices for purposes of the initial assessment? Whatever price model we adopt, should it be used to determine the commodity price itself? Or should it be used, as proposed, to determine the ceiling of the commodity prices?
68. Is the proposed 24-month period the most appropriate period for the estimated price requirement? Would a 12, 18, 30, or 36-month period, or some other duration, be more appropriate? Should the 24-month period, or other period be fixed and apply to all registrants, or should the period vary depending upon the type of commodity being mined and other factors?
69. Should we require, as proposed, the same ceiling price for mineral resource and reserve estimation? If not, how should the prices used for mineral resource and reserve estimation differ? Would such criteria meet the goals of transparency, cost efficiency and comparability?
70. Should we require that for purposes of the initial assessment a qualified person must provide at least a qualitative assessment of all relevant modifying factors to establish economic potential and justify why he or she believes that all issues can be resolved with further exploration and analysis, as proposed? Are the modifying factors
71. Should we permit the qualified person to make assumptions about the modifying factors set forth in the proposed table at the resource determination stage, as proposed? Why or why not? Are there other assumptions that we should specify in lieu of or in addition to those already mentioned in the proposed table?
72. Should we permit a qualified person to include cash flow analysis in an initial assessment to demonstrate economic potential, as proposed? Why or why not? If we should permit cash flow analysis in an initial assessment, should we require that operating and capital cost estimates in the analysis have an accuracy level of at least ±50% and a contingency level of ≤25%, as proposed? If not, what should the accuracy and contingency levels be? Should we require the qualified person to state the accuracy and contingency levels in the initial assessment?
73. If we permit cash flow analysis in the initial assessment, should we prohibit the qualified person from using inferred mineral resources in the cash flow analysis, as proposed? Why or why not? Would there be disadvantages to registrants or investors if the use of inferred mineral resources in an initial assessment's cash flow analysis is prohibited? Would there be advantages to prohibiting the use of inferred resources in an initial assessment's cash flow analysis in the initial assessment?
74. Should we prohibit the use of an initial assessment to support a determination of mineral reserves, as proposed? Why or why not?
In 1980, the US Geological Survey (“USGS”) published Circular 831 as an update to USGS Bulletin 1450–A—“Principles of the Mineral Resource Classification System of the U.S. Bureau of Mines and U.S. Geological Survey.” In 1983, the USGS published Circular 891—“Coal Resource Classification System of the U.S. Geological Survey,” specifically for resource or reserve classification of coal.
In the past, the staff has not objected to mineral reserve disclosure that used these circulars to classify mineral resources as inferred, indicated or measured resources.
In contrast to the Circular's classification system, the proposed definitions require that all disclosed mineral resources must have reasonable prospects of economic extraction. Moreover, the primary criterion for the required mineral resource classification in our proposed rules is the geologic confidence in the estimates based on the geologic evidence (limited, adequate or conclusive). This is in contrast to the primary criterion in the Circulars, which is essentially the extent to which tonnages fall within particular distances from a drill hole or outcrop. Although drill hole spacing may be a factor that informs the qualified person's assessment of geologic confidence, for the purposes of public company disclosure to investors, we do not believe it should be the sole factor.
75. Are we correct in thinking that use of Circulars 831 and 891 to classify mineral resources would not be appropriate under the proposed rules? Why or why not?
Guide 7 defines a mineral reserve as “that part of a mineral deposit which could be economically and legally extracted or produced at the time of the reserve determination.”
In addition, the CRIRSCO-based codes permit the use of either a preliminary feasibility study or feasibility study
These differences between the staff's guidance and the CRIRSCO standards, the latter of which have become widely-accepted in industry practice, may have been a source of confusion for registrants and investors.
• Adopting the framework of applying modifying factors to indicated or measured mineral resources in order to convert them to mineral reserves; and
• permitting either a pre-feasibility or feasibility study to provide the basis for determining and reporting mineral reserves.
We propose to establish a framework for mineral reserves determination and disclosure that is based on the following proposed definitions of “mineral reserves,” “probable mineral reserves,” “proven mineral reserves,” and “modifying factors.”
We propose to define “mineral reserve” as an estimate of tonnage and grade or quality of indicated or measured mineral resources that, in the opinion of the qualified person, can be the basis of an economically viable project. More specifically, as proposed, a mineral reserve is the economically mineable part of a measured or indicated mineral resource, net of allowances for diluting materials and for losses that may occur when the material is mined or extracted.
Under the proposed rules, the determination that part of a measured or indicated mineral resource is economically mineable would have to be based on a preliminary feasibility (pre-feasibility) or feasibility study conducted by a qualified person applying the modifying factors to indicated or measured mineral resources. Such study would have to demonstrate that, at the time of reporting, extraction of the mineral reserve is economically viable under reasonable investment and market assumptions. Moreover, the study would have to establish a life of mine plan that is technically achievable and economically viable, which would be the basis of determining the mineral reserve.
The proposed rules would provide that, as used in the definition of mineral reserve, “economically viable” means that the qualified person has determined, using a discounted cash flow analysis, or has otherwise analytically determined, that extraction of the mineral reserve is economically viable under reasonable investment and market assumptions.
As proposed, the price used to determine the economic viability of the mineral reserves could not be higher than the average spot price during the 24-month period prior to the end of the fiscal year covered by the study, determined as an unweighted arithmetic average of the daily closing price for each trading day within such period, except in cases where sales prices are determined by contractual agreements. In such a case, the qualified person would be able to use the price set by the contractual arrangement, provided that such price is reasonable
The proposed rules would adopt the CRIRSCO classification scheme and framework for mineral reserve determination, which subdivides mineral reserves, in order of increasing confidence in the results obtained from the application of the modifying factors to the indicated and measured mineral resources, into probable mineral reserves and proven mineral reserves.
The proposed rules would explain that, for a probable mineral reserve, the qualified person's confidence in the results obtained from the application of the modifying factors and in the estimates of tonnage and grade or quality is lower than what is sufficient for a classification as a proven mineral reserve, but is still sufficient to demonstrate that, at the time of reporting, extraction of the mineral reserve is economically viable under reasonable investment and market assumptions.
Similar to the CRIRSCO classification scheme,
We propose to define “modifying factors” as the factors that a qualified person must apply to mineralization or geothermal energy and then evaluate in order to establish the economic
For example, applying and evaluating processing factors means the qualified person must examine the characteristics of the mineral resource and determine that the material can be processed economically into saleable product using existing technology. Similarly, applying and evaluating legal factors means the qualified person must examine the regulatory regime of the host jurisdiction to establish that the registrant can comply (fully and economically) with all laws and regulations (
We also are proposing several instructions about the conversion of mineral resources into mineral reserves.
Another instruction would state that a qualified person cannot convert an indicated mineral resource to a proven mineral reserve unless there is new evidence that justifies conversion of the indicated mineral resource to a measured mineral resource.
The proposed framework would require a registrant's disclosure of mineral reserves to be based on a qualified person's detailed evaluation of the modifying factors as applied to indicated or measured mineral resources, which would demonstrate the economic viability of the mining property or project.
This proposed framework for mineral reserve determination and disclosure would be more detailed and structured than Guide 7's approach. Although Guide 7 similarly defines a mineral reserve as that part of a mineral deposit that can be economically and legally extracted or produced, it does not specify the level of geologic evidence that must exist or the factors that must be considered to convert the deposit to a mineral reserve.
In contrast, the proposed framework would only permit estimates of mineral reserves that result from the conversion of indicated and measured mineral resources for which adequate and conclusive geologic evidence exist. It would also prohibit the use of inferred mineral resources, for which there is only limited geologic evidence, to support a determination of mineral reserves. Finally, the proposed framework would require the qualified person to disclose the specific mining, processing, metallurgical, environmental, economic, legal and other applicable factors, the detailed evaluation of which has led the qualified person to conclude that extraction of the mineral reserve is economically viable.
As a result, we believe that the proposed framework would result in clearer and more accurate disclosure about the economic viability of a registrant's mineral deposits, which would benefit investors. The proposed framework would also be substantially similar to the CRIRSCO framework. As such, its adoption should enhance consistency in mining disclosure across jurisdictions, facilitating comparability for investors. It also would reduce reporting costs for the numerous mining registrants that are dual-listed and have been subject to different U.S. and CRIRSCO-based disclosure requirements. The main difference between the proposed framework for determining mineral reserves and the CRIRSCO framework is the requirement to use commodity prices that are no higher than the 24-month trailing average.
We are proposing a definition of mineral reserve as an estimate of tonnage and grade or quality that is net of allowances for diluting materials and mining losses. This is in contrast to the definition of mineral reserve under the CRIRSCO standards, which includes diluting materials in reserve estimates. We are proposing a net estimate for reserves because our proposed rules would require disclosure of mineral reserves at three points of reference: In-situ,
As discussed in greater detail below,
As proposed, the qualified person must demonstrate economic viability by conducting a discounted cash flow analysis or other similar financial analysis using a commodity price that is no higher than the 24 month trailing average price model proposed for the determination of mineral resources.
When discussing the analysis in the technical report summary, the qualified person must disclose the assumptions made about prices, exchange rates, discount rate, sales volumes and costs necessary to determine the economic viability of the reserves.
76. Should we establish a framework for mineral reserves determination and disclosure, as proposed? Why or why not? Is there another framework that would be preferable to the proposed framework? If so, what would be the advantages and disadvantages of the alternative framework?
77. Should we define “mineral reserve,” as proposed? Are there conditions that we should include in the definition of mineral reserves instead of, or in addition to, those proposed to be included in the definition? Are there any conditions that we should exclude from the definition of mineral reserves? For example, should we modify the condition that mineral reserves be based on a pre-feasibility or feasibility study to only permit a feasibility study? Should we exclude in its entirety the condition that mineral reserves be based on a feasibility or pre-feasibility study? Are there terms that we should define differently? For example, should we define a mineral reserve as an estimate of tonnage and grade or quality that includes diluting materials and allowances for losses, instead of a net estimate, as proposed? Why or why not?
78. Should we explicitly include a life of mine plan disclosure requirement in the technical studies required to support a determination of mineral reserves, as proposed? Why or why not?
79. Should we require the use of a discounted cash flow analysis or other similar analysis to establish the economic viability of a mineral reserve's extraction, as proposed? Why or why not? If so, should we require the use of a price that is no higher than a trailing 24 month average spot price in the discounted cash flow analysis, except in cases where sales prices are determined by contractual agreements, as proposed? Is there some other period (
80. Should we allow registrants to use an alternate price in addition to a price that is no higher than a trailing 24 month average spot price, as long as they disclose the alternate price and their justification? Alternatively, should we require every registrant to use a fixed 24 month trailing average price with the option to use an alternate price(s) that is reasonably achieved? Are there other pricing methods (
81. Should we define the terms “probable mineral reserve” and “proven mineral resource,” as proposed? Why or why not? If not, how should we modify these definitions?
82. Should we define “modifying factors,” as proposed? Are there any factors that we should include in the definition of modifying factors instead of or in addition to those already included in the definition? Are there any factors that we should exclude from the definition?
83. Should we adopt the above discussed instructions, as proposed? Why or why not?
Like the CRIRSCO framework for mineral reserve determination the proposed rules would require either a preliminary feasibility study or a feasibility study in support of a determination of mineral reserves.
The proposed rules would further provide that a pre-feasibility study must include a financial analysis based on reasonable assumptions, based on appropriate testing, about the modifying factors and the evaluation of any other relevant factors that are sufficient for a qualified person to determine if all or part of the indicated and measured mineral resources may be converted to mineral reserves at the time of reporting. The study's financial analysis must have the level of detail necessary to demonstrate, at the time of reporting, that extraction is economically viable.
As discussed in greater detail below, we propose to define a “feasibility study”
As proposed, the key differences between a pre-feasibility study and a final or bankable feasibility study are:
• A pre-feasibility study discusses a “range of options” for the technical and economic viability of a mineral project whereas a final feasibility study focuses on a particular option selected for the development of the project;
• a pre-feasibility study generally has a less detailed assessment of the modifying factors necessary to demonstrate that extraction is economically viable than the corresponding assessment in a final feasibility study; and
• a pre-feasibility study generally has a less detailed financial analysis that is based on less firm budgetary considerations (
Despite these differences, we believe that revising our rules to allow a pre-feasibility study to support the determination and disclosure of mineral reserves is appropriate because of the expected resulting benefits for both registrants and investors. Permitting the use of a pre-feasibility study to determine mineral reserves under our rules would align the Commission's disclosure regime with those under the CRIRSCO-based codes and, as such, provide greater uniformity in global mining disclosure requirements to the benefit of both mining registrants and their investors. Permitting the use of a pre-feasibility study could also significantly reduce a mining registrant's costs in connection with the determination of mineral reserves.
Although the use of a pre-feasibility study could increase the uncertainty regarding a registrant's disclosure about mineral reserves, we believe that any such uncertainty would be reduced by the requirements included in the proposed definitions and corresponding proposed instructions.
First, as proposed, the pre-feasibility study must include a financial analysis at a level of detail sufficient to demonstrate the economic viability of extraction. A proposed instruction would state that the pre-feasibility study must include an economic analysis that supports the property's economic viability as assessed by a detailed discounted cash flow analysis.
Second, the proposed rules would require a qualified person to include the justification for using a pre-feasibility study, if one is used, instead of a final feasibility study.
Third, another proposed instruction would require the use of a final
Moreover, similar to provisions in the CRIRSCO-based codes, an instruction to the proposed rules would prohibit a qualified person from using inferred mineral resources in the pre-feasibility study's financial analysis.
Other proposed instructions are designed to help ensure that the pre-feasibility study is sufficiently rigorous to support a conclusion that extraction of the reserve is economically viable. For example, one proposed instruction would explain that the factors to be considered in a pre-feasibility study are typically the same as those required for an initial assessment, but considered at a greater level of detail or at a later stage of development.
• The required access roads, infrastructure location and plant area, and the source of all utilities (
• the preferred underground mining method or surface mine pit configuration, with detailed mine layouts drawn for each alternative;
• the bench lab tests
• the environmental compliance and permitting requirements or interests of agencies, non-governmental organizations, communities and other stakeholders, the baseline studies, and the plans for tailings disposal, reclamation and mitigation, together with an analysis establishing that permitting is possible; and
• any other reasonable assumptions, based on appropriate testing, on the modifying factors sufficient to demonstrate that extraction is economically viable.
Another proposed instruction would provide that the operating and capital cost estimates in a pre-feasibility study must have an accuracy level and a contingency range that are significantly narrower than those permitted to support a determination of mineral resources. According to this instruction, operating and capital cost estimates in a pre-feasibility study must, at a minimum, have an accuracy level of approximately ±25% and a contingency range not exceeding 15%.
These latter two instructions (addressing the level at which the modifying factors are assessed and the appropriate accuracy level and contingency range for operating and capital costs) are consistent with current industry practice and comparable to requirements for the use of a pre-feasibility study in the CRIRSCO-based jurisdictions.
Another proposed instruction would address whether and when a registrant would be required to take additional steps to support its determination of mineral reserves. That instruction would explain that a determination of “mineral reserves” does not necessarily require that extraction facilities are in place or operational, that the company has obtained all necessary permits, or that the company has entered into sales contracts for the sale of mined products. The instruction would explain, however, that such determination does require that the qualified person has, after reasonable investigation, not identified any obstacles to obtaining permits and entering into the necessary sales contracts, and reasonably believes that the chances of obtaining such approvals and contracts in a timely manner are highly likely.
Additionally, the proposed instructions would address when the completion of a preliminary or final market study, as part of a pre-feasibility or feasibility study, may be required to support a determination of mineral reserves. Specifically, proposed Instruction 1 to Item 1302(d) would explain that the determination of mineral reserves may, in certain circumstances, require the completion of a preliminary market study (in the context of a pre-feasibility study) or a final market study (in the context of a final feasibility study) to support the qualified person's conclusions about the chances of obtaining revenues from sales. As proposed, a preliminary or final market study would be required where the mine's product cannot be traded on an exchange, there is no other established market for the product, and no sales contract exists. We believe that this proposed instruction would result in more detailed disclosure, when required under the circumstances, concerning the basis for the qualified person's conclusions as to whether the deposit is a mineral reserve.
Finally, another proposed instruction would require a pre-feasibility study to identify sources of uncertainty that require further refinement in a final feasibility study.
We believe that the proposed rule and its related proposed instructions, taken as a whole, would sufficiently mitigate the level of risk resulting from permitting the use of a pre-feasibility study to support the determination and disclosure of mineral reserves. As such, we believe it would be appropriate to permit the use of a pre-feasibility study for reserve determination and disclosure.
As proposed, a feasibility study is a comprehensive technical and economic study of the selected development option for a mineral project.
We are proposing several instructions regarding the use of a feasibility study to support the determination and disclosure of mineral reserves. One proposed instruction would require a feasibility study to contain the application and description of all relevant modifying factors in a more detailed form and with more certainty than a pre-feasibility study.
• Final requirements for site infrastructure, including well-defined access roads, finalized plans for infrastructure location, plant area, and camp or town site, and the established source of all required utilities (
• a finalized mining method, including detailed mine layouts and final development and production plan for the preferred alternative with the required equipment fleet specified, together with detailed mining schedules, construction and production ramp up, and project execution plans;
• completed detailed bench lab tests and a pilot plant test,
• the final identification and detailed analysis of environmental compliance and permitting requirements, including the finalized interests of agencies, NGOs, communities and other stakeholders, together with the completion of baseline studies and finalized plans for tailings disposal, reclamation and mitigation; and
• detailed assessments of other modifying factors necessary to demonstrate that extraction is economically viable.
Another proposed instruction
A third proposed instruction would require operating and capital cost estimates in a feasibility study, at a minimum, to have an accuracy level of approximately ±15% and a contingency range not exceeding 10%.
These proposed requirements for the use of a feasibility study to support mineral reserve estimates are intended to promote accurate and uniform disclosure of mineral reserves in SEC filings, which should benefit investors as well as registrants. As proposed, the requirements concerning the accuracy level and contingency range for operating and capital cost estimates, and level of detail or stage of development for the evaluation of modifying factors, are comparable to those required for the use of a feasibility study to support mineral reserve estimates under the CRIRSCO-based codes.
84. Should we define “preliminary feasibility study” and “feasibility study,” as proposed? Are there any terms and conditions that we should include instead of or in addition to those included in the proposed definitions? Are there any terms or conditions under each definition that we should exclude?
85. Should we permit the use of either a pre-feasibility study or a feasibility study to support the determination and disclosure of mineral reserves, as proposed? Why or why not?
86. Should we require qualified persons to use a feasibility study in situations where the risk is high, as proposed? Why or why not? Are there other conditions, in addition to or in lieu of high risk situations, where we should require a feasibility study in support of mineral reserve disclosure?
87. Should we adopt the proposed instructions about the use of a pre-feasibility study to support the determination and disclosure of mineral reserves? Are there any instructions that we should provide instead of or in addition to the proposed instructions for such use of a pre-feasibility study? Are there any instructions that we should exclude? Would the proposed instructions mitigate the risk of less certain disclosure that could result from the use of a pre-feasibility study to support the determination and disclosure of mineral reserves? If not, why not?
88. Should we adopt the proposed instructions for the use of a feasibility study to support the determination and disclosure of mineral reserves? Are there any instructions that we should provide instead of or in addition to the proposed instructions for such use of a feasibility study? Are there any instructions that we should exclude?
89. As part of the instructions for pre-feasibility and feasibility studies, should we define preliminary and final market studies as proposed?
Item 102 refers issuers “engaged in significant mining operations” to Guide 7. Guide 7 in turn calls for the disclosure of certain items for each “mine, plant or other significant property” in which the registrant has an economic interest.
We believe that, for registrants with economic interests in multiple mining properties, investors would benefit from an overview of the mining operations in addition to a property by property description. We believe that this would also result in more efficient and more effective disclosure, as registrants would be able to provide summary disclosure about all properties where some or all are not individually material. As such, we are proposing that registrants that own two or more mining properties must provide summary disclosure of their mining operations.
The summary disclosure would include a map or maps showing the locations of all mining properties.
The proposed summary disclosure would also include a presentation, in tabular form, of certain specified information about the 20 properties with the largest asset values (or fewer, if the registrant has an economic interest in fewer than 20 mining properties),
As proposed, for each of the properties required to be included in the summary disclosure, a registrant would have to identify the property, report the total production from the property for the three most recently completed fiscal years,
• The location of the property;
• the type and amount of ownership interest;
• the identity of the operator;
• title, mineral rights, leases or options and acreage involved;
• the stage of the property (exploration, development or production);
• key permit conditions;
• mine type and mineralization style; and
• processing plant and other available facilities.
For the purpose of determining the registrant's 20 largest properties, a registrant would be permitted to treat multiple mines with interrelated mining operations
Guide 7 currently calls for the disclosure of all of the above items of information. We continue to believe that these items are important to the description of, and necessary to an understanding of, a mining property. The summary information required about each of the 20 largest properties, by asset value, however, would be less than what we are proposing to require for individual material properties. For example, we are not proposing to require summary information on the exploration work carried out and material exploration results in the reporting period.
In addition, under the proposed rules, a registrant would have to provide a summary of its mineral resources and mineral reserves at the end of its most recently completed fiscal year, by commodity and geographic area, and for each property containing 10% or more of the registrant's mineral reserves or 10% or more of the registrant's combined measured and indicated mineral resources. The registrant would have to provide this summary for each class of mineral reserves (probable and proven) and resources (inferred, indicated and measured), together with total mineral reserves and total measured and indicated mineral
We believe that this proposed requirement would provide investors with information necessary to understand a registrant's material mining operations at fiscal year's end.
We also are proposing several instructions to this summary disclosure requirement. The proposed instructions would:
• Define the term “by geographic area” to mean by individual country, regions of a country, state, groups of states, mining district, or other political units, to the extent material to and necessary for an investor's understanding of a registrant's mining operations;
• explain that all disclosure of mineral resources must be exclusive of mineral reserves;
• require that all disclosure of mineral resources and reserves must be only for the portion of the resources or
• require all mineral resource and reserve estimates to be based on prices that are no higher than the average spot price during the 24-month period prior to the end of the fiscal year covered by the report, determined as an unweighted arithmetic average of the daily closing price for each trading day within such period, unless prices are defined by contractual arrangements;
• require that the mineral resource and reserve estimates called for in proposed Table 3 must be in terms of saleable product.
We believe that these instructions would facilitate the clear and consistent presentation of information concerning a registrant's mineral reserves and resources for investors while providing flexibility to the registrant regarding the basis of the information presented. For example, the requirement to use any price below the 24-month trailing average provides registrants some flexibility on the price used in its reserve estimation. Also, the definition of “by geographic area” provides registrants flexibility on how to organize the information requested in Table 2.
For registrants with mining operations that are, in the aggregate, material but for which no individual property is material, this summary disclosure under proposed Item 1303 would be the only mining disclosure required in the registrant's filings. For registrants with individual properties that are material, we are proposing additional, more detailed, disclosure about such properties.
We believe the proposed requirement for summary disclosure would be beneficial for both registrants and investors. We believe it would provide more efficient and effective disclosure and would better accommodate the diversity among registrants in terms of the number and relative size of their mining properties. Registrants would be required to disclose an appropriate level of information based on their particular facts and circumstances, specifically taking into account whether they own individually material properties. Under this approach, investors would be provided with information necessary to understand the registrant's mining operations even if it owns no individually material property. For those registrants with individually material properties, investors would obtain aggregate information about the registrant's mining operations as well as more detailed information about individually material properties.
90. Should we require summary disclosure, as proposed, for all registrants with material mining operations? Why or why not? Should such summary disclosure require maps showing the locations of all mining properties, a presentation of the proposed information about the 20 properties with the largest asset values, and a summary of all mineral resources and reserves at the end of the most recently completed fiscal year, as proposed?
91. Should we permit registrants to treat multiple mines with interrelated mining operations as one mining property, as proposed? Should we instead require registrants to treat such mines as separate properties? Why or why not?
92. Should we exclude registrants with only one mining property from the summary disclosure requirements, as proposed? Why or why not? Alternatively, should we use a different threshold than the proposed “only one” threshold for excluding a registrant from the summary disclosure requirements? If so, what threshold should we use and why would this threshold be more appropriate?
93. Regarding the proposed summary disclosure requirement for the 20 largest properties, should we require other information, in addition to or in lieu of the proposed items? Why or why not? For example, should we require the registrant to disclose the asset value of each property included in its summary disclosure? Should we revise the proposed form and content of Table 2? If so, how should we revise the table's form or content?
94. Should the presentation of information about the mining properties with the largest asset values include the 20 largest properties, as proposed? Should this number be higher or lower? If so, what number is appropriate? Why? Should the summary disclosure include only those properties that represent 5% or more in asset value? Should we permit the summary disclosure to omit any property that represents 1% or less in asset value? Alternatively, should we require the specified information based on some criteria (
95. Should we require summary disclosure to include information on mineral resources and reserves, as proposed? Why or why not? If mineral resources and reserves are required in summary disclosure, should we require their disclosure by class of mineral reserves (probable and proven) and resources (inferred, indicated and measured), together with total mineral reserves and total measured and indicated mineral resources, as proposed? Should we require the summary disclosure by commodity and geographic area or property containing 10% or more of mineral reserves or sum of measured and indicated mineral resources, as proposed? Why or why not? In particular, is the proposed instruction to Table 3 regarding the scope of geographic area to be disclosed sufficiently clear, and if not, how should it be clarified? Should we require disclosure of mineral reserves and resources by some other attribute (
96. Should we require the disclosure in Tables 2 and 3 to be made available in the eXtensible Business Reporting Language (XBRL) format? Why or why not?
97. If we require the disclosure in Tables 2 and 3 to be made available in XBRL, are the current requirements for the format and elements of the tables suitable for tagging? If not, how should they be revised? In particular, are the proposed instructions for Tables 2 and 3 sufficiently specific to make the data reported in the tables suitable for direct comparative analysis? If not, how should the instructions be revised to increase the usefulness of having the data made available in XBRL, including the comparability and quality of XBRL data?
98. If we require Tables 2 and 3 to be made available in XBRL, is there a particular existing taxonomy that should be used? Alternatively, what features should a suitable taxonomy have in this case?
We believe that summary property disclosure alone would not provide all
As proposed, for each material individual property, a registrant would have to provide a brief description of the property,
• The property's location, accurate to within one mile, using an easily recognizable coordinate system, including appropriate maps, with proper engineering detail (such as scale, orientation, and titles), which must be legible on the page when printed;
• existing infrastructure, including roads, railroads, airports, towns, ports, sources of water, electricity, and personnel;
• a brief description, including the name or number and size (acreage), of the titles, claims, concessions, mineral rights, leases or options under which the registrant and its subsidiaries have or will have the right to hold or operate the property, and how such rights are obtained at this location, indicating any conditions that the registrant must meet in order to obtain or retain the property. If held by leases or options or if the mineral rights otherwise have termination provisions, the registrant would have to provide the expiration dates of such leases, options or mineral rights and associated payments.
For each material property, the proposed rules also would require a registrant to disclose a history of previous operations,
In addition to providing a brief description of the present condition of the property, a registrant would have to disclose the work completed by the registrant on the property; the registrant's proposed program of exploration or development; the current stage of the property as exploration, development or production; the current state of exploration or development of the property; and the current production activities. Mines would have to be identified as either surface or underground, with a brief description of the mining method and processing operations. If the property is without known reserves and the proposed program is exploratory in nature or the registrant has started extraction without determining mineral reserves, the registrant would have to provide a statement to that effect.
The proposed rules would also require a registrant to disclose, for each material property, the age, details as to modernization and physical condition of the equipment, facilities, infrastructure, and underground development.
The above proposed items of disclosure are substantially similar to items called for by Item 102 of Regulation S–K and Guide 7.
To increase the quality and usefulness of the disclosure provided pursuant to the existing mining disclosure regime, the proposed rules would include several additional items of individual property disclosure. For example, unlike Guide 7, which does not address the issue, the proposed rules would apply to the disclosure obligations of a registrant holding a royalty interest or other similar economic interest in a property. Under the proposed rules, such a registrant would be required to describe all of the above information that an owner or operator of the property would have to provide, including, for example, the documents
In addition, we are proposing to require several of the disclosure items in tabular form because we believe this would standardize the disclosure, facilitate a registrant's compliance with the disclosure requirements, and enhance an investor's understanding of the registrant's material mining properties.
As proposed, Table 4 would require a summary of the exploration activity for the most recently completed fiscal year, which, for each sampling method used, discloses the number of samples, the total size or length of the samples, and the total number of assays.
As proposed, Table 5 would require a registrant to provide a summary of material exploration results for the most recently completed fiscal year, which, for each material property, identifies the hole that generated the exploration results, and describes the length, lithology
Neither Guide 7 nor Item 102 calls for disclosure of exploration results, although Guide 7 does call for the disclosure of the registrant's exploration program.
Table 6, as proposed, would require a registrant to disclose, if mineral resources or reserves have been determined, a summary of all mineral resources and reserves, which, for each material property, provides the estimated tonnages, grades (or quality, where appropriate), cut-off grades and metallurgical recovery, by class of mineral resource and reserve, occurring in-situ, as plant/mill feed, and as saleable product.
We also are proposing a few instructions to the provisions requiring a registrant to disclose its exploration activity, material exploration results, and mineral resource and reserve estimates for each material property. One instruction would advise a registrant not to include an extensive description of regional geology, but, rather, to include geological information that is brief and relevant to property disclosure.
The proposed rules would further require a registrant to provide, in proposed Tables 7 and 8, a comparison of its mineral resources and reserves as of the end of the last fiscal year against the mineral resources and reserves as of the end of the preceding fiscal year, with an explanation of any change between the two.
• The mineral resources or reserves at the end of the last two fiscal years;
• the net difference between the mineral resources or reserves at the end of the last completed fiscal year and the preceding fiscal year, as a percentage of the resources or reserves at the end of the fiscal year preceding the last completed one;
• an explanation of the causes of any discrepancy in mineral resources including depletion or production, changes in commodity prices, additional resources discovered through exploration, and changes due to the methods employed; and
• an explanation of the causes of any discrepancy in mineral reserves including depletion or production, changes in the resource model, changes in commodity prices and operating costs, changes due to the methods employed, and changes due to acquisition or disposal of properties.
A registrant would have to provide this comparison in tabular form in the following format:
While Guide 7 calls for annual disclosure of mineral reserves, it does not call for registrants to compare their current mineral reserve disclosure with previously provided disclosure. Thus, this proposed comparative disclosure requirement could increase reporting costs for registrants. We believe, however, that much of the disclosure that would be required under the proposed comparative disclosure requirement is often provided by registrants pursuant to current disclosure practices. We believe that in most cases this disclosure is sufficiently important to an investor's understanding of the registrant's material properties that it would be appropriate to have a separate, stand-alone requirement set forth in our rules.
If the registrant has not previously disclosed mineral reserve or resource estimates in a filing with the Commission or is disclosing material changes to its previously disclosed mineral reserve or resource estimates, we are proposing that it provide a brief discussion of the material assumptions and criteria in the disclosure. The material assumptions and criteria would depend on the specific facts and circumstances surrounding the particular property and the mineral resource and reserve estimates. The disclosure of these assumptions and criteria, however, would need to include all of the material information necessary for investors to understand the disclosed mineral resources or reserves. In addition, the registrant would have to cite to corresponding sections of the technical report summary, which would be filed as an exhibit pursuant to proposed Item 1302(b).
Similarly, if the registrant has not previously disclosed material exploration results in a filing with the Commission, or is disclosing material changes to its previously disclosed exploration results, we are proposing that it must provide sufficient information to allow for an accurate understanding of the significance of the exploration results. This must include information such as exploration context, type and method of sampling, sampling intervals and methods, relevant sample locations, distribution, dimensions, and relative location of all relevant assay and physical data, data aggregation methods, land tenure status, and any additional material information that may be necessary to make the required disclosure concerning the registrant's exploration results not misleading. In addition, the registrant would have to cite to corresponding sections of the summary technical report, which would be filed as an exhibit pursuant to proposed Item 1302(b).
Finally, we are proposing some individual property disclosure instructions applicable to registrants that have not previously disclosed mineral resource or reserve estimates or material exploration results or that are disclosing a material change in previously disclosed mineral resource or reserve estimates or material exploration results. Most of these proposed instructions are designed to assist registrants in determining whether there has been a material change in estimates of mineral resources, mineral reserves, or material exploration results. For example, one key proposed instruction would explain that whether a change in exploration results, mineral resources, or mineral reserves, is material must be based on all facts and circumstances, both quantitative and qualitative.
Other proposed instructions would establish quantitative thresholds for presumed materiality of a change in estimates of mineral resources or reserves. For example, one proposed instruction would state that an annual change in total resources or reserves of 10% or more, excluding production as reported in proposed Tables 7 and 8, is presumed to be material, and thus would need to be disclosed.
Another proposed instruction would require a registrant to consider carefully whether the filed technical report summary is current with respect to all material assumptions and information, including assumptions relating to or underlying all modifying factors and scientific and technical information (
Finally, a proposed instruction would explain that a report containing estimates of the quantity, grade, or metal or mineral content of a deposit or exploration results that a registrant has not verified as a current mineral resource, mineral reserve, or exploration results, and which was prepared before the registrant acquired, or entered into an agreement to acquire, an interest in the property that contains the deposit, would not be considered current and could not be filed in support of disclosure.
We believe these instructions would help a registrant determine when it must file a technical report summary as an exhibit to the filing and provide the appropriate accompanying disclosure in the filing about the resource or reserve estimates and material exploration results. At the same time, the proposed instructions would help to ensure that investors are provided with current information about their mineral resources and reserves and material exploration results.
99. Should we require disclosure on individually material properties, as proposed? Why or why not? Should such disclosure require a description of the property, a history of previous operations, a description of the condition and status of the property, a description of any significant encumbrances to the property, a summary of the exploration activity for the most recently completed fiscal year, a summary of material exploration results for the most recently completed fiscal year, and a summary of all mineral resources and reserves, if mineral resources or reserves have been determined, as proposed?
100. Should we require that a registrant provide the property's location, including in maps, accurate within one mile? Why or why not? If not, should we use a standard for degree of accuracy similar to that used in the CRIRSCO-based codes, such as PERC or SAMREC? Why or why not? If not, what level of accuracy should we require?
101. Should we require that a registrant provide in tabular format each of the summaries required for its exploration activity, material explorations results, and mineral resources and reserves, as proposed? Why or why not? Should we require all of the information specified in Tables 4–8 to be in tabular form? Why or why not? Should we revise the proposed form and content of these tables? If so, how should we revise the tables' form or content?
102. Should we permit registrants to disclose estimates of mineral resources and reserves based on different price criteria, which may reasonably be achieved, in lieu of, or in addition to, the price which is no higher than the 24-month trailing average? Why or why not? What factors should we use to determine what may reasonably be achieved? Should we require all registrants to use the 24-month average spot price (or average over a different period) as the commodity price instead of as a ceiling? Why or why not?
103. Should we require the registrant to provide a comparison of the mineral resources and reserves as of the end of the last fiscal year against the mineral resources and reserves as of the end of the preceding fiscal year, with an explanation of any material change between the two, as proposed? Why or why not? Are there items of information that we should include in the comparison instead of or in addition to the proposed items of information? Are there any proposed items of information that we should exclude from the comparison?
104. If the registrant has not previously disclosed material exploration results, mineral reserve or resource estimates in a filing with the Commission or is disclosing material changes to its previously disclosed exploration results, mineral reserve or mineral resource estimates, should we require it to provide a brief discussion of the material assumptions and criteria in the disclosure and cite to any sections of the technical report summary, as proposed? Should we require registrants to file updated summary technical reports to support disclosure of material exploration results, mineral resources or mineral reserves when the registrant is relying on a previously filed technical report summary that is no longer current with respect to all material scientific and technical information, as proposed? Why or why not?
105. Regarding the proposed requirement to disclose a material change in mineral resources or reserves, should we adopt an instruction that an annual change in total resources or reserves of 10% or more, or a cumulative change in total resources or reserves of 30% or more in absolute terms, excluding production as reported in Tables 7 and 8, is presumed to be material, as proposed? Why or why not? If not, should we remove the materiality presumptions altogether or use different quantitative thresholds from those proposed? If the latter, what alternative thresholds or measure(s) should replace the proposed presumptions of materiality?
106. Should we require the disclosure in Tables 4 through 8 to be made available in the XBRL format? Why or why not?
107. If we require the disclosure in Tables 4 through 8 to be made available in XBRL, are the current requirements regarding for the format and elements of the tables suitable for tagging? If not, how should they be revised? In particular, are the proposed instructions for Tables 4 through 8 sufficiently specific to make the data reported in the tables suitable for direct comparative analysis? If not, how should the instructions be revised to increase the usefulness of having the data made available in XBRL, including the comparability and quality of XBRL data?
108. If we require Tables 4 through 8 to be made available in XBRL, is there a particular existing taxonomy that should be used? Alternatively, what features should a suitable taxonomy have in this case?
As previously discussed, the proposed rules would require a registrant to file, as an exhibit, a technical report summary to support the disclosure of mineral resources, mineral reserves, or material exploration results for each material property. We believe that requiring disclosure of the important scientific and technical information that forms the basis for disclosure of exploration results, mineral resources and mineral reserves in SEC filings would benefit investors. In this regard, a registrant's estimates of its mineral reserves, resources and exploration results are entirely dependent on the scientific and technical information considered by the qualified person. There is always a level of uncertainty associated with estimates of mineral deposits under the ground. As such, the report would provide investors with important contextual information with which to evaluate the reliability of the registrant's disclosure.
The proposed rules would require a qualified person to identify and summarize the scientific and technical information and conclusions reached concerning material mineral exploration results, initial assessments used to support disclosure of mineral resources, and preliminary or final feasibility studies used to support disclosure of mineral reserves, for each material property, in the technical report
The proposed requirements for the contents of the technical report summary are intended to elicit the scientific and technical information necessary to support the determination and disclosure of mineral resources, mineral reserves and material exploration results. These proposed requirements, as discussed below, are similar in most respects to the items of information required for the summary report under the Canadian mining disclosure provisions in NI 43–101.
As proposed, the technical report summary must not include large amounts of technical or other project data, either in the report or as appendices to the report.
We are proposing that the technical report summary consist of some or all of the following 26 sections,
• An executive summary that briefly summarizes the most significant information in the technical report summary, including property description and ownership, geology and mineralization, the status of exploration, development and operations, mineral resource and mineral reserve estimates, summary capital and operating cost estimates, permitting requirements, and the qualified person's conclusions and recommendations;
• an introduction, which, among other matters, must identify the registrant for whom the technical report summary was prepared, disclose the terms of reference and purpose for which the technical report summary was prepared, and briefly describe any personal inspection of the property by each qualified person
• a description of the property, including the location of the property, accurate to within one mile, using an easily recognizable coordinate system, together with appropriate maps, with proper engineering detail (such as scale, orientation, and titles) to portray the location of the property;
• a description of the property's accessibility, climate, local resources, infrastructure and physiography;
• a history of the property, which must include a description of previous operations, together with the names of previous operators if known, and the type, amount, quantity, and general results of exploration and development work undertaken by any previous owners or operators;
• a brief description of the regional, local, and property geology, the significant mineralized zones encountered on the property, and each mineral deposit type that is the subject of investigation or exploration, together with the geological model or concepts being applied in the investigation or forming the basis of exploration program;
• a description of the property's hydrogeology;
• a description of geotechnical data, testing and analysis;
• a description of the nature and extent of all relevant exploration work
• a description of sample preparation methods and quality control measures employed prior to sending samples to an analytical or testing laboratory, sample splitting and reduction methods, and the security measures taken to ensure the validity and integrity of samples;
• a description of the steps taken by the qualified person to verify the data being reported on or which is the basis of the technical report summary;
• a description of the nature and extent of the mineral processing or metallurgical testing and analytical procedures;
• if mineral resource estimates are being reported, a description of the key assumptions, parameters, and methods used to estimate the mineral resources, in sufficient detail for a reasonably informed person to understand the basis for and how the qualified person estimated the mineral resources;
• if mineral reserves are being reported, a description of the key assumptions, parameters, and methods used to estimate the mineral reserves, in sufficient detail for a reasonably informed person to understand the basis for converting, and how the qualified person converted, indicated and measured mineral resources into the mineral reserves;
• a description of the current or proposed mining methods and the reasons for selecting these methods as the most suitable for the mineral reserves under consideration;
• a description of the current or proposed processing and recovery methods and the reasons for selecting those methods as the most suitable for extracting the valuable products from the mineralization under consideration;
• a description of the required infrastructure for the project, including roads, rail, port facilities, dams, dumps and leach pads, tailings disposal, power, water and pipelines, as applicable;
• a description of the market for the products of the mine, including justification for demand or sales over the life of the mine (or length of cash flow projections);
• a description of the environmental, permitting, and social or community factors related to the project;
• an estimate of capital and operating costs, with the major components set out in tabular form;
• an economic analysis, which, among other matters, describes the key assumptions, parameters, and methods used to demonstrate economic viability, and includes the results of the economic analysis presented as annual cash flow forecasts based on an annual production schedule for the life of the project, and measures of economic viability such as net present value, internal rate of return, and payback period of capital;
• a discussion of relevant information concerning an adjacent property provided that certain conditions have been met;
• a discussion of any other relevant data or information necessary to provide a complete and balanced presentation of the value of the property to the registrant;
• a summary of the qualified person's interpretations and conclusions based on the data and analysis in the technical report summary;
• a description of the qualified person's recommendations for additional work with associated costs, if applicable;
• a list of all references cited in the technical report summary in sufficient detail so that a reader can locate each reference.
A technical report summary that reports the results of a preliminary or final feasibility study would have to include all of the information specified in the above proposed sections. A technical report summary that reports the results of an initial assessment or that reports material exploration results could omit information required by certain of the proposed technical report summary sections.
As noted above, these proposed sections are similar in most respects to the items of information required for the summary report under Canada's NI 43–101.
In addition, we are proposing to include sections about hydrogeology and geotechnical data, including testing and analysis, which are not included in NI 43–101. We believe that these two items are sufficiently important that investors would benefit from having them as separate requirements, rather than subsumed under other requirements, because they can directly impact the economic viability of a mining project. Hydrogeology and geotechnical data are the basis for determining several design parameters that directly impact the safety of the designed mine. Moreover, these design parameters can affect the operating and capital costs and can, therefore, directly impact the economics of the mine (
109. Should we require the qualified person to include in a technical report summary the 26 items, as proposed? Are there any items of information that we should include instead of or in addition to the proposed 26 sections of the technical report summary? Are there any items of information that we should exclude from the proposed technical report summary?
110. As previously noted, the qualified person would have to apply and evaluate relevant modifying factors to assess prospects of economic extraction or to convert measured and indicated mineral resources to proven or probable mineral reserves. These would include a variety of factors such as economic, legal, and environmental as discussed more fully above. For example, to apply and evaluate legal factors the qualified person must examine the regulatory regime of the host jurisdiction to establish that the registrant can comply (fully and economically) with all laws and regulations (
111. Should we require, as proposed, a qualified person who prepares a technical report summary that reports the results of a preliminary or final feasibility study to provide information for all 26 items? If not, which items should not be required? Should we require, as proposed, a qualified person who prepares a technical report summary that reports the results of an initial assessment to provide, at a
112. The proposed rules would permit a qualified person who prepares a technical report summary that reports the results of an initial assessment to use mineral resources in economic analysis (and provide the information specified in paragraph (iv)(B)(21) of proposed Item 601(b)(96)). Should we permit a qualified person to do so if he or she wishes?
113. Should we require a qualified person who prepares a technical report summary that reports material exploration results to provide, at least, the information specified in paragraphs (iv)(B)(1) through (11) and (iv)(B)(22) through (26) of proposed Item 601(b)(96), as proposed?
114. Should we preclude a qualified person from disclaiming responsibility if he or she relies on a report, opinion, or statement of another expert who is not a qualified person in preparing the technical report summary, as proposed? Why or why not?
115. Should we require that the technical report summary not include large amounts of technical or other project data, either in the report or as appendices to the report, as proposed? Why or why not? Should we require a qualified person to draft the technical report summary to conform, to the extent practicable, with plain English principles under the Securities Act and Exchange Act, as proposed?
Although not called for by Guide 7, some registrants provide disclosure about their internal controls, including quality control and quality assurance measures, which they have put in place to help ensure the reliability of their disclosure of exploration results and estimates of mineral resources and mineral reserves. The staff has also requested, on a case by case basis, that registrants provide a brief description of the quality control and quality assurance protocols for sample preparation, controls, custody, assay precision and accuracy as they relate to exploration programs.
We believe that disclosure about the internal controls that a registrant uses to help ensure the reliability of its disclosure of exploration results and estimates of mineral resources and mineral reserves would benefit investors. Accordingly, we are proposing to require that a registrant describe the internal controls
A proposed instruction would state that a registrant must provide the required internal controls disclosure whether it is providing summary disclosure under proposed Item 1303, individual property disclosure under proposed Item 1304, or under both items.
Moreover, all the CRIRSCO-based codes require the disclosure of quality control and quality assurance procedures as they relate to exploration results (data) and techniques and assumptions (analysis) used for mineral resource and reserve estimation.
116. Should we require registrants to describe the internal controls that they use to help ensure the reliability of their disclosure of exploration results and estimates of mineral resources and mineral reserves, as proposed? Should we require that such internal controls disclosure address quality control and quality assurance programs, verification of analytical procedures, and comprehensive risk inherent in the estimation, as proposed? Are there other items, in addition to or in lieu of those proposed items, that should be included in such disclosure? Are there items that should be excluded from the proposed internal controls disclosure requirement? In each case, why or why not?
117. Should we require registrants to describe the internal controls that they use to help ensure the reliability of their disclosure of exploration results and estimates of mineral resources and mineral reserves, as proposed? Should we require that such internal controls disclosure address quality control and quality assurance programs, verification of analytical procedures, and comprehensive risk inherent in the estimation, as proposed? Are there other items, in addition to or in lieu of those proposed items, that should be included in such disclosure? Are there items that should be excluded from the proposed internal controls disclosure
Foreign private issuers
The Commission revised Form 20–F in 1999 to conform its disclosure requirements to the international disclosure standards endorsed by the International Organization of Securities Commissions (“IOSCO”) in September 1998.
We believe that the proposed rules should apply equally to foreign private issuers and domestic registrants. This treatment would be consistent with the current requirements for foreign private issuers and domestic registrants under Form 20–F
Accordingly, in order to make foreign private issuers filing on Form 20–F subject to the new mining disclosure regime, we propose to amend Form 20–F by adding an instruction to Item 4 that issuers engaged in mining operations must refer to and, if required, provide the disclosure under subpart 1300 of Regulation S–K.
In addition, we propose to add an instruction to the exhibits section of Form 20–F stating that a registrant that is required to file a technical report summary pursuant to Item 1302(b)(2) of Regulation S–K must provide the information specified in Item 601(b)(96) of Regulation S–K as an exhibit to its registration statement or annual report on Form 20–F.
Thus, following adoption of these proposed revisions to Form 20–F, foreign private issuers that use Form 20–F to file their Exchange Act annual reports and registration statements, or that refer to Form 20–F for their Securities Act registration statements on Forms F–1, F–3 and F–4, would have to comply with the mining disclosure requirements of new Regulation S–K subpart 1300. This would include Canadian registrants that report pursuant to Form 20–F and that currently are permitted to provide mining disclosure under NI 43–101 pursuant to the “foreign or state law” exception under Item 102 and Guide 7. We note that the proposed disclosure requirements would be substantially similar to Canada's NI 43–101. As previously noted, the proposed rules would eliminate this “foreign or state law” exception.
118. Should we amend Form 20–F to conform it to the disclosure requirements of subpart 1300 of Regulation S–K and Item 601(b)(96), as proposed?
119. Should foreign private issuers that use or refer to Form 20–F for their SEC filings be subject to the same mining disclosure requirements as
120. Should we continue to permit Canadian issuers to provide disclosure under NI 43–101, as they are currently allowed to do pursuant to the foreign or state law exception, as an alternative to providing disclosure under the proposed rules? If so, what would be the justification for such differential treatment?
Regulation A provides an exemption from the registration requirements of the Securities Act for certain securities offerings that satisfy specified conditions, such as filing an offering statement with the Commission,
The Commission amended Regulation A in March of 2015 to permit two tiers of offerings: Tier 1, for offerings of up to $20 million of securities within a 12-month period; and Tier 2, for offerings of up to $50 million of securities within a 12-month period.
When updating Item 7 of Part II of Form 1–A concerning the required “Description of Business” disclosure, the Commission added a provision stating that the disclosure guidelines in all Securities Act Industry Guides must be followed. The provision also stated that, to the extent that the industry guides are codified into Regulation S–K, the Regulation S–K industry disclosure items must be followed.
The purpose of this provision was to incorporate into Form 1–A the disclosure guidance in all of the Securities Act Industry Guides.
Because this provision, however, only appears in Item 7(c) of Part II, which governs “business” disclosure, we are proposing to amend Part II of Form 1–A to apply the scope of the requirement to the description of property for certain issuers by adding similar language under Item 8 of Part II to Form 1–A.
We also propose to amend the instruction to Item 8, which currently provides that “[d]etailed descriptions of the physical characteristics of individual properties or legal descriptions by metes and bounds are not required and should not be given.” Because much of the disclosure under proposed subpart 1300 of Regulation S–K would require detailed descriptions of mining properties, the proposed rules would amend this instruction by excepting from its scope the disclosure required under these rules, as referenced in paragraph (b) of Item 8.
Thus, Regulation A issuers with material mining operations would be subject to all of the disclosure requirements in subpart 1300 of Regulation S–K. In order to require those Regulation A issuers to be subject to the new subpart's technical report summary filing requirement, we propose to amend Item 17 (Description of Exhibits) of Part III under Form 1–A by adding a provision stating that an issuer that is required to file a technical report summary pursuant to Item 1302(b)(2) of Regulation S–K must provide the information specified in Item 601(b)(96) of Regulation S–K as an exhibit to its Form 1–A.
121. Should we amend Form 1–A to require Regulation A issuers engaged in mining operations to refer to, and if required, provide the disclosure under subpart 1300 of Regulation S–K, in addition to any disclosure required by Item 8 of that Form, as proposed? Why or why not? Alternatively, should the disclosure requirements in proposed subpart 1300 apply to only some Regulation A issuers (
122. In lieu of imposing full subpart 1300 disclosure requirements on Regulation A issuers, should we limit, in whole or in part, the proposed subpart 1300 disclosure requirements for issuers in Regulation A offerings? If so, should these requirements be limited only for issuers in Tier 1 offerings? Why or why not? Further, which provisions of proposed subpart 1300 should, and should not, apply to issuers in Regulation A offerings? For example, should we require compliance with Item 1302's requirement to file the technical
123. Would limiting disclosure of the information required under proposed subpart 1300 for issuers in Regulation A offerings increase the risk of inaccurate disclosure in such offerings or otherwise increase risks to investors?
We request and encourage any interested person to submit comments on any aspect of our proposals, other matters that might have an impact on the amendments, and any suggestions for additional changes. With respect to any comments, we note that they are of greatest assistance to our rulemaking initiative if accompanied by supporting data and analysis of the issues addressed in those comments and by alternatives to our proposals where appropriate.
As discussed above, we are proposing revisions to the property disclosure requirements for mining registrants under the Securities Act of 1933 and the Securities Exchange Act of 1934. The proposed revisions are intended to modernize the Commission's mining disclosure requirements and policies by aligning them with industry practices and global regulatory practices and standards. Overall, we believe that the proposed revisions would increase the amount and quality of information about a registrant's mining operations available to investors as well as provide a single source in Regulation S–K for these disclosure obligations. We further believe that this will facilitate compliance by eliminating the complexity resulting from the existing structure of Commission disclosure obligations in Regulation S–K and staff disclosure guidance in Industry Guide 7.
We are mindful of the costs imposed by, and the benefits obtained from, our proposed revisions. In this section we analyze the expected economic effects of the proposed revisions relative to the current baseline, which consists of the current regulatory framework and market practices. We consider the potential economic impact of the proposed revisions on the main affected parties, including registrants, investors and other financial statement users, and mining professionals, such as geologists and engineers, who provide services to registrants in support of mineral exploration and estimation of mineral resources and reserves. Our analysis considers the anticipated benefits and costs of the proposed revisions as well as the likely impact on efficiency, competition, and capital formation.
We also analyze the potential benefits and costs of reasonable alternatives to the proposed revisions. The alternatives we consider below represent different approaches to achieving the goal of modernizing the Commission's mining disclosure requirements and policies. Given the goal of updating the existing regulatory framework, we evaluate the potential costs and benefits of these alternative approaches against the potential costs and benefits of the proposed disclosure requirements, rather than against the baseline.
To assess the economic impact of the proposed revisions, our baseline consists of the current disclosure requirements and policies in Item 102 of Regulation S–K, Guide 7 and Form 20–F and current market practices. We also consider the CRIRSCO-based disclosure codes because mining registrants compete in the international commodities and capital markets, making international disclosure standards an important benchmark for investors evaluating mining companies. Furthermore, these standards are relevant to consider because, as discussed above, many mining registrants are foreign private issuers or U.S. incorporated registrants with reporting obligations in foreign jurisdictions. Thus, to the extent that the proposed revisions align the Commission's requirements with the CRIRSCO-based disclosure codes, we expect their economic impact to be lower for these registrants.
The proposed revisions would primarily affect current and future registrants with mining activities that are, or would be, subject to the mining disclosure requirements and policies contained in Item 102 of Regulation S–K and in Guide 7. In addition to U.S. registrants with mining operations that are required to report under Regulation S–K in their annual reports and registration statements, the proposed revisions would affect foreign private issuers with mining operations that file their Exchange Act annual reports and registration statements using Form 20–F, or that refer to Form 20–F for certain of their disclosure obligations under Securities Act registration statements filed on Forms F–1, F–3 and F–4. Moreover, the affected registrants would include mining companies filing Form 1–A offering statements under Regulation A. Investors, analysts, and other users of the information in the registrants' annual reports and registration statements filed with the Commission would also be affected by the proposed revisions. Finally, mining professionals, such as geologists and mining engineers, who provide services to registrants related to exploration and estimation of mineral resources and reserves would be potentially affected due to the proposed qualified person requirement and related provisions.
To estimate the number of current registrants that would be potentially affected by the proposed revisions, we first consider the active registrants as of December 2015 that filed annual reports or relevant registration statements at least once from January 2014 through December 2015. We then identify registrants with mining primary Standard Industrial Classification (“SIC”) codes.
Among these registrants, we anticipate that the proposed revisions would have a more significant effect on those mining registrants that are
Included among the 129 registrants that are potentially reporting mining operations according to CRIRSCO-based disclosure standards are 63 Canadian registrants. As discussed above, Canadian registrants are currently able to provide disclosure in their Commission filings pursuant to NI 43–101, in addition to the disclosure called for by Guide 7 or Form 20–F. A number of the proposed revisions would more closely align our disclosure requirements with those in NI 43–101. As such, we estimate that the Canadian registrants that are currently providing disclosure pursuant to NI 43–101 likely would be less significantly affected by the proposed revisions than the 66 non-Canadian registrants that are potentially reporting mining operations according to CRIRSCO-based disclosure standards.
As discussed in Sections I and II above, we evaluate the economic effects of the proposed revisions against the Commission's current disclosure requirements and policies. Below we discuss three economically important aspects: (1) The structure and detail of the current disclosure framework, (2) the scope of the current disclosure framework, and (3) the lack of an expertise requirement for the preparer of technical information in the disclosures.
The following aspects of the current disclosure regime may give rise to compliance challenges for mining registrants:
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The technological process for evaluating the value of a mineral property starts with mineral exploration, then continues with estimation of mineral resources (
The scope of the Commission's current disclosure regime relative to current industry practices for evaluating the prospects of mining properties can result in mining registrants omitting from their disclosures information about their mineral resources they possess but are not allowed to disclose. Omitting such information may increase the information asymmetries between mining registrants and investors, which could lead to potentially negative capital market consequences, such as reduced stock market liquidity and higher cost of capital.
Currently, registrants can supplement, to some extent, the limited scope of the current disclosure regime in two ways. First, although there is no requirement to disclose material exploration results, registrants can voluntarily disclose such information in their SEC filings. However, the value of such voluntary disclosures to investors may be reduced in the absence of a requirement that ensures consistency and quality of the
As discussed above, disclosure of mineral resources is currently prohibited unless required by foreign or state law.
As discussed above, Guide 7 provides, and Form 20–F requires that a registrant disclose the name of the person estimating the reserves and describe the nature of his or her relationship to the registrant. There is, however, no current disclosure policy or requirement in Guide 7, Item 102 or Form 20–F that a registrant must base disclosures of mineral reserves (or a study or technical report supporting such disclosures) on findings of a professional with a particular level of expertise. The absence of an expertise requirement is in contrast to the CRIRSCO-based codes, which all require that disclosures of mineral reserves—as well as exploration results and mineral resources—be based on information and supporting documentation prepared by a “competent” or “qualified person.”
In the absence of an expertise requirement, disclosures of exploration results, mineral resources and mineral reserves may be viewed as less credible. The lack of an expertise requirement may put U.S. registrants at a comparative disadvantage in terms of how investors value the disclosed information compared to companies disclosing mineral resources and reserves based on CRIRSCO-based codes.
In this section, we analyze the anticipated costs and benefits associated with the proposed revisions to the mining disclosure requirements.
As discussed above, the proposed revisions would consolidate the mining disclosure requirements and policies of Regulation S–K and Guide 7 into new subpart 1300 of Regulation S–K, and rescind Guide 7. Codifying the current mining disclosure requirements in Regulation S–K would provide a single source for a mining registrant's disclosure obligations, eliminating the complexity associated with the fact that Guide 7 provides staff guidance and is not incorporated in the Commission rules, such as in Regulation S–K, thus facilitating compliance and promoting more consistent disclosures to investors.
As described in Section II.A.1, the proposed revisions would replace the current multiple standards for disclosure (
The proposed standard would generally be consistent with current staff guidance for applying the existing disclosure thresholds. To the extent that registrants currently follow this guidance in determining which disclosures to make concerning their mining operations, the proposed new threshold would not significantly alter existing disclosure practices.
As discussed above, the proposed rules would redefine the classifications of “exploration,” “development” and “production” stage so that they apply to individual properties as well as the totality of a registrant's mining activities, the latter of which is the case in Guide 7. This individual property classification would in turn guide the classification of the registrant as a whole, as described above in Section II.A.2. Applying the classification of the technological stages at the property
As discussed above, we propose to require that every disclosure of mineral resources, mineral reserves and material exploration results be based on and accurately reflect information and supporting documentation prepared by an identified qualified person. Moreover, we propose to require that, for each material mining property, registrants obtain and file a signed and dated technical report summary prepared by this qualified person.
We anticipate that the qualified person requirement paired with the technical report summary requirement would enhance the accuracy, transparency, and credibility of the proposed disclosures for investors. For example, the requirement that the qualified person have at least five years of relevant experience and be an eligible member or licensee in good standing of a recognized professional association should ensure that the estimates provided in the disclosures are based on work consistent with current professional best practice. This should in turn increase the reliability and informational value of the disclosures. Moreover, the technical report summaries for material mining properties would provide investors and analysts with technical details to allow them to improve their own individual assessments of the value of the mining properties, including better estimates for their own forecasting models. These anticipated benefits should be especially pronounced in conjunction with the proposed disclosures of mineral resources and material exploration results, since estimates of mineral resources and material exploration results are typically associated, for technological reasons, with a higher degree of uncertainty compared to estimates of mineral reserves.
These potential benefits from the proposed qualified person requirement are not without associated costs.
Registrants that are currently employing or contracting with professionals meeting the proposed definition of a qualified person would not incur costs associated with hiring such a person but may nevertheless experience an increase in compensation costs. One reason for such an increase is that qualified persons would provide, sign and consent to the filing of more extensive documentation in support of the disclosures, which potentially would expose them to greater legal liability. Moreover, if the qualified person requirement reduces the pool of eligible mining professionals, compensation costs could increase due to increased competition among registrants for the services of these eligible professionals. However, we anticipate this competitive effect on compensation costs to be minor as there is currently a large pool of professionals both in the United States and around the world that would meet the definition of qualified person. For example, the Society for Mining, Metallurgy, and Exploration currently has 15,000 members around the world.
Regarding the proposed technical report summary requirement, we expect that registrants would experience an increase in compliance costs related to the preparation of the report summaries for material mining properties.
The proposed qualified person and technical report summary requirements are similar to the corresponding requirements in the CRIRSCO-based disclosure codes, which generally should mitigate the incremental impact of the proposed requirements on registrants currently reporting in jurisdictions that use these codes. However, some of the differences may be economically important. For example, although the CRIRSCO jurisdictions require that a company's exploration results, mineral resources and mineral reserves be based on and fairly reflect information and supporting documentation prepared by a “competent” or “qualified” person, only Canada and Australia require the filing of a technical report summary to support such disclosure.
The proposed rules do not require the qualified person to be independent of the registrant. The absence of an independence requirement is consistent with the CRIRSCO-based codes, with the exception of Canada where the qualified person supporting the registrant's mining disclosures must be independent of the company for new registrants or, in cases of significant changes to existing disclosures, for established registrants.
We have considered reasonable alternatives to the proposed qualified person and technical report summary requirements. One alternative would be not to require or define the professional requirements of the expert producing information and supporting documents for the disclosures, but to require that registrants disclose the relevant qualifications and professional background of the expert as well as any affiliation with the registrant. Investors could use this information to decide for themselves if the expert is likely to be competent and reliable. Compared to the proposed rule, this alternative would potentially lower costs for the services provided by qualified persons since registrants could hire from a broader population of experts. Moreover, registrants that already use experts not meeting the definition of a qualified person under the proposed rule would avoid switching costs. However, this alternative would potentially lead to less consistency in the type of expertise and quality of reports across firms. Moreover, this alternative would significantly differ from the approach in the CRIRSCO standards of requiring a minimum level of expertise in support of the disclosures. As a result, even when keeping the actual level of competence of experts constant across jurisdictions, this alternative could lead to a perception among investors that disclosures of mineral resources and reserves within SEC filings are not as well supported as disclosures in the CRIRSCO jurisdictions, which could discourage investors from investing in securities of mining companies listed in the U.S. markets.
Another alternative would be not to require the filing of a technical report summary to reduce expected compliance costs and be consistent with the majority of CRIRSCO-based codes. Under this alternative, the potential benefits discussed above that come from investors having access to the information in the technical report summary would be foregone.
The proposed rules would require a registrant to disclose material exploration results (as and if determined by a qualified person) for each of its material mining properties. This proposed disclosure requirement would align the Commission's disclosure requirements for exploration results with those in CRIRSCO-based codes. The proposed rules also would provide guidance for registrants when exploration results are considered material.
Although the Commission's current disclosure requirements and policies do not provide for the disclosure of exploration results, some registrants
Because a new mining project inevitably starts from some form of exploration activity, disclosure of material exploration results would provide important information to investors about registrants' mining operations and potential growth opportunities. We expect the disclosure of exploration results by smaller mining registrants to be especially useful to investors as such registrants tend to have a narrower range of mining operations and fewer individual projects. We estimate that a majority of mining registrants are very small firms: 51% of mining registrants (176 out of the 345 registrants identified above) have $5 million or less in total assets, suggesting they are mainly exploration stage registrants.
It is important to recognize that exploration results, by themselves, without the assessment of geologic and grade continuity required in resource estimation, are inherently speculative. Thus, it may be difficult for investors to value exploration results accurately and there is a risk that some investors would put too much weight on this information, which in turn could lead to inefficient investment decisions. The proposed requirements are intended to mitigate any potential costs related to the uncertainty associated with the disclosure of exploration results in a couple of ways. First, the proposed rules would preclude the use of exploration results, by themselves, to derive estimates of tonnage, grade, and production rates, or in an assessment of economic viability. This should reduce the potential for overvaluing the disclosed exploration results. Second, disclosure of material exploration results must be based on the analysis of a qualified person submitting a technical report summary that is filed as an exhibit with the Commission. The proposed qualified person and technical report summary requirements should increase the accuracy and reliability of the disclosed exploration results. In addition, the proposed requirements would also increase the usefulness of this information to investors by aligning the disclosure of material exploration results with the requirements in CRIRSCO-based codes, which would improve the comparability of the disclosed information relative to similar disclosures by mining companies in jurisdictions such as Canada and Australia.
Quantifying the anticipated net benefit to investors from the proposed disclosure requirement is difficult. There is some academic evidence suggesting that investors respond favorably to the disclosures of exploration results. For example, an academic study of 1,260 exploration results announcements made by 307 unique Australian mining companies over the 2005–2008 time period documents an average abnormal stock return of 2.8% on the announcement day.
We expect an increase in compliance costs for those registrants that disclose material exploration results for the first time for any particular project. These costs would include the assessment of materiality, the costs of preparing the required technical report summary, and the costs of reporting the results in annual reports and registration statements filed with the Commission. To the extent that these costs are fixed rather than scaled to the size of the project, the cost burden would be relatively larger for smaller registrants.
We note that the proposed requirement to disclose material exploration results does not impose an affirmative obligation to hire a qualified person to make a determination about exploration results. Registrants who perceive that the compliance costs related to engaging a qualified person are prohibitive can refrain from engaging a qualified person to make a determination about the exploration results. In that situation, the registrant would not be required to disclose material exploration results because the required information and documentation by an expert necessary to support the public disclosure of material exploration results would not be present.
The compliance costs of the proposed disclosure requirement should be substantially mitigated for registrants that already report based on CRIRSCO standards, as those standards have similar disclosure requirements for material exploration results.
The proposed rules require disclosure of determined material exploration results only with respect to individually material properties.
As discussed above, disclosure of mineral resources is currently precluded in SEC filings unless required pursuant to foreign or state law. Industry participants have raised concerns regarding the adverse competitive effects potentially stemming from the inability of U.S. registrants to disclose mineral resources.
The proposed rule would require a registrant with material mining operations to disclose specified information concerning any mineral resources that have been determined based on information and supporting documentation from a qualified person.
As proposed, a registrant with material mining operations that has multiple properties would be required to provide both summary disclosure about its mineral resources in addition to more detailed disclosure concerning its mineral resources for each material property.
We expect the proposed framework for disclosure of mineral resources to result in additional useful information concerning a registrant's operations and prospects. Because mining registrants already assess mineral resources in the course of developing mining projects, requiring information about mineral resources to be disclosed would significantly reduce the information asymmetries between investors and registrants. Reducing information asymmetry relating to mineral resources should lower the cost of capital and improve capital formation.
Moreover, since the CRIRSCO-based codes already require similar disclosure of mineral resources, the proposed framework would improve competition among mining registrants by removing the competitive disadvantage that U.S. registrants currently experience relative to reporting firms in foreign jurisdictions. This also may improve the attractiveness of U.S. capital markets for mining companies. Similar to the case of the proposed requirement to disclose material exploration results, the proposed requirement to disclose mineral resources may be particularly beneficial to smaller exploration stage mining registrants (and their investors) as their valuations may be more dependent on non-reserve mineral deposits.
We note that for registrants that currently disclose “mineralized materials” there should be a comparatively lower incremental reduction in information asymmetries. Nonetheless, the proposed framework would result in disclosures that are more consistently presented and more transparent to investors, thereby increasing comparability of such information across mining registrants. For example, the differences between measured and indicated mineral resources would be clear under the proposed rules since they will be distinct and not aggregated as mineralized material. The proposed requirement that the disclosures must be supported by information and documentation provided by a qualified person would also improve the quality and reliability of the disclosures compared to the current disclosures of mineralized material. To the extent the above expected incremental improvement in disclosure to investors reduces information asymmetries, the efficiency of investment decisions would increase and registrants that currently disclose mineralized material may still experience a reduction in cost of capital. Finally, relative to the current practice for disclosure of mineralized materials, requiring the disclosure of mineral resources by rule should reduce registrant uncertainty and facilitate compliance.
Estimates of mineral resources are typically associated with a greater uncertainty than estimates of mineral reserves. To help investors better assess the uncertainty surrounding mineral resource estimates, the proposed disclosure framework would mandate a classification of mineral resources into inferred, indicated and measured mineral resources, in order of increasing confidence based on the level of underlying geological evidence, with the estimates for inferred mineral resources being the most uncertain.
The proposed rule would generate compliance costs for registrants with material mining operations that disclose mineral resources. The increase in costs would be greater for registrants not currently disclosing mineralized material. The costs would include the incremental costs (above the registrant's mineral resource assessment practices) of the initial assessment and the costs of preparing the technical report summary, in the case that one is required. As discussed above, if registrants are currently using a professional who would not meet the qualified person definition, search costs and potentially higher compensation costs may also be incurred. In deciding whether to disclose mineral resources, we expect companies would weigh the incremental compliance costs of producing reports that meet the required standards against the expected benefits stemming from such disclosure, based on their individual facts and circumstances.
The compliance costs associated with the proposed framework for disclosure of mineral resources would be mitigated to some extent for registrants that report in foreign jurisdictions with CRIRSCO-based disclosure codes given the similarity between the requirements in those codes and our proposal. In this regard, however, although all CRIRSCO-based codes require some type of study to support the determination and disclosure of mineral resources, most do not define a specific type of study. As such, the proposed initial assessment requirement could result in increased burdens for these mining registrants to the extent that our proposed initial assessment differs from registrants' practices for determining resources.
For example, although the CRIRSCO-based codes prohibit the use of inferred mineral resources to support a determination of mineral reserves, they typically permit the use of inferred
There is evidence suggesting that investors respond favorably to the disclosures of mineral resources. For example, the previously discussed study regarding the disclosure of exploration results also analyzes the announcement returns to disclosures of mineral resources.
One alternative to the proposed disclosure requirement for mineral resources is not to require the qualified person to provide an assurance that all issues relating to the relevant modifying factors can be resolved with further exploration and analysis. Instead, as is required by the CRIRSCO-based codes, the qualified person could be guided by the definition of mineral resources provided in the proposed rules in determining that the mineral resources have “reasonable prospects of economic extraction.”
Another alternative we considered is not to require the preparation of a technical report summary, as in most CRIRSCO jurisdictions. This alternative would further lower compliance costs but would also reduce consistency in the disclosures and increase the uncertainty about the quality of the mineral resources estimates.
As discussed above, we propose to revise the definition of mineral reserves to align it with the CRIRSCO standards by requiring that the qualified person apply defined modifying factors to the indicated and measured mineral resources in order to convert them to mineral reserves. The proposed rules would permit either a pre-feasibility or a feasibility study to provide the basis for determining and reporting mineral reserves. The proposed rules would also require that the reserve estimations and disclosures thereof be based on the work of a qualified person.
We expect the proposed revisions to the disclosure of mineral reserves to have several economic benefits. First, the proposed revisions specify in more detail the process that is required for registrants to convert mineral resources to probable or proven mineral reserves, including, as noted above, requiring the application and description of relevant modifying factors that affect the conversion. The increased detail and clarity of the proposed requirements should lead to more reliable and consistent disclosures. Second, because the determination of mineral reserves would be based on the analysis and documentation provided by a qualified person, the disclosure would be associated with the incremental benefits potentially stemming from the qualified person requirement, as discussed above. Third, the staff currently requests that registrants obtain a full feasibility study to support the determination of mineral reserves, but the proposed rules would allow, under certain conditions, the use of a pre-feasibility study, thus reducing compliance costs relative to current practice. This benefit is likely to be more significant for smaller, capital-constrained registrants since the cost of feasibility studies is positively related to the size of individual projects rather than the size of the registrant.
Pre-feasibility studies, while adequate for disclosure of mineral reserves, require less time than feasibility studies. For example, one study estimates that between 12% and 15% of the engineering work on a project is completed by the end of the pre-feasibility study compared to between 18% and 25% at the end of the feasibility study.
In addition to compliance cost savings, allowing the use of pre-feasibility studies could provide several ancillary benefits for registrants and investors. Because CRIRSCO-based disclosure codes already allow the use of pre-feasibility studies, allowing their use under the proposed rules would place U.S. and non-Canadian foreign registrants on equal footing with Canadian registrants availing themselves of the “foreign or state law” exception and other mining companies reporting only in CRIRSCO jurisdictions. Finally, the proposed detailed requirements for feasibility studies should reduce compliance uncertainty, while increasing consistency in disclosures where feasibility studies are used to determine mineral reserves.
Because the proposed treatment of mineral reserves is consistent with established best practices in the mining industry, we do not expect a significant increase in compliance costs beyond the potential cost increases related to the qualified person requirement and the filing of the technical report summary, as discussed above. Given the potentially large compliance cost savings associated with allowing pre-
One reasonable alternative to the proposed rules would be to require feasibility studies by a qualified person and not allow pre-feasibility studies. This alternative could lead to less uncertainty surrounding mineral reserve estimates but would be associated with significantly higher compliance costs than the proposed revisions. Moreover, this alternative would continue to place U.S. and non-Canadian registrants at a competitive disadvantage.
As discussed above, Guide 7 does not include a specific pricing model for the estimation of mineral reserves. Currently, registrants generally use a commodity price that is no higher than the trailing 3-year average price. The proposed disclosure requirements for mineral resources and mineral reserves would require registrants to use in their reserve and resource estimations a commodity price that is no higher than the average closing price during the 24-month period prior to the end of the last fiscal year, with the exception that registrants can use a higher price if set by contractual arrangements.
A key consideration when deciding on a pricing model is that a price is assigned to mineral material that is in the ground and likely will not be extracted for many years. Ideally, our rules would use a pricing model that could accurately predict what prices will be at the time of future expected extraction. Given that commodity prices are volatile and generally difficult to predict, there is no established industry “best practice” model. Absent an established industry standard for the pricing model, we believe that, for the purpose of public disclosure, the pricing model should be transparent and cost effective, while producing unbiased estimates of future prices and promoting comparability of estimated resources and reserves across registrants. At the same time, given the inherent difficulty of forecasting future commodity prices and the segmented nature of the markets for some of the minerals involved, we also believe that the pricing model should provide registrants with some flexibility to draw on their knowledge and experience. However, we recognize that allowing firms to use their internal pricing models may hurt comparability and may create incentives to use unrealistically high prices that result in overestimated mineral resources and reserves.
A ceiling price model based on a trailing average, like the 3-year trailing average price used as a ceiling in the current staff guidance, strikes a balance between the objectives outlined above. First, the ceiling price itself is transparent, easy to calculate, and consistent for any given commodity and time, thus promoting comparability across registrants. Second, because the trailing average price is a ceiling, it gives registrants some flexibility to use their own preferred pricing model as long as it does not exceed the ceiling. Third, any tendency by registrants to select overly optimistic prices in an attempt to inflate estimates is mitigated by the ceiling price, which prevents registrants from assigning a price that is greater than what has been observed over the time period of the trailing average.
We believe that the proposed rules, which use a shorter time to calculate the historic average price than current practice, would result in a ceiling price that is more sensitive to shifts in price trends and therefore would be more relevant for estimating the inherent value of mineral resources and reserves. We also believe that the 24-month time period is preferable to using a shorter time period. An average price determined over, for example, a one-year period could be affected by short-term price volatility in such a way that the value of the estimated resources and reserves could reflect more short-term market conditions than long-term fundamental market factors. The proposed 24-month period intends to strike a balance between the ceiling price being sensitive to recent changes in fundamental market conditions while avoiding introducing fluctuations in the ceiling price that may be driven more by short-term price volatility than by changes in fundamental market conditions.
In practice, if the price that many mining registrants currently use to estimate resources and reserves is at or below the 24-month average closing price, the proposed rules would not significantly impact compliance costs for these registrants.
We recognize that because the proposed ceiling price model is a trailing average of historical prices, the ceiling price by design may be slow to incorporate recent price trends. Thus, to the extent that a recent significant trend in prices marks a true structural break towards higher (lower) commodity prices on the long run, the proposed ceiling price may result in underestimation (overestimation) of mineral reserves and resources. It is worth noting that, to mitigate the risk that the ceiling price does not appropriately reflect recent changes in the fundamental market conditions, the proposed rules would allow registrants that have contracts with prices that are higher than the ceiling to use such prices. Moreover, the proposed rules would require disclosure of the assumptions used in the economic analysis underlying the estimates of mineral resources and reserves, including the price chosen, if the registrant has not previously disclosed mineral reserve or resource estimates in a filing with the Commission or is disclosing material changes to its previously disclosed mineral reserve or
There are several reasonable alternatives to the proposed pricing model. One alternative would be the approach followed by several foreign jurisdictions with CRIRSCO-based codes, where the qualified person is allowed to use any reasonable and justifiable price based on that qualified person's or management's view of long-term market trends.
A second alternative would be to calculate the ceiling price differently, for example, as spot, forward, or futures price as of the end of the last fiscal year to incorporate more quickly shifts in price trends. However, due to the volatility associated with prices from any given specific day, the disclosed estimates of mineral resources and reserves may fluctuate more than the underlying fundamental values of the resources and reserves, thus increasing the uncertainty of the estimates for investors. Moreover, to the extent the ceiling price calculated using this alternative is below the price that registrants use based upon their own internal calculations, the higher volatility of this alternative ceiling price may create higher compliance costs as registrants may have to provide more frequent recalculations of their mineral resources and reserves, solely for the purpose of their SEC filings.
A third alternative would be to require registrants to estimate mineral resources and reserves using a price no higher than the 24-month trailing average price and allow registrants to also disclose mineral resources and reserves based on a higher price of their own choosing, to the extent that they include a description of the model and assumptions used to select the price.
Currently, Guide 7 does not explicitly address what disclosure should be provided when a registrant has multiple mining properties. Instead, on a filing-by-filing basis, staff has not objected to a registrant with multiple mining properties providing summary disclosure that encompasses all of its properties instead of providing disclosure on a property by property basis. The proposed rules would require that registrants that own multiple mining properties provide summary disclosure of their mining operations. The summary disclosure would include maps of the locations of all mining properties, a tabular presentation of certain material information about the 20 properties with the largest asset values, and a summary of all mineral resources and reserves at the end of the most recently completed fiscal year.
We expect that the proposed summary disclosure would help registrants to convey more effectively to investors information about their aggregate mining properties and operations. Because of the clarity and detail in the proposed summary requirement, it should also reduce compliance uncertainty and increase consistency of summary disclosures across registrants. These benefits should be particularly important for registrants with a diverse set of mining properties.
Given that the proposed requirement for summary disclosure would align with what most registrants already provide in their SEC filings, we do not expect the requirement to impose significant additional costs on registrants with mining operations that are material in the aggregate, but have no individual property that is material. We also note that one CRIRSCO-based jurisdiction, Australia, through the ASX listing rules, requires summary disclosure similar to the proposed summary disclosure requirements.
One alternative to the proposed summary disclosure would be to limit the disclosure required by proposed Item 1303(b)(3) to only the mineral resources and reserves for the 20 largest properties, rather than for all mining operations. This would reduce compliance costs for registrants with greater than 20 mining properties. The cost of this alternative would be a potentially significant reduction in the information about mineral resources and reserves available to investors by excluding such information for many properties, which could be a significant portion or majority of the registrant's mineral resources and reserves. This reduction in information would be particularly significant for registrants with multiple properties where no individual property is material.
Another alternative would be to require summary information about the mining operations in aggregate but not for any individual property. Compared to the proposed requirements, this alternative would lower not only
The required summary disclosures would increase the accessibility of the information to investors and other data users. The proposed tabular formats (Tables 2 and 3), however, may not be readily machine-readable or directly comparable across filers without additional structure. An alternative to the proposed summary requirements would be also to require the disclosure required in Tables 2 and 3 to be made available in a structured data format, such as eXtensible Business Reporting Language (XBRL). When registrants provide disclosure items in a structured data format, investors and other data users (
A company may choose to tag its own disclosures in-house or to outsource the tagging process. Whether structured data filings are prepared in-house or by an outside service provider, registrants would incur additional costs to make the disclosure available in a structured data format, including initial set-up costs and ongoing costs. To the extent that such costs have a fixed component, they could impose a relatively greater burden on smaller registrants.
As discussed above, the proposed requirements for individual property disclosure for material properties would standardize the current policies and requirements in Guide 7, Item 102 of Regulation S–K, and Form 20–F, including a requirement that registrants present most of the disclosure in tabular format. The proposed requirements would also increase the amount and type of individual property information that registrants disclose. Much of this new information would be a direct consequence of the proposed new requirements to disclose material exploration results and mineral resources. Another new item of information would be the required comparison of a registrant's mineral resources and reserves as of the end of the last fiscal year against the mineral resources and reserves as of the end of the preceding fiscal year, with an explanation of any change between the two.
The standardizations of the proposed format for disclosures relative to the current disclosure regime should increase the effectiveness of the information conveyed to investors. The comparative year-to-year disclosure requirement should also help investors better understand the risk and prospects of the registrants' mining operations.
We expect that the tabular format of some of the individual property requirements could initially result in additional compliance costs. However, we expect that ultimately the costs for the disclosure of a registrant's mineral resources, mineral reserves and material exploration results may decline over time because companies should only have to incur the costs to update their systems and procedures to collect and structure the required information once, and thereafter will only have to update the reported information. The remainder of the individual property disclosure requirements should not increase costs to registrants since they are substantially similar to those currently provided under the existing disclosure regime.
Similar to the above discussed requirement for summary disclosure, an alternative to the proposed requirements for individual property disclosure would be to require the disclosures in Tables 4 to 8 to be made available in XBRL format. This alternative would have the same potential benefits and costs as those discussed above in Section IV.B.7.i.
We expect that the proposed technical report summary requirement would have the largest impact on registrants' compliance costs since currently only registrants from Canada and Australia are subject to a similar requirement.
The proposed requirement that a registrant describe the internal controls that it uses in the disclosure of its exploration results and in its estimates of mineral resources and mineral reserves would align the Commission's disclosure regime with the requirements of the CRIRSCO-based codes. Current rules and guidance do not address internal controls. Commission staff has, on a case-by-case basis when warranted by the specific facts and circumstances, requested a brief description of the quality control and quality assurance protocols used for exploration plans.
We expect disclosure of the internal controls that a registrant uses to improve significantly investors' understanding of the risks related to the quality and reliability of a registrant's disclosure of exploration results and estimates of mineral resources and
The proposed conforming changes to Form 20–F are intended to ensure consistency in the mining disclosures across both domestic registrants and foreign private issuers (excluding Canadian 40–F filers). The proposed changes would particularly affect Canadian registrants that report pursuant to Form 20–F and are currently permitted to provide additional mining disclosure under NI 43–101 pursuant to the “foreign or state law” exception under Guide 7 and the “foreign law” exception under Form 20–F. The proposed rules would eliminate this exception and may thus increase compliance costs for these registrants to the extent that, as discussed previously, the proposed disclosure requirements differ from NI 43–101.
The proposed conforming changes to Form 1–A would subject Regulation A issuers with material mining operations to the full mining disclosure requirements in the proposed subpart 1300 of Regulation S–K. Thus, these issuers may incur the benefits and costs of these requirements, as previously discussed. Because Regulation A issuers are typically smaller companies, the economic considerations discussed above about smaller companies would apply to this group of issuers. In general, we expect that the proposed rules would benefit Regulation A issuers given that smaller companies typically suffer a higher degree of information asymmetry between the company and investors, which may increase capital costs and lower access to financing. Nevertheless, the expected increase in compliance costs from the proposed mining disclosures requirements may be of particular importance for mining issuers that are likely to consider Regulation A offerings. Under the proposed requirements, mining issuers would be able to avoid the costs associated with the prescribed technical reports by forgoing disclosure of exploration results, mineral resources, and reserves, as defined, which would mitigate any negative effect of increased compliance costs on the propensity to use a Regulation A offering. Mining issuers may also be able to avoid costs by choosing to offer securities under other exemptions under the Securities Act, such as Regulation D. However, this may put such issuers at a competitive disadvantage relative to their peers who are raising capital with the benefit of these disclosures.
One alternative to the proposed conforming changes to Form 1–A would be to require the proposed mining disclosures for Tier 2 offerings only. Because Tier 2 offerings may be larger than Tier 1 offerings, the relative importance of fixed compliance costs could be lower for Tier 2 issuers, and thus the net benefit to Tier 2 issuers from the disclosure requirements could potentially be larger. Another alternative we considered would be to require disclosure only of the information in the proposed summary disclosure requirement discussed in Section II.F, including for issuers that only own one material mining property. This would lower compliance costs, but would also reduce the information to investors about material mining properties.
The most significant compliance costs associated with the proposed rules for mining disclosure would likely be the costs associated with engaging qualified persons and the technical analyses and reports they prepare. Registrants would also incur direct compliance costs from the proposed rules related to preparing and incorporating the required information in relevant Commission forms. For purposes of the Paperwork Reduction Act, we analyze these costs in more detail in Section V, but for the average firm, we expect an increase of 44.64 internal company burden hours and an increase of costs for outside professionals equal to $11,975.
We expect the proposed disclosure requirements to increase the amount and quality of disclosed information about registrants' mining operations, and thereby to have a positive effect on efficiency and capital formation. For example, the proposed rules would require registrants with material mining operations to disclose determined mineral reserves, mineral resources and material exploration results. These proposed requirements would better align the Commission's disclosure requirements with the current practices used by mining companies to evaluate their projects, thereby reducing information asymmetries between registrants and investors about the prospects of mining operations. In addition, the qualified person requirement, together with detailed requirements for the supporting technical studies, should generate higher quality and more consistent disclosures, which should reduce any uncertainty surrounding the disclosures. In turn, reduced information asymmetries and reduced uncertainty about the disclosures would help investors achieve a more efficient capital allocation, while reducing the cost of capital and enhancing capital formation for registrants.
In particular, we believe that the proposed requirements for disclosure of material exploration results and mineral resources would reduce information asymmetries and uncertainty for smaller mining registrants, as these registrants tend to have mining properties in earlier stages of development with relatively fewer reported mineral reserves. As a result, we expect the anticipated positive effects on efficiency and capital formation to be relatively larger for smaller registrants. However, these effects would only materialize to the extent smaller registrants make the required investment in the studies that are required to support disclosure in the first place. We anticipate that there likely are some smaller registrants who do not have access to the liquid funds needed to make that investment.
Although we expect the overall amount of disclosed information to increase under the proposed rules, there may be exceptions. As discussed previously, we expect that the proposed disclosure requirements would increase the compliance costs for disclosure of material exploration results and the currently allowed (on a case-by-case basis) equivalent of mineral resources (
The positive effects we expect on efficiency and capital formation from the proposed rules would be lower for the registrants that currently report in foreign jurisdictions with CRIRSCO-based disclosure codes. These registrants to a large degree already provide the proposed disclosures. This is particularly the case for Canadian registrants, who disclose the information pursuant to NI 43–101 standards in their Forms 20–F under the “foreign or state law” exception.
We expect the proposed rules to have some competitive effects. For example, there may be reallocation of capital as registrants that previously could not disclose mineral resources or could not afford the feasibility studies required for disclosure of mineral reserves (but could afford pre-feasibility studies) may start to disclose a broader range of their business prospects, making it easier for these registrants to raise capital and compete with the mining companies that already report material mineral resources and reserves. We also anticipate that by aligning our disclosure requirements with the CRIRSCO-based codes, the proposed rules would improve the competitiveness of U.S. securities markets and increase the likelihood of prospective registrants listing their securities in the United States, while decreasing the likelihood that current registrants would exit U.S. markets.
We request comment on the costs and benefits described throughout this release. We seek estimates of these costs and benefits, as well as any costs and benefits not already identified, that may result from the adoption of the proposed rules. We also request qualitative feedback on the nature of the economic effects, including the benefits and costs, we have identified and any benefits and costs we may have overlooked. We request comment from the point of view of registrants, investors, mining professionals such as geologists and engineers, and other market participants. We further seek information that would help us quantify or otherwise qualitatively assess the impact of the proposed rules on efficiency, competition, and capital formation. In addition, we seek information on how any impact on efficiency, competition, and capital formation would vary with company size.
In particular, we request comment on the following:
124. We seek comment and data on the magnitude of the costs and benefits identified as well as any other costs and benefits that may result from the adoption of the proposed rules. In addition, we are interested in views regarding these costs and benefits for particular types of covered registrants, such as smaller registrants or registrants currently reporting according to CRIRSCO-based disclosure codes.
125. We seek information that would help us quantify compliance costs. In particular, we invite comment from registrants or other mining companies that have had experience reporting under any of the CRIRSCO-based disclosure codes. For example, what are the costs associated with the qualified person requirement? If reporting in Canada or Australia, what are the costs associated with producing and filing the technical report summaries?
126. We invite comment on the structure of compliance costs. In particular, to what extent are the compliance costs fixed versus variable? Are there scale advantages or disadvantages in the compliance costs, both in terms of project size or company size?
127. Are our estimates of the difference in costs of a pre-feasibility study relative to a feasibility study reasonable? If not, what would be more reasonable estimates of the difference in costs?
128. We also seek comment on the alternatives to the proposed rules discussed in this section, and to the costs and benefits of each alternative. Are there any other alternatives that we should consider in lieu of the proposed rules? If so, what are those alternatives and what are their expected costs and benefits?
129. We are interested in comments and data related to any potential competitive effects from the proposed rules. In particular, we are interested in evidence and views on the current global competitive situation of U.S. mining registrants as well as the attractiveness of U.S. securities markets for foreign mining companies. To what extent does the current mining disclosure regime affect this competitive situation, if at all? Would the proposed rules improve the global competitiveness of U.S. mining registrants and securities markets? If so, how?
Certain provisions of the proposed rules contain “collection of information” requirements within the meaning of the Paperwork Reduction
• “Regulation S–K” (OMB Control No. 3235–007);
• “Form S–1” (OMB Control No. 3235–0065);
• “Form S–4” (OMB Control Number 3235–0324);
• “Form F–1” (OMB Control Number 3235–0258);
• “Form F–4” (OMB Control Number 3235–0325);
• “Form 10” (OMB Control No. 3235–0064);
• “Form 10–K” (OMB Control No. 3235–0063);
• “Form 20–F” (OMB Control No. 3235–0063); and
• Regulation A (Form 1–A) (OMB Control Number 3235–0286).
We adopted Regulation S–K and these forms pursuant to the Securities Act or the Exchange Act. Regulation S–K and the forms, other than Form 1–A, set forth the disclosure requirements for annual reports and registration statements that are prepared by registrants to provide investors with the information they need to make informed investment decisions in registered offerings and in secondary market transactions. We adopted Regulation A to provide an exemption from registration under the Securities Act for offerings that satisfy certain conditions, such as filing an offering statement with the Commission on Form 1–A, limiting the dollar amount of the offering and, in certain instances, filing ongoing reports with the Commission.
The hours and costs associated with preparing and filing the forms constitute reporting and cost burdens imposed by each collection of information. An agency may not conduct or sponsor, and a person is not required to comply with, a collection of information unless it displays a currently valid control number. Compliance with the proposed rules would be mandatory. Responses to the information collections would not be kept confidential, and there would be no mandatory retention period for the information disclosed.
The proposed rules would require a registrant with material mining operations to disclose its determined mineral resources, mineral reserves and material exploration results in Securities Act registration statements filed on Forms S–1, S–4, F–1 and F–4, in Exchange Act registration statements on Forms 10 and 20–F, in Exchange Act annual reports on Forms 10–K and 20–F,
The Commission's existing disclosure regime for mining registrants precludes the disclosure of non-reserves, such as mineral resources, unless such disclosure is required by foreign or state law.
Accordingly, we expect the proposed rules would cause an increase in the reporting and cost burdens for each collection of information. The additional requirements imposed by the proposed rules would, however, be similar to requirements under foreign (CRIRSCO-based) mining codes. As such, we expect the increase in reporting and cost burdens to be less for those registrants that are already subject to the CRIRSCO standards. Nevertheless, because there are differences between the proposed rules' requirements and those under the CRIRSCO-based codes, we expect there would be some increase in reporting and cost burdens even for those registrants already subject to foreign mining code requirements.
We estimate the number of registrants potentially affected by the proposed rules to be 345.
The following table summarizes the number of potentially affected registrants by the particular form expected to be filed and whether the registrant is subject to CRIRSCO-based code requirements in addition to the proposed rules.
We have estimated the reporting and cost burdens of the proposed rules by estimating the average number of hours it would take a registrant to prepare, review and file the disclosure required by the proposed rules for each collection of information. In deriving our estimates, we recognize that the burdens would likely vary among individual registrants based on a number of factors, including the size and complexity of their mining operations. The estimates represent the average burden for all registrants, both large and small.
We believe that the resulting increase in reporting and cost burdens would be substantially the same for each collection of information since the proposed rules would require substantially the same disclosure for a Securities Act registration statement or Regulation A offering statement as they would for an Exchange Act registration statement or report. The sole difference between the proposed rules' effect on Securities Act registrants and Form 1–A issuers, on the one hand, and Exchange Act registrants, on the other, is that a Securities Act registrant and a Regulation A issuer would be required to obtain and file as an exhibit the written consent of each qualified person whose information and supporting documentation as an expert provide the basis for the disclosure required under the amendments.
We estimate that the proposed rules would cause a registrant that is not already subject to CRIRSCO requirements to incur an increase of 96 hours in the reporting burden for each Securities Act registration statement (Forms S–1, S–4, F–1, and F–4), and an increase of 95 hours in the reporting burden for each Exchange Act registration statement or annual report (Forms 10, 10–K and 20–F.) For a registrant that is subject to the CRIRSCO requirements, we estimate that the proposed rules would cause an increase of 41 hours in the reporting burden for Securities Act registration statements and Form 1–A offering statements, and an increase of 40 hours in the reporting burden for Exchange Act registration statements and annual reports.
We have based our estimated burden hours and costs under the proposed rules on an assessment by the Commission's staff mining engineers of the work required to prepare the required information for disclosure. In particular, our estimates have been based on the staff engineers' assessment of similar reporting requirements under CRIRSCO standards (especially Canada's NI 43–101 and Australia's JORC).
The following tables summarize, respectively, the estimated incremental and total reporting costs and burdens resulting from the proposed rules. When determining these estimates, for all forms other than Form 10–K and Form 1–A, we have assumed that 25% of the burden of preparation is carried by the registrant internally and 75% of the burden of preparation is carried by outside professionals retained by the registrant at an average cost of $400 per hour.
We have determined the estimated total incremental registrant burden hours for each form under the proposed rules by first determining the hour burden per registrant response estimated as a weighted average of the burden hours of registrants subject to and those not subject to the CRIRSCO requirements.
Based on these calculations, as set forth below, we estimate that the total number of incremental burden hours for all forms resulting from complying with the proposed rules is 15,400 burden hours. We further estimate that the
We have determined the estimated total burden of complying with the proposed rules for each form by adding the above described estimated incremental company burden hours to the current burden hours estimated for each form. We have similarly determined the estimated total professional costs under the proposed rules for each form by adding the estimated total incremental professional costs to the current professional costs estimated for each form. Based on these calculations, as summarized below, we estimate that, as a result of the proposed rules, the estimated annual burden for all forms would increase to 13,753,285 hours, compared to the current annual estimate of 13,737,885 hours. We further estimate that the proposed rules would result in estimated annual professional costs for all forms of $3,329,079,082, compared to the current annual estimate of $3,324,947,882.
We request comments in order to evaluate: (1) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information would have practical utility; (2) the accuracy of our estimate of the burden of each proposed collection of information; (3) whether there are ways to enhance the quality, utility, and clarity of the information to be collected; (4) whether there are ways to minimize the burden of the collections of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology; and (5) whether the proposed rules would have any effects on any other collections of information not previously identified in this section.
Any member of the public may direct to us any comments about the accuracy of these burden estimates and any suggestions for reducing these burdens. Persons submitting comments on the collection of information requirements should direct the comments to the Office of Management and Budget, Attention: Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Washington, DC 20503, and should send a copy to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE.,
The Regulatory Flexibility Act (“RFA”)
The proposed rules are intended to modernize the Commission's mining disclosure requirements and policies by conforming them to current industry and global regulatory practices and standards. In so doing, the proposed rules seek to provide investors with a more comprehensive understanding of a registrant's mining operations, which should help them make more informed investment decisions. As noted above, the proposed rules would:
• provide a clear and consistent standard for when registrants with mining operations are required to provide the applicable mining disclosures;
• consolidate current mining disclosure requirements and standards and related Commission and staff guidance;
• require the disclosure of determined mineral resources and material exploration results; and
• require that a registrant's disclosure of exploration results, mineral resources or mineral reserves be based upon and fairly reflect information and supporting documentation prepared by a mining industry professional having the requisite level of expertise.
We are proposing the rule amendments pursuant to sections 3(b), 7, 10, 19(a), and 28 of the Securities Act and sections 3(b), 12, 13, 15(d), 23(a), and 36(a) of the Exchange Act.
The proposed rules would affect small entities that have, or for which it is probable that they will have, material mining operations, and which file registration statements under Section 6 of the Securities Act or Section 12 of the Exchange Act, and reports under Section 13(a) or 15(d) of the Exchange Act. For purposes of the RFA, under our rules, an issuer, other than an investment company, is a “small business” or “small organization” if it has total assets of $5 million or less as of the end of its most recent fiscal year and is engaged or proposing to engage in an offering of securities that does not exceed $5 million.
As described in greater detail above, the proposed rules would add to the Securities Act and Exchange Act disclosure requirements of registrants, including small entities, with material mining operations by requiring:
• The disclosure of determined mineral resources and material exploration results in addition to mineral reserves;
• the disclosure of exploration results, mineral resources and mineral reserves in SEC filings to be based on and accurately reflect information and supporting documentation prepared by a qualified person; and
• the filing of a technical report summary prepared by a qualified person for each material property for certain SEC filings.
The proposed rules would also codify certain existing disclosure policies for registrants with material mining operations, including small entities. The same mining disclosure requirements would apply to both U.S. and foreign registrants.
As noted above, the proposed rules would generally establish new mining disclosure requirements that we believe would not duplicate or overlap with other federal rules. The proposed rules would consolidate all of the Commission's mining disclosure requirements. The proposed rules would further harmonize certain existing disclosure requirements and policies, including the disclosure standard for mining disclosure. We believe that this consolidation would help a mining registrant, including a small entity, comply with its disclosure obligations under the Securities Act and Exchange Act, which could mitigate its reporting burden. We do not believe that the proposed rules would conflict with other federal rules.
As noted above, we considered a number of alternatives to the proposed rules. In considering these alternatives, we sought to accomplish our stated objectives, while minimizing any significant economic impact on small entities. In connection with the proposed rules, we considered the following:
• Establishing different compliance or reporting requirements or timetables that take into account the resources available to small entities;
• Clarifying, consolidating or simplifying compliance and reporting requirements under the rules for small entities;
• Use of performance rather than design standards; and
• Exempting small entities from all or part of the proposed rules.
Neither the current mining disclosure requirements nor the proposed rules exempt or treat differently a small entity with material mining operations. Providing an exemption for, or imposing less extensive disclosure requirements on, small entities with material mining operations would likely increase the risk of inaccurate disclosure concerning those entities' mineral resources, mineral reserves and material exploration results, to the detriment of investors. Moreover, as noted above, a primary goal of the proposed rules is generally to align the Commission's mining disclosure regime with the standards that have developed under the foreign (CRIRSCO-based) codes so that investors would have a more complete understanding of a registrant's mining operations. Those codes do not provide for an exemption for small entities or otherwise treat such entities
As noted above, the proposed rules would consolidate existing mining disclosure rules and policies and thereby facilitate compliance for all registrants, including small entities. We have used design rather than performance standards in connection with the proposed rules because, based on our past experience, we believe the proposed rules would be more beneficial to investors if there were specific disclosure requirements that were uniform for all registrants with material mining operations. The specific disclosure requirements in the proposed rules are intended to promote consistent and comparable disclosure among all such registrants.
We encourage the submission of comments with respect to any aspect of this Initial Regulatory Flexibility Analysis. In particular, we request comments regarding:
• How the proposed rule amendments can achieve their objective while lowering the burden on small entities;
• the number of small entity companies that may be affected by the proposed amendments;
• the existence or nature of the potential impact of the proposed amendments on small entity companies discussed in the analysis; and
• how to quantify the impact of the proposed amendments.
Respondents are asked to describe the nature of any impact and provide empirical data supporting the extent of the impact. We will consider such comments in the preparation of the Final Regulatory Flexibility Analysis, if the proposed rule amendments are adopted, and will place those comments in the same public file as comments on the proposed amendments themselves.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996,
• An annual effect on the U.S. economy of $100 million or more;
• a major increase in costs or prices for consumers or individual industries; or
• significant adverse effects on competition, investment, or innovation.
We request comment and empirical data on whether our proposal would be a “major rule” for purposes of the Small Business Regulatory Enforcement Fairness Act.
We are proposing the amendments contained in this document pursuant to Sections 3(b), 7, 10, 19(a), and 28 of the Securities Act and Sections 3(b), 12, 13, 15(d), 23(a), and 36(a) of the Exchange Act.
Reporting and recordkeeping requirements, Securities.
Brokers, Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is proposed to be amended as follows:
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z–2, 77z–3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j–3, 78l, 78m, 78n, 78n–1, 78o, 78u–5, 78w, 78ll, 78 mm, 80a–8, 80a–9, 80a–20, 80a–29, 80a–30, 80a–31(c), 80a–37, 80a–38(a), 80a–39, 80b–11 and 7201
The revision reads as follows:
The revisions and additions read as follows:
(a) * * *
(b) * * *
(96)
(ii) The qualified person must sign and date the technical report summary. The qualified person's signature must comply with 17 CFR 230.402(e) or 17 CFR 240.12b–11(d).
(iii) The technical report summary must not include large amounts of technical or other project data, either in the report or as appendices to the report. The qualified person must draft the summary to conform, to the extent practicable, with the plain English principles set forth in 17 CFR 230.421 or 17 CFR 240.13a–20.
(iv)(A) A technical report summary that reports the results of a preliminary or final feasibility study must provide all of the information specified in paragraph (b)(96)(iv)(B) of this section. A technical report summary that reports the results of an initial assessment must, at a minimum, provide the information specified in paragraphs (b)(96)(iv)(B)(
(B) A qualified person must include the following information in the technical report summary, as required by paragraph (b)(96)(iv)(A) of this section.
(
(
(
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§§ 229.1303 and 229.1304. The qualified person must state the uncertainty in the estimates of inferred, indicated, and measured mineral resources and discuss the sources of uncertainty and how they were considered in the uncertainty estimates. Uncertainty estimates for indicated and measured mineral resources must be stated in the form “±x% relative accuracy at y% confidence level over [annual, quarterly, or monthly] production quantities.” Uncertainty estimates for inferred mineral resources must be stated in the form “the qualified person expects at least z% of inferred mineral resources to convert to indicated or measured mineral resources with further exploration and analysis.”
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(a) A registrant must provide the disclosure specified in subpart 229.1300 of this part if its mining operations are material to its business or financial condition. For purposes of this subpart, the term
(b) When determining whether its mining operations are material, a registrant must:
(1) Consider both quantitative and qualitative factors, assessed in the context of the registrant's overall business and financial condition;
(2) Aggregate mining operations on all of its mining properties, regardless of the stage of the mining property, and size or type of commodity produced, including coal, metalliferous minerals, industrial materials, geothermal energy, and mineral brines; and
(3) Include, for each property, as applicable, all related activities from exploration through extraction to the first point of material external sale, including processing, transportation, and warehousing.
i. Owns or in which it has, or it is probable that it will have, a direct or indirect economic interest;
ii. Operates, or it is probable that it will operate, under a lease or other legal agreement that grants the registrant ownership or similar rights that authorize it, as principal, to sell or otherwise dispose of the mineral; or
iii. Has, or it is probable that it will have, an associated royalty or similar right.
(c) Upon a determination that its mining operations are material, a registrant must provide summary disclosure concerning all of its mining activities, as specified in § 229.1303, as well as individual property disclosure concerning each of its mining properties that is material to its business or financial condition, as specified in § 229.1304. When providing either summary or individual property disclosure, the registrant:
(1) Should provide an appropriate glossary if the disclosure requires the use of technical terms relating to geology, mining or related matters, which cannot readily be found in conventional dictionaries;
(2) Should not include detailed illustrations and technical reports, full feasibility studies or other highly technical data. The registrant shall, however, furnish such reports and other material supplementally to the staff upon request; and
(3) Should use plain English principles, to the extent practicable, such as those provided in 17 CFR 230.421 and 17 CFR 240.13a–20, to enhance the readability of the disclosure for investors.
(d)
(1)
(2) A
(3) A
(4)
(5) An
(6) An
(7) A
(i) Is a comprehensive technical and economic study of the selected development option for a mineral project, which includes detailed assessments of all applicable modifying factors, as defined by this section, together with any other relevant operational factors, and detailed financial analysis that are necessary to demonstrate, at the time of reporting, that extraction is economically viable. The results of the study may serve as the basis for a final decision by a proponent or financial institution to proceed with, or finance, the development of the project.
(ii) A feasibility study is more comprehensive, and with a higher degree of accuracy, than a pre-feasibility study. It must contain mining, infrastructure, and process designs completed with sufficient rigor to serve as the basis for an investment decision or to support project financing.
Note to paragraph (d)(7): The confidence level in the results of a feasibility study is higher than that with a pre-feasibility study. Terms such as
(8) A
(9)(i) An
(ii) As used in this subpart, the term
Note to paragraph (d)(9): An indicated mineral resource has a lower level of confidence than that applying to a measured mineral resource and may only be converted to a probable mineral reserve.
(10)(i) An
(ii) As used in this subpart, the term
(iii) A qualified person: (A) Must have a reasonable expectation that the majority of inferred mineral resources could be upgraded to indicated or measured mineral resources with continued exploration; and
(B) Should be able to defend the basis of this expectation before his or her peers.
Note to paragraph (d)(10): An inferred mineral resource has the lowest level of geological confidence of all mineral resources, which prevents the application of the modifying factors in a manner useful for evaluation of economic viability. As such, inferred mineral resource may not be considered when assessing the economic viability of a mining project and may not be converted to a mineral reserve.
(11)(i) An
(ii) An initial assessment is required for disclosure of mineral resources but cannot be used as the basis for disclosure of mineral reserves.
(12)(i) A
(ii) As used in this subpart, the term
Note to paragraph (d)(12): A measured mineral resource has a higher level of confidence than that applying to either an indicated mineral resource or an inferred mineral resource. It may be converted to a proven mineral reserve or to a probable mineral reserve.
(13)(i) A
(ii) The determination that part of a measured or indicated mineral resource is economically mineable must be based on a preliminary feasibility (pre-feasibility) or feasibility study, as defined by this section, conducted by a qualified person applying the modifying factors to indicated or measured mineral resources. Such study must demonstrate that, at the time of reporting, extraction of the mineral reserve is economically viable under reasonable investment and market assumptions. The study must establish a life of mine plan that is technically achievable and economically viable, which will be the basis of determining the mineral reserve.
(iii) As used in this subpart, the term
(iv) As used in this subpart, the term
Note to paragraph (d)(13): A qualified person must subdivide mineral reserves, in order of increasing confidence in the results obtained from the application of the modifying factors to the indicated and measured mineral resources, into probable mineral reserves and proven mineral reserves, as defined in this section.
(14)(i) A
Note to paragraph (d)(14)(i): A mineral resource is a reasonable estimate of mineralization, taking into account relevant factors such as cut-off grade, likely mining dimensions, location or continuity, that, with the assumed and justifiable technical and economic conditions, is likely to, in whole or in part, become economically extractable. It is not merely an inventory of all mineralization drilled or sampled. (ii) As used in this subpart, the term
Note to paragraph (d)(14)(ii): A qualified person must subdivide mineral resources, in order of increasing geological confidence, into inferred, indicated and measured mineral resources.
(iii) When determining the existence of a mineral resource, a qualified person, as defined by this section, must:
(A) Be able to estimate or interpret the location, quantity, grade or quality continuity, and other geological characteristics of the mineral resource from specific geological evidence and knowledge, including sampling; and
(B) Conclude that there are reasonable prospects for economic extraction of the mineral resource based on an initial assessment, as defined in this section, that he or she conducts by qualitatively applying the modifying factors, as defined by this section, likely to influence the prospect of economic extraction.
(15)
(16)(i) A
(ii) A pre-feasibility study includes a financial analysis based on reasonable assumptions, based on appropriate testing, about the modifying factors and the evaluation of any other relevant factors that are sufficient for a qualified person to determine if all or part of the indicated and measured mineral resources may be converted to mineral reserves at the time of reporting. The financial analysis must have the level of detail necessary to demonstrate, at the time of reporting, that extraction is economically viable.
Note to paragraph (d)(16): A pre-feasibility study is less comprehensive and results in a lower confidence level than a feasibility study. A pre-feasibility study is more comprehensive and results in a higher confidence level than an initial assessment.
(17) A
(18)(i) A
(ii) For a probable mineral reserve, the qualified person's confidence in the results obtained from the application of the modifying factors and in the estimates of tonnage and grade or quality is lower than what is sufficient for a classification as a proven mineral reserve, but is still sufficient to demonstrate that, at the time of reporting, extraction of the mineral reserve is economically viable under reasonable investment and market assumptions. The lower level of confidence is due to higher geologic uncertainty when the qualified person converts an indicated mineral resource to a probable reserve or higher risk in the results of the application of
(iii) A qualified person must classify a measured mineral resource as a probable mineral reserve when his or her confidence in the results obtained from the application of the modifying factors to the measured mineral resource is lower than what is sufficient for a proven mineral reserve.
(19) A
(20) A
(21)(i) A
(ii) For a proven mineral reserve, the qualified person has a high degree of confidence in the results obtained from the application of the modifying factors and in the estimates of tonnage and grade or quality.
(iii) A proven mineral reserve can only result from conversion of a measured mineral resource.
(22) A
(i) A mineral industry professional with at least five years of relevant experience in the type of mineralization and type of deposit under consideration and in the specific type of activity that person is undertaking on behalf of the registrant; and
(ii) An eligible member or licensee in good standing of a recognized professional organization at the time the technical report is prepared. For an organization to be a recognized professional organization, it must:
(A) Be either:
(
(
(B) Admit eligible members primarily on the basis of their academic qualifications and experience;
(C) Establish and require compliance with professional standards of competence and ethics;
(D) Require or encourage continuing professional development;
(E) Have and apply disciplinary powers, including the power to suspend or expel a member regardless of where the member practices or resides; and (F) Provide a public list of members in good standing.
i. Sufficient knowledge and experience in the application of these factors to the mineral deposit under consideration; and
ii. Experience with the geology, geostatistics, mining, extraction and processing that is applicable to the type of mineral and mining under consideration.
(a) A registrant's disclosure of exploration results, mineral resources or mineral reserves, as required by § 229.1303 and § 229.1304, must be based on and accurately reflect information and supporting documentation prepared by a qualified person, as defined in § 229.1301(d). The registrant is responsible for determining that the person meets the qualifications specified under the definition of qualified person in § 229.1301(d), and that the disclosure in the registrant's filing accurately reflects the information provided by the qualified person.
(b)(1) The registrant must obtain a dated and signed technical report summary from the qualified person, which, pursuant to § 229.601(b)(96), identifies and summarizes the information reviewed and conclusions reached by the qualified person about the registrant's mineral resources, mineral reserves or material exploration results determined to be on each material property.
(2) The registrant must file the technical report summary, pursuant to § 229.601(b)(96), as an exhibit to the relevant registration statement or other Commission filing when disclosing for the first time mineral reserves, mineral resources or material exploration results or when there is a material change in the mineral reserves, mineral resources or exploration results from the last technical report summary filed for the property.
(3)(i) The registrant must obtain the written consent of the qualified person to the use of the qualified person's name and any quotation or other use of the technical report summary in the registration statement or report prior to filing the technical report summary with the Commission.
(ii) For Securities Act filings, the registrant must file the written consent as an exhibit to the registration statement pursuant to §§ 230.436 and 230.601(b)(23) of this chapter.
(4) The registrant must identify the qualified person who prepared the technical report summary in the filed registration statement or report and state whether the qualified person is an employee of the registrant. If the qualified person is not an employee of the registrant, the registrant must name the qualified person's employer, disclose whether the qualified person or the qualified person's employer is an affiliate of the registrant or another entity that has an ownership, royalty or other interest in the property that is the subject of the technical report summary, and if an affiliate, describe the nature of the affiliation.
(c) A registrant's disclosure of mineral resources under subpart 229.1300 of this part must be based upon a qualified person's initial assessment, as defined in § 229.1301(d), which supports the determination of mineral resources. At a minimum, the initial assessment must include the qualified person's qualitative evaluation of applicable modifying factors to establish the economic potential of the mining property or project. The technical report summary submitted by the qualified person to support a determination of mineral resources must describe the procedures, findings and conclusions reached for the initial assessment, as required by § 229.601(b)(96).
i. Site infrastructure (
ii. Mine design and planning (
iii. Processing plant (
iv. Environmental compliance and permitting (
v. Any other reasonably assumed modifying factors, including socio-economic factors, necessary to demonstrate reasonable prospects for economic extraction.
(d) A registrant's disclosure of mineral reserves under subpart 229.1300 of this part must be based upon a qualified person's pre-feasibility study or feasibility study, each as defined in § 229.1301(d), which supports a determination of mineral reserves. The pre-feasibility or feasibility study must include the qualified person's detailed evaluation of all applicable modifying factors to demonstrate the economic viability of the mining property or project. The technical report summary submitted by the qualified person to support a determination of mineral reserves must describe the procedures, findings and conclusions reached for the pre-feasibility or feasibility study, as required by § 229.601(b)(96). All reserve disclosures based on a pre-feasibility study must include the qualified person's justification for using a pre-feasibility study instead of a final feasibility study.
i. The required access roads, infrastructure location and plant area, and the source of all utilities (
ii. The preferred underground mining method or surface mine pit configuration, with detailed mine layouts drawn for each alternative;
iii. The bench lab tests that have been conducted, the process flow sheet, equipment sizes, and general arrangement that have been completed, and the plant throughput;
iv. The environmental compliance and permitting requirements or interests of agencies, non-governmental organizations, communities and other stakeholders, the baseline studies, and the plans for tailings disposal, reclamation and mitigation, together with an analysis establishing that permitting is possible; and
v. And any other reasonable assumptions, based on appropriate testing, on the modifying factors sufficient to demonstrate that extraction is economically viable.
i. Final requirements for site infrastructure, including well-defined access roads, finalized plans for infrastructure location, plant area, and camp or town site, and the established source of all required utilities (
ii. Finalized mining method, including detailed mine layouts and final development and production plan for the preferred alternative with the required equipment fleet specified. The feasibility study must address detailed mining schedules, construction and production ramp up, and project execution plans;
iii. Completed detailed bench lab tests and a pilot plant test, if required, based on risk. The feasibility study must further address final requirements for process flow sheet, equipment sizes, and general arrangement and specify the final plant throughput;
iv. The final identification and detailed analysis of environmental compliance and permitting requirements, including the finalized interests of agencies, NGOs, communities and other stakeholders. The feasibility study must further address the completion of baseline studies and finalized plans for tailings disposal, reclamation and mitigation; and
v. Detailed assessments of other modifying factors necessary to demonstrate that extraction is economically viable.
(a)(1) A registrant that has material mining operations, as determined pursuant to § 229.1301, and two or more mining properties, must provide the information specified in paragraph (b) of this section for all properties that the registrant:
(i) Owns or in which it has, or it is probable that it will have, a direct or indirect economic interest;
(ii) Operates, or it is probable that it will operate, under a lease or other legal agreement that grants the registrant ownership or similar rights that authorize it, as principal, to sell or otherwise dispose of the mineral; or
(iii) Has, or it is probable that it will have, an associated royalty or similar right.
(2) A registrant that has material mining operations but only one mining property is not required to provide the information specified in paragraph (b) of this section. That registrant need only provide the disclosure required by § 229.1304 for the mining property that is material to its business.
(b) Disclose the following information for all properties specified in paragraph (a) of this section:
(1) A map or maps, of appropriate scale, showing the locations of all properties. Such maps should be legible on the page when printed.
(2) A presentation in tabular form, in decreasing order by asset value, of the
(i) The location of the property;
(ii) The type and amount of ownership interest;
(iii) The identity of the operator;
(iv) Title, mineral rights, leases or options and acreage involved;
(v) The stage of the property (exploration, development or production);
(vi) Key permit conditions;
(vii) Mine type & mineralization style; and
(viii) Processing plant and other available facilities.
(3) A summary of all mineral resources and mineral reserves at the end of the most recently completed fiscal year by commodity and geographic area and for each property containing 10% or more of the registrant's mineral reserves or 10% or more of the registrant's combined measured and indicated mineral resources. This summary must be provided for each class of mineral reserves (probable and proven) and resources (inferred, indicated and measured), together with total mineral reserves and total measured and indicated mineral resources, using the format in Table 3 of this subpart.
(a) A registrant must disclose the information specified in paragraph (b) of this section for each property that is material to its business or financial condition. When determining the materiality of a property relative to its business or financial condition, a registrant must apply the standards and other considerations specified in § 229.1301(b) to each individual property that it:
(i) Owns or in which it has, or it is probable that it will have, a direct or indirect economic interest;
(ii) Operates, or it is probable that it will operate, under a lease or other legal agreement that grants the registrant ownership or similar rights that authorize it, as principal, to sell or otherwise dispose of the mineral; or
(iii) Has, or it is probable that it will have, an associated royalty or similar right.
(b) Disclose the following information for each material property specified in paragraph (a) of this section:
(1) A brief description of the property including:
(i) The location, accurate to within one mile, using an easily recognizable coordinate system. The registrant must provide appropriate maps, with proper engineering detail (such as scale, orientation, and titles). Such maps must be legible on the page when printed;
(ii) Existing infrastructure including roads, railroads, airports, towns, ports, sources of water, electricity, and personnel; and
(iii) A brief description, including the name or number and size (acreage), of the titles, claims, concessions, mineral rights, leases or options under which the registrant and its subsidiaries have or will have the right to hold or operate the property, and how such rights are obtained at this location, indicating any conditions that the registrant must meet in order to obtain or retain the property. If held by leases or options or if the mineral rights otherwise have termination provisions, the registrant must provide the expiration dates of such leases, options or mineral rights and associated payments.
(iv) If the registrant holds a royalty or similar interest or will have an associated royalty or similar right, the disclosure must describe all of the information in paragraph (b)(1) of this
(2) A brief history of previous operations, including the names of previous operators, insofar as known;
(3) The following information, as relevant to the particular property:
(i) A brief description of the present condition of the property, the work completed by the registrant on the property, the registrant's proposed program of exploration or development, the current stage of the property as exploration, development or production, the current state of exploration or development of the property, and the current production activities. Mines should be identified as either surface or underground, with a brief description of the mining method and processing operations. If the property is without known reserves and the proposed program is exploratory in nature or the registrant has started extraction without determining mineral reserves, the registrant must provide a statement to that effect;
(ii) The age, details as to modernization and physical condition of the equipment, facilities, infrastructure, and underground development; and
(iii) The total cost for or book value of the property and its associated plant and equipment.
(4) A brief description of any significant encumbrances to the property, including current and future permitting requirements and associated timelines, permit conditions, and violations and fines.
(5) A summary of the exploration activity for the most recently completed fiscal year in tabular form, which, for each sampling method used, discloses the number of samples, the total size or length of the samples, and the total number of assays. The information must be presented using the format in Table 4 of this subpart.
(6) A summary of material exploration results for the most recently completed fiscal year in tabular form, which, for each property, identifies the hole that generated the exploration results, and describes the length, lithology and key geologic properties of the exploration results. This information must be presented using the format provided in Table 5 of this subpart, and accompanied by a brief discussion of the exploration results' context and relevance.
(7) If mineral resources or reserves have been determined, a summary of all mineral resources and reserves, which, for each property, discloses in tabular form, as provided in Table 6 of this subpart, the estimated tonnages, grades (or quality, where appropriate), cut-off grades and metallurgical recovery, by class of mineral resource and reserve, occurring:
(i) In-situ;
(ii) As plant/mill feed; and
(iii) As saleable product.
(8) Provide a comparison in tabular form of the property's mineral resources and reserves as of the end of the last fiscal year against the mineral resources and reserves as of the end of the preceding fiscal year, with an explanation of any material change between the two. The comparison must use the tabular format, as provided in Tables 7 and 8 of this subpart, which discloses information concerning:
(i) The mineral resources or reserves at the end of the last two fiscal years;
(ii) The net difference between the mineral resources or reserves at the end of the last completed fiscal year and the preceding fiscal year, as a percentage of the resources or reserves at the end of the fiscal year preceding the last completed one;
(iii) An explanation of the causes of any discrepancy in mineral resources including depletion or production, changes in commodity prices, additional resources discovered through exploration, and changes due to the methods employed; and
(iv) An explanation of the causes of any discrepancy in mineral reserves including depletion or production, changes in the resource model, changes in commodity prices and operating costs, changes due to the methods employed, and changes due to acquisition or disposal of properties.
(9) If the registrant has not previously disclosed mineral reserve or resource estimates in a filing with the Commission or is disclosing material changes to its previously disclosed mineral reserve or resource estimates, provide a brief discussion of the material assumptions and criteria in the disclosure and cite to corresponding sections of the technical report summary, which must be filed as an exhibit pursuant to § 229.1302(b).
(10) If the registrant has not previously disclosed material exploration results in a filing with the Commission, or is disclosing material changes to its previously disclosed exploration results, it must provide sufficient information to allow for an accurate understanding of the significance of the exploration results. This must include information such as exploration context, type and method of sampling, sampling intervals and methods, relevant sample locations, distribution, dimensions, and relative location of all relevant assay and physical data, data aggregation methods, land tenure status, and any additional material information that may be necessary to make the required disclosure concerning the registrant's exploration results not misleading. The registrant must cite to corresponding sections of the summary technical report, which must be filed as an exhibit pursuant to § 229.1302(b).
Describe the internal controls that the registrant uses in its exploration and mineral resource and reserve estimation efforts. This disclosure should include quality control and quality assurance (QC/QA) programs, verification of analytical procedures, and a discussion of comprehensive risk inherent in the estimation.
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z–2, 77z–3, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78o–7 note, 78u–5, 78w(a), 78ll, 78mm, 80a–2(a), 80a–3, 80a–8, 80a–9, 80a–10, 80a–13, 80a–24, 80a–26, 80a–29, 80a–30, and 80a–37, and Sec. 71003 and Sec. 84001, Pub. L. 114–94, 129 Stat. 1312, unless otherwise noted.
The additions and revision read as follows:
[Note: The text of Form 1–A does not, and these amendments will not, appear in the Code of Federal Regulations.]
(a) State briefly the location and general character of any principal plants or other material physical properties of the issuer and its subsidiaries. If any such property is not held in fee or is held subject to any major encumbrance, so state and briefly describe how held. Include information regarding the suitability, adequacy, productive capacity and extent of utilization of the properties and facilities used in the issuer's business.
(b) Issuers engaged in mining operations must refer to and, if required, provide the disclosure under Subpart 1300 of Regulation S–K (§§ 229.1301
15.
15 U.S.C. 78a
Section 249.220f is also issued under secs. 3(a), 202, 208, 302, 306(a), 401(a), 401(b), 406 and 407, Pub. L. 107–204, 116 Stat. 745.
The revision and additions read as follows:
[Note: The text of Form 20–F does not, and these amendments will not, appear in the Code of Federal Regulations.]
3. Issuers engaged in mining operations must refer to and, if required, provide the disclosure under Subpart 1300 of Regulation S–K (§§ 229.1301
17. The technical report summary under Item 601(b)(96) of Regulation S–K (§ 229.601 of this chapter).
A registrant that is required to file a technical report summary pursuant to Item 1302(b)(2) of Regulation S–K (§ 229.1302(b)(2) of this chapter) must provide the information specified in Item 601(b)(96) of Regulation S–K as an exhibit to its registration statement or annual report on Form 20–F.
18 through 99 [Reserved]
By the Commission.
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (“Commission” or “CFTC”) is adopting final regulations relating to swap data reporting in connection with cleared swaps for swap data repositories (“SDRs”), derivatives clearing organizations (“DCOs”), designated contract markets (“DCMs”), swap execution facilities (“SEFs”), swap dealers (“SDs”), major swap participants (“MSPs”), and swap counterparties who are neither SDs nor MSPs. Commodity Exchange Act (“CEA” or “Act”) provisions relating to swap data recordkeeping and reporting were added by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”). These regulations adopt without change revisions to the Commission regulations as proposed in the Notice of Proposed Rulemaking (“NPRM”) issued August 31, 2015. These revisions clarify regulations to clearly delineate the swap data reporting requirements associated with each of the swaps involved in a cleared swap transaction. Additionally, these revisions leave the choice of SDR for each swap in a cleared swap transaction to the entity submitting the first report on such swap.
This rule is effective July 27, 2016 except for the removal of § 45.4(b)(2)(ii) which is effective June 27, 2016.
Daniel Bucsa, Deputy Director, Division of Market Oversight, 202–418–5435,
On July 21, 2010, President Obama signed into law the Dodd-Frank Act.
To enhance transparency, promote standardization, and reduce systemic risk, section 727 of the Dodd-Frank Act added to the CEA section 2(a)(13)(G),
On December 20, 2011, the Commission adopted part 45 of the Commission's regulations (“Final Part 45 Rulemaking”).
As part of the Commission's ongoing efforts to improve swap transaction data quality and to improve the Commission's ability to utilize the data for regulatory purposes, Commission staff has continued to evaluate issues in connection with reporting under part 45, including those related to cleared swaps in particular. To this end, Commission staff formed an interdivisional staff working group (“IDWG”) to identify, and to recommend resolutions to, reporting challenges associated with certain swaps transaction data recordkeeping and reporting provisions, including the provisions adopted in the Final Part 45 Rulemaking.
Based in large part on those efforts, the Commission published a request for comment on a variety of swap data reporting and recordkeeping provisions to help determine how such provisions were being applied, and to determine whether or what clarifications or enhancements to these provisions may be appropriate (the “IDWG Request for Comment”).
The swap data reporting framework adopted in the original Final Part 45 Rulemaking was largely based on the mechanisms for the trading and execution of uncleared swaps. Under such a regime, swap data reporting was premised upon the existence of one continuous swap for reporting and data representation purposes. The Commission has since had additional opportunities to consult with industry and has observed how the part 45 regulations function in practice with respect to swaps that are cleared, including how the implementation of part 45 interacts with the implementation of part 39 of the Commission's regulations, which contains provisions applicable to DCOs.
In particular, § 39.12(b)(6) provides that upon acceptance of a swap by a DCO for clearing, that original swap is extinguished and replaced by equal and opposite swaps, with the DCO as the counterparty to each resulting swap.
In developing these rules, Commission staff has engaged in extensive consultations with other U.S. financial regulators, including the Securities and Exchange Commission (“SEC”), the Federal Reserve Board of Governors, the Federal Housing Finance Agency, the Federal Deposit Insurance Corporation, Office of Comptroller of the Currency, and the Farm Credit Administration. As noted in the NPRM,
The Commission is making revisions and additions to §§ 45.1, 45.3, 45.4, 45.5, 45.8, 45.10, and appendix 1 to part 45 in order to provide clarity to swap counterparties as well as to registered entities regarding their respective part 45 reporting obligations in connection with each of the swaps involved in a cleared swap transaction.
• Amendments to § 45.1 revise the definition of “derivatives clearing organization” to update a cross-reference and to clarify that the definition covers only registered DCOs. Revised § 45.1 also adds new definitions for “original swaps” and “clearing swaps.” These terms are used throughout amended part 45 to help clarify reporting obligations for the swaps involved in a cleared swap transaction.
• Amendments to § 45.3 modify and clarify DCO creation data reporting obligations for swaps that result from the clearing process; establish which entity has the obligation to choose the SDR to which creation data is reported; eliminate confirmation data reporting obligations for swaps that are intended to be submitted to a DCO for clearing at the time of execution; and make conforming changes.
• Amendments to § 45.4 modify and clarify continuation data reporting obligations for original swaps, including the obligation of a clearing DCO to report original swap terminations to the SDR to which the original swap was reported; modify and clarify the obligation to report data providing for the linking of original and clearing swaps and the original and clearing swap SDRs; remove the requirement for SD/MSP reporting counterparties to report daily valuation data for cleared swaps; and make conforming changes.
• Amendments to § 45.5 set forth a DCO's obligations to create, transmit, and use unique swap identifiers (“USIs”) to identify clearing swaps.
• Amendments to § 45.8 provide that the DCO will be the reporting counterparty for clearing swaps.
• Amendments to § 45.10 provide that all swap data for a given clearing swap, and all swap data for each clearing swap that replaces a particular original swap (and each equal and offsetting clearing swap that is created upon execution of the same transaction and that does not replace an original swap), must be reported to a single SDR. Amendments also make conforming changes.
• Amendments to appendix 1 modify certain existing primary economic term (“PET”) data fields and certain explanatory notes in the Comment sections for existing PET data fields, and add several new PET data fields to account for the clarifications provided in this release for the reporting of clearing swaps.
Throughout Section II of this release, the Commission will discuss each amendment and the related comments. The Commission is also including several examples to demonstrate how cleared swap reporting workflows would function under the new regulations.
The Commission received some general comments on the proposed amendments to part 45 relating to data quality. Better Markets was generally supportive of the proposals, and commented that the NPRM integrated many of the technical public comments on the concept release to address the small but important fixes on reporting of cleared swap transactions.
Existing § 45.1 defines “derivatives clearing organization” for purposes of part 45 by cross-referencing section 1a(9) of the CEA
The Commission proposed to revise the definition of “derivatives clearing organization” in § 45.1 so that it cross-references the definition provided in § 1.3(d) of the Commission's regulations and so that it explicitly refers to a DCO registered with the Commission under section 5b(a) of the CEA.
The Commission proposed to add definitions of “original swap” and “clearing swap” to part 45 so that the part 45 reporting rules will be more consistent with the regulations
The Commission proposed to define “original swap” as a swap that has been accepted for clearing by a derivatives clearing organization and “clearing swap” as a swap created pursuant to the rules of a derivatives clearing organization that has a derivatives clearing organization as a counterparty, including any swap that replaces an original swap that was extinguished upon acceptance of such original swap by the derivatives clearing organization for clearing.
As noted above, while original swaps are commonly referred to as “alpha” swaps and while the equal and opposite swaps that replace the original swap are commonly referred to as “beta” and “gamma” swaps, the Commission will use the proposed defined terms “original swap” and “clearing swap” throughout this section of the release.
The Commission received comments on the proposed definitions from a variety of market participants. Many commenters were supportive of the proposed amendments to the definitions and the clarification that they provide. Other commenters supported clarification of the definitions, but suggested further modifications to the proposed definitions.
Both ISDA and FSR commented that the proposed definition of “derivatives clearing organization” should be expanded to include derivatives clearing organizations that are exempt from registering with the Commission.
With respect to the proposed definition of “clearing swap,” ISDA reiterated its comment that the definition should include all swaps that are cleared through registered derivatives clearing organizations as well as those that are cleared through derivatives clearing organizations that are in the process of registering or are exempt from registration.
Regarding the definition of “original swap,” ISDA commented that it is supportive of the proposed definition and agrees that swaps submitted for clearing should be classified as original swaps.
Having reviewed all relevant comments, the Commission has determined to adopt the definitions as proposed in the NPRM. The Commission has noted the comments received from market participants on the limitation of “derivatives clearing organization” to DCOs registered with the Commission. The Commission notes that, as of the date of this release, it has granted exemptive relief to four non-U.S. central counterparties from registering as a DCO with the Commission, under section 5b(h) of the CEA, pursuant to Commission Orders (“DCO Exemptive Orders”).
The Commission notes general support for the definition of “clearing swap.” The Commission notes that the newly-defined term “clearing swap” would include any swap to which the DCO is a counterparty, regardless of whether such swap is replacing an original swap.
The Commission also notes the broad support for the newly-defined term “original swap.”
The proposed definition of original swap will provide clarity with respect to certain continuation data reporting requirements for such swaps by tying such obligations to a specific point in time in the life of a swap that is either intended to be submitted to a DCO for clearing at the time of execution, or that is not intended to be cleared at the time of execution but is later submitted to a DCO for clearing. The Commission notes that under the proposed definition, a swap that is submitted to a DCO for clearing can become an original swap by virtue of the DCO's acceptance of such swap for clearing, irrespective of: (1) Whether such swap is executed on or pursuant to the rules of a SEF or DCM or off-facility; (2) whether or not such swap is subject to the clearing requirement; and (3) whether such swap is intended to be cleared at the time of execution or not intended to be cleared at the time of execution, but subsequently submitted to a DCO for clearing.
In addressing EEI/EPSA's comment on whether the term “original swaps” would include off-facility swaps rejected and then resubmitted for clearing, or swaps not intended to be cleared at execution but subsequently submitted for clearing, the Commission notes that a swap becomes an “original swap” once it is accepted for clearing by a DCO. The definition would apply regardless of whether the swap had previously been rejected for clearing, or whether it was not intended to be cleared at the time of execution.
Regulation 45.3 requires reporting to an SDR of two types of “creation data” generated in connection with a swap's creation: “primary economic terms data” (“PET data”) and “confirmation data.” Additionally, § 45.3 governs what creation data must be reported, who must report it, and deadlines for its reporting.
The swap data reporting requirements under § 45.3 concerning both PET data and confirmation data differ for reporting counterparties and entities depending on whether the swap is executed on or pursuant to the rules of a SEF or DCM (§ 45.3(a)), is subject to mandatory clearing and executed off-facility (§ 45.3(b)), or is not subject to mandatory clearing and executed off-facility (§ 45.3(c) and (d)). Regulation 45.3 also addresses specific creation data reporting requirements in circumstances where a swap is accepted for clearing by a DCO,
As noted above, the Commission has observed how the part 45 regulations function in practice with respect to swaps that are cleared. While CEA section 2(a)(13)(G) requires each swap (whether cleared or uncleared) to be reported to a registered SDR, the Commission believes that the interplay between the § 45.3 reporting requirements applicable to SEFs, DCMs and reporting counterparties, and the reporting requirements applicable to DCOs, should be clarified in the context of a cleared swap transaction. Accordingly, the Commission proposed several amendments to § 45.3 to better delineate the creation data reporting requirements associated with each swap involved in a cleared swap transaction.
References to the end-user exception to the swap clearing requirement set forth in section 2(h)(7) of the CEA are included in existing §§ 45.3 and 45.8. Following the publication of the Final Part 45 Rulemaking, the Commission codified the end-user exception in § 50.50 and published two exemptions to the swap clearing requirement: The inter-affiliate exemption in § 50.52, and the financial cooperative exemption in § 50.51. Therefore, the Commission proposed revisions to the introductory language of § 45.3, §§ 45.3(b)–(d), and 45.8(h)(1)(vi) to reflect that exceptions to, and exemptions from, the clearing requirement are now codified in part 50 of the Commission's regulations.
Paragraphs (a)–(d) of § 45.3 govern creation data reporting in connection with swaps executed on or pursuant to the rules of a SEF or DCM and for off-facility swaps, but do not separately address creation data reporting for swaps created through the clearing process by a DCO (
Under the proposed revisions to § 45.3(e), a DCO would be required as reporting counterparty under new § 45.8(i)
As noted above, CEA section 2(a)(13)(G)
As noted above, several provisions of existing § 45.3 impose certain creation data reporting requirements on a DCO in circumstances where a swap is accepted for clearing by a DCO. To ensure consistency with § 39.12(b)(6), the Commission proposed to remove these creation data reporting provisions (current §§ 45.3(a)(2),
Additionally, the Commission proposed to remove portions of §§ 45.3(b)(1), (c)(1)(i), (c)(2)(i), and (d)(1).
Existing §§ 45.3(a)–(d) requires the SEF/DCM (under § 45.3(a)) or the reporting counterparty (under §§ 45.3(b)–(d)) to report both PET and confirmation data in order to comply with creation data reporting obligations. The Commission believes that the confirmation data requirements for clearing swaps in new § 45.3(e) will provide the Commission with a sufficient representation of the confirmation data for a cleared swap transaction, because the original swap is extinguished upon acceptance for clearing and replaced by equal and opposite clearing swaps.
Accordingly, for swaps that are intended to be submitted to a DCO for clearing at the time of execution, the Commission proposed to amend §§ 45.3(a), (b), (c)(1)(iii), (c)(2)(iii), and (d)(2) to remove the existing confirmation data reporting requirements.
The Commission proposed renumbering existing § 45.3(e), which governs creation data reporting for swaps involving allocation, as § 45.3(f).
The Commission proposed adding § 45.3(j) in order to explicitly establish which entity has the obligation to choose the SDR to which the required swap creation data is reported.
Under the proposed addition of § 45.3(j) and the proposed revisions to § 45.10,
Finally, the Commission notes that it is aware of certain situations wherein SEFs, DCMs and reporting counterparties for off-facility swap transactions may report the part 43 data for a swap to an SDR prior to reporting the part 45 required creation data for the same swap. In such situations, the registered entity or reporting counterparty has effectively chosen the SDR for the swap prior to submitting the part 45 data, since, pursuant to revisions to § 45.10 adopted in this release, all swap data reported pursuant to parts 43 and 45 for a given swap is required to be reported to a single SDR.
The Commission proposed to remove the references to the expired compliance dates in §§ 45.3(b)(1)(i), (b)(1)(ii), (b)(2), (b)(2)(ii), (c)(1)(i)(A), (c)(1)(i)(B), (c)(2)(i)(A), (c)(2)(i)(B), (d)(1), and (d)(3), and in the introductory language to § 45.3.
The Commission received a number of comments in response to its proposed revisions to § 45.3. Many of these comments focused on the proposed reporting of creation data associated with clearing swaps and related reporting obligations concerning original swaps. Other comments addressed the new choice of SDR provision set out in § 45.3(j). And, finally, some commenters discussed the new clearing swaps rules in the context of principal model clearing.
With respect to the reporting of clearing swaps, commenters generally supported the Commission's proposal to require DCOs to report creation data for clearing swaps.
LCH requested that the Commission change references to “execution of a clearing swap” in proposed § 45.3(e) to “creation of a clearing swap” in order to more clearly address compression events. LCH also suggested cross-referencing re-numbered § 45.3(f) to new § 45.3(e), to cover situations where block trades are allocated post-clearing.
With respect to swaps that become original swaps, commenters were generally supportive of the Commission's proposal to eliminate the requirement for reporting confirmation data on intended to be cleared swaps.
While the proposed amendments to part 45, aside from the removal of the excusal provisions noted above, do not change creation data reporting requirements for swaps that become original swaps, several commenters commented on which entity should be responsible for reporting creation data for swaps that will become original swaps. Some commenters suggested that if reporting of creation data for swaps that become original swaps continues, the DCO, rather than the reporting counterparty, should be responsible for reporting the creation data for that swap.
Other commenters recommended that the Commission continue requiring the reporting counterparty to report creation data for those swaps that will become original swaps.
Some commenters suggested that the reporting of any creation data for swaps that will become original swaps is unnecessary.
The Commission received a number of comments on its proposal regarding the selection of the SDR to which the required swap creation data should be reported. Some commenters were supportive of the Commission's proposed addition of § 45.3(j) and proposed modifications to § 45.10 relating to the choice of the SDR for a particular swap. As discussed below, other commenters suggested modifications to the Commission's proposal and changes to the manner in which the SDR is selected for a particular swap.
With respect to clearing swaps, commenters were divided as to which entity should have the ability to select the SDR. FSR, LCH, and ISDA all supported allowing the DCO to select the SDR for purposes of reporting creation data for clearing swaps, as the DCO has the sole obligation to report clearing swaps.
Other commenters suggested that the reporting counterparty to the swap that becomes the original swap should select the SDR to which the clearing swaps are reported. DTCC commented that the DCO for a clearing swap should have the obligation to report the clearing swap to the SDR selected by the reporting counterparty to the swap that became the original swap, or selected by the SEF or DCM for on-facility swaps.
Other commenters suggested that, for on-facility swaps that are not cleared by a DCO, the party responsible for reporting continuation data for the swap should not be bound by the SEF or DCM's choice of SDR for the reporting of creation data.
Finally, a few comments focused on swaps that are cleared through a principal, rather than agency, model. Eurex commented that it is not clear under the proposal which entity is to be reported as the counterparty to the DCO with regard to a clearing swap in the principal model.
The Commission has considered the comments that it received in response to the proposed changes to § 45.3. As discussed above, some of the proposed changes to § 45.3 received widespread support among commenters, while other proposed changes received both support and objection from commenters. The Commission has decided to adopt the changes to § 45.3 as proposed in the NPRM for the following reasons.
As discussed above, the Commission's proposal to require DCOs to report creation data for clearing swaps received support from commenters.
The Commission notes LCH's comments that, when establishing the timing requirement for reporting clearing swaps that do not replace original swaps in § 45.3(e), the term “creation of a clearing swap” may better capture compression events than “execution of a clearing swap.” The Commission believes that the phrase “execution of a clearing swap,” for purposes of part 45, is sufficiently clear to cover reporting obligations for all clearing swaps that do not replace original swaps. The Commission also believes that the adopted reporting requirements for clearing swaps would cover post-clearing allocations of block trades raised by LCH. If a block trade is allocated after clearing, then any allocations of that block would have a DCO as one counterparty. Thus, such post-allocation swaps would be clearing swaps and must be reported by the DCO pursuant to § 45.3(e).
Under the new rules, SEFs/DCMs and reporting counterparties will continue to be required to report PET data as part of their creation data reporting, but will be required to report confirmation data only for swaps that, at the time of execution, are not intended to be submitted to a DCO for clearing. For swaps that, at the time of execution, are intended to be submitted to a DCO for clearing, SEFs/DCMs and reporting counterparties will not be required to report confirmation data. If the swap is accepted for clearing by a DCO, the DCO will be required to report confirmation data for the clearing swaps pursuant to proposed § 45.3(e).
With respect to swaps that will become original swaps, the Commission received widespread support of the proposed elimination of the requirement to report confirmation data associated with these swaps.
With the exception of the removal of excusal provisions, the Commission has not proposed to change the existing requirement to report creation data for swaps that will become original swaps. As noted in the NPRM, CEA section 2(a)(13)(G) requires each swap, whether cleared or uncleared, to be reported to a registered SDR.
Having reviewed the comments regarding reporting of swaps that become original swaps, the Commission continues to interpret CEA section 2(a)(13)(G) as requiring all swaps to be reported, which would include swaps that become original swaps as distinct swaps from resulting clearing swaps under § 39.12(b)(6). Further, the Commission continues to believe that original swaps contain essential information regarding the origins of cleared swap transactions for market surveillance and audit-trail purposes, including but not limited to the identity of the original counterparties, the execution venue, and the timestamp of the original transaction between the original counterparties. Such essential information could not be easily determined if only resulting clearing swaps were to be reported. The Commission's ability to trace the history of a cleared swap transaction from execution between the original counterparties to clearing novation relies on this information. The Commission also notes that the continued reporting of swaps that become original swaps is consistent with the SEC's proposed Regulation SBSR—Reporting and Dissemination of Security-Based Swap Information.
The Commission received divided comments as to which entity should be responsible for reporting creation data for those swaps that will become original swaps. Some commenters suggested that the DCO should be the reporting counterparty,
As discussed in its Final Part 45 Rulemaking, the Commission believes that requiring all swaps that become original swaps to be reported only to SDRs chosen by the DCO of the resulting clearing swaps could create an uneven playing field between DCO affiliated SDRs and non-DCO affiliated SDRs.
The Commission acknowledges the data fragmentation concerns raised by those that recommend DCOs report original swap creation data, however, the Commission also recognizes that requiring the DCOs, rather than the original reporting counterparty, to report original swap creation data may also present challenges. For example, Eurex noted that there could be a timeliness issue depending on when the DCO receives necessary information from counterparties to report creation data.
The Commission received a variety of comments on its proposed addition of § 45.3(j) and modifications to § 45.10 regarding the choice of the SDR for a particular swap. With respect to clearing swaps, some commenters recommended that the DCO should select the SDR,
Requiring this method of SDR selection also avoids inserting anyone other than a party to the swap (or facility where the transaction is executed) into the decision as to how a registered entity or counterparty fulfills its regulatory obligation to report initial required swap creation data. As with the “first-touch” approach taken with respect to the creation of USIs in part 45,
The registered entity or counterparty that is required to report a swap pursuant to § 45.8 may select an SDR to which its technological systems are most suited or to which it already has an established relationship, providing for the efficient and accurate reporting of swap data. The Commission notes that this Final Rule does not prohibit a registered entity or counterparty from choosing an SDR based on consideration of market preference or other factors, however, the obligation to choose the SDR will rest solely with the registered entity or counterparty set forth in amended § 45.8. The Commission recognizes that this may result in original swaps and clearing swaps being reported to different SDRs, however, the Commission believes that the required data fields, such as original swap USI included in clearing swap reporting, and clearing swap USIs included in original swap reporting, will allow the Commission to efficiently and accurately link data across SDRs and perform its regulatory mandate.
The Commission has also noted ISDA's proposed alternative that the entity with the “longest, recurring, or most frequent obligation to report” be given choice of SDR. In particular, ISDA expressed concern that market participants would be required, due to the made available to trade mandate, to trade certain swaps at a particular SEF, and therefore be required to report to that SEF's chosen SDR. However, the Commission notes that any swaps made available to trade would be subject to the clearing mandate. As discussed above, counterparties to cleared, on-facility swaps would likely have no reporting obligations.
The Commission has noted comments from Eurex on reporting of clearing swaps under the principal clearing model. The Commission is aware of issues surrounding the reporting of principal model clearing swaps, but is
Regulation 45.4 governs the reporting of swap continuation data to an SDR during a swap's existence through its final termination or expiration. This provision establishes the manner in which continuation data, including life cycle event data or state data, and valuation data,
For uncleared swaps, § 45.4(c) requires the reporting counterparty to report all required swap continuation data, including life cycle event data or state data, and valuation data.
The Commission understands that § 45.4 could be clarified regarding continuation data reporting responsibilities for each of the swaps involved in a cleared swap transaction. Accordingly, the Commission proposed several amendments to § 45.4 to better delineate the continuation data reporting requirements associated with each swap involved in a cleared swap transaction.
The Commission proposed to revise the heading of § 45.4(a) to read “Continuation data reporting method generally” to reflect that the continuation data reporting method requirements in § 45.4(a) apply to all swaps, regardless of asset class or whether the swap is an original swap, clearing swap or uncleared swap, whereas the continuation data reporting requirements in proposed § 45.4(b), (c), and (d) would apply to clearing swaps, original swaps, and uncleared swaps, respectively.
Regulation 45.4(b) currently governs continuation data reporting obligations for “cleared swaps,” but does not distinguish among the different swaps involved in a cleared swap transaction (
The Commission proposed to remove existing § 45.4(b)(2)(ii), which requires a reporting counterparty that is an SD or MSP to report valuation data for cleared swaps daily, in addition to the valuation data that is required to be reported by the DCO pursuant to § 45.4(b)(2)(i). For clearing swaps, the DCO would be the only swap counterparty required to report continuation data, including valuation data.
Existing § 45.4(c) governs continuation data reporting for uncleared swaps. The Commission proposed renumbering § 45.4(c) as § 45.4(d) (for reasons discussed below), and proposed the addition of a new § 45.4(c), which would set forth the continuation data reporting requirements for original swaps.
Specifically, proposed § 45.4(c) would require a DCO to report all required continuation data for original swaps, including original swap terminations, to the original swap SDR pursuant to § 45.3(a) through (d).
As proposed, § 45.4(c)(1) would require a DCO to report all life cycle event data for an original swap on the same day that any life cycle event occurs, or to report all state data for the original swap, daily.
The continuation data reporting requirements of proposed § 45.4(c)
Proposed § 45.4(c) would require DCOs to report additional data fields when reporting continuation data on original swaps.
As mentioned above, the Commission proposed to renumber § 45.4(c) (Continuation data reporting for uncleared swaps) as § 45.4(d). The Commission also proposed to amend § 45.4(d), which applies to all swaps that are not cleared by a derivatives clearing organization, to add the phrase “including swaps executed on or pursuant to the rules of a swap execution facility or designated contract market.”
Finally, the Commission proposed to modify the introductory language to § 45.4 and § 45.4(d)(1)(ii)(A) to remove outdated references to compliance dates that have already expired.
The Commission received numerous comments on its proposed revisions to § 45.4.
The proposed amendment to § 45.4(b)(2), requiring only DCOs to submit valuation data for clearing swaps, was widely supported in the comment letters. Although one commenter contended that valuation data from SD/MSP swap counterparties is valuable information and that the Commission should require such information from SD/MSP counterparties for all swaps, cleared or uncleared,
Commenters were split on support of proposed § 45.4(c), which would require the DCO to report continuation data on the original swaps once they are accepted for clearing to the SDR to which the original swap was originally reported. ISDA strongly supported the revision, stating that it would eliminate the issue of cleared “alpha” swaps that had not been terminated, which negatively affects data quality. ISDA commented that DCOs should be allowed to report continuation data as either lifecycle event data or state data.
CME commented that under the proposed division of reporting obligations for original swaps and clearing swaps, DCOs are dependent on original swap counterparties providing sufficient information on the original swaps to fulfill reporting obligations on terminations of the original swap.
In contrast, some commenters recommended that the clearing member, and not the DCO, should report termination of the original swap to the
Regarding timing of reporting continuation data for original swaps, ISDA supported the provision in new § 45.4(c) allowing DCOs to report continuation data on original swaps daily and via either lifecycle event data or state data.
DTCC requested that the Commission offer guidance on how SDRs, DCOs, and any other affected entities should address previously reported cleared swaps for which the original swap had not been terminated.
Several commenters asserted that the most cost-effective method for establishing a link between the original swaps and the swaps that replace the original swap upon acceptance for clearing is to include the USI of the original swap as a prior USI for the beta and gamma swaps.
Having considered the comments received, the Commission has decided to adopt the amendments to § 45.4 as proposed.
Receiving no comments on the conforming changes to § 45.4(a), the Commission adopts these changes as proposed. The changes clarify that the standards for reporting continuation data in § 45.4(a) apply to all continuation events regardless of asset class or whether the swap is uncleared, an original swap, or a clearing swap.
The Commission notes support among market participants for the amendment to § 45.4 removing the requirement that SDs and MSPs report valuation data for clearing swaps. The Commission adopts this revision, codifying existing no-action relief,
The Commission notes the different opinions offered by commenters on the proposed addition of § 45.4(c), which would require DCOs to report continuation data, including terminations, of original swaps. The Commission has considered the alternative approaches to reporting original swap terminations that were proposed by commenters, such as requiring original swap reporting parties to report terminations; requiring DCOs to report both original and clearing swaps; and allowing DCOs to select the SDR for original swap terminations. The Commission believes that its proposed method best incorporates existing industry practice, whereby DCOs generally report clearing swaps as well as submitting termination messages on original swaps, thereby limiting additional costs. It may be more burdensome for the counterparties to the original swaps to report terminations because they would have
On the other hand, requiring DCOs to report creation and continuation data for both original and clearing swaps could slow the reporting of original swaps for part 43 and part 45 purposes. DCOs would need to receive messages from the counterparties, or from the SEF or DCM where executed on-facility, with all information necessary to report the swap that becomes an original swap. The DCO would then need to transmit such information to the SDR of its choice. Introducing an extra step in reporting would inherently slow reporting, which must be done as soon as technologically practicable particularly for transparency reasons. At the same time, requiring DCOs to report original swaps for part 43 and part 45 purposes would require DCOs to obtain information beyond what would be needed for clearing purposes, thus increasing the burden on DCOs.
Finally, the Commission has considered the alternative proposal that DCOs be allowed to report an original swap termination to an SDR other than that where the original swap was reported. Adoption of this alternative approach could result in significant data fragmentation, as data on a single swap could be housed at more than one SDR. Additionally, this alternative approach would render useless any position reports generated by an SDR, as the SDR (or market participant accessing its own data on an SDR) could not determine if the swaps it housed are still in effect, thereby removing a potential validation tool for market participants.
Having considered these alternatives as suggested by commenters, the Commission has determined to adopt the amendments to § 45.4 as it has proposed. The Commission believes that DCOs are in the best position to report the termination of an original swap because the DCO, through the clearing process, has all information needed to report such terminations. By virtue of its decision to accept a swap for clearing and to extinguish the swap upon acceptance,
DCOs will also have all information needed to terminate the original swap based on the swap submitted for clearing. Data required for such termination messages would either be generated by the DCO itself (such as clearing swap USIs and clearing swap SDR LEIs) or could be included in any message submitting a swap for clearing (such as the USI of the original swap and the LEI of the original swap SDR). While CME commented that clearing members have not consistently included original swap USI and LEI of the original swap SDR in messages transmitted to the DCO for clearing, the Commission notes that DCOs could require their clearing members to provide such information. As proposed, § 45.4(c) would require DCOs to report these fields. DCOs must obtain the relevant information from their clearing members.
The Commission has considered the comments opposing the creation of required continuation data fields to be reported by DCOs for original swaps. The Commission has also considered ISDA's comment regarding the potential redundancy of having USIs of clearing swaps transmitted in the termination message for the original swap, as well as having the USI of the original swap in the creation data for the clearing swaps.
The Commission believes that reporting the clearing swaps USIs as continuation data for the original swap is an efficient mechanism for linking clearing swaps to the original swap that they replace and should be used for this purpose. New § 45.4(c)(2) will thus require DCOs to include the following additional enumerated data elements when reporting continuation data for original swaps pursuant to proposed § 45.4(c)(1): (i) The legal entity identifier (“LEI”) of the SDR to which each clearing swap for a particular original swap was reported by the DCO pursuant to new § 45.3(e); (ii) the USI of the original swap that was replaced by the clearing swaps;
As adopted, these data fields will enable the DCO to fulfill its continuation data reporting obligations, enable the SDR to maintain the accuracy and completeness of swap transaction data, enable the Commission to track the life of a cleared swap transaction, and enable the Commission to monitor compliance with the clearing mandate. In particular, inclusion within an original swap termination message the LEI of the clearing swap SDR will permit the Commission and other regulators to ascertain the SDR where the clearing swaps associated with a particular original swap reside, which will enable the Commission and other regulators to review and more effectively associate data available at multiple SDRs in circumstances where the reporting entity or counterparty selects one SDR for the original swap and the DCO selects a different SDR for the clearing swaps under § 45.3.
Inclusion of the original swap's USI is necessary to enable the original swap SDR to associate continuation data reported by the DCO with the initial creation data reported by a SEF/DCM or reporting counterparty pursuant to § 45.3(a) through (d).
Together, the revisions to § 45.4(b) and the addition of § 45.4(c) will require the reporting of continuation data for original swaps and clearing swaps. Accordingly, the Commission expects that records of original swaps that have been terminated would include the USIs for the clearing swaps that replaced the original swap and the LEI of the clearing swap SDR, such that review of an original swap would permit the identification of the resulting clearing swaps and the SDR where they resides. These provisions will reflect the regulations applicable to DCOs outlined in part 39 of the Commission's regulations and will clearly delineate the continuation data reporting obligations associated with each swap involved in a cleared swap transaction.
The Commission is mindful of LCH's suggestion that there be an industry-wide standard for original swap termination messages and DTCC's comment that termination reports often do not comply with SDR specifications. To help DCOs comply with the requirements of amended § 45.4, the Commission encourages DCOs and SDRs to develop an industry-wide standard for original swap termination messages. The Commission anticipates that original swap termination messages could be standardized given the limited number of data elements that must be transmitted, such as clearing swap USIs, DCO LEIs, and clearing swap SDR LEIs. Standardization also would alleviate LCH's concern that the original swap's SDR would become a factor in determining whether a swap was eligible for clearing.
The Commission has also considered conflicting comments on whether original swap terminations should be reported at the end of the day or as soon as technologically practicable. The Commission has determined to adopt the amendment as proposed and require reporting original swap terminations at the end of the day, as this would be consistent with reporting other types of continuation data under § 45.4.
The Commission received no comments on the proposed revisions to § 45.4(d), and is adopting those revision as proposed.
Existing § 45.5 requires that each swap subject to the Commission's jurisdiction be identified in all recordkeeping and all swap data reporting by the use of a USI. The rule establishes different requirements for the creation and transmission of USIs depending on whether the swap is executed on a SEF or DCM (§ 45.5(a)), executed off-facility with an SD or MSP reporting counterparty (§ 45.5(b)), or executed off-facility with a non-SD/MSP reporting counterparty (§ 45.5(c)). Existing § 45.5 provides that for swaps executed on a SEF or DCM, the SEF or DCM creates the USI, and for swaps not executed on a SEF or DCM, the USI is created by an SD or MSP reporting counterparty, or by the SDR if the reporting counterparty is not an SD or MSP.
With the exception of swaps with a non-SD/MSP reporting counterparty, the existing rule generally requires USI creation and transmission to be carried out by the entity or counterparty required to report all required swap creation data for the swap. Existing § 45.5 thus does not distinguish between original and clearing swaps, does not provide USI creation and transmission requirements specifically for DCOs, and consequently does not provide for the issuance to DCOs of a USI “namespace,” which is one of two component parts of a USI.
The Commission understands that, in practice, SEFs/DCMs and reporting counterparties, or SDRs in the case of non-SD/MSP reporting counterparties, generate and assign USIs for swaps that would become original swaps under the proposed rules, and that DCOs generate and assign USIs to swaps that would qualify as clearing swaps in connection with reporting required swap creation data for clearing swaps to SDRs.
The Commission proposed to renumber existing § 45.5(d) as § 45.5(e), and to create a new § 45.5(d) that would set forth requirements regarding the creation and transmission of USIs for clearing swaps.
As proposed, § 45.5(d)(1) would require a DCO to generate and assign a USI for each clearing swap upon, or as soon as technologically practicable after, acceptance of an original swap by the DCO for clearing (or execution of a clearing swap that does not replace an original swap), and prior to reporting the required swap creation data for each clearing swap.
As proposed, § 45.5(d)(2) would require a DCO to transmit the USI for a clearing swap electronically to the SDR to which the DCO reports required swap creation data for the clearing swap, as part of that report, and to the DCO's counterparty with respect to that clearing swap, as soon as technologically practicable after either acceptance of the original swap by the DCO for clearing or execution of a clearing swap that does not replace an original swap.
Finally, the Commission proposed to amend §§ 45.5(a), 45.8(f), and 45.10(a) to incorporate the language “or pursuant to the rules of” to the phrase “swaps executed on a swap execution facility or designated contract market” to make clear that those provisions currently apply to all swaps executed on or pursuant to the rules of a SEF or DCM.
The Commission received several comments regarding its proposed amendments to § 45.5.
FSR requested that the Commission adopt ISDA best practices for identifying international swaps, including allowing for the use of a USI as a unique transaction identifier (“UTI”) for reporting swaps in other jurisdictions.
ISDA commented that, in principal model clearing, the DCO should ensure that both the DCO's clearing member and the ultimate counterparty (if not the clearing member) receive the clearing swap USIs.
Having considered the comments relating to the purpose and scope of the proposed amendments to § 45.5, the Commission is adopting amended § 45.5 as proposed. The proposed § 45.5(d) provisions that would govern creation and assignment of USIs by the DCO with respect to clearing swaps would be consistent with the Commission's “first-touch” approach to USI creation for SEFs, DCMs, SDs, MSPs, and SDRs.
The Commission notes ISDA's request for guidance on whether DCOs must ensure, in the principal clearing mode, that the ultimate counterparty (when not the clearing member) receive the USI of the clearing swaps. As noted above, the Commission is aware of various issues relating to reporting of principal model clearing but will not offer further guidance at this time. The Commission notes ISDA's comment that the current Orders of Exemption for foreign DCOs do not include a requirement that the DCO generate USIs for reportable clearing swaps. Finally, the Commission notes FSR's request for the Commission to align the use of USIs and UTIs for reporting international swaps. While the Commission declines to address the issue in this release as it is beyond the scope of the NPRM, the Commission is cognizant of the need to harmonize reporting across jurisdictions and will continue to work with other regulators to address this and other issues.
Existing § 45.8 sets forth a hierarchy under which the reporting counterparty for a particular swap depends on the nature of the counterparties involved in the transaction. Regulation 45.8 assigns a reporting counterparty for off-facility swaps, for which the reporting counterparty must report all required swap creation data, as well as for swaps executed on or pursuant to the rules of a SEF or DCM, for which the SEF or DCM must report all required swap creation data.
The Commission proposed to add paragraph (i) to § 45.8 in order to explicitly provide that the DCO will be the reporting counterparty for clearing swaps.
The Commission proposed to further amend § 45.8 to remove part of paragraphs (d)(1) and (f)(1) and to remove part of paragraph (h)(2) and all of paragraphs (h)(2)(i) and (ii), which require SEFs to notify counterparties to a swap if it cannot determine who would be the reporting counterparty. Finally, the Commission proposed conforming changes to explanatory notes in the PET data tables in appendix 1 to part 45 that reference the situation described in § 45.8(h)(2).
The Commission received six comments in connection with its proposed amendments to § 45.8. One commenter supported proposed § 45.8(i) as it would promote efficiency in reporting by explicitly designating the DCO as the reporting party for clearing swaps.
ISDA noted a potential inconsistency between reporting obligations under parts 43 and 45 for clearing swaps, as DCOs are not included in the hierarchy under § 43.3 for determining reporting party of real-time reporting.
EEI/EPSA requested that the Commission not remove, as proposed, the provisions in §§ 45.8(d)(1) and (f)(1), which currently require the counterparties to select the reporting party, where the swap is executed on a SEF or DCM and both counterparties have the same SD, MSP or financial entity status.
Two commenters noted that, with the addition of proposed § 45.8(i)
For the reasons expressed more fully below, the Commission has decided to adopt the amendments to § 45.8 as proposed.
The Commission has considered ISDA's comment that the inclusion of DCOs in the part 45 reporting hierarchy could create inconsistencies between part 43 and part 45 reporting obligations for clearing swaps that do not replace original swaps. Existing § 43.3(a)(3) sets out the reporting hierarchy for real-time reporting of off-facility swaps. DCOs are not included in this hierarchy, but the hierarchy is applicable unless otherwise agreed to by the parties prior to the execution of the publicly reportable swap transaction.
The Commission has also considered comments from EEI/EPSA and ITV regarding the removal of provisions in §§ 45.8(d)(1) and (f)(1) governing the selection of reporting parties for swaps executed on SEFs and DCMs. As was explained in the preamble to the NPRM, the Commission proposed to remove these provisions to help preserve parties' anonymity on SEFs and DCMs, in particular for swaps cleared through a straight-through-processing mechanism.
The Commission has also considered EEI/EPSA's and CMC's comments regarding the continued inclusion of the phrase “or is cleared by a derivatives clearing organization” in § 45.8(f). The Commission notes that existing § 45.8(f) addresses reporting hierarchy for certain categories of reportable swaps executed between two non-U.S. Persons; one category of such reportable swaps is a swap cleared through a DCO. The Commission notes that the swap “cleared by a derivatives clearing organization” in this provision relates to the original swap between the original counterparties, and not the clearing swaps with the DCO. The Commission is adopting § 45.8(f) as proposed, with the continued inclusion of the phrase “cleared by a derivatives clearing organization.”
Existing § 45.10 requires “all swap data for a given swap” to be reported to a single SDR, which must be the same SDR to which creation data for that swap is first reported. The time and manner in which such data must be reported to a single SDR depends on whether the swap is executed on a SEF or DCM,
In order to further clarify that “all swap data for a given swap” encompasses all swap data required to be reported pursuant to parts 43 and 45 of the Commission's regulations, the Commission proposed to add language to this effect to paragraphs (a) through (c) and to the introductory language of § 45.10.
The Commission also proposed to remove § 45.10(b)(2) and (c)(2),
Additionally, the Commission proposed to add new § 45.10(d), which would govern clearing swaps and would establish explicit requirements that DCOs report all required swap creation data and all required swap continuation data for each clearing swap to a single SDR.
As proposed, § 45.10(d)(2) would require a DCO to report all required swap creation data and all required swap continuation data for a particular clearing swap to the same SDR that received the initial swap creation data for the clearing swap required by § 45.10(d)(1). In the event there are two or more clearing swaps that replace a particular original swap, and in the event there are equal and opposite clearing swaps that are created upon execution of the same transaction and that do not replace an original swap, proposed § 45.10(d)(3) would require the DCO to report all required swap creation and continuation data for each such clearing swap to a single SDR.
The Commission noted in its proposal that by operation of proposed new § 45.8(i) and (j) and proposed § 45.3(e), there may be scenarios in which the SEF/DCM or reporting counterparty reports required swap creation data for the swap that became the original swap to one SDR, and the DCO reports required swap creation data for the clearing swaps that replace the original swap to a different SDR.
The Commission included in the NPRM the following example to illustrate the application of proposed § 45.10:
Swap 1 is intended to be submitted to a DCO for clearing and executed on or pursuant to the rules of a SEF. The SEF reports all required creation data for such swap to registered SDR A pursuant to § 45.3(a), which was selected by the SEF pursuant to proposed § 45.3(j)(1), and submits the swap to the DCO for clearing. Upon acceptance of Swap 1 for clearing, the DCO extinguishes Swap 1 and replaces it with Swap 2 and Swap 3, both of which are clearing swaps. Swap 1 is now an original swap.
Proposed § 45.4(c) would require the DCO to report the termination of Swap 1 to SDR A,
The Commission received three comments addressing its proposed amendments to § 45.10.
ISDA opposed the requirement in proposed § 45.10(d)(1) that a DCO transmit to the counterparties of clearing swaps the LEI of the SDR to which the clearing swaps were reported.
DTCC opposed the provision in proposed § 45.10(d)(1) that would allow a DCO to select the SDR for reporting clearing swaps, instead arguing that clearing swaps should be reported to the same SDR as the original swap.
Having considered all of the comments relating to the purpose and scope of the proposed amendments to § 45.10, including amendments to §§ 45.10(a) through (c) and new § 45.10(d), the Commission is adopting amended § 45.10 as proposed. The requirements for DCOs demonstrated in the above example and contained in proposed § 45.10(d)(1) and (2) are consistent with the existing requirements for SEFs, DCMs, and other reporting counterparties under current § 45.10. By requiring that all swap data for each clearing swap be reported to a single SDR, proposed §§ 45.10(d)(1) and (2) further the Commission's stated purpose in creating § 45.10, and part 45 generally, of reducing fragmentation of data for a given swap across multiple SDRs.
The proposed requirement in §§ 45.10(d)(3) that the DCO report to a single SDR all swap data for each clearing swap that can be traced back to the same original swap also supports the goal of avoiding fragmentation of swap data. Though clearing swaps are new individual swaps, all clearing swaps that issue from the same original swap are component parts of a cleared swap transaction. Fragmentation among clearing swaps would needlessly impair the ability of the Commission and other regulators to view or aggregate all the data concerning the related clearing swaps.
While proposed § 45.10 ensures that each swap comprising a cleared swap transaction is reported to a single SDR, the Commission notes DTCC's comments on data fragmentation where original swaps are reported to different SDRs than their resulting clearing swaps. However, as long as DCOs properly identify the original swap's USI and SDR in reports on clearing swaps, and report clearing swaps' USIs and SDR in terminations of the original swaps, the Commission believes it will be able to reconcile those transactions when performing risk and other analysis. As discussed in Section II.C.4.iii above, the Commission has considered various alternatives to the adopted rules. The Commission believes that the adopted amendments will provide the Commission with the information it needs to perform its regulatory obligations while minimizing
In response to ISDA's comment that counterparties were unlikely to build mechanisms to retain information on the SDR to which clearing swaps were reported, the Commission believes that all swaps counterparties should be aware of the SDR to which their swaps are reported. The Commission notes that under existing § 45.14(b) non-reporting parties to swaps have obligations to correct any errors or omissions in swaps data of which they become aware.
The following examples demonstrate the manner in which the adopted revisions and additions to part 45 rules would operate in hypothetical scenarios involving: (1) An off-facility swap not subject to the clearing requirement with an SD/MSP reporting counterparty; and (2) a swap executed on or pursuant to the rules of a SEF or DCM. All references to part 45 appearing in the following examples refer to the rules as adopted in this release. These examples are provided only for illustrative purposes to demonstrate the applicability of certain rules adopted in this release in hypothetical scenarios. The examples are not intended to dictate any aspect of compliance, reporting or other related processes and are not intended to cover all possible reporting circumstances.
An off-facility swap that is not subject to the clearing requirement is executed with an SD reporting counterparty. The SD generates and assigns a USI for the swap pursuant to § 45.5(b) and reports all required swap creation data for the swap to SDR A pursuant to § 45.3(c). The SD submits the swap to a DCO for clearing and, pursuant to § 45.10(b), transmits to the DCO, at the time the swap is submitted for clearing, the identity of SDR A and the USI for the swap.
The DCO accepts the swap for clearing, extinguishing it and replacing it with clearing swaps; the swap that was submitted for clearing is now an original swap. The DCO generates and assigns a USI to each clearing swap pursuant to § 45.5(d) and, pursuant to § 45.3(e), reports all required swap creation data for the clearing swaps, including the original swap USI and all additional data fields applicable to clearing swaps,
Pursuant to § 45.4(c), the DCO would report continuation data for the original swap, including the original swap termination notice, to SDR A using either the life cycle or state data methods, and using the facilities, methods, or data standards provided or required by SDR A.
The DCO would also transmit to each counterparty to the clearing swaps, as soon as technologically practicable after acceptance for clearing, the USI of each clearing swap pursuant to § 45.5(d)(2) and the LEI of the SDR to which the clearing swap was reported pursuant to § 45.10(d)(1).
The DCO would have no further continuation data reporting obligations with respect to the original swap thereafter. However, the Commission notes that pursuant to § 45.14, registered entities and counterparties required to report swap data to an SDR must report any known errors and omissions in the data reported.
A swap is executed on or pursuant to the rules of a SEF or DCM. The SEF/DCM generates and assigns a USI for the swap pursuant to § 45.5(a) and reports all required swap creation data to SDR A pursuant to § 45.3(a). The SEF/DCM submits the swap to a DCO for clearing and, pursuant to § 45.10(a), transmits to the DCO, at the time the swap is submitted for clearing, the identity of SDR A and the USI for the swap.
The DCO accepts the swap for clearing, extinguishing it and replacing it with clearing swaps; the swap that was submitted for clearing is now an original swap. Under §§ 45.5(d) and 45.3(e), the DCO would generate and assign a USI to each clearing swap and report all required swap creation data, including the original swap USI and all additional data fields applicable to clearing swaps, for the clearing swaps to registered SDR A, which, in this example, the DCO selected pursuant to § 45.3(j)(2).
Pursuant to § 45.4(c), the DCO would report continuation data for the original swap, including the original swap termination notice, to SDR A using either the life cycle or state data methods, and using the facilities, methods, or data standards provided or required by SDR A. Such continuation data would include the LEI of SDR A (the SDR to which creation data for each clearing swap that replaced the particular original swap was reported), the USI of the original swap as transmitted to the DCO by the SEF/DCM at the time the swap was submitted for clearing, and the USI for each clearing swap.
The DCO would also transmit to each counterparty to the clearing swaps, as soon as technologically practicable after
The DCO would have no further continuation data reporting obligations with respect to the original swap thereafter. However, the Commission notes that pursuant to § 45.14, registered entities and counterparties required to report swap data to an SDR must report any known errors and omissions in the data reported. Additionally, non-reporting counterparties are also required to notify the reporting counterparty of such errors or omissions.
The Commission's existing lists of minimum primary economic terms for swaps in each swap asset class are found in tables in Exhibits A–D of appendix 1 to part 45. Those tables include data elements that reflect generic economic terms and conditions common to most standardized products. They reflect the fact that PET data captures a swap's basic nature and essential economic terms, and are provided in order to ensure to the extent possible that all such essential terms, where applicable, are included when required primary economic terms are reported for each swap.
The Commission proposed the following revisions to Exhibits A–D of appendix 1, each of which is discussed in greater detail below: (1) Modifications to existing PET data fields; (2) the addition of three new PET data fields applicable to all reporting entities for all swaps; and (3) the addition of a number of new data fields that must be reported by DCOs for clearing swaps.
The Commission proposed clarifying and conforming changes and minor corrective modifications to the following existing PET data fields:
• The Unique Swap Identifier for the swap—The Commission proposed to remove the explanatory note in the Comment section to this data field in Exhibits A–D. The explanatory note is no longer necessary because under proposed § 45.5(d), the DCO would create the USI for each clearing swap.
• PET data fields that utilize a LEI
• If no CFTC-approved LEI for the non-reporting counterparty is yet available, the internal identifier for the non-reporting counterparty used by the swap data repository—The Commission proposed to remove this data field in each of the Exhibits. As noted above, the CFTC has designated an LEI, and these PET data fields are no longer applicable.
• For a mixed swap reported to two non-dually-registered swap data repositories, the identity of the other swap data repository (if any) to which the swap is or will be reported—The Commission proposed to add an explanatory note to the Comment section for this data field in Exhibits A–D providing that the field value is the LEI of the other SDR to which the swap is or will be reported.
• Block trade indicator—The Commission proposed to modify the Comment section to this data field in Exhibits A–D to reflect that the CFTC has issued a final rulemaking regarding
• Execution venue—The Commission proposed to modify the explanatory note in the Comment section to this data field in Exhibits A–D to reflect that the CFTC has designated an LEI system and to require the reporting of only the LEI of the SEF or DCM for swaps executed on or pursuant to the rules of a SEF or DCM.
• Clearing indicator—The Commission proposed modifications to the explanatory note in the Comment section to this data field in Exhibits A–D to provide for the reporting of a Yes/No indication of whether the swap will be submitted for clearing to a DCO.
• Clearing venue—The Commission proposed modifications to the Comment section of this data field in Exhibits A–D to provide for the reporting of only the LEI of the derivatives clearing organization.
The Commission proposed to add to Exhibits A–D the following new PET fields which would be applicable to all reporting entities for all swaps:
• Asset class—This data field would provide the specific asset class for the swap. Field values: Credit, equity, FX, interest rates and other commodities.
• An indication of whether the reporting counterparty is a derivatives clearing organization with respect to the swap.
• Clearing exception or exemption type—This field would provide the type of clearing exception or exemption being claimed. Field values: End user, Inter-affiliate or Cooperative.
The Commission also proposed to modify Exhibits A–D in order to add new PET fields specifically to be reported by DCOs for clearing swaps.
• Clearing swap USIs—This data field would provide the USI for each clearing swap that replaces the original swap,
• Original swap USI—This data field would provide the USI for the original swap that was replaced by clearing swaps.
• Original swap SDR—This data field would provide the LEI of the SDR to which the original swap was reported.
• Clearing member LEI—This data field would provide the LEI of the clearing member.
• Clearing member client account—This data field would provide the account number for the client, if applicable, of the clearing member.
• Origin (house or customer)—This data field would provide information regarding whether the clearing member acted as principal for a house trade or agent for a customer trade.
• Clearing receipt timestamp—This data field would provide the date and time at which the DCO received the original swap that was submitted for clearing.
• Clearing acceptance timestamp—This data field would provide the date and time at which the DCO accepted the original swap that was submitted for clearing.
Eurex commented that there are no additional fields for clearing swaps beyond those proposed which are necessary to understand a clearing swap or the mechanics of the clearing process.
Several commenters addressed how PET data fields can operate in the context of agency and principal clearing models. LCH recommended that the Commission require a PET data field indicating if a swap is cleared following an agency or principal model.
LCH commented that the “Original swap USI,” “Original swap SDR,” and “Clearing member client account” PET fields for clearing swaps should only be required “if applicable.”
ISDA supported the proposed modification of the clearing venue and execution venue PET fields to require the submission of an LEI for such venues.
ISDA commented that the PET field for “Block trade indicator” should be removed rather than amended because block trade status only affects part 43 reporting.
Finally, ISDA commented on the proposed “Clearing exception or exemption type” PET field, which would require the reporting party to identify the clearing exception or exemption exercised for a particular swap.
Having considered the comments provided in response to the NPRM, the Commission is adopting the revisions to Appendix 1 of part 45 as proposed.
Regarding the proposed PET fields for clearing swaps, as noted in the NPRM, the Commission believes such data elements would more accurately capture the additional, unique features of clearing swaps that are not relevant to uncleared swaps.
The Commission notes LCH's comment that certain PET data elements should only be reported “if applicable.” The Commission notes that appendix 1 to part 45 states that reporting parties should “[e]nter N/A for fields that are not applicable,” which is repeated in the header to every column in appendix 1. To ensure that reported swap data is complete, the Commission would reiterate that any PET data field that is not applicable to a particular swap should be marked “N/A” and not left blank. Otherwise, the Commission cannot determine if a field is inapplicable or if an applicable data element is missing.
The Commission declines to remove the “Block trade indicator” as requested by ISDA because this indicator is necessary for a proper review of market activity for surveillance and enforcement purposes. The Commission would note that block trade status is most relevant for part 43 real-time reporting purposes. Therefore, in response to ISDA's request for guidance, the Commission would note that a swap's block trade status should be determined as of the time of execution; subsequent changes to notional amounts should not impact whether the swap met the block trade threshold originally.
As for the “Clearing exception or exemption type” PET field, the Commission has noted ISDA's comment that this field may be difficult to implement. However, the Commission believes that additional PET fields indicating clearing exception and exemption type are necessary for the Commission to track compliance with Commission regulation § 50.50. While reporting counterparties are required under existing § 50.50(b) to provide clearing exemption election forms with SDRs, the existing swaps data reporting rules do not require that the reporting counterparty indicate that such clearing exemption was elected for a particular swap. Without such information provided as part of transaction-specific swaps data, the Commission is unable to determine which counterparties are relying on an exemption and how often such elections are being made.
The asset class data field will assist the Commission in identifying the asset class for swaps reported to registered SDRs pursuant to part 45. The indication of whether the reporting counterparty is a DCO with respect to the swap data field is consistent with proposed § 45.8(i), which designates the DCO as the reporting counterparty for clearing swaps, and the existing PET data fields that require certain information related to the registration status of the counterparties to be included in PET data reporting.
The Regulatory Flexibility Act (“RFA”) requires federal agencies, in promulgating rules, to consider the impact of those rules on small entities.
The Final Part 45 Rulemaking and preceding proposal discussed how certain non-SD/MSP counterparties could be considered small entities in certain limited situations, but concluded that part 45 does not have a significant impact on a substantial number of small entities.
Therefore, the Chairman, on behalf of the Commission, pursuant to 5 U.S.C. 605(b), hereby certifies that the adopted rules will not have a significant economic impact on a substantial number of small entities.
The purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
The Commission intends to amend existing collection 3038–0096 to account for adjustments to reporting entities' swaps data reporting systems necessitated by this release. Information collection 3038–0096
The Commission received several comments on the costs associated with part 45 swaps reporting that could implicate PRA burdens.
Some commenters raised concerns that requiring DCOs to report continuation data for original swaps to the SDR to which the original swap was reported could increase costs for DCOs as they may need to connect to SDRs to which they do not currently have a connection.
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.
The Commission is amending and making additions to §§ 45.1, 45.3, 45.4, 45.5, 45.8, 45.10, and appendix 1 to part 45 in order to provide clarity to counterparties to a swap and registered entities regarding their part 45 reporting obligations with respect to cleared swap transactions and to improve the efficiency of data collection and maintenance associated with the reporting of the swaps involved in a cleared swap transaction. The final rule adopts revisions to part 45 as proposed in the NPRM.
The swap data reporting framework adopted in the Final Part 45 Rulemaking
The Commission has since had additional opportunities to consult with industry and with other regulators, including the SEC,
In particular, § 39.12(b)(6) provides that upon acceptance of a swap by a DCO for clearing, the original swap is extinguished and replaced by equal and opposite swaps, with the DCO as the counterparty to each such swap.
The existing part 45 regulations do not explicitly address the reporting of “alpha,” “beta,” and “gamma” swaps; however, industry practice has evolved to address such reporting. The Commission understands that market participants generally report part 45 data for cleared swap transactions in conformance with the framework described in § 39.12(b)(6), where separate swaps (alphas, betas, and gammas) are represented individually in reported swap data. The Commission understands that under existing market practice: SEFs, DCMs and reporting counterparties generally report required swap creation data for alpha swaps to the SDR of their choice; DCOs that accept alpha swaps for clearing generally report required swap creation data for the beta and gamma swaps that result from clearing novation of the alpha swap to the SDR of their choice (which may be different than the SDR to which the alpha swap was reported); such DCOs do not in all cases include the USI of the alpha swap in creation data reported for the beta and gamma swaps; and that DCOs may inconsistently report, and SDRs may inconsistently accept and process, alpha swap terminations.
The gaps between the existing part 45 regulations, § 39.12(b)(6), and certain industry practices, including those outlined above, have likely contributed to a lack of certainty regarding the applicability of the part 45 regulations to beta and gamma swaps, including which registered entity or counterparty is required to report creation data and/or continuation data for such swaps, and the manner in which such swaps must be reported. The Commission understands that this uncertainty presents compliance challenges for registered entities and reporting counterparties.
Additionally, the lack of clarity regarding existing part 45 obligations with respect to beta and gamma swaps has impacted the accuracy, quality, and usefulness of data that is reported for cleared swaps. For instance, inconsistent DCO reporting of alpha swap USIs in creation data for beta and gamma swaps hinders the Commission's ability to trace the history of a cleared swap transaction from execution between the original counterparties to clearing novation. Even in cases where the Commission can ascertain the USI of a specific alpha swap that was replaced by beta and gamma swaps, SDR data available to the Commission at times misleadingly shows some alpha swaps as remaining open between the original counterparties, when in actuality such swaps have been extinguished through clearing novation. The inability to determine whether an alpha swap has been terminated impedes the Commission's ability to analyze cleared swap activity and to review swap activity for compliance with the clearing
The revisions and additions that are being adopted in this final rulemaking would amend part 45 to differentiate reporting requirements for cleared and uncleared swap transactions, and which explicitly address swap counterparty and registered entity reporting requirements for each component (
The Commission believes that the baseline for this consideration of costs and benefits is generally the existing part 45 regulations, which were adopted in 2011.
The following consideration of costs and benefits is organized according to the rules and rule amendments put forth in this final rulemaking. For each rule, the Commission summarizes the amendments
The Commission notes that this consideration of costs and benefits is based on the understanding that the swaps market functions internationally, with many transactions involving U.S. firms taking place across international boundaries, with some Commission registrants being organized outside of the United States, with leading industry members typically conducting operations both within and outside the United States, and with industry members commonly following substantially similar business practices wherever located. Where the Commission does not specifically refer to matters of location, the below discussion of costs and benefits refers to the effects of the proposed rules on all swaps activity subject to the amended regulations, whether by virtue of the activity's physical location in the United States or by virtue of the activity's connection with or effect on U.S. commerce under CEA section 2(i).
The adopted amendments to § 45.1 revise the definition of “derivatives clearing organization” for purposes of part 45 to update a reference to an existing definition of “derivatives clearing organization” and make clear that part 45 applies to DCOs registered with the Commission. The adopted amendments to § 45.1 will also add new definitions for “original swaps” (swaps that have been accepted for clearing by a DCO, commonly referred to as “alpha” swaps) and “clearing swaps” (swaps created pursuant to the rules of a DCO that have a DCO as a counterparty, including, but not limited to, any swap that replaces an original swap that was extinguished upon acceptance for clearing, commonly referred to as “beta” and “gamma” swaps).
The terms original swap and clearing swaps will be used throughout amended part 45 to help clarify reporting obligations for each swap involved in a cleared swap transaction. Likewise, the Commission will use the defined terms “original swaps” and “clearing swaps” throughout this consideration of costs and benefits. Given that these terms are a product of this release and are not yet part of industry nomenclature, the Commission will also use the terms “alpha, beta, and gamma” throughout this consideration of costs and benefits when discussing existing industry
The Commission notes that commenters did not submit any comments relevant to the costs and benefits of the proposed amendments to § 45.1.
The Commission does not anticipate that these definitions, in and of themselves, impose additional costs on DCOs or market participants. However, these definitions will be referenced in other proposed substantive provisions and the costs and benefits of those substantive requirements will be discussed in the relevant sections below.
As discussed earlier in this release, the plain language of the existing part 45 regulations presumes the existence of one continuous swap and does not explicitly acknowledge distinct reporting requirements for the individual components (
Existing § 45.3 requires reporting to an SDR of two types of “creation data” generated in connection with a swap's creation: “primary economic terms data” and “confirmation data.”
Amended § 45.3(e) will govern creation data reporting requirements for swaps that fall under the proposed definition of clearing swaps. Amended § 45.3(e) will also require a DCO, as reporting counterparty under adopted § 45.8(i),
Swaps other than clearing swaps, including swaps that later become original swaps by virtue of their acceptance for clearing by a DCO, will continue to be reported as currently required under existing § 45.3(a)–(d). The Commission is thus following an approach to creation data reporting that will require reporting counterparties or SEFs/DCMs to report creation data for swaps commonly known as alpha swaps, and that will require DCOs to report creation data for swaps commonly known as beta and gamma swaps, and for any other swaps to which the DCO is a counterparty.
With respect to confirmation data reporting, for swaps that are intended to be cleared at the time of execution, the Commission is amending § 45.3(a), (b), (c)(1)(iii), (c)(2)(iii), and (d)(2) to remove certain existing confirmation data reporting requirements. Under the modified rules, SEFs/DCMs and reporting counterparties will continue to be required to report PET data as part of their creation data reporting, but will not be required to report confirmation data for swaps that are intended to be submitted to a DCO for clearing at the time of execution. Instead, the DCO will be required to report confirmation data for clearing swaps pursuant to proposed § 45.3(e).
The Commission is also amending § 45.3(j), which will provide that: for swaps executed on or pursuant to the rules of a SEF or DCM (including swaps that become original swaps), the SEF or DCM will have the obligation to choose the SDR for such swaps; for all other swaps (including for off-facility swaps and/or clearing swaps) the reporting counterparty (as determined under § 45.8) will have the obligation to choose the SDR.
The Commission has considered the letters sent by commenters to the cost-benefit considerations of proposed amendments to § 45.3. Several comments were received on the elimination of the requirement for reporting confirmation data for swaps that are intended to be cleared. On the cost-benefit considerations front, Markit commented that eliminating the requirement for reporting confirmation data for swaps that are intended to be cleared, while still maintaining the requirement to report primary economic terms data, will not benefit reporting workflows and that there is little incremental cost to report confirmation data as reporting systems are set-up to capture that information already.
With regards to eliminating the requirement for reporting confirmation data, the Commission acknowledges that there might be incremental cost savings due to the elimination of this requirement, as suggested by commenters. Nevertheless, the Commission believes that there is no cost associated with the elimination of
Other commenters responded to the question of which entity should be responsible for reporting creation data for swaps that will become original swaps. Commenters were split on this question. Some commenters suggested that the DCO, rather than the reporting counterparty, should be responsible for reporting the creation data for that swap.
Other commenters recommended that the Commission continue to require the reporting counterparty to report creation data for those swaps that will become original swaps.
Furthermore, certain commenters suggested that the reporting of any creation data for swaps that will become original swaps is unnecessary.
While the NPRM did not propose changing the existing obligation to report swaps that become original swaps, and is therefore beyond the scope of the NPRM, the Commission continues to believe that original swaps contain essential information regarding the origins of cleared swap transactions for market surveillance and audit-trail purposes. The Commission's ability to trace the history of a cleared swap transaction from execution between the original counterparties to clearing novation relies on this information and this is a significant benefit to the Commission in terms of understanding the market structure as well as for surveillance purposes.
With respect to the issue of who reports creation data for those swaps that will become original swaps, the Commission believes that the requirement that the reporting counterparty report creation data for those swaps that will become original swaps should remain. The Commission believes there are significant benefits associated with maintaining established industry workflows. Reporting counterparties and registered entities have invested substantial time and resources to report swaps (both cleared and not cleared) to SDRs, and DCOs have invested substantial resources to report clearing swaps. The Commission believes it would be efficient to make use of this existing infrastructure and asking market participants to make changes to this established workflow might be costly. The Commission acknowledges the data fragmentation concerns raised by those that recommend DCOs report original swap creation data. However, the Commission also recognizes that requiring the DCOs, rather than the original reporting counterparty, to report original swap creation data may present challenges of its own.
The Commission has considered arguments made by the commenters with respect to choice of SDR and believes that placing the obligation to choose the SDR on the registered entity or counterparty that is required to report the swap, rather than on another entity, will result in more efficient data reporting. Allowing the first entity to report data on a swap to choose the SDR will allow reporting entities to select an SDR to which they have established connections; giving another entity the ability to choose the SDR could require the first reporting entities to connect to multiple SDRs. The Commission also believes allowing the first reporting registered entity or counterparty to choose the SDR will also promote competition among SDRs to provide SDR services to a broad array of reporting entities.
This method of SDR selection also avoids the insertion of any entity other than a party to the swap or facility where the transaction is executed, into the decision as to how a registered entity or counterparty fulfills its regulatory obligation to report initial required swap creation data. As with the “first-touch” approach taken with respect to the creation of USIs in part 45,
The Commission understands that under current industry practice, DCOs commonly report to SDRs creation data for swaps that would fall under the definition of clearing swaps. Accordingly, to the extent that DCOs already have been reporting in conformance with adopted § 45.3(e), the Commission does not expect the final rule to result in any additional costs.
With respect to registered DCOs organized outside of the United States, its territories, and possessions, that are subject to supervision and regulation in a foreign jurisdiction, a home country trade reporting regulatory regime may require the DCO to report swap data to a trade repository in the home country jurisdiction. For clearing swaps that a DCO would be required to report both to a registered SDR pursuant to the amendments to part 45, and to a foreign trade repository pursuant to a home country trade reporting regulatory regime, the Commission acknowledged in the NPRM that a DCO could be expected to incur some additional costs in satisfying both its CFTC and home country reporting obligations, relative to a DCO that would only be subject to part 45 reporting requirements. As also indicated in the NPRM, DCOs are not currently required to provide such cost information to the Commission, the Commission lacks access to the information needed to assess the magnitude of the costs relating to compliance with reporting obligations in multiple jurisdictions. In addition, the Commission did not receive any comments on, nor estimates of, the costs relating to compliance with reporting obligations in multiple jurisdictions. In terms of any potential costs, the Commission expects that industry technological innovations may effectively allow for satisfaction of swap data reporting requirements across more than one jurisdiction by means of a single data submission, and that a streamlined reporting process or other technology and operational enhancements could mitigate the cost of satisfying reporting requirements for swaps that may be required to be reported to a foreign trade repository under a home country regulatory regime as well as to a registered SDR pursuant to amendments to part 45.
Finally, with respect to choice of SDR, the Commission believes that amendments to § 45.3(j) will not impose any additional costs because the amendments simply codify existing practice—the Commission understands that the workflows that apply the proposed choice of SDR obligations are already in place.
The Commission believes that allowing DCOs to choose the SDRs to which they report creation and continuation data is cost-minimizing for DCOs because it allows them to select the SDR which is most cost effective. As discussed in greater detail below, the Commission anticipates that DCOs that have affiliated SDRs will continue their current practice of reporting clearing swaps to their affiliated SDRs.
Amended § 45.3(e) will explicitly articulate DCO part 45 reporting obligations with respect to clearing swaps (
Requiring DCOs to report required swap creation data for clearing swaps to SDRs in the manner outlined in this release is expected to result in uniform protocols and consistent reporting of the individual components of a cleared swap transaction. The Commission believes that the adopted reporting framework for cleared swaps will result in more consistent reporting of all components of a cleared swap transaction, including linkages between the related swaps, thereby increasing the efficiency of the SDR data collection function and enhancing the Commission's ability to utilize the data for regulatory purposes, including for systemic risk mitigation, market monitoring, and market abuse prevention.
With respect to confirmation data reporting, the Commission anticipates that the removal of certain confirmation data reporting requirements will result in decreased costs for swap counterparties and/or registered entities that are currently gathering and conveying electronically the information necessary to report
With respect to the adopted rule allowing the removal of certain confirmation data reporting requirements for swaps that are intended to be submitted to a DCO for clearing at the time of execution, the Commission is of the view that the adopted confirmation data reporting requirements for clearing swaps should provide the necessary confirmation data with respect to cleared swap transactions. Given that the adopted rules will require the DCO to report confirmation data for clearing swaps, requiring an additional set of confirmation data reporting for the now-terminated original swap, in addition to PET data, would be duplicative and therefore unnecessary.
Finally, with respect to choice of SDR, under adopted § 45.3(j), the party with the obligation to report the first data for a swap has the discretion to select the SDR of its choice. This can be an SDR with which the party already has a working relationship, an SDR which is, in the registered entity or reporting counterparty's estimation, most cost-effective, or an SDR that provides the best overall service and product. The Commission believes that this flexibility to select SDRs will minimize reporting errors and improve reporting efficiencies by allowing the reporting entity to select an SDR with which it has a connection and reporting systems in place. The Commission also believes this approach will foster competition between SDRs, as reporting entities such as SEFs/DCMs, SDs/MSPs, DCOs, and non-SD/MSPs can select the SDR to which they will report. Further, allowing the reporting entity to select the SDR will reduce costs, as reporting counterparties and registered entities (other than DCOs) should not have to establish a connection to more than one SDR unless they prefer to do so. The Commission understands that § 45.3(j) is consistent with industry practice,
The Commission's amendments to § 45.4, which governs the reporting of swap continuation data to an SDR during a swap's existence through its final termination or expiration, incorporate the distinction between original swaps and clearing swaps. The Commission is removing § 45.4(b)(2)(ii), which requires a reporting counterparty that is an SD or MSP to report valuation data for cleared swaps daily; instead, the DCO will be the only swap counterparty required to report swap continuation data, including valuation data, for clearing swaps.
Notably, amended § 45.4(c) will require a DCO to report all required continuation data for original swaps, including original swap terminations, to the SDR to which such original swap was reported. Finally, adopted § 45.4(c)(2) will require that continuation data reported by DCOs include the following data fields as life cycle event data or state data for original swaps pursuant to adopted § 45.4(c)(1): (i) The LEI of the SDR to which each clearing swap that replaced a particular original swap was reported by the DCO pursuant to new § 45.3(e); (ii) the USI of the original swap that was replaced by the clearing swaps; and (iii) the USIs for each of the clearing swaps that replace the original swap.
The Commission has considered the costs and benefits raised by commenters on the proposed addition of § 45.4(c) and its requirement that DCOs report continuation data for original swaps, including terminations. The Commission believes that the adopted revisions to § 45.4(c) are broadly in line with existing industry practice, and set out specific obligations that will ensure continuation data is properly reported and reflected in the data that the Commission uses to fulfill its regulatory obligations. The Commission notes that it may be more burdensome for the counterparties to the original swaps, rather than the DCO, to report terminations, as the counterparty would have to receive a message from the DCO confirming that the original swap was accepted for clearing and then translate that message from the DCO into a termination message to the SDR. Particularly, this may be most burdensome to commercial end-users executing swaps on SEFs or DCMs who might otherwise have no reporting obligations and who may not have the infrastructure in place to report as quickly or as efficiently as DCOs.
Existing § 45.4(b)(2) requires that both SDs/MSPs and DCOs report daily valuation data for cleared swaps. The removal of § 45.4(b)(2)(ii) will eliminate the existing valuation data reporting requirement for SDs/MSPs, leaving DCOs as the sole entity responsible for daily valuation data reporting. As DCOs are currently required to report valuation data for cleared swaps, they will not bear any additional costs as a result of this proposed amendment.
While DCOs are currently required to report continuation data on “cleared swaps,” including terminations, to SDRs under existing § 45.4,
The Commission received three comments concerning the costs and benefits of the proposed amendments to
With respect to additional data fields, as discussed above, adopted § 45.4(c)(2) will add three data fields (the LEI of the SDR to which creation data for the clearing swaps was reported, the USI of the original swap, and USIs of the clearing swaps) to the life cycle event data or to state data reported by DCOs as continuation data for original swaps.
Adopted § 45.4(c) will ensure that data concerning original swaps remains current and accurate, allowing the Commission to ascertain whether an original swap was terminated through clearing novation. Original swap data that does not reflect the current state of the swap frustrates the use of swap data for regulatory purposes, including, but not limited to, assessing market exposures between counterparties and evaluating compliance with the clearing mandate.
Adopted § 45.4(c) will ensure that part 45 explicitly addresses DCO part 45 continuation data reporting obligations with respect to original swaps (
The Commission believes that the removal of the requirement that SDs and MSPs report daily valuation data for cleared swaps from § 45.4(b)(2) can result in cost savings to the extent that any SDs and MSPs are not currently relying on no-action relief.
Adopted § 45.4(c)(2) will require DCOs to report three important continuation data fields for original swaps which will assist regulators in tracing the history of, and associating
Existing § 45.5 requires that each swap subject to the Commission's jurisdiction be identified in all swap recordkeeping and data reporting by a USI. The rule establishes different requirements for the creation and transmission of USIs depending on whether the swap is executed on a SEF or DCM or executed off-facility with or without an SD or MSP reporting counterparty. Existing § 45.5 also provides that for swaps executed on or pursuant to the rules of a SEF or DCM, the SEF or DCM creates the USI, and for swaps not executed on or pursuant to the rules of a SEF or DCM, the USI is created by an SD or MSP reporting counterparty, or by the SDR if the reporting counterparty is not an SD or MSP.
Amended rule § 45.5(d) will require a DCO to generate and assign a USI for a clearing swap upon, or as soon as technologically practicable after, acceptance of an original swap by the DCO for clearing (in the event the clearing swap replaces an original swap) or execution of a clearing swap (in the event that the clearing swap does not replace an original swap), and prior to reporting the required swap creation data for the swap. Amended § 45.5(d) contains provisions governing creation and assignment of USIs by the DCO that are consistent with analogous provisions governing creation and assignment of USIs by SEFs, DCMs, SDs, MSPs, and SDRs.
All comments received with respect to amended § 45.5(d) were supportive of the change and there were no comments with regards to the costs and benefits of this amendment.
The Commission believes that adopted § 45.5(d) is largely consistent with industry practice and will not result in any additional costs for DCOs. Any DCOs that will not be in complete conformance with the adopted rule may need to enhance their existing technological protocols in order to create USIs in house, but these marginal costs would likely be lower than the costs associated with obtaining a USI with a separate USI-creating entity. The Commission believes that creating USIs in-house, rather than with a different USI creating entity, is less costly for DCOs and the Commission did not receive any data on that comparison or on any other quantifiable cost structures associated with § 45.5(d).
As noted above, the existing part 45 regulations do not explicitly address the assignment of USIs to swaps that fall within the adopted definition of clearing swaps. Explicitly requiring DCOs to generate, assign, and transmit USIs for clearing swaps will provide regulatory certainty with respect to the generation and assignment of USIs for clearing swaps. The adopted rule will also help ensure consistent and uniform USI creation and assignment for such swaps and will allow regulators to better identify and trace the swaps generally involved in cleared swap transactions, from execution of the original swap through the life of each clearing swap.
Current § 45.8 establishes a hierarchy under which the reporting counterparty for a particular swap depends on the nature of the counterparties involved in the transaction. DCOs are not included in the existing § 45.8 hierarchy. The Commission is adopting § 45.8(i) in order to identify DCOs in the hierarchy as the reporting counterparty for clearing swaps.
One commenter supported proposed § 45.8(i) as it promoted efficiency in reporting by explicitly designating the DCO as the reporting party for clearing swaps.
The Commission believes that the adopted amendments to § 45.8, in and of themselves, will not impose any additional costs on registered entities or reporting counterparties. The Commission believes that the rule simply reflects established reporting arrangements, which, to the Commission's understanding, is for the DCO to submit data to the SDR for swaps that would fall within the definition of clearing swaps.
As noted above, clearing swaps are not explicitly acknowledged in existing § 45.3, and DCOs are not identified as reporting counterparties in the reporting counterparty hierarchy of § 45.8. The Commission acknowledges the comment by AIMA that one benefit of proposed § 45.8(i) is that it improves efficiency in reporting by explicitly designating the DCO as the reporting party for clearing swaps. In addition, the Commission expects that modifications to the § 45.8 reporting counterparty hierarchy will eliminate ambiguity regarding which registered entity or swap counterparty is required to report required creation data for clearing swaps, explicitly delineating the nature and extent of DCO reporting obligations, and affording market participants and SDRs a more precise and accurate understanding of reporting obligations under part 45.
Existing § 45.10 requires that all swap data for a given swap must be reported to a single SDR, which must be the same SDR to which creation data for that swap is first reported. The time and manner in which such data must be reported to a single SDR depends on whether the swap is executed on a SEF or DCM or executed off-facility with or without an SD/MSP reporting counterparty. The Commission is amending § 45.10 to require DCOs to report all data for a particular clearing swap to a single SDR. Moreover, consistent with current industry practice, amended § 45.10(d)(3) will require the DCO to report all required swap creation data for each clearing swap that replaces a particular original swap (
The Commission does not expect DCOs to incur any new costs associated with ensuring that clearing swap data is reported to a single SDR because the requirements of the adopted rule are, to the Commission's understanding, consistent with current DCO reporting practice.
The Commission believes that the benefit of reporting data associated with each clearing swap to a single SDR is that all required creation data, all required continuation data for related clearing swaps and, by extension, USIs linking clearing swaps to the original swap, will be stored with the same SDR. This will minimize confusion on the part of SDRs and regulators regarding which swaps are still active and which ones have been terminated. The Commission notes that the benefits of reporting all data for clearing swaps to the same SDR are currently being realized, as it is current industry practice for DCOs to report swaps that will fall under the amended definition of clearing swaps in conformance with adopted § 45.10(d)(3).
The Commission's current lists of minimum (required) primary economic terms for swaps in each swap asset class are found in tables in Exhibits A–D of appendix 1 to part 45. With this final release, the Commission has modified the descriptions of some PET fields applicable to all swaps, added some PET fields applicable to all swaps, and added some PET fields applicable only to clearing swaps. For PET fields applicable to clearing swaps, the Commission is adding several new data elements under the heading “Additional Data Categories and Fields for Clearing Swaps” to Exhibits A–D in order to more accurately capture the additional, unique features of clearing swaps that are not relevant to original swaps or uncleared swaps. The newly proposed data fields include: The USI for the clearing swap; the USI for the original swap; the SDR to which the original swap was reported; clearing member LEI, clearing member client account origin, house or customer account; clearing receipt timestamp; and clearing acceptance timestamp.
As for PET field modifications and additions relevant for all swaps, the Commission is also adding several new required data elements, which will be applicable to all swaps, and making conforming changes to some existing data elements. The newly added fields include: Asset class, an indication of whether the reporting counterparty is a DCO with respect to the swap, and clearing exception or exemption types.
The Commission has received various comments with respect to the proposed changes to the primary economic terms data but few that address the cost and benefits of the changes are summarized below.
With respect to ISDA's comment, SDs are already required already to submit to SDRs information on any clearing exception or exemption elections made by their counterparties pursuant to part 50. The Commission believes that reporting information on clearing exception or exemption elections on a transactional basis, in the manner described in the proposed changes to the primary economic terms, should not substantially increase costs on reporting counterparties.
The Commission emphasizes that, as a result of the amendments to the PET data tables for clearing swaps, the newly added data fields for clearing swaps will be reported exclusively by DCOs. While there might be costs associated with reporting newly added data fields, the Commission believes that DCOs are better situated than swap counterparties to report the additional fields for clearing swaps without the substantial costs and operational burdens because DCOs already possess certain information, or other registered entities and swap counterparties are required to transmit the information to DCOs, regarding those fields. For example, the data necessary to report the adopted “original swap SDR” field is currently required to be transmitted to the DCO under existing § 45.5, and the Commission understands that data required by the amended “clearing receipt timestamp” and “clearing acceptance timestamp” fields may already be generated and present in DCO systems—such DCOs would just have to transfer those timestamps to the reporting system for each clearing swap. Similarly, the Commission understands that house or customer account designations are already collected and maintained in relation to certain part 39 reporting obligations. Hence, there will be no additional cost in collecting the information necessary to report the “origin (house or customer)” field, and marginal costs might stem from conveying the information in part 45 swap data reports. The Commission solicited comments on the extent to which DCOs may already possess the information required by the amended additional fields and the costs associated with obtaining and/or reporting such information but did not receive any comments or estimates on this topic.
While the Commission requested the data needed to quantify the cost of the addition of three data fields applicable to all reporting entities (asset class, DCO indicator, and clearing exception or exemption type), the Commission did not receive any quantifiable estimates of costs associated with creating and using these fields from commenters. The Commission believes that the costs associated with these additional fields will not be substantial since the information necessary to report these data elements is likely to be readily available in connection with the execution of swaps, with some marginal costs stemming from the requirement to include the information in PET data reported to an SDR (to the extent that such information is not already reported). The Commission understands that in at least some cases, market practice is to report some of the information required by the proposed
The Commission believes that the additions to the list of minimum primary economic terms will result in a variety of benefits. Clearing swap PET fields, such as USI for the original swap or the SDR to which the original swap was reported, can facilitate the monitoring of each original swap by SDRs and regulators. Clearing swap PET fields can also prevent potential double-counting of swap transactions or notional amounts, thus improving the accuracy of SDR data for use by the Commission in such activities as evaluating swap dealer
The new PET fields for all swaps also will benefit the Commission in performing its regulatory obligations. The asset class data field will assist the Commission in determining the asset class for swaps reported to SDRs, enhancing the Commission's ability to identify swaps activity in each asset class as well as the capability to use the data for regulatory purposes. The indication of whether the reporting counterparty is a DCO with respect to the swap data field will help the Commission monitor DCOs' compliance with reporting of clearing swap data elements, and improve the Commission's ability to analyze swap data relating to cleared swap transactions. The clearing exception or exemption types data field will enable the Commission to ascertain the specific exception or exemption from the clearing requirement that was elected and will assist in the evaluation of compliance with the clearing requirement, as well as assessing market activity in uncleared swaps.
The Commission considered the costs and benefits of certain alternatives raised by commenters in response to the IDWG Request for Comment and the NPRM, including whether part 45 should require intended to be cleared swaps (original swaps) to be reported to registered SDRs. Some commenters noted that reporting of alpha swaps is beneficial and should continue to be required,
Some commenters stated that the Commission should require clearing swaps to be reported to the same SDR as original swaps, so that the entire history of a swap would reside at the same SDR.
In light of these comments, the Commission considered the costs and benefits of six alternatives in comparison to the costs and benefits of the proposed rule: (1) Requiring original and clearing swaps to be reported to the same SDR chosen by the reporting counterparty or SEF/DCM; (2) requiring original and clearing swaps to be reported to the same SDR chosen by the DCO accepting the swap for clearing; (3) requiring only one report for each swap intended for clearing, that is, not requiring original (alpha) swaps to be reported separately from clearing swaps, with the SDR chosen by the reporting counterparty or SEF/DCM; (4) requiring only one report for each swap intended for clearing as in (3), but with the SDR chosen by the DCO accepting the swap for clearing; (5) requiring the DCO to report both the original swap and all resulting clearing swaps, to the SDR of its choosing; and (6) requiring the original swap reporting counterparty to report the creation and the termination of the original swap.
The first two alternatives each require swaps that become original swaps and the resulting clearing swaps to be reported to the same SDR. If such swaps were reported to the same SDR, there would be no need for certain requirements in proposed § 45.4(c) that extra fields, such as clearing swap SDR, be included in the report to the SDR for the clearing swap to link the clearing swap to an original swap on a different SDR. Similarly, the need for certain clearing swap PET data fields, such as the identity of the original SDR, intended to be used for linking purposes, might not be necessary. This would reduce costs to the extent that certain PET data fields would not be required to link the original and clearing swaps. The first approach would require DCOs to connect to multiple SDRs to the same extent as the adopted rules. However, the second approach could require reporting counterparties or SEFs/DCMs to connect to multiple SDRs, which could increase costs for a larger number of market participants.
Because the adopted rule more closely reflects current industry practice relative to the alternative, there would be some potentially significant one-time costs, including the costs of changes to existing systems, associated with changing practices to conform to the alternatives. Additionally, a substantial portion of aggregation costs for regulators, and, likely, market participants, arises from the current landscape, which includes multiple SDRs. The adopted requirements to link original and clearing swaps at multiple SDRs is a relatively minor burden compared with the existing burden on the Commission, and potentially other regulators, in reconciling swap data for a cleared swap transaction across multiple SDRs without data elements linking the original and clearing swaps. Additionally, costs associated with monitoring and aggregation would likely be mitigated by the continuation data fields of adopted § 45.4(c)(2), which would enable regulators to more effectively connect original swaps at one SDR with clearing swaps at another SDR. Also, as noted in Section II.B.4.iv, above, these options could also introduce delays in reporting under
Regarding who would choose the single SDR, the SDR could be chosen by the reporting counterparty (or DCM or SEF) or by the DCO. Under either of the first two alternatives, one registered entity or counterparty's choice of SDR would bind a second registered entity or counterparty to also report to that SDR, which could be an SDR that the second registered entity or counterparty would not otherwise select. Allowing the reporting counterparty or SEF/DCM to choose the SDR would enable the reporting party to choose the SDR with the best combination of prices and service, and thus may promote competition among SDRs. Allowing the DCO to choose the SDR for both original and clearing swaps would likely result in the DCO always choosing the same SDR, which may be the SDR that is affiliated with the DCO (that is, shares the same parent company). This would reduce costs for DCOs since they would need to maintain connectivity with only one SDR, but would limit the ability of SDRs to compete since DCOs could choose to report only to SDRs with which they are affiliated.
Under the third and fourth alternatives, there would be no requirement to report intended to be cleared swaps (original swaps) separately from the resulting clearing swaps. Rather, there would only be one report for each cleared swap transaction. This would be a change from current swap market practice. As with the first two alternatives, the choice of SDR could be made by the reporting counterparty as determined under current § 45.8, or by the DCO as under adopted § 45.8(i). If there is only one report for each cleared swap transaction, there would be ongoing cost savings associated with the need to make fewer reports to SDRs. As with the first two alternatives, there would be no need for the requirement in adopted § 45.4(c) that extra fields, such as clearing swap SDR, be included in the report to the SDR to link the clearing swap to an original swap on a different SDR, and market participants and the Commission could access all information about a single cleared swap transaction at a single SDR. This would also reduce costs relative to the adopted rule. However, the benefits of separate reports for original and clearing swaps would be foregone and there may be a less complete record of the history of each cleared swap. Moreover, it would be more difficult for the Commission to determine the original counterparties, original execution time, and other vital information on the original swap for market surveillance or enforcement purposes. It may be possible to reclaim these benefits through requiring additional fields in each cleared swap report, although this would also increase costs and would require DCOs to receive and report information beyond what is otherwise required for clearing purposes. Additionally, because the adopted rule more closely reflects current industry practice relative to these alternatives, there would be some potentially significant one-time costs, including the costs of changes to existing systems, associated with changing practices to conform to the alternatives. The effects of who chooses the SDR are similar to the effects described for the first two alternatives.
Under the fifth alternative, the DCO would report both the swap that becomes the original swap (including creation data and termination) and all clearing swaps resulting from clearing of the original swap. While one DCO and some end-users supported this alternative as simplifying work flows and reducing costs to original swaps counterparties,
Finally, under the sixth alternative, the reporting counterparty to the original swap would be required to report the termination of that swap upon acceptance for clearing. As addressed above in the discussion of final § 45.4, the Commission believes that DCOs would be in a better position to report the termination of the original swap, and would have all information necessary to report such terminations.
The Commission has determined not to adopt the alternatives listed above because the final rule is more consistent with current industry practice than such alternatives. The Commission understands that reporting counterparties and registered entities are already set up to report alpha swaps to registered SDRs (whether or not such swaps are intended to be cleared at the time of execution) and that DCOs are already set up to report beta and gamma swaps that result from acceptance of a swap for clearing, and have been making such reports. Accordingly, the industry has already incurred the costs of setting up a system for reporting cleared swap transactions to SDRs (including separate reports for swaps that would fall within the proposed definitions of original and clearing swaps). Changing this system to conform to an alternative rule would have certain costs to reporting entities.
The Commission also believes that clarifying distinct reporting requirements in part 45 for alphas (swaps that become original swaps) and betas and gammas (clearing swaps that replace original swaps) presents a full history of each cleared swap transaction and permits the Commission and other regulators to identify and analyze each component part of such transactions. The Commission also continues to believe that placing the part 45 reporting obligation on the counterparty or registered entity closest to the source of, and with the easiest and fastest access to, complete and accurate data regarding a swap fosters accuracy and completeness in swap data reporting. In light of these benefits, the Commission will maintain the current industry practice of separately reporting both alpha swaps (
Additionally, the multi-swap reporting approach adopted in this rule is largely consistent with the approach proposed by the SEC in its release proposing certain new rules and rule amendments to Regulation SBSR,
Section 15(a) of the CEA requires the Commission to consider the effects of its actions in light of the following five factors:
(1)
(2)
The rule confirming that the reporting counterparty or SEF/DCM has the right to choose the SDR for the original swap can promote competition among SDRs. However, the Commission also acknowledges that by allowing DCOs to choose the SDR to which they report, competition for SDR services can be impacted as a result of DCOs reporting to their affiliated SDR, that is, an SDR that shares the same parent company as the DCO. Any such impact on competition will be a consequence of business decisions designed to realize costs savings associated with the affiliations between DCOs and SDRs. The Commission notes that section 21 of the CEA permits a DCO to register as an SDR.
(3)
(4)
(5)
As noted earlier in this release, the multi-swap reporting approach proposed in this final release is largely consistent with the approaches proposed by the SEC and adopted by several foreign regulators. Given that the swaps market is global in nature, the Commission anticipates that adopting an approach that is consistent with the approaches adopted by other regulators may further other public interest considerations by reducing compliance costs for entities operating in multiple jurisdictions.
Section 15(b) of the CEA requires the Commission to take into consideration the public interest to be protected by the antitrust laws, and endeavor to take the least anticompetitive means of achieving the objectives of the CEA, in issuing any order or adopting any Commission rule or Regulation. The Commission evaluated the amendments to Part 45 in the context of 7 U.S.C. 2(a)(13)(G) and 7 U.S.C. 24a, which were adopted by Congress as part of the Dodd-Frank Act. These provisions require each swap, whether cleared or uncleared, to be reported to a registered SDR. The Dodd-Frank Act was enacted to reduce systemic risk, increase transparency, and promote market integrity by, among other things, creating rigorous data reporting regimes with respect to swaps, including real time reporting.
In the Final Part 45 Rulemaking, the Commission identified choice of SDR as one area of the rules that could potentially have an impact on competition.
In the NPRM proposing amendments on cleared swap reporting, the Commission asked for comments on any anticompetitive impacts of the proposed
DTCC commented that allowing the DCO to report to an affiliated SDR, particularly after the original swap has already been reported to a different SDR, will further entrench DCOs' vertical integration in trade execution, clearing, and data reporting.
Markit argued that allowing the DCO to select the SDR to which clearing swaps are reported would provide regulatory approval for anticompetitive tying of clearing and reporting services.
The Commission has taken into consideration the public interest to be protected by the antitrust laws, and endeavored to take the least anticompetitive means of achieving the objectives of the CEA in adopting this final rule. Having considered the comments raised by DTCC and Markit, the Commission believes that the amendments to part 45 concerning choice of SDR announced in this release meet this least-anticompetitive-means standard.
The mix of entities reporting swaps to the various SDRs illustrates how the choice of SDR currently operates in the marketplace. Presently there are four registered SDRs to which swaps may be reported. Two of the SDRs (CME and ICE Trade Vault) are affiliated with DCOs and contain swaps data reported by those DCOs, as well as data reported by SEFs, SDs, and non-SD/MSP market participants. These SDRs receive swap data on uncleared swaps, as well as both the original swaps and clearing swaps from cleared swap transactions. One SDR (DTCC) is a subsidiary of a large financial services utility and has ownership and governance ties to a number of swap dealers. DTCC receives swap data from a number of those swap dealers, as well as SEFs, non-SD/MSP market participants, and at least one DCO. DTCC receives swaps reporting for a large number of uncleared swaps, as well as original swaps whose associated clearing swaps are reported at either DTCC or a DCO-affiliated SDR. The fourth SDR (Bloomberg) is corporately affiliated with a SEF and available to accept data from, among others, SEFs/DCMs, DCOs, and reporting counterparties. Also relevant to this discussion, some SD/MSPs and SEFs report swaps to multiple SDRs. Some SDs and SEFs, even those with corporate affiliations or ownership links to SDRs, report some swaps to SDRs to which they have no such connections. The mix of swaps reported to each SDR (uncleared, original and clearing swaps) and the mix of reporting entities using each SDR are the result of market participants' decisions on how to fulfill reporting obligations.
Consumers of SDR services under these amendments are the entities with the first reporting obligation on a swap: SEFs/DCMs for uncleared or original swaps executed on-facility; reporting counterparties (primarily swap dealers, but also non-SD/MSP market participants) for uncleared or original swaps executed off-facility; and DCOs for clearing swaps. The amendments place the choice of SDR for each individual swap with the entity first required to report data on that swap. The amendments do not place the choice of SDR with a single entity or counterparty with respect to more than one swap. In other words, the choice of SDR will be made as to a particular swap when a registered entity or reporting counterparty that is required to report the swap makes the first report of all creation data on a particular swap.
In determining which entity may select the SDR for the original and separately for clearing swap components of a cleared swap transaction, the Commission considered three alternatives that potentially could achieve the objectives of the CEA: (a) Allowing the entity initially reporting an original swap to select the SDR for both the original and clearing swaps, by requiring clearing swaps to be reported to the same SDR as the original swaps they replace; (b) allowing the DCO to select the SDR for both the original and clearing swaps; or (c) allowing the entity first reporting a swap to select the SDR, specifically by allowing the original swap reporting entity to select the SDR for the original swap and the DCO to select the SDR for the clearing swaps. Of the three, the Commission considers its ultimate decision—option (c)—to be the least anticompetitive to satisfy its regulatory objectives. Both option (a) and (b) hold significant potential for a particular constituency group—namely swap dealers or DCOs, respectively— to assume an outsized role in shaping the evolving SDR landscape to favor the competitive interests of particular SDRs to which they have financial ties.
Conversely, the Commission foresees a strong likelihood that DCO's that have affiliate SDRs, will select their respective SDR affiliates to the extent this part 45 amendment grants them authority to do so and doing so is consistent with their core principle obligations. As discussed below, the CME Group DCO currently has a rule providing that all swaps that it clears be reported to the CME-affiliated SDR.
In the context of this rulemaking, the Commission believes that the concerns of DTCC and Market are misdirected. The criticism of both commenters pivots on the fundamental view that “the proposed rule unnecessarily permits DCOs to bundle services” and that anticompetitive consequences flow from such bundling.
Because some revisions and additions to part 45 create new reporting obligations or clarify existing reporting obligations, while some remove obligations presently covered by no-action or other relief, the Commission is adopting this release on a bifurcated basis. The deletion of former § 45.4(b)(2)(ii), requiring that SD/MSP counterparties to clearing swaps report valuation data on those swaps, shall be effective upon publication in the
Compliance with all other revisions and additions to part 45 adopted in this release shall be required one hundred and eighty (180) days after this release is published in the
Data recordkeeping requirements and data reporting requirements, Swaps.
For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 45 as set forth below:
7 U.S.C. 6r, 7, 7a–1, 7b–3, 12a, and 24a, as amended by Title VII of the Wall Street Reform and Consumer Protection Act of 2010, Pub. L. 111–203, 124 Stat. 1376 (2010), unless otherwise noted.
The additions and revisions read as follows:
Registered entities and swap counterparties must report required swap creation data electronically to a swap data repository as set forth in this section and in the manner provided in § 45.13(b). The rules governing acceptance and recording of such data by a swap data repository are set forth in § 49.10 of this chapter. The reporting obligations of swap counterparties with respect to swaps executed prior to the applicable compliance date and in existence on or after July 21, 2010, the date of enactment of the Dodd-Frank Act, are set forth in part 46 of this chapter. This section and § 45.4 establish the general swap data
(a)
(b)
(1) The reporting counterparty, as determined pursuant to § 45.8, must report all primary economic terms data for the swap, within the applicable reporting deadline set forth in paragraph (b)(1)(i) or (ii) of this section.
(i) If the reporting counterparty is a swap dealer or a major swap participant, the reporting counterparty must report all primary economic terms data for the swap as soon as technologically practicable after execution, but no later than 15 minutes after execution.
(ii) If the reporting counterparty is a non-SD/MSP counterparty, the reporting counterparty must report all primary economic terms data for the swap as soon as technologically practicable after execution, but no later than one business hour after execution.
(2) [Reserved]
(c)
(1)
(i) The reporting counterparty, as determined pursuant to § 45.8, must report all primary economic terms data for the swap, within the applicable reporting deadline set forth in paragraph (c)(1)(i)(A) or (B) of this section.
(A) If the non-reporting counterparty is a swap dealer, a major swap participant, or a non-SD/MSP counterparty that is a financial entity as defined in CEA section 2(h)(7)(C), or if the non-reporting counterparty is a non-SD/MSP counterparty
(B) If the non-reporting counterparty is a non-SD/MSP counterparty
(ii) If the swap is not intended to be submitted to a derivatives clearing organization for clearing at the time of execution, the reporting counterparty must report all confirmation data for the swap, as defined in § 45.1, as soon as technologically practicable after confirmation, but no later than: 30 minutes after confirmation if confirmation occurs electronically; or 24 business hours after confirmation if confirmation does not occur electronically.
(2)
(i) The reporting counterparty, as determined pursuant to § 45.8, must report all primary economic terms data for the swap, within the applicable reporting deadline set forth in paragraph (c)(2)(i)(A) or (B) of this section.
(A) If the non-reporting counterparty is a swap dealer, a major swap participant, or a non-SD/MSP counterparty that is a financial entity as defined in CEA section 2(h)(7)(C), or if the non-reporting counterparty is a non-SD/MSP counterparty
(B) If the non-reporting counterparty is a non-SD/MSP counterparty
(ii) If the swap is not intended to be submitted to a derivatives clearing organization for clearing at the time of execution, the reporting counterparty must report all confirmation data for the swap, as defined in § 45.1, as soon as technologically practicable after confirmation, but no later than: 30 Minutes after confirmation if confirmation occurs electronically; or 24
(d)
(1) The reporting counterparty, as determined pursuant to § 45.8, must report all primary economic terms data for the swap, as soon as technologically practicable after execution, but no later than 24 business hours after execution.
(2) If the swap is not intended to be submitted to a derivatives clearing organization for clearing at the time of execution, the reporting counterparty must report all confirmation data for the swap, as defined in § 45.1, as soon as technologically practicable after confirmation, but no later than 24 business hours after confirmation.
(e)
(f)
(1)
(2)
(ii)
(iii)
(g)
(h)
(2) The registered entity or reporting counterparty making the first report of required swap creation data pursuant to this section shall ensure that the same unique swap identifier is recorded for the swap in both the swap data repository and the security-based swap data repository.
(i)
(j)
(1) For swaps executed on or pursuant to the rules of a swap execution facility or designated contract market, the swap execution facility or designated contract market shall choose the swap data repository;
(2) For all other swaps, the reporting counterparty, as determined in § 45.8, shall choose the swap data repository.
Registered entities and swap counterparties must report required swap continuation data electronically to a swap data repository as set forth in this section and in the manner provided in § 45.13(b). The rules governing acceptance and recording of such data by a swap data repository are set forth in § 49.10 of this chapter. The reporting obligations of registered entities and swap counterparties with respect to swaps executed prior to the applicable compliance date and in existence on or after July 21, 2010, the date of enactment of the Dodd-Frank Act, are set forth in part 46 of this chapter. This section and § 45.3 establish the general swap data reporting obligations of swap dealers, major swap participants, non-SD/MSP counterparties, swap execution facilities, designated contract markets, and derivatives clearing organizations to report swap data to a swap data repository. In addition to the reporting obligations set forth in this section and in § 45.3, registered entities and swap counterparties are subject to other reporting obligations set forth in this chapter, including, without limitation, the following: Swap dealers, major swap participants, and non-SD/MSP counterparties are also subject to the reporting obligations with respect to corporate affiliations reporting set forth in § 45.6; swap execution facilities, designated contract markets, swap dealers, major swap participants, and non-SD/MSP counterparties are subject to the reporting obligations with respect
(a)
(1) Life cycle event data to a swap data repository that accepts only life cycle event data reporting;
(2) State data to a swap data repository that accepts only state data reporting; or
(3) Either life cycle event data or state data to a swap data repository that accepts both life cycle event data and state data reporting.
(b)
(1)
(i) All life cycle event data for the swap, reported on the same day that any life cycle event occurs with respect to the swap; or
(ii) All state data for the swap, reported daily.
(2)
(c)
(1)
(i) All life cycle event data for the swap, reported on the same day that any life cycle event occurs with respect to the swap; or
(ii) All state data for the swap, reported daily.
(2) In addition to all other necessary continuation data fields, life cycle event data and state data must include all of the following:
(i) The legal entity identifier of the swap data repository to which all required swap creation data for each clearing swap was reported by the derivatives clearing organization pursuant to § 45.3(e);
(ii) The unique swap identifier of the original swap that was replaced by the clearing swaps; and
(iii) The unique swap identifier of each clearing swap that replaces a particular original swap.
(d)
(1)
(i) If the reporting counterparty is a swap dealer or major swap participant:
(A) Life cycle event data must be reported on the same day that any life cycle event occurs, with the sole exception that life cycle event data relating to a corporate event of the non-reporting counterparty must be reported no later than the second business day after the day on which such event occurs.
(B) State data must be reported daily.
(ii) If the reporting counterparty is a non-SD/MSP counterparty:
(A) Life cycle event data must be reported no later than the end of the first business day following the date of any life cycle event; with the sole exception that life cycle event data relating to a corporate event of the non-reporting counterparty must be reported no later than the end of the second business day following such event.
(B) State data must be reported daily.
(2)
(i) If the reporting counterparty is a swap dealer or major swap participant, the reporting counterparty must report all valuation data for the swap, daily.
(ii) If the reporting counterparty is a non-SD/MSP counterparty, the reporting counterparty must report the current daily mark of the transaction as of the last day of each fiscal quarter. This report must be transmitted to the swap data repository within 30 calendar days of the end of each fiscal quarter. If a daily mark of the transaction is not available for the swap, the reporting counterparty satisfies this requirement by reporting the current valuation of the swap recorded on its books in accordance with applicable accounting standards.
Each swap subject to the jurisdiction of the Commission shall be identified in all recordkeeping and all swap data reporting pursuant to this part by the use of a unique swap identifier, which shall be created, transmitted, and used for each swap as provided in paragraphs (a) through (f) of this section.
(a)
(1)
(i) The unique alphanumeric code assigned to the swap execution facility or designated contract market by the Commission for the purpose of identifying the swap execution facility or designated contract market with respect to unique swap identifier creation; and
(ii) An alphanumeric code generated and assigned to that swap by the automated systems of the swap execution facility or designated contract
(2)
(i) To the swap data repository to which the swap execution facility or designated contract market reports required swap creation data for the swap, as part of that report;
(ii) To each counterparty to the swap, as soon as technologically practicable after execution of the swap;
(iii) To the derivatives clearing organization, if any, to which the swap is submitted for clearing, as part of the required swap creation data transmitted to the derivatives clearing organization for clearing purposes.
(b)
(1)
(i) The unique alphanumeric code assigned to the swap dealer or major swap participant by the Commission at the time of its registration as such, for the purpose of identifying the swap dealer or major swap participant with respect to unique swap identifier creation; and
(ii) An alphanumeric code generated and assigned to that swap by the automated systems of the swap dealer or major swap participant, which shall be unique with respect to all such codes generated and assigned by that swap dealer or major swap participant.
(2)
(i) To the swap data repository to which the reporting counterparty reports required swap creation data for the swap, as part of that report;
(ii) To the non-reporting counterparty to the swap, as soon as technologically practicable after execution of the swap; and
(iii) To the derivatives clearing organization, if any, to which the swap is submitted for clearing, as part of the required swap creation data transmitted to the derivatives clearing organization for clearing purposes.
(c)
(1)
(i) The unique alphanumeric code assigned to the swap data repository by the Commission at the time of its registration as such, for the purpose of identifying the swap data repository with respect to unique swap identifier creation; and
(ii) An alphanumeric code generated and assigned to that swap by the automated systems of the swap data repository, which shall be unique with respect to all such codes generated and assigned by that swap data repository.
(2)
(i) To the counterparties to the swap, as soon as technologically practicable following creation of the unique swap identifier; and
(ii) To the derivatives clearing organization, if any, to which the swap is submitted for clearing, as soon as technologically practicable following creation of the unique swap identifier.
(d)
(1)
(i) The unique alphanumeric code assigned to the derivatives clearing organization by the Commission for the purpose of identifying the derivatives clearing organization with respect to unique swap identifier creation; and
(ii) An alphanumeric code generated and assigned to that clearing swap by the automated systems of the derivatives clearing organization, which shall be unique with respect to all such codes generated and assigned by that derivatives clearing organization.
(2)
(i) To the swap data repository to which the derivatives clearing organization reports required swap creation data for the clearing swap, as part of that report; and
(ii) To its counterparty to the clearing swap, as soon as technologically practicable after acceptance of a swap by the derivatives clearing organization for clearing or execution of a clearing swap that does not replace an original swap.
(e)
(1)
(i) If the unique swap identifier is created by a swap execution facility or designated contract market, the swap execution facility or designated contract market must include the unique swap identifier in its swap creation data report to the swap data repository, and must transmit the unique identifier to the reporting counterparty and to the agent.
(ii) If the unique swap identifier is created by the reporting counterparty, the reporting counterparty must include the unique swap identifier in its swap creation data report to the swap data repository, and must transmit the unique identifier to the agent.
(2)
(i) The non-reporting counterparty for the swap in question.
(ii) The agent.
(iii) The derivatives clearing organization, if any, to which the swap
(f)
The determination of which counterparty is the reporting counterparty for all swaps, except clearing swaps, shall be made as provided in paragraphs (a) through (h) of this section. The determination of which counterparty is the reporting counterparty for all clearing swaps shall be made as provided in paragraph (i) of this section.
(a) If only one counterparty is a swap dealer, the swap dealer shall be the reporting counterparty.
(b) If neither counterparty is a swap dealer, and only one counterparty is a major swap participant, the major swap participant shall be the reporting counterparty.
(c) If both counterparties are non-SD/MSP counterparties, and only one counterparty is a financial entity as defined in CEA section 2(h)(7)(C), the counterparty that is a financial entity shall be the reporting counterparty.
(d) If both counterparties are swap dealers, or both counterparties are major swap participants, or both counterparties are non-SD/MSP counterparties that are financial entities as defined in CEA section 2(h)(7)(C), or both counterparties are non-SD/MSP counterparties and neither counterparty is a financial entity as defined in CEA section 2(h)(7)(C):
(1) For a swap executed on or pursuant to the rules of a swap execution facility or designated contract market, the counterparties shall agree which counterparty shall be the reporting counterparty.
(2) For an off-facility swap, the counterparties shall agree as one term of their swap which counterparty shall be the reporting counterparty.
(e) Notwithstanding the provisions of paragraphs (a) through (d) of this section, if both counterparties to a swap are non-SD/MSP counterparties and only one counterparty is a U.S. person, that counterparty shall be the reporting counterparty.
(f) Notwithstanding the provisions of paragraphs (a) through (e) of this section, if neither counterparty to a swap is a U.S. person, but the swap is executed on or pursuant to the rules of a swap execution facility or designated contract market or otherwise executed in the United States, or is cleared by a derivatives clearing organization:
(1) For such a swap executed on or pursuant to the rules of a swap execution facility or designated contract market, the counterparties shall agree which counterparty shall be the reporting counterparty.
(2) For an off-facility swap, the counterparties shall agree as one term of their swap which counterparty shall be the reporting counterparty.
(g) If a reporting counterparty selected pursuant to paragraphs (a) through (f) of this section ceases to be a counterparty to a swap due to an assignment or novation, the reporting counterparty for reporting of required swap continuation data following the assignment or novation shall be selected from the two current counterparties as provided in paragraphs (g)(1) through (4) of this section.
(1) If only one counterparty is a swap dealer, the swap dealer shall be the reporting counterparty and shall fulfill all counterparty reporting obligations.
(2) If neither counterparty is a swap dealer, and only one counterparty is a major swap participant, the major swap participant shall be the reporting counterparty and shall fulfill all counterparty reporting obligations.
(3) If both counterparties are non-SD/MSP counterparties, and only one counterparty is a U.S. person, that counterparty shall be the reporting counterparty and shall fulfill all counterparty reporting obligations.
(4) In all other cases, the counterparty that replaced the previous reporting counterparty by reason of the assignment or novation shall be the reporting counterparty, unless otherwise agreed by the counterparties.
(h) For all swaps executed on or pursuant to the rules of a swap execution facility or designated contract market, the rules of the swap execution facility or designated contract market must require each swap counterparty to provide sufficient information to the swap execution facility or designated contract market to enable the swap execution facility or designated contract market to report all swap creation data as provided in this part.
(1) To achieve this, the rules of the swap execution facility or designated contract market must require each market participant placing an order with respect to any swap traded on the swap execution facility or designated contract market to include in the order, without limitation:
(i) The legal entity identifier of the market participant placing the order.
(ii) A yes/no indication of whether the market participant is a swap dealer with respect to the product with respect to which the order is placed.
(iii) A yes/no indication of whether the market participant is a major swap participant with respect to the product with respect to which the order is placed.
(iv) A yes/no indication of whether the market participant is a financial entity as defined in CEA section 2(h)(7)(C).
(v) A yes/no indication of whether the market participant is a U.S. person.
(vi) If applicable, an indication that the market participant will elect an exception to, or an exemption from, the clearing requirement under part 50 of this chapter for any swap resulting from the order.
(vii) If the swap will be allocated:
(A) An indication that the swap will be allocated.
(B) The legal entity identifier of the agent.
(C) An indication of whether the swap is a post-allocation swap.
(D) If the swap is a post-allocation swap, the unique swap identifier of the initial swap transaction between the reporting counterparty and the agent.
(2) To achieve this, the swap execution facility or designated contract market must use the information obtained pursuant to paragraph (h)(1) of this section to identify the counterparty that is the reporting counterparty pursuant to the CEA and this section.
(i)
All swap data for a given swap, which shall include all swap data required to be reported pursuant to parts 43 and 45 of this chapter, must be reported to a single swap data repository, which shall be the swap data repository to which the first report of required swap creation data is made pursuant to this part.
(a)
(1) The swap execution facility or designated contract market that reports required swap creation data as required by § 45.3 shall report all such data to a single swap data repository. As soon as technologically practicable after execution, the swap execution facility or designated contract market shall transmit to both counterparties to the swap, and to the derivatives clearing organization, if any, that will clear the swap, both:
(i) The identity of the swap data repository to which required swap creation data is reported by the swap execution facility or designated contract market; and
(ii) The unique swap identifier for the swap, created pursuant to § 45.5.
(2) Thereafter, all required swap creation data and all required swap continuation data reported for the swap reported by any registered entity or counterparty shall be reported to that same swap data repository (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter).
(b)
(1) If the reporting counterparty reports primary economic terms data to a swap data repository as required by § 45.3:
(i) The reporting counterparty shall report primary economic terms data to a single swap data repository.
(ii) As soon as technologically practicable after execution, but no later than as required pursuant to § 45.3, the reporting counterparty shall transmit to the other counterparty to the swap both the identity of the swap data repository to which primary economic terms data is reported by the reporting counterparty, and the unique swap identifier for the swap created pursuant to § 45.5.
(iii) If the swap will be cleared, the reporting counterparty shall transmit to the derivatives clearing organization at the time the swap is submitted for clearing both the identity of the swap data repository to which primary economic terms data is reported by the reporting counterparty, and the unique swap identifier for the swap created pursuant to § 45.5.
(2) Thereafter, all required swap creation data and all required swap continuation data reported for the swap, by any registered entity or counterparty, shall be reported to the swap data repository to which swap data has been reported pursuant to paragraph (b)(1) or (2) of this section (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter).
(c)
(1) If the reporting counterparty reports primary economic terms data to a swap data repository as required by § 45.3:
(i) The reporting counterparty shall report primary economic terms data to a single swap data repository.
(ii) As soon as technologically practicable after execution, but no later than as required pursuant to § 45.3, the reporting counterparty shall transmit to the other counterparty to the swap the identity of the swap data repository to which primary economic terms data was reported by the reporting counterparty.
(iii) If the swap will be cleared, the reporting counterparty shall transmit to the derivatives clearing organization at the time the swap is submitted for clearing the identity of the swap data repository to which primary economic terms data was reported by the reporting counterparty.
(2) The swap data repository to which the swap is reported as provided in paragraph (c) of this section shall transmit the unique swap identifier created pursuant to § 45.5 to both counterparties and to the derivatives clearing organization, if any, as soon as technologically practicable after creation of the unique swap identifier.
(3) Thereafter, all required swap creation data and all required swap continuation data reported for the swap, by any registered entity or counterparty, shall be reported to the swap data repository to which swap data has been reported pursuant to paragraph (c)(1) of this section (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter).
(d)
(1) The derivatives clearing organization that is a counterparty to such clearing swap shall report all required swap creation data for that clearing swap to a single swap data repository. As soon as technologically practicable after acceptance of an original swap by a derivatives clearing organization for clearing or execution of a clearing swap that does not replace an original swap, the derivatives clearing organization shall transmit to the counterparty to each clearing swap the legal entity identifier of the swap data repository to which the derivatives clearing organization reported the required swap creation data for that clearing swap.
(2) Thereafter, all required swap creation data and all required swap continuation data reported for that clearing swap shall be reported by the derivatives clearing organization to the swap data repository to which swap data has been reported pursuant to paragraph (d)(1) of this section (or to its successor in the event that it ceases to operate, as provided in part 49 of this chapter).
(3) For clearing swaps that replace a particular original swap, and for equal and opposite clearing swaps that are created upon execution of the same transaction and that do not replace an original swap, the derivatives clearing organization shall report all required swap creation data and all required swap continuation data for such clearing swaps to a single swap data repository.
On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.
Regular reporting of data on swaps is a key component of the swaps reforms that were agreed to by the G–20 leaders and codified in the Dodd-Frank Wall Street Reform and Consumer Protection Act. Since taking office, a priority of mine has been to improve data quality and to simplify reporting obligations for market participants. I know that my fellow Commissioners Bowen and Giancarlo share this goal. That is why I am very pleased that today, the Commission has acted unanimously to improve the process for reporting data on cleared swaps.
This final rule will significantly enhance data quality and reduce reporting costs in a number of ways. It streamlines the reporting process to ensure there are not duplicate records of a swap, which can lead to double counting that can distort the data. It makes sure that accurate valuations of swaps are provided on an ongoing basis. And it eliminates some needless reporting requirements for swap dealers and major swap participants. This rule provides clarity and certainty in a number of areas, and will improve our ability to trace a swap through all phases of its lifecycle. Ultimately, it will provide us with a better picture of the swaps market, and enhance our ability to identify the buildup of risk that may pose a threat to the financial system.
Today's final rule reflects the largely positive feedback we received on our proposal, which was released in August, 2015. We very much appreciate the input that market participants have given us.
This effort is just one piece of our work to ensure accuracy and completeness in data reporting, to harmonize data standards, and to improve data quality, while avoiding excessive burdens and duplication. For example, our other efforts will include the development of technical specifications for the reporting of 120 priority data elements, which will lead to greater consistency and standardization in reporting. We are also leading international efforts on data harmonization, including the development of tools that will allow regulators to identify swaps and swap activity by product type and transaction type throughout the life of a swap.
I thank CFTC staff for their hard work on this rule, as well as the market participants who took the time to provide us feedback. And I also thank my fellow Commissioners Bowen and Giancarlo for their careful consideration and unanimous support for this measure.