Agricultural Marketing Service
Animal and Plant Health Inspection Service
National Institute of Food and Agriculture
National Oceanic and Atmospheric Administration
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Coast Guard
Copyright Office, Library of Congress
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Maritime Administration
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Agricultural Marketing Service, USDA.
Final rule; delay of effective date.
The United States Department of Agriculture's Agricultural Marketing Service (AMS) is delaying the effective date of the rule published on January 19, 2017, for an additional six months to November 14, 2017, to allow time for further consideration by USDA. The effective date for this rule was initially March 20, 2017, and was subsequently delayed to May 19, 2017, by a document published in the
The effective date of the final rule published on January 19, 2017 (82 FR 7042), delayed until May 19, 2017, on February 9, 2017 (82 FR 9967), is further delayed until November 14, 2017.
Paul Lewis, Ph.D., Director, Standards Division. Telephone: (202) 720–3252; Fax: (202) 260–9151.
Consistent with the memorandum of January 20, 2017, to the heads of executive departments and agencies from the Assistant to the President and Chief of Staff, entitled, “Regulatory Freeze Pending Review,” on February 9, 2017, AMS delayed the effective date of the final rule, Organic Livestock and Poultry Practices, that was published in the
Because there are significant policy and legal issues addressed within the final rule that warrant further review by USDA, AMS is further delaying the effective date of this rule by 180 days to November 14, 2017. In addition, AMS will publish a proposed rule that solicits public comments on the direction that USDA should take with respect to the rule. The public will have a 30-day comment period to specify whether USDA should: (1) Let the rule become effective, (2) suspend the rule indefinitely, (3) delay the effective date of the rule further, or (4) withdraw the rule.
The rule amends the organic livestock and poultry production requirements of the USDA organic regulations by adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expands and clarifies existing requirements covering livestock care and production practices and mammalian living conditions. The rule finalizes a proposed rule that AMS published in the
To the extent that 5 U.S.C. 553(b)(A) applies to this action, it is exempt from notice and comment for good cause and the reasons cited above. AMS finds that notice and solicitation of comment regarding the brief extension of the effective date for the final regulation are impracticable, unnecessary, or contrary to the public interest pursuant to 5 U.S.C. 553(b)(B). The delay of the effective date until November 14, 2017, should give AMS sufficient time to receive and consider public comments and take action on the disposition of the rule. AMS also believes that affected entities need to be informed as soon as possible of the extension and its length in order to plan and adjust their implementation process accordingly.
National Institute of Food and Agriculture (NIFA), USDA.
Final rule.
This rule updates the list of institutions that are granted Hispanic-Serving Agricultural Colleges and Universities (HSACU) certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2016, and ending September 30, 2017.
This rule is effective May 10, 2017 and applicable beginning October 1, 2016.
Lisa Read; Policy Analyst; National Institute of Food and Agriculture; U.S. Department of Agriculture, STOP 2272, 1400 Independence Avenue SW., Washington, DC 20250–2272; Voice: 202–731–1366; Fax: 202–401–7752; Email:
This rule makes changes to the existing list of institutions in Appendix B of 7 CFR part 3434. The list of institutions is amended to reflect the institutions that are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2016, and ending September 30, 2017.
As stated in 7 CFR 3434.4, an institution must meet the following criteria to receive HSACU certification: (1) Be a Hispanic-Serving Institution (HSI), (2) offer agriculture-related degrees, (3) not appear on the Excluded Parties List System (EPLS), (4) be accredited, and (5) award at least 15% of agriculture-related degrees to Hispanic students over the two most recent academic years.
NIFA obtained the latest report from the U.S. Department of Education's
The updated list of HSACUs is based on (1) completions data from 2013–14 and 2014–15, and (2) enrollment data from Fall 2015. NIFA identified 104 institutions that met the eligibility criteria to receive HSACU certification for FY 2017 (October 1, 2016 to September 30, 2017).
As set forth in Section 7101 of the Agricultural Act of 2014 (Pub. L. 113–79), which amends 7 U.S.C. 3103, an institution that is eligible to be designated as an HSACU may notify the Secretary of its intent not to be considered an HSACU. To opt out of designation as an HSACU, an authorized official at the institution must submit a declaration of intent not to be considered an HSACU to NIFA by email at
In FYs 2015, 2016 and 2017 five institutions opted out of their HSACU designation and received NLGCA designation, hence they are excluded from the FY 2017 HSACU list.
As set forth in 7 CFR 3434.8, NIFA will permit HSIs that are not granted HSACU certification to submit an appeal within 30 days of the publication of this notice.
This rule relates to internal agency management. Accordingly, pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity for comment are not required, and this rule may be made effective less than 30 days after publication in the
Administrative practice and procedure; Agricultural research, Education, Extension; Hispanic-Serving Institutions; Federal assistance.
Accordingly, part 3434 of Title 7 of the Code of Federal Regulations is amended as set forth below:
7 U.S.C. 3103.
The institutions listed in this appendix are granted HSACU certification by the Secretary and are eligible for HSACU programs for the period starting October 1, 2016, and ending September 30, 2017. Institutions are listed alphabetically under the state of the school's location, with the campus indicated where applicable.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Embraer S.A. (Embraer) Model ERJ 190–300 series airplanes. These airplanes will have novel or unusual design features when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These design features are electrical and electronic systems that perform critical functions, the loss of which could be catastrophic to the airplane. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Embraer S.A. on May 10, 2017. We must receive your comments by June 26, 2017.
Send comments identified by docket number FAA–2017–0319 using any of the following methods:
•
•
•
•
Stephen Slotte, FAA, Airplane and Flight Crew Interface Branch, ANM–111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone 425–227–2315; facsimile 425–227–1320.
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplanes.
In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds it unnecessary to delay the effective date and finds that good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On September 13, 2013, Embraer applied for an amendment to type certificate (TC) no. A57NM to include
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Embraer must show that the Model ERJ 190–300 airplane meets the applicable provisions of the regulations listed in type certificate no. A57NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. Embraer must show that the Model ERJ 190–300 airplane meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25–1 through 25–137.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel design features, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Model ERJ 190–300 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Model ERJ 190–300 airplane will incorporate the following novel or unusual design features: Electrical and electronic systems that perform critical functions, the loss of which may result in loss of flight controls and other critical systems and may be catastrophic to the airplane.
The Model ERJ 190–300 airplane has a fly-by-wire flight control system that requires a continuous source of electrical power in order to maintain an operable flight control system. Section 25.1351(d),
A critical assumption in § 25.1351(d) is that the airplane is in VFR conditions at the time of the failure. This is not a valid assumption in today's airline operating environment where airplanes fly much of the time in instrument meteorological conditions on air traffic control defined flight paths. Another assumption in the existing rule is that the loss of all normal electrical power is the result of the loss of all engines. The five-minute period in the rule is to allow at least one engine to be restarted following an all-engine power loss in order to continue the flight to a safe landing. However, service experience on airplane models with similar electrical power system architecture as the airplane has shown that at least the temporary loss of all electrical power for causes other than all-engine failure is not extremely improbable.
To maintain the same level of safety envisioned by the existing rule with traditional mechanical flight controls, the Model ERJ 190–300 airplane design must not be time-limited in its operation under all reasonably foreseeable conditions, including loss of all normal sources of engine or auxiliary power unit (APU)-generated electrical power. Unless Embraer can show that the non-restorable loss of the engine and APU power sources is extremely improbable, Embraer must demonstrate that the airplanes can maintain safe flight and landing (including steering and braking on the ground for airplanes using steer/brake-by-wire and/or fly-by-wire speed brake panels) with the use of its emergency/alternate electrical power systems. These electrical power systems, or the minimum restorable electrical power sources, must be able to power loads that are essential for continued safe flight and landing, including those required for the maximum length of approved flight diversion.
As discussed above, these special conditions are applicable to the Model ERJ 190–300 airplanes. Should Embraer apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Embraer Model ERJ 190–300 airplanes.
In lieu of 14 CFR 25.1351(d) the following special conditions apply:
1. The applicant must show by test or a combination of test and analysis that the airplane is capable of continued safe flight and landing with all normal
a. In showing compliance with this requirement, the applicant must account for common-cause failures, cascading failures, and zonal physical threats.
b. The applicant may consider the ability to restore operation of portions of the electrical power generation and distribution system if it can be shown that unrecoverable loss of those portions of the system is extremely improbable. The design must provide an alternative source of electrical power for the time required to restore the minimum electrical power generation capability required for safe flight and landing. The applicant may exclude unrecoverable loss of all engines when showing compliance with this requirement.
2. Regardless of any electrical generation and distribution system recovery capability shown under paragraph 1 of these special conditions, sufficient electrical system capability must be provided to:
a. Allow time to descend, with all engines inoperative, at the speed that provides the best glide distance, from the maximum operating altitude to the top of the engine restart envelope, and
b. Subsequently allow multiple start attempts of the engines and auxiliary power unit (APU). The design must provide this capability in addition to the electrical capability required by existing part 25 requirements related to operation with all engines inoperative.
3. The airplane emergency electrical power system must be designed to supply:
a. Electrical power required for immediate safety, which must continue to operate without the need for crew action following the loss of the normal electrical power, for a duration sufficient to allow reconfiguration to provide a non-time-limited source of electrical power.
b. Electrical power required for continued safe flight and landing for the maximum diversion time.
4. If the applicant uses APU-generated electrical power to satisfy the requirements of these special conditions, and if reaching a suitable runway for landing is beyond the capacity of the battery systems, then the APU must be able to be started under any foreseeable flight condition prior to the depletion of the battery or the restoration of normal electrical power, whichever occurs first. Flight test must demonstrate this capability at the most critical condition.
a. The applicant must show that the APU will provide adequate electrical power for continued safe flight and landing.
b. The operating limitations section of the airplane flight manual (AFM) must incorporate non-normal procedures that direct the pilot to take appropriate actions to activate the APU after loss of normal engine-driven generated electrical power.
5. As part of showing compliance with these special conditions, the tests to demonstrate loss of all normal electrical power must also take into account the following:
a. The assumption that the failure condition occurs during night instrument meteorological conditions (IMC) at the most critical phase of the flight, relative to the worst possible electrical power distribution and equipment-loads-demand condition.
b. After the un-restorable loss of normal engine generator power, the airplane engine restart capability is provided and operations continued in IMC.
c. The airplane is demonstrated to be capable of continued safe flight and landing. The length of time must be computed based on the maximum diversion time capability for which the airplane is being certified. The applicant must account for airspeed reductions resulting from the associated failure or failures.
d. The airplane must provide adequate indication of loss of normal electrical power to direct the pilot to the non-normal procedures, and the operating limitations section of the AFM must incorporate non-normal procedures that will direct the pilot to take appropriate actions.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Textron Aviation Inc. (Textron) Model 700 airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is an electronic flight-control system that provides control through pilot inputs to the flight computer. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Textron on May 10, 2017. We must receive your comments by June 26, 2017.
Send comments identified by docket number FAA–2017–0215 using any of the following methods:
•
•
•
•
Greg Schneider, FAA, Airframe and Cabin Safety Branch, ANM–115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone 425–227–2116; facsimile 425–227–1320.
The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.
In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds it unnecessary to delay the effective date and finds tthat good cause exists for making these special conditions effective upon publication in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On November 20, 2014, Textron applied for a type certificate for their new Model 700 airplane. The Model 700 airplane is low-wing, pressurized, turbofan-powered executive jet airplane with seating for two crewmembers and up to 12 passengers. This airplane will have two Honeywell AS907–2–1S turbofan engines and a maximum takeoff weight of 38,514 pounds.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, Textron must show that the Model 700 airplane meets the applicable provisions of part 25, as amended by Amendments 25–1 through 25–139, 25–141, and 25–143.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Model 700 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36. The FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92–574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
The Model 700 airplane will incorporate the following novel or unusual design feature: An electronic flight-control system that provides control through pilot inputs to the flight computer.
The roll control system uses both ailerons and flight spoilers. The aileron control system is a fully mechanical system, and the flight spoilers are fly-by-wire. Section 25.349 specifies roll maneuver load conditions that are based on aileron deflection, rather than control-wheel deflection. By specifying the load conditions in terms of aileron deflection, the current requirement does not address electronic flight controls that cause nonlinearities and other loads caused by spoilers. Since this type of system affects flight loads, and therefore the structural capability of the airplane, special conditions are necessary to address these effects.
These special conditions differ from current requirements in that they require the actuation of the cockpit roll control, as opposed to the aileron itself, to perform the roll maneuver. Also, these special conditions require an additional load condition at V
These special conditions differ from similar special conditions applied to previous similar technologies. These special conditions are limited to the roll axis only, whereas previous special conditions also included the pitch and yaw axes. Special conditions are no longer necessary for the pitch or yaw axes because Amendment 25–91 takes into account the effects of an electronic flight-control system in those axes (§ 25.331 for pitch and § 25.351 for yaw).
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Textron Model 700 airplane. Should Textron apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only one novel or unusual design feature on one model of airplane. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Textron Aviation Inc. Model 700 airplanes.
In lieu of compliance with § 25.349(a), the following conditions, speeds, and cockpit roll control motions (except as the motions may be limited by pilot effort) must be considered in combination with an airplane load factor of zero and of two-thirds of the positive maneuvering factor used in design. In determining the resulting control-surface deflections, the torsional flexibility of the wing must be considered in accordance with § 25.301(b):
1. Conditions corresponding to steady rolling velocities must be investigated. In addition, conditions corresponding to maximum angular acceleration must be investigated for airplanes with engines or other weight concentrations outboard of the fuselage. For the angular-acceleration conditions, zero rolling velocity may be assumed in the absence of a rational time history investigation of the maneuver.
2. At V
3. At V
4. At V
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for Airbus Helicopters Deutschland GmbH (Airbus Helicopters) Model MBB–BK117 C–2 helicopters. This AD requires inspecting the pilot collective wiring harness and was prompted by a report that the heat-shrinkable sleeve prevented the twist grip on the collective from being fully engaged during a flight test. The actions of this AD are intended to prevent an unsafe condition on these products.
This AD is effective June 14, 2017.
The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of June 14, 2017.
For service information identified in this final rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
You may examine the AD docket on the Internet at
George Schwab, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222–5110; email
On December 7, 2016, at 81 FR 88143, the
The NPRM was prompted by AD No. 2015–0144, dated July 21, 2015, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model MBB–BK117 C–2 helicopters, up to serial number 9708. EASA advises that, during a flight test, the pilot could not fully engage a twist grip on a Model MBB–BK117 C–2 helicopter. According to EASA, further investigation found a transparent sleeve on the collective lever wiring harness damaged because of incorrect installation of the heat-shrinkable sleeve. This condition, if not detected and corrected, could result in chafing of the harness, leading to the malfunction of the affected systems, EASA advises. EASA consequently requires a one-time inspection of the heat-shrinkable and transparent sleeves installed on the collective lever wiring harness.
We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM.
These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.
The compliance time in the EASA AD is based on whether the helicopter has an externally mounted hoist or emergency flotation system. This AD requires compliance within 100 hours time-in-service for all applicable helicopters.
We reviewed Airbus Helicopters Alert Service Bulletin ASB MBB–BK117 C–2–88A–010, Revision 1, dated April 16, 2015 (ASB), which specifies a visual inspection of the heat-shrinkable sleeve for correct position. If the sleeve's position is incorrect, the ASB specifies shortening the sleeve. If there is any damage, the ASB calls for replacing the damaged parts.
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 113 helicopters of U.S. Registry and that labor costs average $85 a work hour.
• Inspecting the pilot collective wiring harness for the correct position of the heat-shrinkable sleeve requires 1.5 work hours. No parts are required for a total cost of $128 per helicopter and $14,464 for the U.S. fleet.
• Replacing or repairing the sleeves requires 5.5 work hours, and parts cost $10, for a total cost of $478 per helicopter.
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 helicopters 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 to the extent that it justifies making a regulatory distinction; and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Airbus Helicopters Deutschland GmbH (Airbus Helicopters) Model MBB–BK 117 C–2 helicopters, serial numbers 9004 through 9708, certificated in any category.
This AD defines the unsafe condition as an incorrectly installed heat-shrinkable sleeve on the collective lever wiring harness. This condition could result in chafing of the wiring and subsequent failure of the hoist cable cutter or emergency landing gear flotation systems.
This AD becomes effective June 14, 2017.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 100 hours time-in-service, remove the pilot collective lever and visually inspect the pilot collective lever wiring harness for proper installation of the heat-shrinkable sleeve and transparent sleeve and for damage in accordance with paragraph 3.B.2.1 and as depicted in Figure 2 of Airbus Helicopters Alert Service Bulletin MBB–BK117 C–2–88A–010, Revision 1, dated April 16, 2015 (ASB).
(1) If the heat-shrinkable sleeve and transparent sleeve are installed as depicted in Figure 2 of the ASB and there is no damage, install the collective lever in accordance with paragraphs 3.B.2.3.a through 3.B.2.3.f of the ASB.
(2) If the heat-shrinkable sleeve or transparent sleeve is installed as depicted in Figure 3, Detail B of the ASB, alter the heat-shrinkable sleeve as depicted in Figure 3, Detail C.
(3) If the transparent sleeve is damaged as depicted in Figure 4, Detail D of the ASB, replace the heat-shrinkable sleeve, transparent sleeve, and identification sleeve. Replace any wire that has a nick, scratch, cut, or is frayed.
(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: George Schwab, Aviation Safety Engineer, Safety Management Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2015–0144, dated July 21, 2015. You may view the EASA AD on the Internet at
(1) The Director of the Federal Register approved the incorporation by reference 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) Airbus Helicopters Alert Service Bulletin MBB–BK117 C–2–88A–010, Revision 1, dated April 16, 2015.
(ii) Reserved.
(3) For Airbus Helicopters service information identified in this AD, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
(4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N–321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222–5110.
(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 Trade Commission (FTC).
Final rule.
The Federal Trade Commission is implementing provisions of the FOIA Improvement Act of 2016 by amending the regulation governing fees the agency may assess to offset the cost of disseminating information and records to the public. The FTC is also making other clarifying changes and updates to the fee regulation.
These amendments are effective May 10, 2017.
G. Richard Gold, Attorney, (202) 326–3355, Office of the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue NW., Washington, DC 20580.
In a document previously published in the
The FTC received two comments in response to the proposed rule changes: one from Hartley Rathaway and one from the Reporters Committee for Freedom of the Press (“Reporters Committee”).
The comment from Hartley Rathaway argues that “it is [not] fair that the government should force the citizenry to bear the costs of seeing the truth. Cut spending on wars, cut subsidies for the oligarchs, and then put that money toward uses like these. Charging us fees for information is unjust.” The FTC understands this concern and notes that most agency FOIA responses do not impose any costs on the requester. For example, members of the public are entitled to two hours of free search time and 100 free pages, and are not charged for review time.
Additionally, the FTC follows FOIA statutory language and Office of Management and Budget (“OMB”) directives to recoup allowable direct costs. The Freedom of Information Reform Act of 1986 (“FOIA Reform Act”) charged the OMB with responsibility for promulgating, pursuant to notice and comment, guidelines containing a uniform schedule of fees for individual agencies to follow when promulgating their FOIA fee regulations. 5 U.S.C. 552(a)(4)(A)(i). On March 27, 1987, the OMB issued its Uniform Freedom of Information Act Fee Schedule and Guidelines (OMB Fee Guidelines) but also concluded that issuance of a government-wide fee schedule was precluded by language of the FOIA Reform Act requiring “each agency's fees to be based upon its direct reasonable operating costs of providing FOIA services.”
The Reporters Committee supports the FTC's efforts to update its regulations to comply with FOIA but argues that two aspects of the proposed rule are inconsistent with both the text of FOIA and its recent interpretation by the U.S. Court of Appeals for the District
First, the Reporters Committee claims that § 4.8(b)(2)(iii) of the proposed rule sets forth an incorrect definition of “representative of the news media.” Specifically, the Reporters Committee states:
FOIA defines a “representative of the news media” as any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to
Additionally, the Reporters Committee also claims that § 4.8(e)(2)(i)(C) of the proposed rule places impermissible limitations on the conditions pursuant to which a public interest fee waiver will be granted. Section 4.8(e)(2)(i)(C) of the proposed rule stated as follows:
The understanding to which disclosure is likely to contribute is public understanding, as opposed to the understanding of the individual requester or a narrow segment of interested persons (
The FTC has considered this suggested edit but is denying the request. The final rule section relating to § 4.8(e)(2)(i)(C) is the same language that was previously proposed. This language complies with the FOIA statute and case law. Both the
The
The Commission certifies that the Rule amendments set forth in this final rule do not require an initial or final regulatory analysis under the Regulatory Flexibility Act because the amendments will not have a significant economic impact on a substantial number of small entities.
Administrative practice and procedure, Freedom of information.
15 U.S.C. 46.
(b) * * *
(2) * * *
(iii) A
(6)(i)
(7)
(ii) If the Commission has determined that unusual circumstances apply and has provided a timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), the delay in a response is excused for an additional 10 days. If the Commission fails to comply with the extended time limit, it will not charge search fees (or, for a requester qualifying for one of the fee categories set forth in paragraph (b)(2) of this section, will not charge duplication fees).
(iii) If the Commission has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the agency may charge search fees (or, for requesters qualifying for one of the fee categories set forth in paragraph (b)(2) of this section, may charge duplication fees) if timely written notice has been provided to the requester and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request.
(iv) If a court determines that exceptional circumstances exist, the Commission's failure to comply with a time limit shall be excused for the length of time provided by the court order.
(e) * * *
(2) * * *
(i) * * *
(C) The understanding to which disclosure is likely to contribute is public understanding, as opposed to the understanding of the individual requester or a narrow segment of interested persons (
(i)
By direction of the Commission.
Food and Drug Administration, HHS.
Final rule; correcting amendments.
The Food and Drug Administration (FDA or we) is amending the animal drug regulations to reflect application-related actions for new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) during January and February 2017. FDA is also informing the public of the availability of summaries of the basis of approval and of environmental review documents, where applicable. The animal drug regulations are also being amended to reflect several changes of sponsorship of applications and to make correcting amendments to improve the accuracy of the regulations.
This rule is effective May 10, 2017, except for amendatory instruction 3 to 21 CFR 510.600, and amendatory instruction 10 to 21 CFR 522.1002, which are effective May 22, 2017.
George K. Haibel, Center for Veterinary Medicine (HFV–6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240–402–5689,
FDA is amending the animal drug regulations to reflect approval actions for NADAs and an ANADA during January and February 2017, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the Internet may obtain these documents at the CVM FOIA Electronic Reading Room:
Following the approval of ANADA 200–609, Anzac Animal Health, LLC will now be included in the lists of sponsors of approved applications in § 510.600(c) (21 CFR 510.600(c)).
Boehringer Ingelheim Vetmedica, Inc., 2621 North Belt Highway, St. Joseph, MO 64506–2002 has informed FDA that it has transferred ownership of, and all rights and interest in, the following applications to Bayer HealthCare LLC, Animal Health Division, P.O. Box 390, Shawnee Mission, KS 66201:
Ceva Sante Animale, 10 Avenue de la Ballastière, 33500 Libourne, France has informed FDA that it has transferred ownership of, and all rights and interest in, the following applications to Cross Vetpharm Group Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland:
Cross Vetpharm Group Ltd., Broomhill Rd., Tallaght, Dublin 24, Ireland has informed FDA that it has transferred ownership of, and all rights and interest in, the following application to Ceva Sante Animale, 10 Avenue de la Ballastière, 33500 Libourne, France:
Nexcyon Pharmaceuticals, Inc., P.O. Box 259158, Madison, WI 53725 has informed FDA that it has transferred ownership of, and all rights and interest in, the following applications to Pegasus Laboratories, Inc., 8809 Ely Rd., Pensacola, FL 32514:
Accordingly, the animal drug regulations are being amended to reflect these changes of sponsorship. Following this withdrawal of approval, Nexcyon Pharmaceuticals, Inc. is no longer the sponsor of an approved application. Accordingly, it will be removed from the list of sponsors of approved applications in § 510.600(c).
In addition, during January and February 2017, the following sponsor requested that FDA withdraw approval of the NADAs listed in the following table because the products are no longer manufactured or marketed:
Elsewhere in this issue of the
We are also making several technical amendments in part 558, which was amended on December 27, 2016 (81 FR 94991), and February 24, 2017 (82 FR 11510), as part of the FDA Center for Veterinary Medicine's (CVM's) Judicious Use Initiative. These actions are being taken to improve the accuracy of the regulations.
This final rule is issued under Section 512(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C.360b(i)), which requires
Although denominated a rule pursuant to the Federal Food, Drug, and Cosmetic Act, this document does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a “rule of particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801–808. Likewise, this is not a rule subject to Executive Order 12866 which defines a rule as “an agency statement of general applicability and future effect, which the agency intends to have the force and effect of law, that is designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency.” As such, this document is also not subject to Executive Order 12866.
Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.
Animal drugs.
Animal drugs, Animal feeds.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 510, 520, 522, 524, and 558 are amended as follows:
21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.
(c) * * *
(1) * * *
(2) * * *
21 U.S.C. 360b.
21 U.S.C. 360b.
(e) * * *
(1)
(3) * * *
(i) * * *
(
(b) * * *
(2) No. 000061 for use as in paragraphs (d)(1)(i)(A), (d)(1)(i)(C), (d)(1)(i)(D), (d)(1)(i)(G), (d)(1)(ii), (d)(1)(iii), (d)(2)(i)(A), (d)(2)(i)(C), (d)(2)(i)(D), (d)(2)(ii), (d)(2)(iii), (d)(3)(i)(A), (d)(3)(ii), (d)(3)(iii), and (d)(4) of this section.
(d) * * *
(4)
(ii)
(iii)
21 U.S.C. 360b.
21 U.S.C. 354, 360b, 360ccc, 360ccc–1, 371.
(d) * * *
(4) Carbadox may also be used in combination with oxytetracycline as in § 558.450.
The addition reads as follows:
(e) * * *
(4) * * *
(e) * * *
(2) * * *
(e) Nicarbazin may also be used in combination with:
(1)–(3) [Reserved]
(4) Lincomycin as in § 558.325.
(d) * * *
(5) Salinomycin may also be used in combination with:
(i)–(ii) [Reserved]
(iii) Chlortetracycline as in § 558.128.
(iv) Lincomycin as in § 558.325.
The revisions and additions read as follows:
(d) * * *
(2) The expiration date of VFDs for tylosin medicated feeds must not exceed 6 months from the date of issuance. VFDs for tylosin shall not be refilled.
(4) Tylosin liquid Type B medicated feeds must bear an expiration date of 31 days after the date of manufacture.
(5) Do not use tylosin liquid Type B medicated feeds in any liquid feed containing sodium metabisulfite or in any finished feed (supplement, concentrate, or complete feed) containing in excess of 2 percent bentonite.
(e)
(d) * * *
(3) Zoalene may also be used in combination with:
(i)–(ii) [Reserved]
(iii) Lincomycin as in § 558.325.
Food and Drug Administration, HHS.
Notification of withdrawal.
The Food and Drug Administration (FDA) is withdrawing approval of a new animal drug application (NADA). This action is being taken at the sponsors' request because these products are no longer manufactured or marketed.
Withdrawal of approval is effective May 22, 2017.
Sujaya Dessai, Center for Veterinary Medicine (HFV–212), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240–402–5761,
Sioux Biochemical, Inc., 204 Third St. NW., Sioux Center, IA 51250 has requested that FDA withdraw approval of NADA 009–505 for F.S.H.-P (follicle stimulating hormone) Powder for Injection because the product is no longer manufactured or marketed.
Therefore, under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, and in accordance with § 514.116
Elsewhere in this issue of the
Office of the Secretary, HUD.
Final rule; correction.
On January 12, 2017, HUD issued a final rule amending HUD's Freedom of Information Act (FOIA) regulation to implement the FOIA Improvement Act of 2016, which enacted a range of procedural changes, including a change to the procedures for withholding information and an amendment to one of the nine FOIA exemptions that authorizes an agency to withhold various records from disclosure. After publication, HUD discovered that a portion of the regulation was not published as intended. Specifically, the published rule deleted several of the nine statutory FOIA disclosure exemptions and duplicated another. HUD also noticed minor technical changes required elsewhere in its regulations. This document corrects HUD's January 12, 2017, final rule and makes the minor technical changes.
Helen Goff Foster, Chief Administrative Officer, Office of Administration, Department of Housing and Urban Development, 451 7th Street SW., Room 6100, Washington, DC 20410–0500, telephone number 1–202–402–6838 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Relay Service at telephone number 1–800–877–8339 (this is a toll-free number).
On January 12, 2017 (82 FR 3623), HUD issued a final rule amending HUD's Freedom of Information Act (FOIA) regulation at 24 CFR part 15 to implement the FOIA Improvement Act of 2016 (Pub. L. 114–185, approved June 30, 2016) (2016 Act). Upon review of the published rule, HUD determined that § 15.107 was not published as intended. The amendatory instruction excluded three of the nine statutory FOIA exemptions (5 U.S.C. 552(b)) and included a duplicate exemption in § 15.107(b).
HUD's January 12, 2017, final rule sought to restructure § 15.107 by adding paragraph (a) to provide that HUD shall withhold information only if it is reasonably foreseeable that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law. HUD also sought to redesignate the undesignated introductory text as paragraph (b), redesignate paragraphs (a) through (i) as (b)(1) through (b)(9), and amend redesignated paragraph (b)(5), the deliberative process privilege, to add a sunset clause after 25 years.
As discussed above, HUD's final rule did not accurately restructure § 15.107 as intended. This final rule restates in whole § 15.107 to reflect the changes required by the 2016 Act to the deliberative process privilege exemption, and restores all other FOIA disclosure exemptions.
In addition, HUD is fixing an incorrect Web site link in § 15.101, removing two misplaced words in § 15.105, and correcting the number of days a FOIA requester has to appeal an adverse determination in § 15.109(a), consistent with the change HUD made in § 15.105(d)(2)(iv).
Classified information, Courts, Freedom of information, Government employees, Reporting and recordkeeping requirements.
Accordingly, 24 CFR part 15 is corrected by making the following correcting amendments:
42 U.S.C. 3535(d), 5 U.S.C. 552.
(a) HUD shall withhold information only if HUD reasonably foresees that disclosure would harm an interest protected by an exemption as provided in paragraph (b) of this section, or disclosure is prohibited by law. HUD will consider whether partial disclosure of information is possible whenever
(b) The FOIA contains nine exemptions (5 U.S.C. 552(b)) that authorize agencies to withhold various records from disclosure. With regard to certain types of records, HUD generally applies the exemptions as follows:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the Navy Pier East Safety Zone within the Chicago Harbor on June 27, 2017. This action is necessary and intended to ensure the safety of life and property on navigable waters prior to, during, and immediately after the fireworks display. During the enforcement period listed below, the Coast Guard will enforce restrictions upon, and control movement of vessels that transit this regulated area with the approval from the Captain of the Port Lake Michigan.
The regulation in 33 CFR 165.933 will be enforced from 8:45 p.m. until 9:45 p.m. on June 27, 2017.
If you have questions about this notice of enforcement, call or email LT Lindsay Cook, Waterways Management Division, Marine Safety Unit Chicago, at 630–986–2155, email address
The Coast Guard will enforce Safety Zone; Chicago Harbor, Navy Pier East, Chicago, IL listed in 33 CFR 165.933, on June 27, 2017 from 8:45 p.m. until 9:45 p.m., for a barge based fireworks display. This action is being taken to provide for the safety of life and property on navigable waterways before, during, and immediately after the fireworks display. As specified in 33 CFR 165.933 this safety zone encompasses all waters of Lake Michigan within Chicago Harbor between the east end of Navy Pier and the Chicago Harbor breakwater bounded by coordinates beginning at 41°53′37″ N., 087°35′26″ W.; then south to 41°53′24″ N., 087°35′26″ W.; then east to 41°53′24″ N., 087°35′55″ W.; then north to 41°53′37″ N., 087°35′55″ W.; then back to the point of origin (NAD 83). During the enforcement period, no vessel may transit this regulated area without approval from the Captain of the Port Lake Michigan or a Captain of the Port designated representative. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port Lake Michigan, or his or her on-scene representative.
This notice of enforcement is issued under authority of 33 CFR 165.931 and 5 U.S.C. 552 (a). In addition to this notice in the
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the security zone for the Portland Rose Festival on the Willamette River in Portland, OR, from 8 a.m. on June 7, 2017 through noon on June 12, 2017. This action is necessary to ensure the security of vessels participating in the 2017 Portland Rose Festival on the Willamette River during the event. Our regulation for the Security Zone Portland Rose Festival on the Willamette River identifies the regulated area. During the enforcement period, no person or vessel may enter or remain in the security zone without permission from the Sector Columbia River Captain of the Port.
The regulations in 33 CFR 165.1312 will be enforced from 8 a.m. on June 7, 2017, through noon on June 12, 2017.
If you have questions about this notice of enforcement, call or email LCDR Laura Springer, Waterways Management Division, MSU Portland, Oregon, Coast Guard; telephone 503–240–9319, email
The Coast Guard will enforce the security zone for the Portland Rose Festival detailed in 33 CFR 165.1312 from 8 a.m. on June 7, 2017, through noon on June 12, 2017. This action is necessary to ensure the security of vessels participating in the 2017 Portland Rose Festival on the Willamette River during the event. Under the provisions of 33 CFR 165.1312 and subpart D of part 165, no person or vessel may enter or remain in the security zone, consisting of all waters of the Willamette River, from surface to bottom, encompassed by the Hawthorne and Steel Bridges, without permission from the Sector Columbia River Captain of the Port. Persons or vessels wishing to enter the security zone may request permission to do so from the on-scene Captain of the Port representative via VHF Channel 16 or 13. The Coast Guard may be assisted by other Federal, State, or local enforcement agencies in enforcing this regulation.
This notice of enforcement is issued under authority 33 CFR 165.1312 and 5 U.S.C. 552 (a). In addition to this notice of enforcement in the
U.S. Copyright Office, Library of Congress.
Final rule.
This final rule makes non-substantive technical amendments to the U.S. Copyright Office's regulations governing the submission of designated agent and service provider information to the Office pursuant to the Digital Millennium Copyright Act (“DMCA”).
Effective May 10, 2017.
Sarang V. Damle, General Counsel and Associate Register of Copyrights, by email at
Effective December 1, 2016, the Copyright Office adopted new regulations governing the submission of designated agent and service provider information to the Office pursuant to the Digital Millennium Copyright Act (“DMCA”) in connection with the implementation of a new electronic registration system launched the same day.
As a result of user feedback about the new system, the Office has reconsidered the need for some of the contact information required to be provided under the current rule as part of the user account creation process. Specifically, the Office has been informed that in some cases smaller service providers have either been confused by some of the requirements or have had difficulty following them. For example, a service provider who is an individual blogger, acting as his or her own primary point of contact for communications with the Office, may not have a positional/title or organization, or may have difficulty finding someone to act as a secondary point of contact.
Upon further reflection, the Office believes that some of the currently required information, while helpful, is not essential to facilitating efficient communication with the Office, and on balance need not be collected. Consequently, the Office has determined that in connection with the user account creation process, it will no longer be mandatory to provide the position or title, organization, or physical mail address for the individual named as the primary point of contact for communications with the Office. The Office will also stop requiring users to provide a secondary point of contact for communications with the Office.
Because the current regulation only requires this information for administrative purposes, this final rule is a non-substantive, procedural change not “alter[ing] the rights or interests of parties,” and thus is not subject to the notice and comment requirements of the Administrative Procedure Act.
Copyright.
For the reasons set forth above, the Copyright Office amends 37 CFR part 201 as follows:
17 U.S.C. 702.
The revision reads as follows:
(c) * * *
(1) * * *
(i) The first name, last name, telephone number, and email address of a representative of the service provider who will serve as the primary point of contact for communications with the Office.
17 U.S.C. 408(f), 702
(a) * * *
(2)
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia. The revision includes regulatory amendments that allow gasoline dispensing facilities (GDFs) located in Northern Virginia, Fredericksburg, and Richmond that are currently required to install and operate vapor recovery equipment on gasoline dispensers (otherwise referred to as Stage II vapor recovery, or simply as Stage II) to decommission that equipment by January 2017. In prior rulemaking actions, EPA already approved Virginia's demonstrations that decommissioning Stage II is consistent with the Clean Air Act (CAA) and EPA guidance. The intended effect of this action is to approve Virginia's revised petroleum transfer and storage regulation to allow for decommissioning of Stage II equipment.
This final rule is effective on June 9, 2017.
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2016–0308. All documents in the docket are listed on the
Brian Rehn, (215) 814–2176, or by email at
On October 21, 2016, EPA published a notice of direct final rulemaking (81 FR 72724) and an accompanying proposed rulemaking (NPR) (81 FR 72757) for the Commonwealth of Virginia. Therein, EPA proposed approval of Virginia's revised 9 VAC 5, Chapter 40, Rule 4–37 (Rule 4–37),
After receiving adverse comments during the public comment period on its proposed action, EPA withdrew the October 21, 2016 direct final rule in a notice published in the December 9, 2016 (81 FR 89007)
Stage II vapor recovery is a means of capturing volatile organic compounds (VOCs) emitted as vapors displaced from a vehicle's gas tank during refueling operations, via vapor controls equipped on a gasoline pump at a GDF. Stage II vapor recovery uses special refueling nozzles and coaxial hoses on the gasoline dispenser to capture these vapors that might otherwise be emitted to the atmosphere during vehicle fueling. These gasoline vapors contain air emissions and serve as precursors to the formation of ground-level ozone—an ambient air pollutant regulated under the CAA. Under section 182(b)(3) of the CAA, areas classified as moderate or worse ozone nonattainment were required to adopt a Stage II vapor recovery program. Areas in the Ozone Transport Region (OTR) were required under section 184(a) and (b)(2) to adopt Stage II, or a comparable measure that could achieve similar emission reductions. Virginia currently has three SIP-approved Stage II programs in the Richmond, Fredericksburg, and the Virginia portion of the Washington, DC areas.
The Richmond Stage II program was instituted as a result of the area being designated nonattainment under the 1-hour ozone National Ambient Air Quality Standards (NAAQS) by the CAA of 1990. The Richmond Stage II area (the Richmond Area) has since been redesignated as attainment for both the 1-hour ozone NAAQS (November 17, 1997; 62 FR 61237) and for the 19978-hour ozone NAAQS (June 1, 2007; 72 FR 30485). However, Virginia's SIP-approved maintenance plans for the1-hour and 1997 8-hour ozone NAAQS relied upon emissions reductions from Stage II as a means to ensure continued maintenance of the ozone NAAQS. Although the 1-hour ozone NAAQS was revoked on June 15, 2005, EPA's implementation rule for the 1997 ozone NAAQS retained Stage II as a required measure to prevent backsliding under the NAAQS.
The Virginia portion of the Washington, DC-MD-VA ozone nonattainment area (hereafter referred to as the Washington Area) was subject to Stage II not only because of its designation as nonattainment for the ozone NAAQS, but also because this area lies in a CAA-established OTR. The area was designated serious nonattainment under the 1-hour ozone NAAQS. The Washington Area was later designated moderate nonattainment under the 1997 8-hour ozone NAAQS, as was the neighboring Fredericksburg ozone nonattainment area (referred to herein as Fredericksburg Area). On November 13, 2002, EPA reclassified the Virginia portion of the Washington, DC-MD-VA area as severe nonattainment under the 1-hour ozone NAAQS. 67 FR 68805. Virginia subsequently submitted and EPA approved attainment plans for the 1-hour and 1997 8-hour NAAQS for the Washington Area, and EPA also approved a redesignation and maintenance plan for the Fredericksburg Area. Although the 1-hour ozone NAAQS was revoked effective June 2005, EPA's implementation rule for the 1997 ozone NAAQS retained Stage II-related requirements under CAA section 182(b)(3) for certain areas. Stage II continued to apply in the Washington, DC nonattainment area as an anti-backsliding measure under the implementation rules for the 1997 and 2008 ozone NAAQS. The 2008 ozone implementation rule similarly required that Stage II remain in the Fredericksburg Area as a maintenance measure pending EPA determination that onboard refueling vapor recovery (ORVR) was in widespread use and Virginia could demonstrate that Stage II was no longer a necessary component of its air quality plans.
Virginia adopted Stage II regulations in the November 2, 1992 edition of the Virginia Register of Regulations (Vol 9, Issue 3), effective January 1, 1993. Virginia submitted its Stage II regulation to EPA as a SIP revision on November 5, 1992. EPA approved Virginia's Stage II SIP revision on June 23, 1993 (59 FR 32353).
ORVR is an emissions control system equipped on new, gasoline-powered vehicles (beginning with model year 1998 vehicles) for the purpose of capturing refueling gasoline vapors before they escape the vehicle gas tank and to store them in an underhood canister for later engine combustion. Section 202(a)(6) of the CAA directed that Stage II requirements under section 182(b)(3) would no longer apply to moderate ozone nonattainment areas upon promulgation of standards for ORVR systems as part of the emission control system on newly manufactured vehicles. Section 202(a)(6) further provides that EPA may, by rule, waive the section 182(b)(3) Stage II requirements for ozone nonattainment areas designated serious or worse upon EPA's determination that ORVR technology is in “widespread use.” EPA issued its widespread use determination on May 16, 2012 (77 FR 28772), indicating that ORVR was in widespread use throughout the U.S. vehicle fleet, and that at that time ORVR vehicles were essentially equal to and would soon surpass the emissions reductions achieved by Stage II alone.
Virginia has examined whether Stage II vapor recovery continues to be necessary for ozone control purposes, given the prevalence of ORVR-equipped gasoline-powered vehicles and the redundancy between ORVR and Stage II systems in reducing gasoline tank displacement emissions associated with refueling. Additionally, Virginia analyzed the interference effect between certain Stage II systems and ORVR systems, which can result in VOC emissions being greater where ORVR and certain Stage II systems are simultaneously used than they would be
On November 12, 2013 and March 18, 2014, Virginia submitted SIP revisions to EPA that evaluated the emissions impacts to each of the affected Virginia Stage II areas associated with removal of the program. Those SIP revisions amended the ozone maintenance plan for the Richmond Area and the attainment plan for the Washington Area to demonstrate that removal of the Stage II programs would not interfere with those areas' ability to attain and maintain any NAAQS. On May 26, 2015 (80 FR 29959), EPA approved the Commonwealth's March 18, 2014 SIP revision amending the approved ozone attainment plan for the Virginia portion of Washington Area and the approved ozone maintenance plan for the Fredericksburg Area to remove the Stage II program. On August 11, 2014, EPA approved Virginia's November 12, 2013 SIP revision amending the approved ozone maintenance plan SIP for the Richmond Area to remove the Stage II program. 79 FR 46711. None of these approvals were challenged in court by any objecting party.
On October 15, 2015, the Commonwealth of Virginia submitted a formal revision to remove the requirements for Stage II vapor recovery controls in Virginia ozone nonattainment areas from the approved Virginia SIP (Revision C14). This October 2015 SIP revision contains the amended Stage II vapor recovery regulatory provisions of Virginia Rule 4–37, entitled “Emission Standards for Volatile Organic Compounds from Petroleum Liquid Storage and Transfer Operations.” The October 2015 SIP revision includes Virginia's regulatory amendments listed at 9VAC5–20 and 9VAC5–40 that were adopted by Virginia in June of 2014, and published in the Virginia Register of Regulations on June 15, 2015 which removed Stage II vapor recovery requirements from Virginia law governing petroleum liquid storage and transfer operations. The purpose of this SIP revision is to remove Stage II vapor recovery requirements from the Commonwealth's SIP. Under Virginia's amended Rule 4–37, gasoline stations in the Washington and Fredericksburg Areas were no longer required to employ Stage II systems as of January 2014, and Richmond Area stations were no longer required to employ Stage II vapor recovery systems as of January 2017. Facilities electing to decommission Stage II are now required under Rule 4–37 to meet established decommissioning procedures, and facilities electing to continue to operate Stage II are required to continue to operate properly and maintain their Stage II systems.
As described in the Background section of this action, EPA already approved Virginia's SIP revisions submitted on November 12, 2013 and March 18, 2014 demonstrating that removal of Stage II as a control measure from the SIP will not interfere with the Washington, Fredericksburg, and Richmond Areas' ability to attain and maintain any applicable NAAQS. VA DEQ examined whether Stage II is necessary as an ozone control measure and determined this program is no longer beneficial to air quality in the Commonwealth, given the widespread use of ORVR equipment in new vehicles manufactured since 1998 and the inherent redundancies between Stage II vapor recovery equipment and vehicle-based ORVR systems, and in light of the incompatibilities between some Stage II vapor recovery equipment and vehicle-based, ORVR systems.
EPA has evaluated the regulatory amendments adopted by Virginia to its Rule 4–37 to rescind Stage II vapor recovery requirements for new and existing stations, to adopt decommissioning procedures and requirements for GDFs electing to no longer operate existing Stage II systems, and to require the continued operation and maintenance of Stage II equipment for stations that elect to continue participation in the program. Virginia's regulatory changes meet EPA guidance and the related requirements of sections 182 and 202 of the CAA with respect to the applicability of Stage II requirements after EPA's issuance of its ORVR widespread use determination in 2012, as described in the Background section of this document. Virginia has properly analyzed the impact of removal of the Stage II program in adherence with EPA's “Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures,” dated August 7, 2012 (EPA–457/B–12–001), including applicability of Stage II or comparable measures in the OTR, per section 184 of the CAA. As previously found by EPA, Virginia has demonstrated that removal of the Stage II requirement does not interfere with any affected area's ability to attain or maintain any NAAQS, or with any other applicable requirement of the CAA, under section 110(l) of the CAA.
For further information on Virginia's analysis of the impacts of removal of the Stage II programs in the Washington and Fredericksburg Areas, please refer to EPA's May 26, 2015 approval of the SIP demonstration applicable to those areas.
EPA received several anonymous comments on the October 21, 2016 proposed rulemaking. These comments are summarized below with EPA's response.
Virginia's March 18, 2014 SIP revision demonstrated that removal of Stage II in the Washington and Fredericksburg Areas would not increase emissions under the approved ozone attainment plan for the Northern Virginia portion of the Washington, DC nonattainment area or the approved ozone maintenance plan for the Fredericksburg Area, and would not interfere with these areas' ability to attain and maintain the ozone or any other NAAQS. EPA approved Virginia's March 18, 2014 SIP revision on May 26, 2015 (80 FR 29959).
Virginia's November 12, 2013 SIP revision amended the approved maintenance plan SIP for the Richmond Area to demonstrate that removal of the Stage II program would not interfere with this area's ability to attain the ozone NAAQS. EPA approved Virginia's November 12, 2013 SIP revision on August 11, 2014 (79 FR 46711).
These prior, approved Stage II removal demonstration SIPs show that a vast majority of Virginia vehicles being refueled at GDFs are now equipped with vehicle-based ORVR systems, and that these ORVR systems will better control the VOC refueling emissions previously captured by station-based Stage II equipment, making Stage II no longer necessary. Given known incompatibilities between certain types of Stage II equipment used in Virginia and ORVR systems, removal of Stage II regulatory requirements and the resultant decommissioning of Stage II systems has been demonstrated by Virginia (in its November 2013 and March 2014 SIP revisions) to not interfere with air quality in the applicable areas of the Commonwealth. The science and rationale behind allowing Virginia to remove Stage II equipment from these areas was fully discussed in the SIP noninterference demonstrations approved by EPA on August 11, 2014 and May 26, 2015. This action relies upon those demonstrations and serves only to remove the Stage II requirements, which Virginia has already removed from its own regulations, from the SIP.
Therefore, the commenter's assertion that keeping Stage II as a requirement along with ORVR would better maintain air quality than ORVR alone is contrary to the prior air quality demonstration SIPs submitted by Virginia (and approved by EPA), which demonstrate that air quality in affected areas of Virginia is not adversely impacted by removal of the Stage II requirement.
Under CAA section 182 (b)(3), Stage II is required to be used at GDFs located in areas classified as serious or worse ozone nonattainment areas, and consequently controls VOC emissions only in such areas and in areas covered by a “comparable measures” SIP under section 184. Originally, CAA section 182(b)(3) also required Stage II in moderate ozone nonattainment areas; however, section 202(a)(6) directed that the moderate area requirement no longer applied after EPA promulgated ORVR standards in 1994. EPA issued a final rule on May 16, 2012 (77 FR 28770) determining that ORVR was then in “widespread use” in the national motor vehicle fleet, under authority of section 202(a)(6). As a result, EPA waived Stage II requirements under section 182 for ozone nonattainment areas classified as serious or above. States previously required to implement Stage II under section 182(b)(3) could take action to remove their Stage II program requirements via revisions to their SIPs.
EPA disagrees with the commenter's assertion that “widespread use” is vaguely defined and that EPA does not have clearly defined policies that require ORVR in place of Stage II. EPA's May 2012 “widespread use” determination rule, which no one timely challenged and cannot be challenged now, clearly defined what constitutes widespread use of ORVR, and sets forth how EPA's widespread use determination relates to states with Stage II programs in their SIPs. Subsequent to issuance of the “widespread use” determination action, EPA issued its Stage II removal guidance document, for use by states in developing SIP revisions to remove Stage II while demonstrating that interference with attainment or maintenance of a NAAQS will not occur. Virginia's prior, EPA-approved, Stage II removal demonstration SIP revisions show not only that removal of Stage II will not jeopardize air quality goals for affected Washington, Fredericksburg, and Richmond Areas, but also that ORVR alone will achieve greater emission reductions than ORVR in combination with Stage II in those Virginia Stage II program areas.
Finally, because EPA has stated that ORVR is required, EPA disagrees with the implication from the commenter that our approval of the removal of Stage II from the Virginia SIP would leave no vapor recovery system in place. ORVR provides for vapor recovery.
In accordance with section 110 of the CAA, EPA is approving Virginia's revision to its SIP to amend its Stage II vapor recovery regulatory provisions to remove the requirement for Virginia area GDFs to operate Stage II in areas formerly subject to Stage II under CAA sections 182 and 184, and to add provisions to allow GDFs currently operating Stage II equipment the option to decommission those systems.
Specifically, EPA is approving and incorporating by reference the Virginia SIP revision that amended the Commonwealth's Rule 4–37 governing petroleum liquid and transfer operations applicable to existing stationary sources, which includes modified requirements for the Commonwealth's Stage II vapor recovery program in 9–VAC5–5220 and 9VAC5–5270, effective July 20, 2015.
EPA is approving this SIP revision because Virginia has previously demonstrated through its two prior approved Stage II SIP noninterference demonstrations that removal of the Stage II program regulatory requirement will not result in an increase in emissions that could interfere with Virginia's attainment or maintenance of the ozone NAAQS or any other applicable CAA requirement.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1–1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code Sec. 10.1–1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1–1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1–1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its revised Stage II program regulations consistent with the relevant federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
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 Virginia's amendments to Article 37 of 9VAC5–40 and also amendments to Virginia's general provisions at 9VAC5–20–21, reflecting the addition of a new source of documents incorporated by reference, effective on July 20, 2015. Additionally, EPA is approving Virginia's amended Rule 4–37 governing petroleum liquid and transfer operations applicable to existing stationary sources, specifically 9–VAC5–5220 and 9VAC5–5270, effective July 20, 2015.
Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.
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 merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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
The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 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 July 10, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to amend Virginia's Stage II regulatory provisions may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revisions and additions read as follows:
(c) * * *
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving, as a revision to the Indiana State Implementation Plan (SIP), a submittal from the Indiana Department of Environmental Management (IDEM) to EPA, dated December 5, 2016. The submittal consists of an order issued by the Commissioner of IDEM that establishes permanent and enforceable sulfur dioxide (SO
This direct final rule is be effective July 10, 2017, unless EPA receives adverse comments by June 9, 2017. 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 Nos. EPA–R05–OAR–2016–0645 at
Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–7947,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On December 5, 2016, IDEM submitted for approval, as a revision to the Indiana SIP, an order issued by IDEM's Commissioner that establishes SO
On June 3, 2010, pursuant to section 109 of the Clean Air Act (CAA), EPA revised the primary (health-based) SO
On August 5, 2013, EPA published a final rule designating 29 areas in the United States as nonattainment for the 2010 SO
Following the initial August 5, 2013, designations, three lawsuits were filed against EPA in different U.S. District Courts, alleging that EPA had failed to perform a nondiscretionary duty under the CAA by not designating all portions of the country by June 2013, three years after the promulgation of the revised SO
Under the DRR (80 FR 51052), each state air agency was required to submit a list to the EPA by January 15, 2016, that identified all sources within the state that had SO
According to IDEM, SABIC emitted 4,030 tons of SO
Under the DRR, for sources such as SABIC that the state has elected to address through modeling, the state is required to submit modeling by January 13, 2016, characterizing nearby air quality. Under the DRR, Indiana may submit modeling showing that the applicable limits provide for attainment of the standard, but only if these limits are federally enforceable.
SABIC requested a Commissioner's Order from IDEM to be submitted to EPA so as to establish federally enforceable and permanent SO
IDEM has requested that EPA approve Commissioner's Order 2016–03 for SABIC as part of Indiana's SIP. If EPA approves the SO
For SABIC, Indiana issued Commissioner's Order 2016–03 on October 20, 2016, with an effective date of January 13, 2017. This order established SO
EPA has evaluated this revision on the basis of whether it strengthens Indiana's SIP. Prior to Commissioner's Order 2016–03, there were no specific
The adequacy of these limits for providing for attainment is not a prerequisite for approval of these limits. Nevertheless, the purpose of these limits is ultimately to provide for attainment, and EPA is working with Indiana to assure a proper analysis of the adequacy of these limits for this purpose.
EPA is approving Commissioner's Order 2016–03 as part of the Indiana SIP. The Commissioner's Order strengthens Indiana's SIP by incorporating SO
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
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 Indiana Commissioner's Order described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.
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 merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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 July 10, 2017. 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
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) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) submission, submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on December 16, 2015, to demonstrate that the State meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2012 annual fine particulate matter (PM
This rule will be effective June 9, 2017.
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2014–0430. All documents in the docket are listed on the
Tiereny Bell, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Ms. Bell can be reached via electronic mail at
On December 14, 2012, EPA promulgated a revised primary annual PM
In a proposed rulemaking published on January 9, 2017 (82 FR 2295), EPA proposed to approve portions of Tennessee's December 16, 2015, SIP submission for the 2012 Annual PM
EPA is taking final action to approve Tennessee's infrastructure submissions submitted on December 16, 2015, for the 2012 Annual PM
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, 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.
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 July 10, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving, as a revision to the Indiana State Implementation Plan (SIP), a submittal from the Indiana Department of Environmental Management (IDEM) to EPA, dated December 22, 2016. The submittal consists of an order issued by the Commissioner of IDEM that establishes permanent and enforceable sulfur dioxide (SO
This direct final rule will be effective July 10, 2017, unless EPA receives adverse comments by June 9, 2017. 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 Nos. EPA–R05–OAR–2016–0707 at
Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–7947,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
On December 22, 2016, IDEM submitted for approval, as a revision to the Indiana SIP, an order issued by IDEM's Commissioner that establishes SO
On June 3, 2010, pursuant to section 109 of the Clean Air Act (CAA), EPA revised the primary (health-based) SO
On August 5, 2013, EPA published a final rule designating 29 areas in the United States as nonattainment for the 2010 SO
Following the initial August 5, 2013, designations, three lawsuits were filed against EPA in different U.S. District Courts, alleging that EPA had failed to perform a nondiscretionary duty under
Under the DRR (80 FR 51052), each state air agency was required to submit a list to the EPA by January 15, 2016, that identified all sources within the state that had SO
Carmeuse's lime manufacturing plant was not identified by IDEM as one of the sources covered by the DRR since the SO
IDEM has requested that EPA approve Commissioner's Order 2016–04 for Carmeuse as part of the Indiana's SIP. If EPA approves the SO
Indiana issued Commissioner's Order 2016–04 on November 15, 2016, with an effective date of 18 days after issuance. This order established SO
EPA has evaluated this revision on the basis of whether it strengthens Indiana's SIP. Prior to Commissioner's Order 2016–04, there were no specific SO
The adequacy of these limits for providing for attainment is not a prerequisite for approval of these limits. Nevertheless, the purpose of these limits is ultimately to provide for attainment, and EPA is working with Indiana to assure a proper analysis of the adequacy of these limits for this purpose.
EPA is approving Commissioner's Order 2016–04 as part of the Indiana SIP. Incorporating the order's SO
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
In this rule, EPA is finalizing regulatory text that includes
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 merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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 July 10, 2017. 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 today's
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) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is making final determinations of attainment by the attainment date and determinations of failure to attain by the attainment date for ten nonattainment areas currently classified as “Moderate” for the 2006 24-hour fine particulate matter (PM
This rule is effective June 9, 2017.
The EPA has established a docket, identified by Docket ID No. EPA–HQ–OAR–2016–0515, that can be found online at
Ms. Leigh Herrington, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail code C539–01, Research Triangle Park, NC 27711, telephone (919) 541–0882; fax number: (919) 541–5315; email address:
Entities affected by this action include six states with one or more areas designated nonattainment and classified as “Moderate” for the 2006 24-hour PM
In addition to being available in the docket, an electronic copy of this notice will be posted at
On December 16, 2016 (81 FR 91088), the EPA proposed to find that seven nonattainment areas classified as Moderate attained the 2006 24-hour PM
The EPA also proposed to find that four nonattainment areas classified as Moderate failed to attain the 2006 24-hour PM
The proposal also explained that under CAA section 188(b)(2) and the EPA's final rule, titled, “Fine Particulate Matter National Ambient Air Quality Standards: State Implementation Plan Requirements” (81 FR 58010, August 24, 2016) (hereinafter “PM
For this rulemaking, the EPA evaluated data from air quality monitors in 10 nonattainment areas classified as Moderate for the 2006 24-hour PM
Once effective, this action satisfies the EPA's obligation pursuant to CAA section 188(b)(2) to determine whether these seven areas attained the standard by the applicable attainment date. These determinations of attainment do not constitute a redesignation to attainment. Rather, redesignations require states to meet a number of additional statutory criteria in CAA section 107(d)(3), including EPA approval of a state plan demonstrating maintenance of the air quality standard for 10 years after redesignation.
In its December 2016 proposal, the EPA proposed to determine that four nonattainment areas (Fairbanks, Alaska; Logan, Utah-Idaho; Provo, Utah; and Salt Lake City, Utah) failed to attain the 2006 24-hour PM
Pursuant to CAA section 188(b)(2), the EPA is finalizing the proposed determinations that three areas (Fairbanks, Alaska; Provo, Utah; and Salt Lake City, Utah) failed to attain the 2006 24-hour PM
Table 1 provides a summary of the determinations of attainment and determinations of failure to attain (reclassifications) being finalized in this action.
The public comment period for the EPA's December 16, 2016, proposal closed on January 17, 2017. To review the comments received on the proposed rule and the Response to Comment document that accompanies this final rule, please go to
The EPA understands that in this particular instance, the submission date for the Serious area attainment plan may be challenging in light of the complexity of the air quality situation in the Fairbanks, Alaska, nonattainment area and the need for public process in adopting plans. The EPA will prioritize working with Alaska to help the state prepare the required Serious area attainment plan as expeditiously and efficiently as possible. The EPA also believes that in light of the December 2015 Moderate area plan developed by the state demonstrating it was impracticable to attain by the Moderate area attainment date of December 31, 2015, and the work already done by the state on the Serious area plan in anticipation of this determination of failure to attain, a Serious area plan can be submitted in a timely manner.
This action is exempt from review by the Office of Management and Budget (OMB) because it will satisfy the CAA obligation to make determinations of attainment based on an area's air quality as of the attainment date.
This rule does not impose any additional information collection burden under the provisions of the PRA, 44 U.S.C. 3501
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. Determinations that certain areas attained the 2006 24-hour PM
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. The EPA believes, as discussed previously in this document, that a determination of nonattainment is a factual determination based upon air quality considerations, and the resulting reclassification of an area and the associated required revisions to SIPs must occur by operation of law. Thus, this action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. It 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. Pursuant to the CAA, this action determines whether the 2006 24-hour PM
This action does not have tribal implications as specified in Executive Order 13175. No tribal areas are located in the three areas that failed to attain the 2006 24-hour PM
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe any environmental health or safety risks addressed by this action present a disproportionate risk to children. This action determines that three 2006 24-hour PM
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards. This action merely determines that three 2006 24-hour PM
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action merely determines that three 2006 24-hour PM
This rule is exempt from the CRA because it is a rule of particular applicability that names specific entities where this rule makes factual determinations and does not directly regulate any entities. The determinations of attainment and failure to attain the 2006 24-hour PM
Under CAA section 307(b)(1) of the CAA, petitions for judicial review of final actions that are locally and regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. However, the statute also provides that notwithstanding that general rule, “a petition for review of any action . . . may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such determination.” 42 U.S.C. 7607(b)(1).
Environmental protection, Air pollution control, Ammonia, Fine particulate matter, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxides, Volatile organic compounds.
Environmental protection, Air pollution control, Ammonia, Fine particulate matter, Intergovernmental relations, Nitrogen oxides, Reporting and recordkeeping requirements, Sulfur dioxides, Volatile organic compounds.
42 U.S.C. 7401
42 U.S.C. 7401
(c)
(j)
(k)
(l)
(m)
(v)
(f)
42 U.S.C. 7401,
Federal Communications Commission.
Final rule; petition for reconsideration.
In this document, the Commission expands the option to use Special Use FRNs on ownership reports for noncommercial educational broadcast stations (FCC Form 323–E). This action addresses several petitions for reconsideration of a prior Commission decision and properly balances the Commission's need to improve the integrity and usability of its broadcast ownership data with the concerns raised in the petitions for reconsideration.
Effective May 10, 2017.
Christopher Clark, Industry Analysis Division, Media Bureau, (202) 418–2330 or
This is a summary of the Commission's
1.
2. In the
3. In response to concerns that mandatory use of a traditional CORES FRN on Forms 323 and 323–E would require submission of individuals' full social security numbers (SSNs) to the Commission, the
4. Following the release of the
5. On January 4, 2017, the Media Bureau, acting on delegated authority, released the
6.
7. In the
8. We share the Petitioners' concern that individuals who are reluctant to disclose personal information may then decline to serve as unpaid board members or, to the extent they are able to do so, those already serving as unpaid board members may resign rather than risk a Commission enforcement action for failure to provide the information needed to report a CORES FRN or RUFRN. Further, the Petitioners assert that many licensee board members—particularly those associated with colleges, universities, and state or local public broadcasting entities—are individuals chosen by public election or political appointment, or are
9. We find that the
10. The
11. As noted above, no party opposed the petitions for reconsideration. Parties filing as UCC et al. submitted an
12. While use of unique identifiers improves the integrity and usability of the Commission's broadcast ownership data, we believe that the potential chilling effect on participation in NCE station governance, and the potentially deleterious effect that loss of NCE leaders could have on the noncommercial broadcast service to the public, outweigh this benefit in the NCE context. Commenters claim that difficulties retaining or attracting qualified individuals to serve in leadership positions will adversely affect station operations. Therefore, we conclude that the better course is to make reporting of CORES FRNs and RUFRNs optional for individuals who hold an attributable interest in an NCE station. Accordingly, NCE filers may report an SUFRN on Form 323–E for an attributable individual who has not obtained a CORES FRN or RUFRN at the time the filer submits its ownership report, without the need to first use reasonable and good-faith efforts to obtain the information needed to report a CORES FRN or RUFRN, including informing individuals about the threat of enforcement action.
13. In the
14. We conclude that our action today will address the concerns raised by the Petitioners and NCE commenters in this proceeding. Unlike registering for a CORES FRN or RUFRN, obtaining an SUFRN does not require submission of any personal information, be it an SSN, date of birth, or residential address. Filers can generate an SUFRN simply by clicking a button within the electronic Form 323–E as the noncommercial ownership report is being prepared. Use of an SUFRN therefore does not involve any of the types of information that the Petitioners and other NCE commenters assert would discourage participation in NCE station governance. By allowing NCE filers to report SUFRNs without first using reasonable and good-faith efforts to obtain the information needed to report a CORES FRN or RUFRN, we will avoid the potential chilling effect that the prospect of enforcement action could have on participation in NCE station governance for unpaid board members who choose not to provide their personal information to the Commission.
15. We find that our action today properly balances the need to improve the integrity and usability of the Commission's broadcast ownership data with the public interest in avoiding the potential chilling effect that a mandatory reporting requirement could have on participation in NCE station governance. In the
16. We expect that allowing NCE filers greater flexibility to report SUFRNs will not delay or significantly limit the value of our data collection. Because expanded use of SUFRNs on Form 323–E will not require significant changes to the revised form, we do not believe that our action today will delay implementation of revised Form 323–E. Moreover, we expect that, due to the nature of our ruling, the use of SUFRNs and the resulting collective impact on our broadcast ownership data will be limited. In this regard, we emphasize that our ruling today applies only to noncommercial broadcasters. Commercial broadcasters remain subject to the CORES FRN and RUFRN requirements set forth in the
17. Importantly, as we have previously emphasized, filers that report an SUFRN for an attributable individual must do so consistently. If an SUFRN was reported previously for an individual and the individual does not have a CORES FRN or RUFRN, the filer must use the same SUFRN that was reported previously for that individual. Furthermore, if an individual is reported on multiple reports, the filer must ensure that the same SUFRN is reported consistently for that individual, assuming that the individual does not have a CORES FRN or RUFRN.
18. We also note that the Commission's prior decision to collect data on the race, ethnicity, and gender of individuals holding attributable interests in NCE licensees remains undisturbed, and this data will be available to the Commission and researchers for purposes of evaluating ownership diversity issues. To the extent IPR and UCC et al. state that the Commission will not collect race, gender, and ethnicity information from NCEs as a result of our action today, these belated pleadings are wrong. Although we will not require NCE licensees to report unique identifiers for all individuals holding attributable interests, the data on race, ethnicity, and gender will not be “useless,” as we will still be able to determine which licensees, stations, and markets have minorities and women in NCE leadership positions.
19. In addition, although we are expanding the option to use SUFRNs on Form 323–E, in many cases an NCE filer will continue to nonetheless report a CORES FRN or RUFRN for an attributable individual. For instance, some individuals with attributable interests in NCE stations may not object to obtaining a CORES FRN or RUFRN. Also, if an individual with an attributable interest in an NCE station has already obtained a CORES FRN or RUFRN for another reason (for example, because the individual also appears on one or more commercial Form 323 filings), filers must report that FRN for the individual on Forms 323 and 323–E. In such circumstances, use of the CORES FRN or RUFRN could not be expected to have a chilling effect on the individual's participation in NCE station governance. This further supports our conclusion that expanded use of SUFRNs on Form 323–E will have a limited collective impact on our data collection.
20. Because we are relieving NCE licensees of the obligation to report a CORES FRN or RUFRN for individuals holding attributable interests, we need not address NCE Licensees' and Public Broadcasting Petitioners' claim that the statutory authority the Commission relied on in adopting the requirement does not apply to NCE stations. These arguments are moot. Thus, we dismiss these portions of the NCE Licensees Petition and Public Broadcasting Parties Petition. SUNY's argument that the Privacy Act bars mandatory collection of SSNs from individuals holding attributable interests in NCE licensees is moot for the same reason, and we dismiss this aspect of the SUNY Petition.
21. In opposing the CORES FRN/RUFRN requirement, some commenters to this proceeding suggest that certain individuals serving on NCE boards may be uninvolved with the licensing, operation, or ultimate disposition of the noncommercial broadcast license and that it is not necessary to include information about these individuals on broadcast ownership reports. We take this opportunity to reiterate that, as discussed in the
22. Although some petitioners argue that differences between NCEs and commercial licensees make the collection of NCE data unnecessary, the Commission previously rejected this argument, and, as we have granted reconsideration regarding the specific aspect of our data collection that petitioners challenge, we need not revisit the Commission's response to this argument. We note that even though the Commission's multiple ownership rules do not apply to NCE stations, collecting race, gender, and ethnicity information from NCEs will enable the Commission, as well as GAO and other outside researchers, to more fully understand and analyze the broadcasting industry, and thereby support the Commission's efforts to promote diversity of ownership in broadcasting. In an
23.
24.
25. In this present document, we have assessed the effects of requiring NCE filers to report a CORES FRN or RUFRN for each attributable interest holder on ownership reports filed with the Commission, and we have expanded the option for such filers to report SUFRNs for attributable individuals by eliminating the requirement that NCE filers first use reasonable and good-faith efforts to obtain the personal information needed to report a CORES FRN or RUFRN before using an SUFRN. We find that this action properly balances the need to improve the integrity and usability of the Commission's broadcast ownership data with the potential chilling effects that a mandatory reporting requirement could have on participation in NCE station governance, and that our action will have the effect of reducing the burden on NCE filers, including those with fewer than 25 employees.
26.
27.
28. The Commission has estimated the number of licensed commercial television stations to be 1,383. Of this total, 1,275 stations (or about 92 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on March 9, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed NCE television stations to be 394. The Commission, however, does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
29. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive.
30.
31. The Commission has estimated the number of licensed commercial radio stations to be 11,420. Of this total, 11,506 stations (or about 99.9 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on March 9, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed NCE radio stations to be 4,112. The Commission, however, does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
32. We note, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. We further note that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which rules may apply does not exclude any radio station from the definition of a small business on this basis; thus, our estimate of small businesses may therefore be over-inclusive.
33.
34. The Order on Reconsideration provides NCE filers with greater flexibility to report SUFRNs than previously allowed by the
35. The Order on Reconsideration provides relief to NCE filers by allowing them wider latitude to report SUFRNs—which do not require disclosure of an SSN, date of birth, or other personal information—for individual attributable interest holders reported on Form 323–E. Accordingly, NCE filers may report an SUFRN on Form 323–E for an attributable individual who has not obtained a CORES FRN or RUFRN at the time the filer submits its ownership report, without the need to first use reasonable and good-faith efforts to obtain the information needed to report a CORES FRN or RUFRN. The Commission concludes that allowing NCEs greater flexibility to report an SUFRN for an attributable individual, in lieu of a CORES FRN or RUFRN, will address the concerns that have been raised regarding the potential impact of the CORES FRN/RUFRN requirement on NCE stations, including small entities. The Chief Counsel for Advocacy of the SBA did not file any comments in response to the proposed rules in this proceeding.
36. The Commission will send a copy of this
37.
38.
39.
40.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
We, NMFS, issue a final rule to list six foreign marine elasmobranch species under the Endangered Species Act (ESA). These six species are the daggernose shark (
This final rule is effective June 9, 2017.
Chief, Endangered Species Division, NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910.
Maggie Miller, NMFS, Office of Protected Resources (OPR), (301) 427–8403. Copies of the petition, status review reports,
On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species or subpopulations as threatened or endangered under the ESA. This petition included species from many different taxonomic groups, and we prepared our 90-day findings in batches by taxonomic group. We found that the petitioned actions may be warranted for 24 of the species and 3 of the subpopulations and announced the initiation of status reviews for each of the 24 species and 3 subpopulations (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On December 7, 2015, we published a proposed rule to list the daggernose shark, Brazilian guitarfish, striped smoothhound shark, and Argentine angelshark as endangered species under the ESA, and the narrownose smoothhound shark and
We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531
Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).
When we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the reliability to forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years.
Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any State or foreign nation to protect the species.
In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we assess the extinction risk of the species. In our extinction risk assessment, we considered the best available information to evaluate the level of risk faced by each of the six species. For each extinction risk analysis, we evaluated the species' demographic risks, such as low abundance and productivity, and threats to the species including those related to the factors specified by the ESA section 4(a)(1)(A)–(E), and then synthesized this information to estimate the extinction risk of each species.
Because species-specific information (such as current abundance) is sparse, qualitative “reference levels” of risk were used to describe extinction risk. The definitions of the qualitative “reference levels” of extinction risk—“Low Risk,” “Moderate Risk,” and “High Risk”—were as described here. A species is at “Low Risk” of extinction if it exhibits a trajectory indicating that it is unlikely to be at a moderate level of extinction risk in the foreseeable future (see description of “Moderate Risk” below). A species may be at low risk of extinction due to its present demographics (
After completion of the extinction risk analysis, we then assess efforts being made to protect the species to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species. Finally, taking into account the species' extinction risk, threats, and any protective efforts identified from the above assessment, we determine if the species meets the definition of “endangered species” or “threatened species.”
In response to our request for public comments on the proposed rule, we received information and/or comments from three parties. One commenter agreed with the listing and provided no new or substantive data or information relevant to the listing of these six species. We also directly solicited comments from the foreign ambassadors of countries where the six elasmobranch species occur and received a response from the Embassy of the Argentine Republic. Summaries of the substantive comments received from both the public comment period and the Embassy of the Argentine Republic, and our responses, are provided below by topic and species.
We acknowledge that overutilization is the primary threat to the daggernose shark, contributing to its present high risk of extinction; however, we do not find that the information provided by the commenter indicates that the species is also at risk of a significant range contraction. Overall, there is a severe lack of information on the species' historical and current distribution, with only scarce records of the species throughout Suriname, Guyana, and Trinidad and Tobago. However, the species is mobile (as demonstrated by its seasonal migrations), and while it is uncertain whether local populations have been fished to extirpation, there is no information to indicate that the species presently suffers from a curtailment of its range.
In the footnote, the commenter additionally provides a Web site link to indicate that some Brazilian fishing licenses specifically allow for catch of daggernose sharks (
We reviewed the Jaureguizar et al. (2014) study and found that while it provides information on the composition of small-scale gillnet fishery catch from two neighboring fishing communities in Argentina, and notes the likely landing of
However, we agree with the commenter that overutilization of narrownose smoothhound is a threat to the species, and we stated this in the proposed rule: “The primary threat to the narrownose smoothhound is overutilization in commercial and artisanal fisheries as the species is intensely fished throughout its entire range, including within its nursery grounds.” We considered the available fisheries data as well as the trends in the species' demographic factors to make our extinction risk determination and do not find that the information provided by the commenter changes our conclusion. We note that since publication of the proposed rule, we have also received new data showing trends in landings, CPUE, and biomass of the narrownose smoothhound in the AUCFZ, and have revised the discussion concerning the threats to the species and its current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.
We also note that since publication of the proposed rule, we have received new data showing trends in landings, CPUE, and biomass of the spiny angelshark within the AUCFZ that leads us to conclude that the species is at a higher risk of extinction than what was stated in the proposed rule. We have subsequently revised the discussion concerning threats to the species and its current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.
However, as noted previously, since publication of the proposed rule, we have received new data showing trends in landings, CPUE, and biomass of the spiny angelshark within the AUCFZ that leads us to conclude that the species is at a higher risk of extinction than what was stated in the proposed rule. We have subsequently revised the discussion concerning threats to the species and its current extinction risk. This new discussion can be found below in the sections Summary of Factors Affecting the Six Species and Extinction Risk.
Based on public comments and new information received since the publication of the proposed listing rule, we made the changes listed below.
1. We re-evaluated threats to the species and the extinction risk of the narrownose smoothhound shark based on new information and have determined that the species remains at a moderate risk of extinction.
2. We re-evaluated threats to the species and the extinction risk of the spiny angelshark based on new information and have determined that the species is presently at a high risk of extinction.
3. We also revised the common names of the proposed
A summary of the new information received since the publication of the proposed rule as it relates to the status of the narrownose smoothhound and spiny angelshark is presented in the remainder of this document, along with our re-evaluation of the extinction risk of these two species based on this new information and our final listing determinations for all six elasmobranch species. None of the information received since publication of the proposed rule causes us to reconsider our previous findings for the other four elasmobranch species as reflected in the
We did not receive any new information related to taxonomic status of any of the six elasmobranch species. Therefore, based on the best available scientific and commercial information described in the proposed rule (80 FR 7606, December 7, 2015) and included in the status review reports (Casselberry and Carlson 2015 a–f), we find that the daggernose shark (
Next we consider whether any one or a combination of the five factors specified in section 4(a)(1) of the ESA contribute to the extinction risk of these species and result in the species meeting the definition of “endangered species” or “threatened species.” The comments that we received on the proposed rule provided information that was either already considered in our analysis or was not substantial or relevant, and, therefore, did not change our analysis of or conclusions regarding any of the section 4(a)(1) factors or their interactions for the daggernose shark (
For the narrownose smoothhound and spiny angelshark, below we provide a summary and analysis of the new information received since publication of the proposed rule (and not already discussed in the response to public comments) on the threats to these two species.
As noted in the proposed rule, the narrownose smoothhound is the most abundant and widely distributed triakid (houndshark) in the Argentine Sea (Van der Molen and Caille 2001). In Argentina,
In terms of factors affecting the status of the narrownose smoothhound, the proposed rule concluded that the main threat to this species is overutilization for commercial purposes, with current regulatory measures inadequate to protect the species from further overutilization. The proposed rule provided data on the decline in both the CPUE and biomass of the species throughout its range due to fishing pressure. Additionally, the proposed rule noted a decrease in the estimated mean size and size at maturity of narrownose smoothhounds off the coast of Argentina since the 1970s, providing further evidence of the overexploitation of the species.
Since publication of the proposed rule, we received updated and new information related to the trends in landings, CPUE, and biomass of the narrownose smoothhound specifically in the AUCFZ (
Additionally, while the proposed rule noted a chronological decrease in the estimated size of maturity of narrownose smoothhounds in the AUCFZ and El Rincon regions, indicative of overutilization of the species, new information suggests that average maturity size may either vary by site or has potentially increased again in recent years. Specifically, the proposed rule reported maturity estimates of 60 centimeters (cm) and 62 cm total length (TL) for males and females, respectively, in 1978 and noted that by 1998, maturity estimates had decreased to 57.6 cm TL for males and 59.9 cm for females (80 FR 76087; December 7, 2015). Based on individuals caught in 2004, Cortes (2007) found the length at 50 percent maturity (LT50) for females to be only 56 cm TL. However, de Silveira et al. (2015) collected samples of narrownose smoothhounds from artisanal fisheries in La Paloma (Rocha) during the years 2014 and 2015 and determined that LT50 for males was 60.2 cm TL (n = 431) and for females it was 61 cm TL (n = 280), estimates that match those that were recorded from over three decades ago. Given this new information, along with the indication of a potentially stable population, we find that the threat of overutilization within the AUCFZ may have been overstated in the proposed rule.
In terms of other threats, the proposed rule noted the inadequacy of existing regulatory mechanisms to control overexploitation of the species throughout large portions of its range, including within the AUCFZ. However, the proposed rule mentioned measures in the AUCFZ that were likely effective in protecting the narrownose smoothhound, including a prohibition of demersal trawling in a section known to be an important area for chondrichthyan reproduction (referred to as statistical rectangle 3656) and additional area closures to trawling gear in other portions of the AUCFZ, like within the Río de la Plata (where historical estimates of narrownose smoothhound were as high as 44 t/nmi
Since publication of the proposed rule, we received new information regarding the likely effectiveness of the prohibition in 3656 as it pertains to the protection of narrownose smoothhound. For clarification, the boundaries of 3656 are defined as follows: (A) To the north by the parallel 36° S. and its intersection with the outer limit of the Rio de la Plata; (B) to the south, by the parallel 37° S.; (C) to the west, by the outer limit of the Argentine territorial sea; D) to the east, by the meridian 56°00′ W. Specifically, Colonello and Massa (2016) analyzed data from coastal research surveys conducted between 2011 and 2015 to examine the spatial distribution and relative abundance, including life history stages, of a number of shark and ray species within and around the 3656 closure. The surveys covered coastal areas of Buenos Aires and Uruguay up to 50 m depths. Results confirmed the presence of both sexes and all life history stages of
As we have no new information on threats to the species outside of the AUCFZ, our conclusions from the proposed rule regarding threats to the species within Argentinean and Uruguayan waters outside of the AUCFZ, and Brazilian waters, remains the same.
As noted in the proposed rule, spiny angelsharks are found from Brazil to Argentina. Throughout its range, the species is heavily fished by commercial and artisanal fishermen; however, according to Cortés et al. (2006b), more than 80 percent of the landings of
In terms of factors affecting the status of the spiny angelshark, the proposed rule concluded that the main threat to this species is overutilization for commercial purposes. The proposed rule provided data on the decline of the species in Brazil, noting that the impact of heavy fishing pressure on the species by trawlers and gillnet fleets since the 1980s resulted in an 85 percent decline in the abundance of the
Since publication of the proposed rule, we received updated and new information related to the trends in landings, CPUE, and biomass of the spiny angelshark specifically in the AUCFZ. As the proposed rule notes, the AUCFZ comprises around one quarter of the species' range and is where survey data suggest the species is likely at
Based on new information received from the CTMFM, biomass of the species in 2016 is estimated to be around 46 percent of optimum biomass for the species (CTMFM 2016). This value is based on two models from Cortés et al. (2016b) that incorporated indices of abundance estimated from INIDEP research surveys and annual landings data of angelsharks by Uruguayan and Argentinean vessels in the AUCFZ. The fishing mortality rate of
In addition to the biomass and fishing mortality estimates, we received new information regarding the likely effectiveness of the AUCFZ prohibition in 3656 as it pertains to the protection of spiny angelsharks. The Colonello and Massa (2016) study, which was mentioned above in the narrownose smoothhound discussion, also examined the spatial distribution and relative abundance, including life history stages, of the spiny angelshark within and around the 3656 closure. Results confirmed the presence of both sexes and all life history stages of
In contrast, based on landings data from the Argentine commercial fleet, Hozbor and Pérez (2016) suggest that the distribution of the species may be concentrated in and around 3656. Using official fisheries statistics from the Argentine commercial fleet between 2000 and 2015, Hozbor and Pérez (2016) found that the fleet of boats 18–25 m in length mostly operated in the depth stratum where
In Uruguay, the proposed rule provided angelshark landings data by Uruguayan fleets operating in the AUCFZ. The proposed rule noted that the proportion of Uruguayan landings compared to Argentinian landings increased to 18.4 percent of the total by 2014 (80 FR 76071; December 7, 2015), as did the number of angelshark landings attributed to Uruguayan vessels (from 26 t in 2012 to 142 t and 158 t in 2013 and 2014, respectively) (80 FR 76095; December 7, 2015). The proposed rule further concluded that this information indicated “a potential increasing trend in the exploitation of the spiny angelshark by Uruguayan fishing vessels” (80 FR 76095). However, based on recent landings data from the Dirección Nacional de Recursos Acuáticos (DINARA) presented to the CTMFM, the Uruguayan proportion may have been overstated in the proposed rule. In 2014, landings for
Additionally, as noted in the proposed rule,
In Brazilian waters, no new information was found on threats to the species, therefore, our conclusions from the proposed rule remain the same.
As stated previously, the information received from public comments on the proposed rule was either already considered in our analysis or was not substantial or relevant, and, therefore none of the information affected our extinction risk evaluations of the daggernose shark (
We find that the best available information, including the information from the proposed rule as well as the new information received, indicates that
Additionally, current closures to protect the population of the species within the AUCFZ may not be adequate to significantly decrease its overall risk of extinction, particularly when the Provincial section of the 3656 closure is open to fishing. As was demonstrated in the study by Colonello and Massa (2016), the highest concentrations of juveniles and reproductively active adults were observed in shallow areas, including within the Provincial section of 3656, during the spring surveys in November and December, a time when fishing is allowed within the Provincial area. Also, the redistribution of fishing effort during the closure to neighboring areas, including the Provincial area, suggests that fishermen are likely targeting the species as it moves out of the closure, thus decreasing the effectiveness of the closure in protecting the species during important reproductive events.
Overall, while we find that there is still considerable uncertainty regarding the species' current abundance throughout its entire range, the best available information indicates that the species has likely experienced population declines of significant magnitude since the 1980s due to overutilization, including a 36–47 percent decline in biomass within the AUCFZ and an 85 percent decline in abundance in waters off Brazil, with the possible extirpation of a local breeding population. The species continues to be heavily exploited throughout its range, both targeted and caught as bycatch, and we find that existing regulatory measures are inadequate to prevent further declines in the species throughout the foreseeable future.
We find that the best available information, including the information from the proposed rule as well as the new information received, indicates that
Finally, we considered conservation efforts to protect each species and evaluated whether these conservation efforts are adequate to mitigate the existing threats to the point where extinction risk is significantly lowered and the species' status is improved. None of the comments we received since publication of the proposed rule provided any new, relevant or substantial information regarding conservation efforts to protect the six elasmobranch species. Thus, all of the information, discussion, and conclusions on the protective efforts for the six elasmobranch species contained in the status review reports and proposed rule are reaffirmed in this final action.
We have reviewed the best available scientific and commercial information,
As none of the information received since publication of the proposed rule provided any new, relevant or substantial information that changed our analyses or conclusions that led to our determinations for the daggernose shark, Brazilian guitarfish, striped smoothhound shark, and Argentine angelshark, the determinations in the proposed rule for these species (80 FR 76067; December 7, 2015) are reaffirmed in this final rule. For the spiny angelshark and narrownose smoothhound shark, we provide a summary of our final listing determinations for these species based on the new information considered and analyzed in this final rule as well as information discussed in the proposed rule (80 FR 76067; December 7, 2015).
We have determined that the spiny angelshark is presently in danger of extinction from threats of overutilization and the inadequacy of existing regulatory mechanisms (see the discussion and analysis within this final rule as well as the proposed rule for further information). Factors supporting this conclusion include: (1) Significantly reduced abundance and biomass (
The spiny angelshark has suffered significant population declines throughout its range due to overutilization in industrial and artisanal fisheries. The decline and subsequent rarity of the spiny angelshark in an area that comprises around half of its range (
We have determined that the narrownose smoothhound shark is not presently in danger of extinction throughout its range, but likely to become so in the foreseeable future from threats of overutilization and the inadequacy of existing regulatory mechanisms (see the discussion and analysis within this final rule as well as the proposed rule for further information). Factors supporting this conclusion include: (1) Moderate declines in abundance (
The species has experienced population declines of varying magnitude throughout its range. Although the species' relatively high intrinsic rate of population increase and ability to withstand moderate levels of exploitation up to 10 percent of the total population provides the narrownose smoothhound shark with some protection from extinction, and is likely the reason why the species remains the most abundant houndshark in the Argentine Sea, the decreases in populations (particularly off Brazil) and average size of the species suggest it is being exploited at a level exceeding what it can sustain. While biomass may currently be stable in the AUCFZ, this does not appear to be a result of adequate existing regulatory measures as annual catch limits have consistently been set too high in the fishery. In fact, if these catch limits are actually met by fishermen, it would result in a continual decline in the species through the future. Therefore, while the species is not presently in danger of extinction, we find that it is likely to become so within the foreseeable future as it has already suffered declines in abundance from historical overutilization, continues to be heavily exploited throughout its range, and lacks adequate protection from these threats. Therefore, we are listing the narrownose smoothhound shark as threatened under the ESA.
Because we find that all six species are either in danger of extinction or likely to become so within the foreseeable future throughout all of their ranges, there is no need to evaluate any of the species' status in any portion of their range.
Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions are not likely to jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); designation of critical habitat if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking and certain other activities (16 U.S.C. 1538, 1533(d)). In addition, recognition of the species' imperiled status through listing promotes conservation actions by Federal and State agencies, foreign entities, private groups, and individuals.
Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations (50 CFR part 402) require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. It is unlikely that the listing of these species under the ESA will increase the number of section 7 consultations because these species occur entirely outside of the United States and are unlikely to be affected by Federal actions.
Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)).
The best available scientific and commercial data as discussed above identify the geographical areas occupied by
Because we are listing
In the case of threatened species, ESA section 4(d) requires the Secretary to issue regulations deemed necessary and advisable for the conservation of the species. We have evaluated the needs of and threats to the narrownose smoothhound shark and have determined that protective regulations pursuant to section 4(d) are not currently necessary and advisable for the conservation of the species. The main threats identified for the species are overutilization and inadequate existing regulatory mechanisms. The threat of overutilization is primarily a result of heavy fishing pressure by foreign industrial, commercial and artisanal fisheries. Because the narrownose smoothhound occurs entirely outside of the United States, is not targeted or caught by U.S. fishermen, or threatened by commercial trade with the United States, extending the section 9(a) prohibitions to this species will not result in added conservation benefits or species protection. Therefore, we do not intend to issue section 4(d) regulations for the narrownose smoothhound shark.
On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not likely constitute a violation of section 9 of the ESA.
The intent of this policy is to increase public awareness of the effects of this listing on proposed and ongoing activities within the species' ranges. Activities that we believe could (subject to the exemptions set forth in 16 U.S.C. 1539) result in a violation of section 9 prohibitions for the five endangered species include, but are not limited to, the following:
(1) Possessing, delivering, transporting, or shipping any individual, part (dead or alive), or product taken in violation of section 9(a)(1);
(2) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any individual, part, or product in the course of a commercial activity;
(3) Selling or offering for sale in interstate or foreign commerce any individual, part, or product except antique articles at least 100 years old; and
(4) Importing or exporting these species or any part or product of these species.
We emphasize that whether a violation results from a particular activity is entirely dependent upon the facts and circumstances of each incident. Further, an activity not listed may in fact constitute or result in a violation.
Although the determination of whether any given activity constitutes a violation is fact dependent, we consider the following actions, depending on the circumstances, as being unlikely to violate the prohibitions in ESA section 9: (1) Take authorized by, and carried out in accordance with the terms and conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for purposes of scientific research or the enhancement of the propagation or survival of the species; and (2) continued possession of parts and products that were in possession at the
A complete list of the references used in this final rule is available upon request (see
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In accordance with E.O. 13132, we determined that this final rule does not have significant Federalism effects and that a Federalism assessment is not required.
Endangered and threatened species, Exports, Imports, Transportation.
Endangered and threatened species.
For the reasons set out in the preamble, 50 CFR parts 223 and 224 are amended as follows:
16 U.S.C. 1531–1543; subpart B, § 223.201–202 also issued under 16 U.S.C. 1361
(e) The threatened species under the jurisdiction of the Secretary of Commerce are:
16 U.S.C. 1531–1543 and 16 U.S.C. 1361
(h) The endangered species under the jurisdiction of the Secretary of Commerce are:
Agricultural Marketing Service, USDA.
Proposed rule.
This proposed rule sets forth the U.S. Department of Agriculture's (USDA) intention to pursue one of several actions on the Organic Livestock and Poultry Practices Final Rule (FR) published in the
Interested persons are invited to submit written comments on this proposed rule on or before June 9, 2017.
We invite you to submit comments on the proposed rule by any of the following methods:
•
•
Paul Lewis, Ph.D., Director, Standards Division, Telephone: (202) 702–3252; Fax: (202) 720–7808.
Consistent with the memorandum of January 20, 2017, to the heads of executive departments and agencies from the Assistant to the President and Chief of Staff entitled “Regulatory Freeze Pending Review,” AMS published in the
The FR amends the organic livestock and poultry production requirements of the USDA organic regulations by adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expands and clarifies existing requirements covering livestock care and production practices and mammalian living conditions. The FR finalizes a proposed rule that AMS published in the
Because there are significant policy and legal issues addressed within the FR that warrant further review by USDA, the public is being asked to comment on which of the following four actions they believe would be best for USDA to take with regard to the disposition of the FR. Specifically, the public should submit their comments on the following options:
(1) Let the rule become effective. This means that the rule would become effective on November 14, 2017.
(2) Suspend the rule indefinitely. During the suspension, USDA could consider whether to implement, modify or withdraw the final rule.
(3) Delay the effective date of the rule further, beyond the effective date of November 14, 2017.
(4) Withdraw the rule so that USDA would not pursue implementation of the rule.
Concurrent with this proposed rule, AMS is publishing in the
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a safety zone within the Sector Miami Captain of the Port Zone. This
Comments and related material must be received by the Coast Guard on or before June 9, 2017.
You may submit comments identified by docket number USCG–2016–1067 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Petty Officer Mara Brown, Sector Miami Waterways Management Division, U.S. Coast Guard; telephone 305–535–4317, email
The Captain of the Port Miami (COTP) has determined that the hazards associated with the reduced or restricted visibility which can occur during hurricanes and other disasters constitute a safety concern for anyone within the proposed safety zone. The purpose of the proposed rule is to ensure the safety of life on navigable waters of the United States by restricting port operations in the event of severe weather conditions or disasters, including hurricanes.
The Coast Guard proposes to establish a safety zone on the navigable waters of the Sector Miami COTP zone during disasters and other specified severe weather conditions. This proposed rule would restrict port operations and vessel traffic during disasters and severe weather, to include hurricanes, when certain port conditions are set by the COTP. The proposed rule would give the COTP flexibility in controlling and reconstituting vessel traffic during periods of heavy weather and allows for expediting resumption of the Maritime Transportation System following disasters and severe weather.
Hurricane Port Conditions (WHISKEY, X–RAY, YANKEE, and ZULU) are standardized states of operation instituted by the COTP and shared with all major ports, facilities, and members of the Maritime Transportation System. The intermodal and dynamic nature of the Maritime Transportation System requires all parties to comply with safety and security procedures when faced with the challenges of hurricanes and other disasters.
Notice of Hurricane Port Conditions and their requirements will be given via Marine Safety Information Bulletins, online at
The regulatory text we are proposing appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771.
We expect the economic impact of this proposed rule to be not significant for the following reasons: (1) Vessel traffic and facilities will be impacted by this rule only during limited times while heavy weather is expected to impact the Sector Miami Captain of the Port Zone; (2) vessel traffic would be secured only during port conditions Yankee and Zulu, and only in port areas potentially affected by gale force winds; and (3) the Coast Guard would issue updates on
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 proposed rule would 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 IV.A above this proposed rule would not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
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 proposed 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
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves safety zones implemented during hurricanes or other heavy weather events. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2–1 of Commandant Instruction M16475.lD. A preliminary Record of Consideration (REC) supporting this determination is 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
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 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)
(b)
(2) Port Condition WHISKEY means condition set by the Captain of the Port when weather advisories indicate sustained gale force winds (39–54 mph/34–47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 72 hours.
(3) Port Condition X–RAY means condition set by the Captain of the Port when weather advisories indicate sustained gale force winds (39–54 mph/34–47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 48 hours.
(4) Port Condition YANKEE means condition set by the Captain of the Port when weather advisories indicate that sustained gale force winds (39–54 mph/34–47 knots) from a tropical or hurricane force storm are predicted to make landfall at the port within 24 hours.
(5) Port Condition ZULU means condition set by the Captain of the Port when weather advisories indicate that
(c)
(2)
(3)
(4)
(5)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for certain waters of the Buffalo River. This action is necessary to provide for the safety of life on these navigable waters near Buffalo River Works, Buffalo, NY, during the Hope Chest Buffalo Niagara Dragon Boat Festival on June 17, 2017, which includes boat races. This proposed rulemaking would prohibit persons and vessels from passing through the safety zone during race heats unless authorized by the Captain of the Port Buffalo or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before May 30, 2017.
You may submit comments identified by docket number USCG–2017–0275 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email LT Michael Collet, Chief of Waterways Management, U.S. Coast Guard Sector Buffalo; telephone 716–843–9322, email
On December 08, 2016, the Hope Chest Buffalo (Lumanina Crop) notified the Coast Guard that it will be conducting a series of dragon boat races from 8 a.m. to 5 p.m. on June 17, 2017. The dragon boat races are to take place in the Buffalo River behind the Buffalo River Works restaurant in a 300 meter long course consisting of 4 lanes, each 10 meters wide in Buffalo, NY. The Captain of the Port Buffalo (COTP) has determined that a boating race event on a navigable waterway will pose a significant risk to participants and the boating public.
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within the race course during heats of the scheduled event. Vessel traffic will be allowed to pass through the safety zone between heats. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.
The COTP proposes to establish a safety zone from 7:45 a.m. to 5:15 p.m. on June 17, 2017, that would be effective and enforced intermittently. The safety zone would cover all navigable waters of the Buffalo River; Buffalo, NY starting at position 42° 52′ 12.60″ N. and 078° 52′ 17.64″ W. then Southeast to 42° 52′ 3.17″ N. and 078° 52′ 12.43″ W. then East to 42° 52′ 3.68″ N. and 078° 52′ 10.35″ W. then Northwest to 42° 52′ 13.41″ N. and 078° 52' 16.57″ W. then returning to the point
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”
This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.
As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit through this safety zone in between race heats which would impact a small designated area of the Buffalo River for one day. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF–FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
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 proposed rule would 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 IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
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 proposed 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
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed 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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed 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 made a preliminary determination 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 proposed rule involves the establishment of a safety zone for one day during intermittent periods. Normally such actions are categorically excluded from further review under section 2.B.2, and Figure 2–1, paragraph 34(g) of the Instruction. Paragraph 24(g) pertains to the establishing, disestablishing, or changing Regulated Navigation Areas and security or safety zones. A preliminary Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 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)
(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.
Department of Veterans Affairs.
Withdrawal of proposed rule.
The Department of Veterans Affairs (VA) published a notice of proposed rulemaking in the
This proposed rule is withdrawn as of May 10, 2017.
Daniel Schoeps, Office of Geriatrics and Extended Care (10P4G), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420; (202) 461–6763 (this is not a toll-free number).
VA published a notice of proposed rulemaking in the
After publication of the proposed rule, section 101 of the Veterans Access, Choice, and Accountability Act of 2014 (Pub. L. 113–146, 128 Stat.1754, hereafter referred to as “the Choice Act”) created the Veterans Choice Program, which provides legal authority for VA to enter into provider agreements to obtain certain extended care services for Veterans. The Veterans Choice Program also has regulations, at 38 CFR 17.1500,
Although the Choice Act provider agreements are similar in kind, and might seem to provide the same authority, they do not. Proposed AO15 would have authorized the use of provider agreements to provide “extended care services,” defined as “geriatric evaluation; nursing home care; domiciliary services; adult day-health care; noninstitutional palliative care, noninstitutional hospice care, and home health care when they are noninstitutional alternatives to nursing home care; and respite care” (see 70 FR 10121 (Feb. 13, 2013)). Although the Choice Act provides clear legal authority for VA to enter into provider agreements, the authority is limited to care authorized under the Veterans Choice Program for eligible Veterans and furnished by Choice-eligible providers. Further, the Veterans Choice Program covers only hospital care and medical services in VA's medical benefits package (see 38 CFR 17.38); this captures some extended care services (noninstitutional alternatives to nursing home care like adult day-health care and respite care) but not the full scope of services proposed AO15 would have covered. Finally, the Veterans Choice Program will expire when the Choice Fund, established under section 802 of the Choice Act, has been exhausted. VA will continue to use provider agreements authorized by the Choice Act until the Veterans Choice Program expires, but to accomplish the goals of the proposed rule, Congress would need to enact a provider agreement provision authorizing VA to use provider agreements to purchase care in the community. For these reasons, VA withdraws the proposed rule.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on May 4, 2017, for publication.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs-health, Government programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Philippines, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve as a revision to the Indiana State Implementation Plan (SIP) a submittal from the Indiana Department of Environmental Management (IDEM) to EPA, dated December 5, 2016. The submittal consists of an order issued by the Commissioner of IDEM that establishes permanent and enforceable sulfur dioxide (SO
Comments must be received on or before June 9, 2017.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2016–0645 at
Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–7947,
In the Final Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve, as a revision to the Indiana State Implementation Plan (SIP), a submittal from the Indiana Department of Environmental Management (IDEM) to EPA, dated December 22, 2016. The submittal consists of an order issued by the Commissioner of IDEM that establishes permanent and enforceable sulfur dioxide (SO
Comments must be received on or before June 9, 2017.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2016–0707 at
Joseph Ko, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–7947,
In the Final Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve a source-specific revision to the New York State Implementation Plan (SIP). This revision consists of a Best Available Retrofit Technology (BART) determination for the Danskammer Generating Station Unit 4. The SIP revision establishes emission limits for sulfur dioxide, oxides of nitrogen, and particulate matter that are identical to those set by the EPA's Federal Implementation Plan (FIP) for Danskammer Unit 4, which was promulgated in an action taken on August 28, 2012. The SIP revision also restricts Danskammer Unit 4 to combusting only natural gas. The EPA proposes to find that the SIP revision fulfills the requirements of the Clean Air Act and the EPA's Regional Haze Rule for BART at Danskammer Unit 4. In conjunction with this proposed approval, we propose to withdraw those portions of the FIP that address BART for Danskammer Unit 4.
Comments must be received on or before June 9, 2017.
Submit your comments, identified by Docket ID No. EPA–R02–OAR–2017–0013 to
Edward J. Linky, Environmental Protection Agency, Air Programs Branch, 290 Broadway, New York, New York 1007–1866 at 212–637–3764 or by email at
Throughout this document whenever “Agency,” “we,” “us,” or ”our” is used, we mean the EPA.
The EPA is proposing to approve a source-specific State Implementation Plan (SIP) revision for Unit 4 at the Danskammer Generating Station submitted by the New York State Department of Environmental Conservation (NYSDEC) on August 10, 2015, and supplemented by NYSDEC on August 5, 2016.
This section provides a brief overview of the requirements of the Clean Air Act (CAA) and Regional Haze Rule that apply to this particular action. Please refer to our previous rulemakings on the New York Regional Haze SIP for additional background regarding the visibility protection provisions of the CAA and the Regional Haze Rule.
The CAA requires each state to develop plans to meet various air quality requirements, including protection of visibility. (CAA sections 110(a), 169A, and 169B). The plans developed by a state are referred to as SIPs. A state must submit its SIPs and SIP revisions to EPA for approval. Once approved, a SIP is federally enforceable, that is enforceable by the EPA and subject to citizen suits under the CAA. If a state fails to make a required SIP submittal or if we find that a state's required submittal is incomplete or unapprovable, then EPA must promulgate a FIP to fill this regulatory gap. (CAA section 110(c)(1)).
In the 1977 Amendments to the CAA, Congress initiated a program for protecting visibility in the nation's national parks and wilderness areas. Section 169A(a)(1) of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.” In 1990, Congress added section 169B to the CAA to address regional haze issues. On July 1, 1999, the EPA promulgated the Regional Haze Rule (RHR) (64 FR 35714). The requirement to submit a Regional Haze SIP applies to New York and all 50 states, the District of Columbia, and the Virgin Islands. 40 CFR 51.308(b) of the RHR required states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.
The EPA's final action on New York's Regional Haze SIP included approving 17 source-specific SIP revisions containing permits for Best Available Retrofit Technology (BART) and promulgating a FIP to address two sources where EPA disapproved New York's BART determinations—Roseton Generating Station (Units 1 and 2) and the Danskammer Generating Station (Unit 4). 77 FR 51915 (August 28, 2012).
On August 10, 2015, NYSDEC submitted a request for a source-specific SIP revision for Danskammer Unit 4 which would replace the EPA's FIP. In this action, the EPA proposes to approve the SIP revision and remove Danskammer Unit 4 from the FIP, but this action does not address the Roseton Generating Station still covered by the EPA's FIP.
On August 10, 2015, NYSDEC submitted a request for a source-specific SIP revision for Danskammer Unit 4, which would replace the BART emission limits and related requirements in the EPA's FIP that were promulgated in the
In a letter to NYSDEC dated July 14, 2016, the EPA requested that NYSDEC supplement its August 10, 2015 SIP submittal. Specifically, the EPA requested that NYSDEC submit Danskammer Unit 4's Title V permit condition 55.6 (at pages 48 and 49 of the permit), which restricts Unit 4 to combusting only natural gas. The EPA also requested that NYSDEC submit a copy of the April 1, 2015 public notice as published in NYSDEC's Environmental Notice Bulletin (ENB).
In a letter dated August 5, 2016, NYSDEC submitted to the EPA (1) permit condition 55.6 (pages 48 and 49) of Dankskammer Unit 4's Title V permit that was renewed on February 24, 2015, which permits Unit 4 to combust natural gas only and (2) a copy of NYSDEC's April 1, 2015 ENB that noticed the proposed Danskammer SIP revision.
In its submittal, NYSDEC includes BART emission limits for Danskammer Unit 4 that are identical to those contained in the EPA's FIP: 0.12 pounds NO
The EPA is proposing to approve NYSDEC's SIP submittal because it is more stringent than the EPA's FIP. The SIP submittal includes BART emission limits for SO
In reviewing NYSDEC's SIP submittal, the EPA's role is to approve state choices if they meet the requirements of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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 (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).
This action does not have tribal implications as specified by Executive Order 13175. The SIP revision submitted by NYSDEC is not approved to apply on any Indian reservation land or in any other areas where the EPA or Tribal Nation has demonstrated that a Nation has jurisdiction. Thus Executive Order 13175 does not apply to this proposed rule.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
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 February 8, 2016, to demonstrate that the Commonwealth meets the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2012 Annual Particulate Matter (PM
Written comments must be received on or before June 9, 2017.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2016–0213 at
Tiereny Bell, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303–8960. Ms. Bell can be reached via electronic mail at
On December 14, 2012 (78 FR 3086, January 15, 2013), EPA promulgated a revised primary annual PM
This rulemaking is proposing to approve portions of Kentucky's PM
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.
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 requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are summarized 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 110(a)(2).”
EPA is acting upon the SIP submission from Kentucky that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2012 Annual PM
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 (NNSR) 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 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 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
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 (GHGs). 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 Annual 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 SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, among other things, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (
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 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
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 SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.
Kentucky's February 8, 2016 infrastructure submission addresses the provisions of sections 110(a)(1) and (2) as described below.
1.
KDAQ cited to chapters and associated Kentucky Administrative Regulations (KAR) under Title 401 to demonstrate that the Commonwealth meets the requirements of this element, including the following:
•
•
•
Collectively these regulations establish enforceable emissions limitations and other control measures, means or techniques, for activities that contribute to PM
In this action, EPA is not proposing to approve or disapprove any existing Commonwealth provisions with regard to excess emissions during SSM 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
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.
KDAQ cites the following regulations to demonstrate that the Commonwealth meets the requirements of this element: 401 KAR 50:050.
These SIP-approved rules and Kentucky's statute, along with Kentucky's Ambient Air Monitoring Network Plan, provide for the establishment and operation of ambient air quality monitors, the compilation and analysis of ambient air quality data, and the submission of these data to EPA upon request. Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan and a certified evaluation of the agency's ambient monitors and auxiliary support equipment.
3.
Kentucky's infrastructure SIP submission demonstrates that new major sources and major modifications in areas of the Commonwealth designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD elements.
4.
5.
6.
In support of EPA's proposal to approve elements 110(a)(2)(E)(i) and (iii), KDAQ's infrastructure submission demonstrates that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards, general policies, a system of permits, fee schedules for the review of plans, and other planning needs. With respect to having the necessary funding and authority to implement the Kentucky SIP, Kentucky regulation, 401 KAR 50:038.
Section 110(a)(2)(E)(ii) requires that Kentucky comply with section 128 of the CAA. Section 128 requires at 128(a)(1) the majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and 128(a)(2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar, powers be adequately disclosed. 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 Director of the KDAQ. As such, a “board or body” is not responsible for approving permits or enforcement orders in Kentucky, and
7.
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—nitrogen oxides, sulfur dioxides, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Kentucky made its latest update to the NEI on November 6, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site
8.
In addition, KRS 224.10–100
9.
KDAQ is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS in Kentucky. 401 KAR Chapter 53
10.
11.
12.
Kentucky regulation, 401 KAR 50:038
13.
With the exception of interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states and visibility protection requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and the minor source program requirements of section 110(a)(2)(C), EPA is proposing to approve Kentucky's February 8, 2016, infrastructure SIP submission for the 2012 Annual PM
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, 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
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Federal Communications Commission.
Proposed rule.
In this document, the Federal Communications Commission (Commission) seeks comment on proposals to reduce the regulatory impediments to wireless network infrastructure investment and deployment.
Interested parties may file comments on or before June 9, 2017, and reply comments on or before July 10, 2017.
You may submit comments and reply comments on or before the dates indicated in the
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
For additional information on the rulemaking process, see the
In addition to filing comments with the Secretary, a copy of any comments on the Paperwork Reduction Act information collection modifications proposed herein should be submitted to the Commission via email to
For further information on this proceeding, contact Aaron Goldschmidt,
This is a summary of the Federal Communications Commission's Notice of Proposed Rulemaking and Notice of Inquiry (NPRM and NOI, respectively), in WT Docket No. 17–79; FCC 17–38, adopted April 20, 2017, and released on April 21, 2017. The document is available for download at
1. In this section, the Commission addresses the process for reviewing and deciding on wireless facility deployment applications conducted by State and local regulatory agencies. The Commission seeks comment on several potential measures or clarifications intended to expedite such review pursuant to the Commission's authority under Section 332 of the Communications Act.
2. The Commission has taken a number of important actions to date implementing Section 332(c)(7) of the Communications Act (Act) and Section 6409(a) of the Spectrum Act, each of which has been upheld by federal courts. The Commission seeks to assess the impact of the Commission's actions to date, in order to evaluate the measures the Commission discusses in the NPRM, as well as other possible actions, and to determine whether those measures are likely to be effective in further reducing unnecessary and potentially impermissible delays and burdens on wireless infrastructure deployment associated with State and local siting review processes. Thus, the Commission asks parties to submit facts and evidence on the issues discussed below and on any other matters relevant to the policy proposals set forth here. The Commission seeks information on the prevalence of barriers, costs thereof, and impacts on investment in and deployment of wireless services, including how such costs compare to the overall costs of deployment. The Commission seeks information on the specific steps that various regulatory authorities employ at each stage in the process of reviewing applications, and which steps have been most effective in efficiently resolving tensions among competing priorities of network deployment and other public interest goals. In addition, parties should detail the extent to which the Commission's existing rules and policies have or have not been successful in addressing local
3. Further, in seeking comment on new or modified measures to expedite local review, the Commission invites commenters to discuss what siting applicants can or should be required to do to help expedite or streamline the siting review process. Are there ways in which applicants are causing or contributing to unnecessary delay in the processing of their siting applications? If so, the Commission seeks comment on how the Commission should address or incorporate this consideration in any action the Commission takes in this proceeding. For example, to what extent have delays been the result of incomplete applications or failures to properly respond to requests to the applicant for additional information, and how should measures the Commission adopts or revises to streamline application review ensure that applicants are responsible for supplying complete and accurate filings and information? Further, are there steps the industry can take outside the formal application review process that may facilitate or streamline such review? Are there siting practices that applicants can or should adopt that will facilitate faster local review while still achieving the deployment of infrastructure necessary to support advanced wireless broadband services?
4. The Commission now takes a fresh look and seeks comment on a “deemed granted” remedy for State and local agencies' failure to satisfy their obligations under Section 332(c)(7)(B)(ii) to act on applications outside the context of the Spectrum Act. The Commission invites commenters to address whether the Commission should adopt one or more of the three options discussed below regarding the mechanism for implementing a “deemed granted” remedy. The Commission describes each of these options below and explains its analysis of its legal authority to adopt each of them. The Commission seeks comment on the benefits and detriments of each option and invites parties to discuss the Commission's legal analysis. The Commission also seeks comment on whether there are other options for implementing a “deemed granted” remedy.
5.
6. The Commission believes it has legal authority to adopt this approach. The Commission sees no reason to continue adhering to the cautious approach articulated in the
7. The Commission sees nothing in the statute that explicitly compels a case-by-case assessment of the relevant circumstances for each individual application, nor any provision specifically requiring that those time frames be indefinitely adjustable on an individualized basis, rather than subject to dispositive maximums that may be deemed reasonable as applied to specified categories of applications. While Section 332(c)(7)(B)(ii) provides that a locality must act on each application “within a reasonable time,
8.
9.
10. In 2009, the Commission determined that, for purposes of determining what is a “reasonable period of time” under Section 332(c)(7)(B)(ii), 90 days should be sufficient for localities to review and act on (either by approving or denying) complete collocation applications, and that 150 days is a reasonable time frame for them to review and act on other types of complete applications to place, construct, or modify wireless facilities. In its
11. The Commission asks commenters to discuss whether the Commission should consider adopting different time frames for review of facility deployments not covered by the Spectrum Act. For example, the Commission seeks comment on whether it should harmonize the shot clocks for applications that are not subject to the Spectrum Act with those that are, so that, for instance, the time period deemed reasonable for non-Spectrum Act collocation applications would change from 90 days to 60 days. Alternatively, should the Commission establish a 60-day shot clock for some subset of collocation applications that are not subject to the Spectrum Act, for example, applications that meet the relevant dimensional limits but are nevertheless not subject to the Spectrum Act because they seek to collocate equipment on non-tower structures that do not have any existing antennas? Should the Commission adopt different presumptively reasonable time frames for resolving applications for more narrowly defined classes of deployments such as (a) construction of new structures of varying heights (
12. The Commission seeks comment on what time periods would be reasonable (outside the Spectrum Act context) for any new categories of applications, and on what factors the Commission should consider in making such a decision. For what types or categories of wireless siting applications may shorter time periods be reasonable than those established in the
13. The Commission also seeks comment on whether it should provide further guidance to address situations in which it is not clear when the shot clock should start running, or in which States and localities on one hand, and industry on the other, disagree on when the time for processing an application begins. For instance, the Commission has heard anecdotally that some jurisdictions impose a “pre-application” review process, during which they do not consider that a request for authorization has been filed. The Commission seeks comment on how the shot clocks should apply when there are such pre-application procedures; at what point should the clock begin to run? Are there other instances in which there is a lack of clarity or disagreement about when the clock begins to run? The Commission asks parties to address whether and how it should provide clarification of how the Commission's rules apply in those circumstances.
14. Finally, the Commission seeks comment on whether there are additional steps that should be considered to ensure that a deemed granted remedy achieves its purpose of expediting review. For example, to what extent can the attachment of conditions to approvals of local zoning applications slow the deployment of infrastructure?
15. Another concern relating to the “reasonable periods of time” for State and local agencies to act on siting applications is that some agencies may be continuing to impose “moratoria” on processing such applications, which inhibit the deployment of the infrastructure needed to provide robust wireless services. If so, such moratoria might contravene the
16. In the following sections, the Commission undertakes a comprehensive fresh look at its rules and procedures implementing the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) as they relate to the Commission's implementation of Title III of the Act in the context of wireless infrastructure deployment, given the ongoing evolution in wireless infrastructure deployment towards smaller antennas and supporting structures as well as more frequent collocation on existing structures.
17. Many wireless providers have raised concerns about the Commission's environmental and historic preservation review processes because, they say, these reviews increase the costs of deployment and pose lengthy and often unnecessary delays, particularly for small facility deployments. A large number of wireless providers complain that the Tribal component of the Section 106 review process is particularly cumbersome and costly. The Commission seeks concrete information on the amount of time it takes for Tribal Nations to complete the Section 106 review process and on the costs that Tribal participation imposes on facilities deployment and on the provision of service. The Commission also seeks comment and specific information on the extent of benefits attributable to Tribal participation under the Commission's Section 106 procedures, particularly in terms of preventing damage to historic and culturally significant properties.
18. In addition, in May 2016, PTA–FLA filed a Petition for Declaratory Ruling arguing that “Tribal fees have become so exorbitant in some cases to approach or even exceed the cost of actually erecting the tower.” The Commission incorporates PTA–FLA's petition into this proceeding and seeks comment below on its proposals.
19. Some wireless providers contend that the SHPO review process also results in significant delays in deployment. The Commission seeks comment on the costs associated with SHPO review under the Commission's historic preservation review process, including direct financial costs; costs that delay imposes on carriers, tower owners, and the public; and any other costs. What are the costs associated with SHPO review of typical small facility deployments, and how do these compare with the costs for tower construction projects? Does the SHPO review process duplicate historic preservation review at the local level, particularly when local review is conducted by a Certified Local Government or a governmental authority that issues a Certificate of Appropriateness? In addition, the Commission seeks comment on how often SHPO review results in changes to a construction project due to a SHPO's identification of potential harm to historic properties or confers other public benefits.
20. Some argue that NEPA compliance imposes extraordinarily high costs on wireless providers and results in significant delays. The Commission seeks comment on the costs and relative benefits of the Commission's NEPA rules. What are the costs associated with NEPA compliance, other than costs associated with historic preservation review? How do the costs of NEPA compliance for tower construction compare to such costs for small facilities, and what specific benefits does the review confer?
21. Finally, some note that facilities requiring Federal review must also undergo pre-construction review by local governmental authorities, and assert that the inability to engage in these dual reviews simultaneously can add significant time to the process. The Commission seeks comment on whether local permitting, NEPA review, and Section 106 review processes can feasibly be conducted simultaneously, and on whether there are barriers preventing simultaneous review to the extent it is feasible. To what extent do significant siting changes or the potential for such changes during the local process make simultaneous review impractical or inefficient? Alternatively, have reviewing or consulting parties in the Commission's NEPA or Section 106 review processes declined to process an application until a local permitting process is complete? The Commission seeks comment on whether and under what circumstances simultaneous review would, on the whole, minimize delays and provide for a more efficient process and what steps, if any, the Commission should take to facilitate or enable such simultaneous review.
22. In this section, the Commission identifies and seeks comment on several issues relevant to fees paid to Tribal Nations in the Section 106 process. In addition to commenting on the legal framework and on potential resolutions to the issues, the Commission encourages commenters to provide specific factual information on current Tribal and industry practices and on the
23. Neither the NHPA nor the Advisory Council on Historic Preservation's (ACHP) implementing regulations address whether and under what circumstances Tribal Nations and Native Hawaiian Organizations (NHO) may seek compensation in connection with their participation in the Section 106 process. The ACHP has, however, issued guidance on the subject in the form of a memorandum in 2001 and as part of a handbook last issued in 2012. The ACHP 2001 Fee Guidance explains that “the agency or applicant is not required to pay the tribe for providing its views.” Further, “[i]f the agency or applicant has made a reasonable and good faith effort to consult with an Indian tribe and the tribe refuses to respond without receiving payment, the agency has met its obligation to consult and is free to move to the next step in the Section 106 process.” The guidance also states, however, that when a Tribal Nation “fulfills the role of a consultant or contractor” when conducting reviews, “the tribe would seem to be justified in requiring payment for its services, just as any other contractor,” and the company or agency “should expect to pay for the work product.” As explained below, the Commission seeks comment on how the ACHP's guidance can be applied in the context of the Commission's existing procedures and the proposals in this proceeding. Moreover, the Commission seeks comment on practices or procedures of other Federal agencies with respect to addressing the various roles a Tribal Nation may play in the Section 106 process and how to identify those services for which a Tribal Nation would be justified in seeking fees.
24.
25. Once a Tribal Nation or NHO has been notified of a project, an applicant must provide “all information reasonably necessary for the Indian tribe or NHO to evaluate whether Historic Properties of religious and cultural significance may be affected” and provide the Tribal Nation or NHO with a reasonable opportunity to respond. The Commission seeks comment on this requirement and on any modifications the Commission can and should make. In particular, the Commission seeks comment on whether the information in FCC Form 620 or FCC Form 621 is sufficient to meet the requirement that “all information reasonably necessary . . .” has been provided to the Tribal Nation. If not, are there modifications to these forms that would enable the Commission to meet this requirement? For example, should the FCC Form 620 and FCC Form 621 be amended to address the cultural resources report that an applicant prepares after completing a Field Survey? Additionally, the Commission seeks comment on whether a Tribal Nation's or NHO's review of the materials an applicant provides under the Nationwide Programmatic Agreement (NPA) Section VII is ever, and if so under what circumstances, the equivalent of asking the Tribal Nation or NHO to provide “specific information and documentation” like a contractor or consultant would, thereby entitling the Tribal Nation to seek compensation under ACHP guidance and the NPA. If a Tribal Nation chooses to conduct research, surveying, site visits or monitoring absent a request of the applicant, would such efforts require payment from the applicant? If an archaeological consultant conducted research, surveying, site visits, or monitoring absent a request of the applicant, would the applicant normally be required to pay that contractor or consultant? The Commission seeks comment on how the ACHP Handbook's statement that an “applicant is free to refuse [payment] just as it may refuse to pay for an archaeological consultant,” as well as its statement that “the agency still retains the duties of obtaining the necessary information [to fulfill its Section 106 obligations] through reasonable methods,” impacts the Commission's analysis of payments for Tribal participation.
26. The Commission notes that some Tribal Nations have indicated that they assess a flat upfront fee for all applications as a way to recover costs for their review of all TCNS applications, thereby eliminating the administrative burden of calculating actual costs for each case. The Commission seeks comment on this manner of cost recovery and whether such cost recovery is consistent with ACHP's fee guidance in its 2012 Handbook. Tribal Nations have also indicated that they have experienced difficulties in collecting compensation after providing service as a reason for upfront fee requests. The Commission seeks comment on whether this concern could be alleviated if the Commission clarifies when a Tribal Nation is acting under its statutory role and when it is being hired as a contractor or consultant under the Commission's process. The Commission also seeks comment on whether there might be a more appropriate way to address this concern.
27. What steps, if any, can the Commission take to issue the Commission's own guidance on the circumstances in the Commission's process when the Tribal Nation is expressing its views and no compensation by the agency or the applicant is required under ACHP guidance, and the circumstances where the Tribal Nation is acting in the role of a consultant or contractor and would be entitled to seek compensation? The Commission seeks comment on what bright-line test, if any, could be used. How does the reasonable and good faith standard for identification factor, if at all, into when a Tribal request for fees must be fulfilled in order to meet the standard? The Commission seeks comment on how disputes between the parties might be resolved when a Tribal Nation asserts that compensable effort is required to initiate or conclude Section 106 review. The Commission seeks comment on whether there are other
28. To the extent that supplementing current ACHP guidance would help clarify when Tribal fees may be appropriate while both facilitating efficient deployment and recognizing Tribal interests, what input, if any, should the Commission provide to the ACHP on potential modifications to ACHP guidance?
29.
30. One party has requested in a petition that the Commission establish a fee schedule or otherwise resolve fee disputes. The Commission seeks comment on the legal framework applicable to this request. How might the impact of fee disputes on the deployment of infrastructure for advanced communications networks provide a basis for establishing a fee schedule in this context using the Communications Act as authority? Do the NHPA or other statutes limit the Commission's ability to establish such a fee schedule, and if so, how? How might the Miscellaneous Receipts Act (MRA) and General Accountability Office (GAO) precedent on improper augmentation temper the parameters of the Commission's actions in the area? The Commission seeks comment on whether other Federal agencies have established fee schedules or addressed the matter in any way,
31. If the Commission were to establish a fee schedule, the Commission seeks comment on what weight or impact it might have on the Commission's process. For example, to what extent would fees at or below the level established by a fee schedule be considered presumptively reasonable? The Commission further seeks comment on what legal framework would be relevant to resolution of disputes concerning an upward or downward departure from the fee schedule. Should the fees specified in such a schedule serve as the presumptive maximum an applicant would be expected to pay, and under what circumstances might an upward departure from the fee schedule be appropriate? In addition to the concepts cited in the prior paragraph, are there other legal principles at play in the resolution of a dispute over a fee that might not arise in the context of merely setting a fee schedule? Have any other Federal agencies formally or informally resolved fee disputes between applicants and Tribal Nations, and if so, under what legal parameters? The Commission also seeks comment on what categories of services should be included, and whether the categories should be general or more specific. How would the Commission establish the appropriate level for fees? How could a fee schedule take into account both regional differences and changes in costs over time,
32.
33. The Commission seeks comment on whether TCNS should be modified to retain information on areas where concerns were raised and reviews conducted, so that the next filer knows whether there is a concern about cultural resources in that area or not. To what extent should applicants be able to rely on prior clearances, given that resources may continue to be added to the lists of historic properties? To the extent the Commission considers allowing applicants to rely on prior clearances, how should the Commission accommodate Tribal Nations' changes to their areas of interest? The Commission further seeks comment on how it can protect information connected to prior site reviews, especially those areas where a tower was not cleared because there may be artifacts. The Commission also seeks comment on whether it can make any other changes to TCNS or the Commission's procedures to improve the Tribal review process.
34. In addition, applicants routinely receive similar requests for compensation or compensable services from multiple Tribal Nations. While the Commission recognizes that each Tribal Nation is sovereign and may have different concerns, the Commission seeks comment on when it is necessary for an applicant to compensate multiple Tribal Nations for the same project or for the same activity related to that project, in particular site monitoring during construction. The Commission also seeks comment on whether, when multiple Tribal Nations request compensation to participate in the identification of Tribal historic properties of religious and cultural significance, whether there are mechanisms to gain efficiencies to ensure that duplicative review is not conducted by each Tribal Nation. Is it always necessary to obtain such services from all responding Tribal Nations that request to provide the service, and if so, why? Might one Tribal Nation when functioning in the role of a contractor perform certain services and share the work product with other Tribal Nations,
35.
36. Under the NPA, when a Tribal Nation or NHO refuses to comment on the presence or absence of effects to historic properties without compensation, the applicant can refer the procedural disagreement to the Commission. The Commission seeks comment on whether it can adjudicate these referrals by evaluating whether the threshold of “reasonable and good faith effort” to identify historic properties has been met, given that the Tribal Nation can always request government-to-government consultation in the event of disagreement.
37. The Commission seeks comment on when it must engage in government-to-government consultation to resolve fee disputes, including when the compensation level for an identification activity has been established by a Tribal government.
38.
(ii) Other NHPA Process Issues
39.
40. With respect to Tribal Nations and NHOs, the Commission seeks comment on whether the processes established by the
41.
42. The Commission seeks comment on whether it should adopt either a voluntary or mandatory batched submission process for non-PTC facilities. What benefits could be realized through the use of batching? What lessons can be learned from the experience with PTC batching? What guidelines should the Commission provide, if any, regarding the number of facilities to be included in a batch, their geographic proximity, or the size of eligible facilities? Should there be other conditions on eligibility, such as the nature of the location or the extent of ground disturbance? Should different time limits or fee guidelines, if any are adopted, apply to batched submissions? What changes to the Commission's current TCNS and E–106 forms and processes might facilitate batching? The Commission seeks comment on these and any other policy or operational issues associated with batching of proposed constructions.
43.
44. The Commission seeks comment on ways to improve and further streamline its environmental compliance regulations while ensuring that the Commission meets its NEPA obligations. For example, should the Commission consider new categorical exclusions for small cells and DAS facilities? If so, under what conditions and on what basis? Should the Commission revise its rules so that an EA is not required for siting in a floodplain when appropriate engineering or mitigation requirements have been met? Are there other measures the Commission could take to reduce unnecessary processing burdens consistent with NEPA?
45. As part of the effort to expedite further the process for deployment of wireless facilities, including small facility deployments in particular, the Commission seeks comment below on whether it should expand the categories of undertakings that are excluded from
46. The Commission seeks comment on whether it should take further measures to tailor Section 106 review for pole replacements. As noted above, wireless companies are increasingly deploying new infrastructure using smaller antennas and supporting structures, including poles. Under the existing NPA, pole replacements are excluded from Section 106 review if the pole being replaced meets the definition of a “tower” under the NPA (constructed for the sole or primary purpose of supporting Commission-authorized antennas), provided that the pole being replaced went through Section 106 review. The NPA also more generally excludes construction in or near communications or utility rights of way, including pole replacements, with certain limitations. In particular, the construction is excluded if the facility does not constitute a substantial increase in size over nearby structures and it is not within the boundaries of a historic property. However, proposed facilities subject to this exclusion must complete the process of Tribal and NHO participation pursuant to the NPA.
47. The Commission seeks comment on whether additional steps to tailor Section 106 review for pole replacements would help serve the Commission's objective of facilitating wireless facility siting, while creating no or foreseeably minimal potential for adverse impacts to historic properties. For example, should the replacement of poles be excluded from Section 106 review, regardless of whether a pole is located in a historic district, provided that the replacement pole is not “substantially larger” than the pole it is replacing (as defined in the NPA)? The Commission envisions that this proposed exclusion could address replacements for poles that were constructed for a purpose other than supporting antennas, and thus are not “towers” within the NPA definition, but that also have (or will have) an antenna attached to them. This exclusion would also apply to pole replacements within rights of way, regardless of whether such replacements are in historic districts. The Commission seeks comment on this proposal and on whether any additional conditions would be appropriate. For example, consistent with the existing exclusion for replacement towers, commenters should discuss whether the exclusion should be limited to projects for which construction and excavation do not expand the boundaries of the leased or owned property surrounding the tower by more than 30 feet in any direction. How would the “leased or owned property” be defined within a utility right of way that may extend in a linear manner for miles?
48. The Commission seeks comment on whether to expand the NPA exemption from Section 106 review for construction of wireless facilities in rights of way. First, as noted above, current provisions of the NPA exclude from Section 106 review construction in utility and communications rights of way subject to certain limitations. The Commission seeks comment on whether to adopt a similar exclusion from Section 106 review for construction or collocation of communications infrastructure in transportation rights of way and whether such an exclusion would be warranted under 36 CFR 800.3(a)(1). The Commission recognizes the Commission's previous determination in the
49. In addition, since the
50. In addition to considering whether to adopt an exclusion for construction in transportation rights of way, the Commission also seeks comment on whether to amend the current right of way exclusion to apply regardless of whether the right of way is located on a historic property. As noted above, the current right of way exclusion applies
51. Next, the Commission seeks comment on options to further tailor the Commission's review of collocations of wireless antennas and associated equipment. The Commission's rules have long excluded most collocations of antennas from Section 106 review, recognizing the benefits to historic properties that accrue from using existing support structures rather than building new structures. The Commission has also recently expanded these exclusions in the First Amendment to the Collocation NPA to account for the smaller infrastructure associated with new technologies. The Commission seeks comment now on whether additional measures to further streamline review of collocations are appropriate, whether as a matter of 36 CFR 800.3(a)(1) or under program alternatives, including those discussed below and any other alternatives.
52. First, the Commission seeks comment on whether some or all collocations located between 50 and 250 feet from historic districts should be excluded from Section 106 review. Under current provisions in the Collocation NPA, Section 106 review continues to be required for collocations on buildings and other non-tower structures located within 250 feet of the boundary of a historic district to the extent those collocations do not meet the criteria established for small wireless antennas. The Commission seeks comment on whether this provision should be revised to exclude from Section 106 review collocations located up to 50 feet from the boundary of a historic district. The Commission seeks comment on this proposal and on whether any additional criteria should apply to an exclusion under these circumstances.
53. Next, the Commission seeks comment on the participation of Tribal Nations and NHOs in the review of collocations on historic properties or in or near historic districts. Although, as stated above, the Collocation NPA excludes most antenna collocations from routine historic preservation review under Section 106, collocations on historic properties or in or near historic districts are generally not excluded, and in these cases, the NPA provisions for Tribal and NHO participation continue to apply. Consistent with the Commission's effort in this NPRM to take a fresh look at ways to improve and facilitate the review process for wireless facility deployments, the Commission seeks comment on whether to exclude from the NPA procedures for Tribal and NHO participation collocations that are subject to Section 106 review solely because they are on historic properties or in or near historic districts, other than properties or districts identified in the National Register listing or determination of eligibility as having Tribal significance. For instance, should the Commission exclude from review non-substantial collocations on existing structures involving no ground disturbance or no new ground disturbance, or non-substantial collocations on new structures in urban rights of way or indoors? Should the Commission exclude from the NPA provisions for Tribal and NHO participation collocations of facilities on new structures in municipal rights of way in urban areas that involve no new ground disturbance and no substantial increase in size over other structures in the right of way? Should the Commission exclude collocations of facilities on new structures in industrial zones or facilities on new structures in or within 50 feet of existing utility rights of way? Commenters should discuss whether collocations in these circumstances have the potential to cause effects on properties significant to Tribal history or culture. If so, are any effects likely to be minimal or not adverse? Does the likelihood of adverse effects depend on the circumstances of the collocation, for example whether it will cause new ground disturbance? The Commission also seeks comment on alternatives to streamline procedures for Tribal and NHO participation in these cases, for example different guidance on fees or deeming a Tribal Nation or NHO to have no interest if it does not respond to a notification within a specified period of time.
54. Finally, the Commission seeks comment on whether the Commission can or should exclude from routine historic preservation review certain collocations that have received local approval. In particular, one possibility would be to exclude a collocation from Section 106 review, regardless of whether it is located on a historic property or in or near a historic district, provided that: (1) The proposed collocation has been reviewed and approved by a Certified Local Government that has jurisdiction over the project; or (2) the collocation has received approval, in the form of a Certificate of Appropriateness or other similar formal approval, from a local historic preservation review body that has reviewed the project pursuant to the standards set forth in a local preservation ordinance and has found that the proposed work is appropriate for the historic structure or district. By eliminating the need to go through historic preservation review at both local and Federal levels, creating an exclusion for collocations under these circumstances might create significant efficiencies in the historic preservation review process. The Commission seeks comment on this option and on any alternatives, including whether any additional conditions should apply and whether the process for engaging Tribal Nations and NHOs for these collocations should continue to be required.
55. The Commission also invites comment on whether it should revisit its interpretation of the scope of the Commission's responsibility to review the effects of wireless facility construction under the NHPA and NEPA. In the
56. In addition, since the Commission's environmental rules were adopted, an industry has grown of non-licensees that are in the business of owning and managing communications sites, so that most commercial wireless towers and even smaller communications support structures are now owned from the time of their construction by non-licensees. The Commission seeks comment on how this business model affects the Commission's environmental and historic preservation compliance regime. For example, how does the requirement to perform environmental and historic preservation review prior to construction apply when the licensee is not the tower owner? If the tower is built pursuant to a contract or other understanding with a collocator, what marketplace or other effects would result from interpreting the environmental obligation to apply to the licensee? What about cases where there is no such agreement or understanding? Does the requirement in the Collocation NPA to perform review for collocations on towers that did not themselves complete Section 106 review create problems in administration or market distortions where the owner of the underlying tower may not have been subject to the Commission's rules at the time of construction? The Commission invites comment on these and any related questions.
57. There are a large number of towers that were built between the adoption of the Collocation NPA in 2001 and when the NPA became effective in 2005 that either did not complete Section 106 review or for which documentation of Section 106 review is unavailable. These towers are often referred to as “Twilight Towers.” The Commission seeks comment on steps the Commission should take to develop a definitive solution for the Twilight Towers issue. As the Commission undertakes this process, the Commission's goal remains to develop a solution that will allow Twilight Towers to be used for collocations while respecting the integrity of the Section 106 process. Facilitating collocations on these towers will serve the public interest by making additional infrastructure available for wireless broadband services and the FirstNet public safety broadband network. Moreover, facilitating collocations on existing towers will reduce the need for new towers, lessening the impact of new construction on the environment and on locations with historical and cultural significance.
58. In particular, the Commission seeks comment on whether to treat collocations on towers built between March 16, 2001 and March 7, 2005 that did not go through Section 106 historic preservation review in the same manner as collocations on towers built prior to March 16, 2001 that did not go through review. Under this approach, collocations on such towers would generally be excluded from Section 106 historic preservation review, subject to the same exceptions that currently apply for collocations on towers built on or prior to March 16, 2001,
59. Although the Commission seeks comment on such an approach, the Commission is mindful of the concerns that have been expressed by Tribal Nations and SHPOs throughout the discussions on this matter that simply allowing collocations to proceed would not permit review in those cases where an underlying tower may have undetermined adverse effects. In particular, Tribal Nations have expressed concern that some of the towers that were constructed between 2001 and 2005 may have effects on properties of religious and cultural significance that have not been noticed because their people are far removed from their traditional homelands. The Commission seeks comment on these concerns. As an initial matter, the Commission seeks comment on the Commission's underlying assumption regarding the likelihood that Twilight Towers had in their construction or continue to have adverse effects that have not been noted. To the extent such effects exist, what is the likelihood that they could be mitigated, and what is the likelihood that a new collocation would exacerbate those effects?
60. The Commission further seeks comment on any alternative approaches. For example, should the Commission
61. The Commission also seeks comment on the procedural vehicle through which any solution should be implemented. Would permitting collocation on Twilight Towers require either an amendment to the Collocation NPA or another program alternative under 36 CFR 800.14(b)? Is one form of program alternative preferable to another, and if so, why? If the Commission were to pursue a streamlined or other alternative review procedure, would that require an amendment to the Collocation NPA or other program alternative?
62. Finally, the Commission invites comment on whether the Commission should take any measures, and if so what, to facilitate collocations on non-compliant towers constructed after March 7, 2005. The Commission notes that unlike in the case of the Twilight Towers, the rules in effect when these towers were constructed explicitly required compliance with the review procedures set forth in the NPA. The Commission invites commenters to propose procedures, including review processes, time frames, criteria for eligibility, and other measures, to address any or all of these towers.
63. In this section, the Commission examines and seeks comment on the scope of Sections 253(a) and 332(c)(7) of the Communications Act and any new or updated guidance or determinations the Commission should provide pursuant to its authority under those provisions, including through the issuance of a Declaratory Ruling.
64. Both Section 253(a) and Section 332(c)(7) ban State or local regulations that “prohibit or have the effect of prohibiting” service. Both sections also proscribe State and local restrictions that unreasonably discriminate among service providers. These sections thus appear to impose the same substantive obligations on State and local governments, though the remedies provided under each are different. There are court decisions holding that “the legal standard is the same under either [Section 253 or 332(c)(7)],” and that there is “nothing suggesting that Congress intended a different meaning of the text `prohibit or have the effect of prohibiting' in the two statutory provisions, enacted at the same time, in the same statute.” The Commission seeks comment on whether there is any reason to conclude that the substantive obligations of these two provisions differ, and if so in what way. Do they apply the same standards in the same or similar situations? Do they impose different standards in different situations? The Commission invites commenters to explain how and why. The Commission also seeks comment on the interaction between Sections 253 and 332(c)(7).
65. A number of courts have interpreted the phrase “prohibit or have the effect of prohibiting,” as it appears in both Sections 253(a) and 332(c)(7), but they have not been consistent in their views. Under Section 253(a), the First, Second, and Tenth Circuits have held that a State or local legal requirement would be subject to preemption if it
66. The Commission also seeks comment on the proper role of aesthetic considerations in the local approval process. The use of aesthetic considerations is not inherently improper; many courts have held that municipalities may, without necessarily violating Section 332(c)(7), deny siting applications on the grounds that the proposed facilities would adversely affect an area's aesthetic qualities,
67. Finally, the Commission notes that WTB's
68. The Commission also seeks similar information about the recurring charges—as well as the other terms, conditions, or restrictions—that State or local government agencies impose for the siting of wireless facilities on publicly owned or controlled lands, structures such as light poles or water towers, or other resources other than rights of way. Do such fees or practices “prohibit or have the effect of prohibiting” service, or do they “unreasonably discriminate among providers of functionally equivalent services? Are there disparities between the charges or other restrictions imposed on some parties by comparison with those imposed on others? Do any agencies impose charges or other requirements that commenting parties believe to be particularly burdensome, such as franchise fees based on a percentage of revenues? Are other aspects of the process for obtaining approval particularly burdensome? Commenters should explain their concerns in sufficient detail to allow State and local governments to respond and to allow the Commission to determine whether it should provide guidance on these issues.
69. The terms of Section 253(a) specify that a “statute,” “regulation,” or “other legal requirement” may be preempted, while the terms of Section 332(c)(7) refer to “decisions” concerning wireless facility siting and the “regulation” of siting. The Commission seeks comment on how those terms should be interpreted. For instance, do the terms “statute,” “regulation,” and “legal requirement” in Section 253(a) have essentially the same meaning as the parallel terms “regulation” and “decisions” in Section 332(c)(7)? The Commission has held in the past that the terminology in Section 253(a) quoted above “recognizes that State and local barriers to entry could come from sources other than statutes and regulations” and “was meant to capture a broad range of state and local actions” that could pose barriers to entry—including agreements with a single party that result in depriving other parties of access to rights of way. The Commission believes there is a reasonable basis for concluding that the same broad interpretation should apply to the language of Section 332, and the Commission seeks comment on this analysis.
70. The Commission also seeks comment on the extent to which these statutory provisions apply to States and localities acting in a proprietary versus regulatory capacity, and on what constitutes a proprietary capacity. In the
71. The Commission seeks comment on whether certain types of facially neutral criteria that some localities may be applying when reviewing and evaluating wireless siting applications could run afoul of Section 253, Section 332(c)(7), or another provision of the Act. For instance, the Commission asks commenters to identify any State or local regulations that single out telecom-related deployment for more burdensome treatment than non-telecom deployments that have the same or similar impacts on land use, to explain how, and to address whether this type of asymmetric treatment violates Federal law.
72. The Commission also seeks comment on the extent to which localities may be seeking to restrict the deployment of utility or communications facilities above ground and attempt to relocate electric, wireline telephone, and other utility lines in that area to underground conduits. Obviously, it is impossible to operate wireless network facilities underground. Undergrounding of utility lines seems to place a premium on access to those facilities that remain above ground, such as municipally-owned street lights. Is there a particular way that Section 253 or 332(c)(7) should apply in that circumstance? More generally, the Commission seeks comment on parties' experience with undergrounding requirements, including how wireless facilities have been treated in communities that require undergrounding of utilities. The Commission also seeks comment on whether and how the Communications Act applies in such instances. For instance, may localities deny applications to construct new above-ground wireless structures in such areas, or deny applications to install collocated equipment on structures that may eventually be dismantled? Could “undergrounding” plans “prohibit or have the effect of prohibiting” service by causing suitable sites for wireless antennas to become scarce? The Commission seeks comment on parties' experiences with undergrounding generally.
73. Section 332(c)(7)(B)(i)(I) prohibits States and localities from unreasonably discriminating among providers of “functionally equivalent services.” The
74. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) concerning the possible significant economic impact on small entities of the policies and rules proposed in this NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided above. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).
75. In this NPRM, the Commission examines how it may further remove or reduce regulatory impediments to wireless infrastructure investment and deployment in order to promote the rapid deployment of advanced mobile broadband service to all Americans. First, the NPRM seeks comment on certain measures or clarifications to expedite State and local processing of wireless facility siting applications pursuant to the Commission's authority under 332 of the Communications Act, including a “deemed granted” remedy in cases of unreasonable delay. Next, the Commission undertakes a comprehensive fresh look at the Commission's rules and procedures implementing the National Environmental Policy Act (NEPA) and Section 106 of the National Historic Preservation Act (Section 106). As part of this review, the Commission seeks comment on potential measures to improve or clarify the Commission's Section 106 process, including in the area of fees paid to Tribal Nations in connection with their participation in the process, cases involving lack of response by relevant parties including affected Tribal Nations, and batched processing. The Commission also seeks comment on possible additional exclusions from Section 106 review, and the Commission reexamines the scope of the Commission's responsibility to review the effects of wireless facility construction under the NHPA and NEPA. Finally, the NPRM seeks comment on so-called “Twilight Towers,” wireless towers that were constructed during a time when the process for Section 106 review was unclear, that may not have completed Section 106 review as a result, and that are therefore not currently available for collocation without first undergoing review. The Commission seeks comment on various options addressing Twilight Towers, including whether to exclude collocations on such towers from Section 106 historic preservation review, subject to certain exceptions, or alternatively subjecting collocations on Twilight Towers to a streamlined, time-limited review. The Commission expects the measures on which the Commission seeks comment in this NPRM to be only a part of the Commission's efforts to expedite wireless infrastructure deployment and the Commission invites commenters to propose other innovative approaches to expediting deployment.
76. The authority for the actions taken in this NPRM is contained in Sections 1, 2, 4(i), 7, 201, 253, 301, 303, 309, and 332 of the Communications Act of 1934, as amended 47 U.S.C. 151, 152, 154(i), 157, 201, 253, 301, 303, 309, and 332, Section 102(C) of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4332(C), and Section 106 of the National Historic Preservation Act of 1966, as amended, 54 U.S.C. 306108.
77. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Below, the Commission provides a description of such small entities, as well as an estimate of the number of such small entities, where feasible.
78. The NPRM seeks comment on potential rule changes regarding State, local, and Federal regulation of the siting and deployment of communications towers and other wireless facilities. Due to the number and diversity of owners of such infrastructure and other responsible parties, particularly small entities that are Commission licensees as well as non-licensees, the Commission classifies and quantifies them in the remainder of this section. The NPRM seeks comment on the Commission's description and estimate of the number of small entities that may be affected by the Commission's actions in this proceeding.
79.
80.
81. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by the Commission's actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Thus, using available data, the Commission estimates that the majority of wireless firms can be considered small.
82.
83.
84.
85.
86. With respect to the first category, Profit-based Spectrum use, the size standards established by the Commission define “small entity” for MAS licensees as an entity that has average annual gross revenues of less than $15 million over the three previous calendar years. A “Very small business” is defined as an entity that, together with its affiliates, has average annual gross revenues of not more than $3
87. With respect to the second category, Internal Private Spectrum use consists of entities that use, or seek to use, MAS spectrum to accommodate their own internal communications needs, MAS serves an essential role in a range of industrial, safety, business, and land transportation activities. MAS radios are used by companies of all sizes, operating in virtually all U.S. business categories, and by all types of public safety entities. For the majority of private internal users, the definition developed by the SBA would be more appropriate than the Commission's definition. The applicable definition of small entity is the “Wireless Telecommunications Carriers (except satellite)” definition under the SBA rules. Under that SBA category, a business is small if it has 1,500 or fewer employees. For this category, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1000 employees or more. Thus under this category and the associated small business size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities that may be affected by the Commission's action.
88.
89.
90. In 2009, the Commission conducted Auction 86, the sale of 78 licenses in the BRS areas. The Commission offered three levels of bidding credits: (i) A bidder with attributed average annual gross revenues that exceed $15 million and do not exceed $40 million for the preceding three years (small business) received a 15 percent discount on its winning bid; (ii) a bidder with attributed average annual gross revenues that exceed $3 million and do not exceed $15 million for the preceding three years (very small business) received a 25 percent discount on its winning bid; and (iii) a bidder with attributed average annual gross revenues that do not exceed $3 million for the preceding three years (entrepreneur) received a 35 percent discount on its winning bid. Auction 86 concluded in 2009 with the sale of 61 licenses. Of the ten winning bidders, two bidders that claimed small business status won 4 licenses; one bidder that claimed very small business status won three licenses; and two bidders that claimed entrepreneur status won six licenses.
91.
92.
93.
94. The Commission has estimated the number of licensed commercial television stations to be 1,384. Of this total, 1,264 stations (or about 91 percent) had revenues of $38.5 million or less, according to Commission staff review of the BIA Kelsey Inc. Media Access Pro Television Database (BIA) on February 24, 2017, and therefore these licensees qualify as small entities under the SBA definition. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 394. Notwithstanding, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
95. The Commission notes, however, that in assessing whether a business concern qualifies as “small” under the above definition, business (control) affiliations must be included. The Commission's estimate, therefore likely overstates the number of small entities that might be affected by the Commission's action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, another element of the definition of “small business” requires that an entity not be dominant in its field of operation. The Commission is unable at this time to define or quantify the criteria that would establish whether a specific television broadcast station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive.
96.
97. According to Commission staff review of the BIA Publications, Inc. Master Access Radio Analyzer Database as of June 2, 2016, about 11,386 (or about 99.9 percent) of 11,395 commercial radio stations had revenues of $38.5 million or less and thus qualify as small entities under the SBA definition. The Commission has estimated the number of licensed commercial radio stations to be 11,415. The Commission notes that it has also estimated the number of licensed NCE radio stations to be 4,101. Nevertheless, the Commission does not compile and otherwise does not have access to information on the revenue of NCE stations that would permit it to determine how many such stations would qualify as small entities.
98. The Commission also notes, that in assessing whether a business entity qualifies as small under the above definition, business control affiliations must be included. The Commission's estimate therefore likely overstates the number of small entities that might be affected by its action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, to be determined a “small business,” an entity may not be dominant in its field of operation. The Commission further notes, that it is difficult at times to assess these criteria in the context of media entities, and the estimate of small businesses to which these rules may apply does not exclude any radio station from the definition of a small business on these basis, thus the Commission's estimate of small businesses may therefore be over-inclusive.
99.
100.
101.
102.
103.
104. According to Commission data in the Universal Licensing System (ULS) as of September 22, 2015 there were approximately 61,970 common carrier fixed licensees, 62,909 private and public safety operational-fixed licensees, 20,349 broadcast auxiliary radio licensees, 412 LMDS licenses, 35 DEMS licenses, 870 39 GHz licenses, and five 24 GHz licenses, and 408 Millimeter Wave licenses in the microwave services. The Commission notes that the number of firms does not necessarily track the number of licensees. The Commission estimates that virtually all of the Fixed Microwave licensees (excluding broadcast auxiliary licensees) would qualify as small entities under the SBA definition.
105.
106. As of March 1, 2017, the ASR database includes approximately 122,157 registration records reflecting a ”Constructed” status and 13,987 registration records reflecting a “Granted, Not Constructed” status. These figures include both towers registered to licensees and towers registered to non-licensee tower owners. The Commission does not keep information from which the Commission can easily determine how many of these towers are registered to non-licensees or how many non-licensees have registered towers. Regarding towers that do not require ASR registration, the Commission does not collect information as to the number of such towers in use and therefore cannot estimate the number of tower owners that would be subject to the rules on which the Commission seeks comment. Moreover, the SBA has not developed a size standard for small businesses in the category “Tower Owners.” Therefore, the Commission is unable to determine the number of non-licensee tower owners that are small entities. The Commission believes, however, that when all entities owning 10 or fewer towers and leasing space for collocation are included, non-licensee tower owners number in the thousands, and that nearly all of these qualify as small businesses under the SBA's definition for “All Other Telecommunications.” The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Thus, a majority of “All Other Telecommunications” firms potentially affected by the Commission's action can be considered small. In addition, there may be other non-licensee owners of other wireless infrastructure, including DAS and small cells, that might be affected by the measures on which the Commission seeks comment. The Commission does not have any basis for estimating the number of such non-licensee owners that are small entities.
107. The NPRM seeks comment on potential rule changes that may affect reporting, recordkeeping and other compliance requirements. Specifically the NPRM seeks comment on a specific NHPA submission process known as batching. Currently, a streamlined process for certain facilities associated
108. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
109. In this proceeding, the Commission seeks to examine regulatory impediments to wireless infrastructure investment and deployment, and how the Commission may remove or reduce such impediments consistent with the law and the public interest. The Commission anticipates that the steps on which the NPRM seeks comment will help reduce burdens on small entities that may need to deploy wireless infrastructure by reducing the cost and delay associated with the deployment of such infrastructure. As discussed below, however, certain proposals may impose regulatory compliance costs on small jurisdictions.
110. The NPRM seeks comment on potential ways to expedite wireless facility deployment. First, it seeks comment on certain measures or clarifications to expedite State and local processing of wireless facility siting applications pursuant to the Commission's authority under Section 332 of the Communications Act. Specifically, the NPRM proposes to adopt one or more of three mechanisms for implementing a “deemed granted” remedy for State and local agencies' failure to satisfy their obligations under Section 332(c)(7)(B)(ii) to act on applications outside the context of the Spectrum Act, including irrebuttable presumption, lapse of State and local governments' authority, and a preemption rule. The NPRM also seeks comment on how to quantify a “reasonable period of time” within which to act on siting applications. Specifically, the NPRM asks commenters to discuss whether the Commission should consider adopting different time frames for review of facility deployments not covered by Section 6409 of the Spectrum Act, by identifying more narrowly defined classes of deployments and distinct reasonable time frames to govern such classes. The NPRM also seeks comment on what time periods would be reasonable (outside the Spectrum Act context) for any new categories of applications, and on what factors the Commission should consider in making such a decision. The NPRM also seeks comment on whether the Commission should provide further guidance to address situations in which it is not clear when the shot clock should start running, or in which States and localities on one hand, and industry on the other, disagree on when the time for processing an application begins, and on whether there are additional steps that should be considered to ensure that a deemed granted remedy achieves its purpose of expediting review.
111. In addition, the NPRM seeks comment on Moratoria. The Commission clarified in the
112. Second, the NPRM undertakes a fresh look at the Commission's rules and procedures implementing NEPA and the NHPA as they relate to the Commission's implementation of Title III of the Act in the context of wireless infrastructure deployment. The NPRM seeks comment on potential measures in several areas that could improve the efficiency of the Commission's review under the NHPA and NEPA, including in the areas of fees, addressing delays, and batched processing. Specifically, the NPRM seeks comment on the costs, benefits, and time requirements associated with the historic preservation review process under Section 106 of the NHPA, including SHPO and Tribal Nation review, as well as on the costs and relative benefits of the Commission's NEPA rules. The NPRM also seeks comment on potential process reforms regarding Tribal Fees, including fee amounts, when fees are requested, the legal framework of potential fee schedules, the delineation of Tribal Nation's geographic area of interest, and on potential remedies, dispute resolution, and possible negotiated alternatives.
113. The NPRM then seeks comment on other possible reforms to the Commission's NHPA process that may make it faster, including time limits and self-certification when no response to a Section 106 submission is provided, on whether the Commission should require SHPOs and THPOs to review non-PTC facilities in batched submissions, and if so, how such a process should work and
114. Further, the NPRM seeks comment on ways to improve and further streamline the Commission's environmental compliance regulations while ensuring the Commission meets its NEPA obligations. Toward that end, the NPRM seeks comment on whether to revise the Commission's rules so that an EA is not required for siting in a floodplain when appropriate engineering or mitigation requirements have been met and on whether to expand the categories of undertakings that are excluded from Section 106 review, to include pole replacements, deployments in rights-of-way, and collocations based on their minimal potential to adversely affect historic properties. The NPRM also seeks comment on whether the Commission should revisit the Commission's interpretation of the scope of the Commission's responsibility to review the effects of wireless facility construction under the NHPA and NEPA. These potential changes to the Commission's rules and procedures implementing NEPA and the NHPA would reduce environmental compliance costs on entities that construct or deploy wireless infrastructure. These potential revisions are likely to provide an even greater benefit for small entities that may not have the compliance resources and economies of scale of larger entities. The Commission invites comment on ways in which the Commission can achieve its goals, but at the same time further reduce the burdens on small entities.
115. Third, the NPRM seeks comment on steps the Commission should take to develop a definitive solution for the Twilight Towers issue that will allow Twilight Towers to be used for collocations while respecting the integrity of the Section 106 process. Facilitating collocations on these towers will serve the public interest by making additional infrastructure available for wireless broadband services and the FirstNet public safety broadband network, as well as reduce the need for new towers, lessening the impact of new construction on the environment and on locations with historical and cultural significance, thereby reducing the associated regulatory burden, particularly the burden on small entities.
116. In particular, the NPRM seeks comment on whether to treat collocations on towers built between March 16, 2001 and March 7, 2005 that did not go through Section 106 historic preservation review in the same manner as collocations on towers built prior to March 16, 2001 that did not go through review. Under this approach, collocations on such towers would generally be excluded from Section 106 historic preservation review, subject to the same exceptions that currently apply for collocations on towers built on or prior to March 16, 2001. The Commission seeks comment on whether allowing collocations without individual Section 106 review in these circumstances would rapidly make available a significant amount of additional infrastructure to support wireless broadband deployment without adverse impacts. The NPRM also seeks comment on any alternative approaches and on the procedural vehicle through which any solution should be implemented. Finally, the NPRM invites comment on what measures, if any, should be taken to facilitate collocations on non-compliant towers constructed after March 7, 2005, including whether the Commission should pursue an alternative review process, or any other alternative approach, for any or all of these towers. These proposals would reduce the environmental compliance costs associated with collocations, especially for small entities that have limited financial resources. The Commission invites commenters to discuss the economic impact of any of the proposals for the solution to the Twilight Towers issue on small entities, including small jurisdictions, and on any alternatives that would reduce the economic impact on such entities.
117. For the options discussed in this NPRM, the Commission seeks comment on the effect or burden of the prospective regulation on small entities, including small jurisdictions, the extent to which the regulation would relieve burdens on small entities, and whether there are any alternatives the Commission could implement that could achieve the Commission's goals while at the same time minimizing or further reducing the burdens on small entities.
118. None.
119. This document contains proposed modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, the Commission seeks specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.
120. Except to the limited extent described in the next paragraph, this proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with section 1.1206(b) of the Commission's rules. In proceedings governed by section 1.49(f) of the Commission's rules or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (
121. In light of the Commission's trust relationship with Tribal Nations and Native Hawaiian Organizations (NHOs), and the Commission's obligation to engage in government-to-government consultation with them, the Commission finds that the public interest requires a limited modification of the ex parte rules in this proceeding. Tribal Nations and NHOs, like other interested parties, should file comments, reply comments, and ex parte presentations in the record in order to put facts and arguments before the Commission in a manner such that they may be relied upon in the decision-making process. But the Commission will exempt ex parte presentations involving elected and appointed leaders and duly appointed representatives of federally-recognized Tribal Nations and NHOs from the disclosure requirements in permit-but-disclose proceedings and the prohibitions during the Sunshine Agenda period. Specifically, presentations from elected and appointed leaders or duly appointed representatives of federally-recognized Tribal Nations or NHOs to Commission decision makers shall be exempt from disclosure. To be clear, while the Commission recognizes that consultation is critically important, the Commission emphasizes that the Commission will rely in its decision-making only on those presentations that are placed in the public record for this proceeding.
122. Accordingly,
123.
Federal Communications Commission.
Request for comments.
The Federal Communications Commission (FCC) seeks comment, data, and information on a variety of regulatory, policy, and infrastructure issues related to the emerging broadband-enabled health and care ecosystem. The FCC seeks to ensure that consumers—from major cities to rural and remote areas, Tribal lands, and underserved regions—can access potentially lifesaving health technologies and services, like telehealth and telemedicine, which are enabled by broadband connectivity. The anticipated record will allow the Commission and its Connect2HealthFCC Task Force (Task Force) to gain a broader understanding about the current state of broadband health connectivity. The record will also be used by the Task Force to make future recommendations to the Commission.
Submit comments on or before May 24, 2017, and reply comments on or before June 8, 2017.
You may submit comments, identified by GN Docket No. 16–46, by any of the following methods:
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For further information about this Document, please contact Ben Bartolome, Special Counsel, Connect2HealthFCC Task Force, at (770) 935–3383, or via email at
This is a summary of the Commission's document, FCC 17–46, in GN Docket No. 16–46, released on April 24, 2017. The full text of this document is available on the Internet at the Commission's Web site, at
Broadband networks are increasingly important to our national well-being and everyday lives. As such, we must maximize their availability and ensure that all Americans can take advantage of the variety of services that broadband enables, including 21st century health care. In this Document, the FCC seeks information on how it can help enable the adoption and accessibility of broadband-enabled health care solutions, especially in rural and other underserved areas of the country. We expect to use this information to identify actions that the Commission can take to promote this important goal.
Ensuring that everyone is connected to the people, services, and information they need to get well and stay healthy is an important challenge facing our nation. Technology innovations in clinical practice and care delivery coupled with burgeoning consumer reliance on mHealth and health information technology (or healthIT) are fundamentally changing the face of health care, and a widespread, accessible broadband infrastructure is critical to this ongoing shift. Indeed, the future of modern health care appears to be fundamentally premised on the widespread availability and accessibility of high-speed connectivity. By some estimates, broadband-enabled health information technology can help to improve the quality of health care and significantly lower health care costs by hundreds of billions of dollars in the coming decades. However, the United States remains behind some advanced countries in the adoption of such technology.
As discussed in this Document, the Commission plays an important role in improving the quality of health care and enabling health care innovation through the universal service program, spectrum licensing, and other activities. In order to perform these and other important roles in the health technology space, the Commission should continue to evaluate the nation's broadband health infrastructure and to understand the ongoing technology-based transformation in health care delivery. This will better assure that consumers—from major cities to rural and remote areas, Tribal lands, and underserved regions—can access potentially lifesaving health technologies and services, like telehealth and telemedicine. Leading this effort on behalf of the agency is its Connect2HealthFCC Task Force. Among other things, the Task Force is charged with charting the broadband future of “health
This Document seeks comment, data, and information on a broad range of regulatory, policy, technical, and infrastructure issues related to the emerging broadband-enabled health
Broadband holds promise for enabling health care solutions and advanced technologies that can help to meet America's growing health care needs. Health care accounts for a significant percentage of the U.S. gross domestic product and health care costs are projected to increase. Studies confirm that the United States has a serious health care supply problem. By some estimates, the country could face a shortage of up to 94,700 physicians by 2025, and the forecast is worse for rural communities. The healthcare provider shortfall is likely to disproportionately affect rural and remote areas which are already medically-underserved.
At the same time, demand for health care services is increasing. Today, over 320 million people in the United States could, at any time, utilize health care services, with one person added every 12 seconds (net), yet we only have approximately 280,000 primary care physicians to meet the needs. By the year 2060, the number of people living in the United States is projected to increase by 100 million (resulting in a total of 425+ million people), further exacerbating the projected physician shortage concern. To further complicate matters, over 100 million Americans are dealing with chronic diseases and conditions (
While broadband is not a complete answer, there are a growing number of broadband-enabled solutions that can play an important role in improving population health; addressing health needs beyond the hospital; expanding access to primary, acute, preventive and specialist care, especially for those Americans living in rural and underserved areas; providing more cost-effective solutions; improving the quality of care; and better engaging consumers in their health. Put simply, health care is being transformed by the availability and accessibility of broadband-enabled services and technologies and the development of life-saving wireless medical devices.
Indeed, we are already realizing some of the tremendous benefits that broadband-enabled health technologies and innovative wireless medical devices have to offer: Electronic Health Record (EHR) systems can track and transmit vast amounts of patient clinical data. X-rays, MRIs, and CAT scans can be transmitted seamlessly to specialists at a distant hospital. Telemedicine and
Veterans, in particular, have seen tangible benefits from telemedicine. Most notably, critical mental health services are now accessible via telemedicine to those veterans living in rural areas or abroad. In fiscal year 2014, more than 690,000 military veterans accessed the U.S. Department of Veterans Administration's (VA) health care network using telemedicine programs, reflecting more than 1.7 million episodes of care. The Veterans Health Administration notes that “[telemedicine] technology is now considered `mission critical' for effectively delivering quality healthcare to veterans, particularly for those in rural or underserved areas.”
These are just some of the opportunities that broadband-enabled services and health-related communications technologies and devices offer, especially for those living in rural and underserved areas, low density populations, and Tribal lands; for older Americans; persons with disabilities; military veterans; and the economically disadvantaged—all of whom have traditionally faced significant health
As part of its charge, the Connect2HealthFCC Task Force is focused on the following objectives: (1) Promoting effective policy and regulatory solutions that encourage broadband adoption and promote health IT; (2) identifying regulatory barriers (and incentives) to the deployment of radio frequency (RF)-enabled advanced health care technologies and devices; (3) strengthening the nation's telehealth infrastructure through the FCC's Rural Health Care Program and other initiatives; (4) raising consumer awareness about the value proposition of broadband in the health care sector and its potential for addressing health care disparities; (5) enabling the development of broadband-enabled health technologies that are designed to be fully accessible to people with disabilities; (6) highlighting effective telehealth projects, broadband-enabled health technologies, and mHealth applications across the country and abroad—to identify lessons learned, best practices, and regulatory challenges; and (7) engaging a diverse array of traditional and non-traditional stakeholders to identify emerging issues and opportunities in the broadband health space.
To continue evaluating these and other challenges, we request that stakeholders and other interested parties provide comment, information, and/or data on the issues and subject matter described below. This Notice seeks the most current information available that is specifically relevant to the intersection of broadband, advanced technology, and health care in view of the aforementioned Task Force objectives. For convenience, the issues for comment are enumerated; and we request that parties, in their submission, identify the enumerated issue to which their written response pertains. We also encourage parties to identify any other relevant issues not covered below.
Broadband and advanced technologies appear increasingly critical to the effective transformation of our health care system. First, these technologies enable the efficient exchange of patient and treatment information by allowing providers to access patients' electronic health records from on-site or hosted locations. Second, in many cases it can remove geography and time as barriers to care by enabling telehealth and telemedicine applications like video consultations and remote patient monitoring. Third, broadband provides a foundation for the next generation of medical devices, as well as other health innovation and connected-care solutions. Finally, broadband-enabled health IT offers real opportunities for consumers to take charge of their own health.
To ensure that these and other benefits continue to accrue and expand, it is critical that we identify and engage in appropriate efforts to address any current and emerging issues of concern. In this regard, we note that there are some broad policy measures that, if implemented, could accelerate broadband deployment generally, and thereby provide greater access to broadband-enabled health technologies, solutions and services, especially for those consumers living in rural and underserved areas of the country. A prime example is the possible establishment of “Gigabit Opportunity Zones.” In September 2016, FCC Chairman Ajit Pai, as part of his Digital Empowerment Agenda for accelerating the deployment of high-speed Internet access, called on Congress to provide tax and other financial incentives for the private sector to deploy gigabit broadband services in low income neighborhoods, which he referred to as “Gigabit Opportunity Zones.” More recently, the Commission created the Broadband Deployment Advisory Committee (BDAC) to provide the Commission advice on, among other things, accelerating broadband deployment, identifying regulatory barriers to infrastructure investment, and making recommendations for reducing and/or removing regulatory barriers. We now seek additional and specific data regarding the pace of deployment and adoption of broadband for health and in health care. As detailed below, we also invite input on policies or initiatives that the FCC could implement to further spur deployment and adoption of broadband services, especially in critical need areas at the intersection of health and broadband (
1. We request suggestions regarding ways in which the FCC, based on its authority, can further accelerate broadband adoption in the health care context and promote broadband-enabled health IT solutions, either on its own or
2. We request information and data on the types, impact, scale, and benefits of broadband-enabled services and technologies used for the delivery of health care. How is broadband
3. We are also interested in learning how health technologies and services can take advantage of new technological applications and emerging communications networks. For example, what impact will the Internet of Things (IoT) have on broadband-enabled health technologies and services such as telehealth and telemedicine? To what extent will pervasive connectivity and a fully connected environment around individuals (
4. What technical issues concerning the variety of broadband-enabled health care solutions and technologies are appropriate and necessary for the FCC to consider with respect to efforts to accelerate broadband adoption and promote health IT solutions? Are there issues of concern with respect to access, availability, interoperability, capacity, reliability, privacy, security, and speed? If so, please describe them. Does consideration of any of these issues vary depending on the technology platform—
5. We seek to better understand health care providers' connectivity requirements. What type of connectivity (
a. What are the minimum bandwidth and speed requirements for the different types of health IT applications available today and in the near future for clinical and non-clinical settings? We also seek comment on bandwidth constraints brought on by increased overall usage as well as the impact of data intensive medical applications. Are there future technologies or applications on the horizon that could be bandwidth intensive? If so, what are they, and to what extent could compression and other technologies provide a solution for such future technologies or applications?
b. Some evidence suggests that real-time image manipulation and video (
c. To what extent do rural communities and Tribal lands have access to Internet connection speeds that are sufficient to support the effective and efficient transmission of data and video to provide telehealth, telemedicine, and other broadband health technology services?
d. What, if any, interoperability, capacity, reliability, security, and speed issues currently exist for wireless (
e. What impediments, if any, exist in trying to retrofit existing and future health care facilities (
6. We seek to understand the full range of issues that might be affecting the development and adoption of broadband-enabled technology and services in health care. What non-technical impediments or issues currently exist in the provision of broadband-enabled health technology services? Are there any circumstances or practical considerations (
7. What efforts are being made at the state and local levels to address broadband health technology accessibility issues in rural and remote areas, Tribal lands, and underserved urban areas? We seek specific information, particularly from states, localities, Tribal governments, and rural and urban medical centers, about any broadband-enabled health IT programs that have been developed and implemented (or will soon be implemented) to reach these areas. How successful have those programs been? What are some of the lessons learned in developing those programs? What programs and other efforts are necessary to drive attention to those rural and underserved populations that need health technologies most? How can the Commission better facilitate the deployment of services and technologies as well as consumer adoption in those areas?
8. We seek suggestions on ways the Task Force can effectively and efficiently identify any gaps in the availability of broadband-enabled health technologies in the country. We request any information, data, or studies that
9. What are the impediments to making health IT and other broadband health technology services available and ubiquitous in rural and remote areas, low population density areas, Tribal lands, and underserved urban sectors? Are there any unique challenges that persist in these areas; if so, what are they? In particular, we seek comment on any deployment, infrastructure, geographic, expertise (
The Commission has a long history of addressing spectrum needs for the development of next- generation health technologies and medical devices, and of exercising flexibility, as necessary and appropriate, in revising its rules and policies to speed up their deployment. However, in recent months, stakeholders in the health sector and commercial wireless industry have raised concerns about the likely surge in demand for spectrum for wireless medical devices and broadband-enabled services—noting trends toward fully connected hospitals, widespread remote patient monitoring, and leveraging connectivity to improve health facilities' workflow and back-office functions—and have sought appropriate regulatory relief. Most recently, in August 2016, TerreStar Corporation filed a request for waiver of its substantial service requirements to enable use of its wireless licenses in the 1.4 GHz band to provide wireless medical telemetry service (WMTS) operations, citing increasing demand. Several wireless medical device manufacturers supported the waiver request and argued that there was a spectrum shortage facing WMTS licensees.
Below, we seek information and data on (i) the types of broadband-enabled health technologies and medical devices currently in the market and those that may be launched in the near future; (ii) the future spectrum and wireless infrastructure needs in the health care sector; and (iii) any concerns about the increased use and proliferation of wireless medical devices in health care settings and public spaces. Also, we welcome comment on what, if any, regulatory barriers exist (as well as incentives that could be implemented) concerning the deployment of advanced broadband-enabled health care technologies and medical devices. For purposes of this Document, we are only seeking information on “medical devices” that use RF wireless technology or communications functions for diagnosis, treatment, or patient monitoring.
10. We seek information on the types of broadband-enabled health technologies and medical devices that are
11. What, if any, technical issues or concerns exist for patients and other users of medical devices when such devices are used in hospital settings? Do these concerns vary depending on the type and size of the hospital setting? Are these concerns exacerbated when medical devices are operating in large or busy hospital environments (which may include a wide variety of wireless technologies, some of which may be unrelated to clinical care); if so, what are those concerns, how can they be addressed?
12. Similarly, what, if any issues or concerns exist for patients and other users of medical devices when such devices are used primarily in potentially uncontrolled, non-hospital settings (
13. We seek comment, data, and any studies on the possible complexities of the future RF environment in homes, hospitals, and other public spaces related to the increasing number of medical applications and devices.
14. How are medical devices currently being tested and evaluated to ensure that consumers and patients can safely use them in both clinical and non-clinical settings, given their operation in varied spectrum environments? Are there currently any FCC rules or policies that serve as barriers to testing and deployment of advanced health care technologies and medical devices? If any, please identify which specific rules and/or policies, and explain how they have served to impede the testing and deployment of health care technologies and medical devices. How might the Commission address such concerns?
15. We also request recommendations on how the Commission could make an assessment of the spectrum and wireless infrastructure needs for the future of health care in the United States. We seek input from all relevant stakeholders, including members of the health care, wireless, and software industries who are developing wireless healthcare applications for the present and future; physicians, consumer advocates, and academicians; and relevant federal, state, and local government agencies. While we envision building upon the spectrum management and wireless infrastructure deployment policies that the FCC has successfully employed in the past to promote innovation in wireless health services, we ask commenters to identify any novel framework, including those that might include smart city initiatives or public/private partnerships, that could be useful in planning for the wireless future of our nation's health care system.
a. One of the compelling drivers of mobile technology in healthcare is the increasing availability of health apps for smartphones and tablets. There is now
b. In developing a national spectrum plan for the health care industry, are there particular spectrum bands that the FCC should consider?
c. When it comes to increased need for spectrum-based health technologies, what challenges do small, rural, and critical access hospitals have that are different from what large hospitals face?
d. Do health care facilities, because of their different physical characteristics, require different types of small cells and wireless infrastructure than other commercial enterprises? What are the most challenging impediments to the deployment of wireless infrastructure in hospitals and health care systems? What policies should the FCC consider in order to help streamline infrastructure siting that is necessary for the deployment of wireless networks in hospitals and health care systems? What state or local government regulatory policies have helped to facilitate streamlined deployment of wireless infrastructure for health care?
e. How can new advanced spectrum sharing techniques (
f. What are some of the recent and emerging trends in health care delivery (in rural and urban areas) that are implicating spectrum use and needs? Are these trends creating a greater need for spectrum wireless services, particularly in rural areas? Are these trends resulting in increased use of remote patient monitoring solutions?
16. Do any regulatory barriers exist concerning the deployment of advanced broadband-enabled health care technologies and medical devices? We also welcome suggestions on any regulatory incentives (that are within the FCC's authority) that could serve to foster continued investment in and further deployment of next-generation broadband-enabled health technologies and medical devices?
Broadband deployment is one of the FCC's top priorities, particularly in rural America. Based on current evidence, broadband can be a game-changer particularly in rural areas—where consumers often have to drive long distances to access critical or specialty care; and where isolated clinics and health centers can save lives and promote community health by using advanced communications technologies to connect with medical expertise not otherwise available, as well as monitor patients who live many miles away from a health care facility.
The FCC's Rural Health Care (RHC) Program has helped expand broadband services for eligible health care providers (HCPs) in rural areas. Currently, the RHC Program is comprised of three programs: The Healthcare Connect Fund (HCF), the Telecommunications Program, and the Pilot Program. With respect to the Pilot Program, while no new funding is available, some projects continue to accept new HCP sites. As funding for the Pilot Program projects ends, Pilot Program projects are expected to apply for additional support, if needed, under the Healthcare Connect Fund. The FCC established the Healthcare Connect Fund to expand health care provider access to broadband, especially in rural areas, and encourage the creation of state and regional broadband health care networks. Under the Healthcare Connect Fund, eligible rural HCPs, and those non-rural HCPs that are members of a consortium that has a majority of rural HCP sites, can receive a 65 percent discount from the fund on all eligible expenses. HCPs are required to contribute the remaining 35 percent to participate in the program. HCPs can use the Healthcare Connect Fund to purchase eligible services and equipment, as well as construct their own broadband infrastructure where it is shown to be the most cost effective option. The cap on total funding for the RHC Program altogether, which includes the Telecommunications Program and the Healthcare Connect Fund, is $400 million annually.
The Commission's RHC Program has made the benefits of broadband-enabled health services, such as telehealth and telemedicine, more available to consumers living in rural and remote areas. Such broadband-enabled services have provided patients in rural areas with access to critically needed medical specialists in a variety of practice areas. The availability of telehealth and telemedicine programs also has been found to mitigate significant challenges associated with disparities in access to care and healthcare workforce shortages. The RHC Program also has been found to save health care providers money as well. The Commission continues to evaluate the Healthcare Connect Fund (HCF) in terms of the programmatic goals of (1) increasing access to broadband for HCPs, particularly those serving rural areas; (2) fostering the development and deployment of broadband health care networks; and (3) maximizing the cost-effectiveness of the program.
17. We seek comment and suggestions on how the FCC can further promote and help enable the adoption and accessibility of broadband-enabled health technologies, like telehealth and telemedicine, in rural and other underserved areas. Are there other initiatives or actions beyond the RHC Program that the agency, or the Task Force on behalf of the agency, could pursue in order to promote and help enable the adoption and availability of broadband-enabled health technologies in rural and underserved areas of the country?
18. Is the regulatory framework for the Rural Health Care program keeping pace with how broadband-enabled health care is being delivered in rural and underserved areas? If not, please explain in detail, describing any emerging challenges, gaps or opportunities for using broadband to better meet the health and health care needs of rural consumers.
19. We seek current information and data, if any, that can be used to measure the impact that the various RHC programs have had on certain populations and sectors—
20. We also are interested in hearing recent success stories about innovative health care services that were created or that became available as a result of the RHC Program, and how such services
21. We seek information, data, and studies that identify specific rural areas and underserved regions of the country that need funding assistance for the purchase of high-capacity broadband connectivity, connections, and any other services or equipment authorized under the RHC Program rules. We seek detailed information and data as to whether eligible health care providers in these areas and regions that require funding assistance have participated in the RHC Program, and if not, why not. We also seek suggestions on how the Commission can encourage or facilitate their participation. Are there specific challenges of which the Commission should be aware?
22. The Task Force is interested in identifying all currently available public (federal, state, or local) and private (
23. We seek any other comment, information, and data concerning the RHC Program as well as the general needs of rural consumers for broadband-enabled health solutions that would be helpful to the Task Force, given its charge and objectives.
It is critically important that consumers fully understand the practical and personal benefits of broadband in health care and in facilitating greater care coordination, proactive engagement in disease prevention, and self-management. Placing more care decisions in the hands of consumers and personalizing that experience appears to be a major theme in health applications and product development today. We also recognize that as consumers fully realize the practical health benefits of broadband, consumer demand for broadband-enabled health services and technologies will serve to further accelerate broadband deployment and adoption altogether—a national priority.
24. We seek suggestions on how the Commission can effectively increase consumer awareness about the value proposition of broadband in the health care sector? Are there any practical efforts that the Commission can undertake to accelerate consumer adoption of broadband, and in particular broadband-enabled health services and technologies, especially among underserved populations? How might the Commission ensure that certain groups—
25. We also seek comment on any concerns that may discourage consumers, health care providers, and others from adopting broadband-enabled health services and other advanced health technologies, including telehealth and telemedicine services and emerging medical devices. To what extent do safety, security, reliability, and privacy concerns influence adoption of broadband-enabled health services and other advanced technologies? To what extent do costs, socioeconomic status, and digital literacy issues impact adoption?
26. We request information on any studies, pilots, research, or other data that quantifies the benefits of broadband-enabled health technologies in improving patient outcomes and in reducing costs. What kind of return on investment have pilot and demonstration projects experienced?
27. We are interested in learning how broadband can enable healthcare-related support systems to connect patients to the people, services and information they need to get well and stay healthy. In this regard, physicians inform us that there is growing recognition that the need for social services and supports (
28. We seek information and any studies about how broadband-enabled services and technologies have been, and could be used, to address health and health care disparity issues, and the impact (and successes) such services and technologies have had in addressing such issues.
29. Are there any practical issues (
The availability and accessibility of broadband-enabled health technologies designed to serve the needs of Americans with disabilities is critically important. One recent study estimates that, in 2013, the overall percentage of people with a disability in the U.S., among the civilian noninstitutionalized population, was 12.1 percent or approximately 37 million people. Other studies suggest that the number is higher than 50 million, and that it is predicted to continue to increase. Given these statistics, it is imperative that we do what we can, within our statutory authority, to promote the goal of making broadband-enabled health technologies and cutting-edge health and medical devices and applications available, accessible, and usable by people with disabilities.
Technology has historically played an important role in the disability community. Many people with disabilities use communications technology, devices, or services in their daily lives, and broadband is becoming an essential data transmission platform that enables a wide range of services and tools. Ensuring that people with disabilities are able to access electronic health records, engage in video consultation with their physicians, fully utilize the latest health apps, and benefit from advances in wearable health technology, for example, are essential to the ongoing health care transformation. Consistent with its charge, the Task Force will consider the extent to which broadband-enabled services and technologies used for the provision of health
30. How are broadband-enabled health technologies and medical devices currently being used by people with disabilities? To what extent can these technologies and devices address the health care needs of people with disabilities in the future? Provide specific examples of the existing barriers, if any, that these technologies and devices pose for people with disabilities.
31. We seek comment on whether the design and development of broadband-enabled health services and technologies, as well as cutting-edge health and medical devices and applications, are accessible to, and usable by, people with disabilities. Are there practical concerns or other issues that are inhibiting or limiting the use and availability of broadband-enabled health services and technologies for people with disabilities? How are hospitals and clinicians currently addressing, if at all, any of these issues? An increasing number of health care services provide patient portals for patients to access medical records and communicate with physicians and specialists. What measures are taken to ensure that these mechanisms are fully accessible to users with disabilities (
32. To what extent are clinicians aware of video relay service (VRS) and using it when remotely consulting with American Sign Language (ASL) users on a telephone call? Is there a need for VRS providers to have ASL interpreters with a knowledge of (and ability to translate) specialized health or medical vocabulary? Should a VRS call that involves consultations between a deaf or hard of hearing person and a doctor be given priority over other calls waiting in a queue, especially when there is a possible medical emergency? We also seek comment as to whether our telecommunications relay service (TRS) rules are currently optimized to encourage medical consults via telemedicine?
33. We seek suggestions as to how the Commission can effectively raise awareness among people with disabilities about the value proposition of broadband in health? How can the Commission help to enable the adoption and accessibility of such services and technologies among people with disabilities, especially given our authority?
Related to the objective of increasing consumer awareness about the practical health-related benefits of broadband is the need to inform the public—especially those in rural and underserved regions—about the availability and successes of the many broadband-enabled telehealth and telemedicine centers and projects across the country and abroad, as well as existing and emerging mHealth applications, and to identify lessons learned and best practices.
34. We seek current information and data on the effectiveness of broadband-enabled telehealth and telemedicine services, including any recent research on these services. How are patients responding to these services? We are particularly interested in receiving comments directly from consumers about their experience with these and other broadband-enabled services and technologies.
35. We also seek comment on specific challenges faced by states, localities, and Tribal governments, as well as communities abroad, in deploying effective broadband-enabled telehealth and telemedicine projects.
36. We seek comment on how the public can be better informed about the availability of broadband-enabled health services and technologies and mHealth applications. What have states, localities, other federal agencies, Tribal governments, and hospitals and clinics done to inform the public about the availability of these options? How effective have these projects been in promoting greater broadband utilization?
37. We seek submissions of any case studies, research and video/audio summaries concerning recently launched applications/programs that are on the cutting edge of telehealth, telemedicine, mHealth, and other broadband-enabled health technologies and services.
38. We seek comment on the extent to which the United States is not taking full advantage of the opportunities that broadband-enabled health technology provides. For countries that have been the most successful in making broadband-enabled health services and technology more widely available, especially in rural and underserved areas, we seek information on the approaches that such countries took (including lessons learned) in achieving success in broadband health adoption.
Published reports indicate that the “the health IT industry is gaining a reputation as an emerging sweet spot for technology investors.” We want to be sure that Commission policies do not present obstacles to continued innovation and investment in broadband-enabled health technologies, including medical devices that rely on communications technology. We observe that there is a growing desire for such technologies—including those that are wearable or otherwise track and monitor personal health—and that this emerging health market is estimated to be worth billions. There are also countless smartphone apps that track health-related issues. By some estimates, there are over 100,000 digital health apps offered in the three major app stores. In addition, recent advances in broadband-enabled sensor technology offer the potential for the emergence of more convenient and ultimately less costly and less invasive health care solutions. For example, we may soon see the widespread use of smart clothing (or smart “tattoo” applications) that use skin-based sensors to measure things like heart rate, respiration, and blood pressure. Robotics, virtual reality, and other consumer facing health technologies also offer the potential to help older Americans live more independently. Some technology companies are even experimenting with combining web search with online health consultations for a one-stop offering. To help inform the Commission in its related and other efforts in this area, we seek comment and information on these and other emerging health technologies, applications, services, and connected medical devices.
39. We seek comment on any emerging issues of concern (that have not been identified in this Document) that potentially impact efforts to accelerate the availability of broadband-enabled health technologies and services, as well as medical devices that rely on communications technology.
40. While the United States has made great strides in recent years, many advances in digital health technologies are still not broadly available, widely utilized, or well-tailored to meet the
41. What are the emerging opportunities for investors, innovators, and entrepreneurs in the broadband health space and in the development of the next generation of connected health technologies and converged medical devices? We seek suggestions on any efforts that the Commission might undertake to support innovation and entrepreneurship in these areas. Are there emerging or non-traditional stakeholders that should be part of the Commission's efforts? If so, please identify them and their respective roles in or contributions to the broadband health space.
42. We seek comment on how to promote small and diverse investors, innovators, and entrepreneurs in the broadband health sector in order to better ensure that the benefits of broadband-health technologies and services are available to all Americans.
43. We seek to engage all potential stakeholders in this national broadband health effort. Commenters should identify any additional stakeholders that are not specifically referenced in this Document. We also encourage parties to identify any other relevant issues (not covered in this Notice) for the Task Force, given its charge and objectives.
Federal Communications Commission.
Petitions for reconsideration and/or clarification.
Petitions for Reconsideration and/or Clarification (Petitions) have been filed in the Commission's rulemaking proceeding by Caressa D. Bennet, on behalf of Rural Wireless Association, Inc.; Krista L. Witanowski, on behalf of CTIA; Brian Gelfand, on behalf of Buffalo-Lake Erie Wireless Systems, L.L.C. (Blue Wireless); Robert A. Silverman, on behalf of Panhandle Telephone Cooperative, Inc. and Pine Belt Cellular, Inc.; John Prendergast, on behalf of the Blooston Rural Carriers; David A. LaFuria, on behalf of Rural Wireless Carriers; and Cathleen A. Massey, on behalf of T-Mobile USA, Inc.
Oppositions to the Petitions must be filed on or before May 16, 2017. Replies to an opposition must be filed on or before May 26, 2017.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Mark Montano, Wireless Telecommunications Bureau, (202) 418–0691, email:
This is a summary of Commission's document, Report No. 3077, released May 1, 2017. The full texts of the Petitions are available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW., Room CY–A257, Washington, DC 20554 or may be accessed online via the Commission's Electronic Comment Filing System at
National Appeals Division, U.S. Department of Agriculture.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the U.S. Department of Agriculture, National Appeals Division's request for an extension to a currently approved information collection for Customer Service Survey.
Comments on this notice must be received by July 10, 2017 to be assured of consideration.
The National Appeals Division invites interested persons to submit comments on this notice. Comments may be submitted by one of the following methods:
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• Go to
Dr. Angela Parham, U.S. Department of Agriculture, National Appeals Division, 3101 Park Center Drive, Suite 1100, Alexandria, Virginia 22302–1500, 703.305.2588.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments may be sent to Dr. Angela Parham, U.S. Department of Agriculture, National Appeals Division, 3101 Park Center Drive, Suite 1100, Alexandria, Virginia 22301–1500. All comments received will be available for public inspection during regular business hours at the same address. All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with environmental monitoring.
We will consider all comments that we receive on or before July 10, 2017.
You may submit comments by either of the following methods:
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•
Supporting documents and any comments we receive on this docket may be viewed at
For information on environmental monitoring, contact Dr. Robert Baca, Assistant Director, Permitting and Compliance Coordination, Compliance and Environmental Coordination Branch, PPQ, APHIS, 4700 River Road Unit 150, Riverdale, MD 20737; (301) 851–2292. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy,
APHIS is committed to accomplishing its mission in a manner that promotes and protects the integrity of the environment. This includes APHIS' compliance with all applicable environmental statutes and regulations, including the National Environmental Policy Act (NEPA, 42 U.S.C. 4321
APHIS field personnel and State cooperators jointly use an Environmental Monitoring Form to collect information concerning the effects of pesticide use in these sensitive areas. The goal of environmental monitoring is to track the potential impact that APHIS activities may have on the environment and to use this knowledge in making any necessary adjustments in future program actions.
We are asking OMB to approve our use of this information collection activity for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate 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) Evaluate the accuracy of our estimate of the burden of the 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, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Notice; extension of comment period.
We are extending the comment period for our notice advising the public that the Animal and Plant Health Inspection Service has reached a preliminary decision to extend our determination of nonregulated status of InVigor® MS8 canola (hereinafter MS8 canola) to Bayer's canola event MS11 in response to a request from Bayer CropScience LP. MS11 canola has been genetically engineered for male sterility and resistance to the herbicide glufosinate-ammonium using the same mechanism of action as MS8 canola. This action will allow interested persons additional time to prepare and submit comments on our draft environmental assessment, preliminary regulatory determination, preliminary finding of no significant impact, and plant pest risk similarity assessment for the proposed determination of nonregulated status.
The comment period for the notice published on April 12, 2017 (82 FR 17625) is extended. We will consider all comments that we receive on or before May 30, 2017.
You may submit comments by either of the following methods:
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The Bayer CropScience LP. extension request, our draft environmental assessment, plant pest risk similarity assessment, our preliminary finding of no significant impact, our preliminary determination, and any comments we receive on this docket may be viewed at
Supporting documents and any comments we received regarding our determination of nonregulated status of the antecedent organism, MS8 canola, may be inspected in our reading room. Supporting documents may also be found on the APHIS Web site for MS11 canola (the organism under evaluation) under APHIS Petition Number 16–235–01p.
Ms. Cindy Eck, Document Control Officer/Team Leader, Policy Coordination Programs, Biotechnology Regulatory Services, APHIS, 4700 River Road, Unit 147, Riverdale, MD 20737–1236; (301) 851–3954, email:
On April 12, 2017, we published in the
Comments on the notice were required to be received on or before May 12, 2017. We are extending the comment period on Docket No. APHIS–2017–0015 for an additional 15 days. This action will allow interested persons additional time to prepare and submit comments.
7 U.S.C. 7701–7772 and 7781–7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public hearing via webinar.
The Gulf of Mexico Fishery Management Council (Council) will hold a public hearing via webinar to solicit public comments on Draft Reef Fish Amendment 47—Modify Vermilion Snapper ACLs and MSY Proxies.
The public hearing will take place via webinar on Wednesday, May 24, 2017; starting at 6 p.m. EDT and will conclude no later than 9 p.m. Written public comments must be received on or before 5 p.m. EDT on Tuesday, May 16, 2017.
Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348–1630;
Steven Atran, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630,
Based on the results of a 2016 vermilion snapper stock assessment, the Council's Scientific and Statistical Committee (SSC) concluded that the vermilion snapper stock is neither overfished nor undergoing overfishing. The SSC provided recommendations for the overfishing limit (OFL) during 2017–21 based on a proxy for maximum sustainable yield (MSY) of 30% SPR, and recommended acceptable biological catch (ABC) during 2017–2021 based on fishing at a fishing mortality rate that was 75% of the OFL fishing mortality rate. The Council accepted 30% SPR as the preferred MSY proxy, but also asked for analysis of the OFL and ABC yields at 26% SPR, which is a slightly less conservative MSY proxy, resulting in higher yields but also a smaller spawning stock biomass.
The Council needs to take two actions in this amendment. Action 1 is to adopt an MSY proxy. The alternatives are: (1) To not adopt a proxy (no action), (2) adopt the proxy of 30% SPR (preferred alternative), or (3) adopt the proxy of 26% SPR. Action 2 is to set annual catch limits (ACLs) for 2017–21. The alternatives are: (1) To keep the current 3.42 million pound whole weight ACL that was implemented in 2012 using a data-poor method, (2) set ACL equal to the annual estimate of ABC for each year 2017–21 (which would result in a declining annual yield) with the 2021 ACL remaining in place for subsequent years, (3) set ACL equal to a constant catch corresponding to the average ABC during 2017–21 (preferred alternative), or (4) set ACL equal to the equilibrium ABC, which is the catch level at which no further declines are projected under current biological conditions. The specific ACL yields for Alternatives 2, 3, and 4 depend upon the selection of MSY proxy in Acton 1.
Staff and a Council member will be available to answer any questions and the public will have the opportunity to provide testimony on the amendment and other related testimony.
The schedule is as follows:
After registering, you will receive a confirmation email containing information about joining the webinar.
Public documents may be obtained by contacting the Gulf of Mexico Fishery Management Council at (813) 348–1630 or on their Web site at
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public hearing via webinar.
The Gulf of Mexico Fishery Management Council (Council) will hold a public hearing via webinar to solicit public comments on Draft Reef Fish Amendment 44—Minimum Stock Size Threshold for Reef Fish Stocks.
The public hearing will take place via webinar on Tuesday, May 23, 2017, starting at 6 p.m. EDT and will conclude no later than 9 p.m. Written public comments must be received on or before 5 p.m. EDT on Tuesday, May 16, 2017.
Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348–1630,
Steven Atran, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council; telephone: (813) 348–1630;
Minimum stock size threshold (MSST) is the stock biomass level below which a stock is declared to be overfished and in need of a rebuilding plan. It is set at some level below the biomass level corresponding to maximum sustainable yield (Bmsy) in order to allow natural fluctuations around the Bmsy level without spurious overfished declarations resulting. There are 7 stocks in the Reef Fish Fishery Management Plan that have current or proposed MSST definitions (gag, red grouper, red snapper, vermilion snapper, gray triggerfish, greater amberjack, and hogfish). For most of these stocks, MSST is set using the formula: (1 − M) * Bmsy, where M is the natural mortality rate and Bmsy is the stock biomass corresponding to MSY or the MSY proxy. For stocks with a low natural mortality rate, this results in an MSST that is close to Bmsy. In some cases this MSST may be so close the Bmsy that it is not significantly different given the uncertainties in the data, and may lead to spurious overfished declarations due to natural fluctuations. For this reason, the Council is considering alternatives that would broaden the difference between Bmsy and MSST for some or all of the 7 reef fish stocks.
Staff and a Council member will be available to answer any questions and the public will have the opportunity to provide testimony on the amendment and other related testimony.
The schedule is as follows:
After registering, you will receive a confirmation email containing information about joining the webinar.
Public documents may be obtained by contacting the Gulf of Mexico Fishery Management Council at (813) 348–1630 or on their Web site at
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a joint public meeting of its Monkfish Committee on Wednesday, May 24, 2017, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, May 24, 2017 at 10 a.m.
The meeting will be held at the Four Points by Sheraton Philadelphia Airport, 4101A Island Avenue, Philadelphia, PA 19153; telephone: (215) 492–0400.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The Monkfish Committee will discuss the potential continuation of Amendment 6 to implement catch shares in the monkfish fishery. They will also discuss research priorities for the monkfish RSA program. Other business will be discussed as needed.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The New England Fishery Management Council (Council) is scheduling a joint public meeting of its Monkfish Advisory Panel on Tuesday, May 23, 2017, to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Tuesday, May 23, 2017 at 10 a.m.
The meeting will be held at the Four Points by Sheraton Philadelphia Airport, 4101A Island Avenue, Philadelphia, PA 19153; telephone: (215) 492–0400
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The Monkfish Advisory Panel will discuss the potential continuation of Amendment 6 to implement catch shares in the monkfish fishery. They will also discuss research priorities for the monkfish RSA program. Other business will be discussed as needed.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed incidental harassment authorization (IHA); request for comments.
NMFS has received a request from Washington State Department of Transportation (WSDOT) for authorization to take marine mammals incidental to Mukilteo Multimodal Construction Project in Washington State. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to incidentally take marine mammals during the specified activities.
Comments and information must be received no later than June 9, 2017.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Shane Guan, Office of Protected Resources, NMFS, (301) 427–8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Issuance of an MMPA 101(a)(5)(D) authorization requires compliance with the National Environmental Policy Act.
NMFS preliminary determined the issuance of the proposed IHA is consistent with categories of activities identified in CE B4 (issuance of incidental harassment authorizations under section 101(a)(5)(A) and (D) of the MMPA for which no serious injury or mortality is anticipated) of the Companion Manual for NAO 216–6A and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual for NAO 216–6A that would preclude this categorical exclusion.
We will review all comments submitted in response to this notice prior to making a final decision as to whether application of this CE is appropriate in this circumstance.
NMFS received a request from WSDOT for an IHA to take marine mammals incidental to Mukilteo Multimodal Project in Mukilteo, Washington. WSDOT's request was for harassment only and NMFS concurs that serious injury or mortality is not expected to result from this activity. Therefore, an IHA is appropriate.
On April 7, 2016, WSDOT submitted a request to NMFS requesting an IHA for the possible harassment of small numbers of marine mammal species incidental to construction associated with the Mukilteo Multimodal Project in Mukilteo, Washington, between August 1, 2017, and July 31, 2018. WSDOT subsequently updated its project scope and submitted a revised IHA application on April 10, 2017. NMFS determined the IHA application was complete on April 14, 2017. NMFS is proposing to authorize the take by Level A and Level B harassment of the following marine mammal species: Harbor seal (
The purpose of the Mukilteo Multimodal Project is to provide safe, reliable, and effective service and connection for general-purpose transportation, transit, high occupancy vehicles (HOV), pedestrians, and bicyclists traveling between Island County and the Seattle/Everett metropolitan area and beyond by constructing a new ferry terminal. The current Mukilteo Ferry Terminal has not had significant improvements for almost 30 years and needs key repairs. The existing facility is deficient in a number of aspects, such as safety, multimodal connectivity, capacity, and the ability to support the goals of local and regional long-range transportation and comprehensive plans. The project is intended to:
• Reduce conflicts, congestion, and safety concerns for pedestrians, bicyclists, and motorists by improving local traffic and safety at the terminal and the surrounding area that serves these transportation needs.
• Provide a terminal and supporting facilities with the infrastructure and operating characteristics needed to improve the safety, security, quality, reliability, efficiency, and effectiveness of multimodal transportation.
• Accommodate future demand projected for transit, HOV, pedestrian, bicycle, and general-purpose traffic.
The proposed Mukilteo Multimodal Project would involve in-water impact and vibratory pile driving and vibratory pile removal. Details of the proposed construction project are provided below.
Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water work timing restrictions to protect ESA-listed salmonids, planned WSDOT in-water construction is limited each year to July 16 through February 15. For this project, in-water construction is planned to take place between August 1, 2017 and February 15, 2018. The total worst-case time for pile installation and removal is 175 days (Table 1).
The Mukilteo Ferry Terminal is located in the City of Mukilteo, Snohomish County, Washington. The terminal is located in Township 28 North, Range 4 East, Section 3, in Possession Sound. The new terminal will be approximately 1,700 ft east of the existing terminal in Township 28N, Range 4E, Section 33 (Figure 1–2 of the IHA application). Land use in the Mukilteo area is a mix of residential, commercial, industrial, and open space and/or undeveloped lands.
The proposed project has two elements involving noise production that may affect marine mammals: Vibratory hammer driving and removal, and impact hammer driving.
Vibratory hammers are commonly used in steel pile driving where sediments allow, and involve the same vibratory hammer used in pile removal. The pile is placed into position using a choker and crane, and then vibrated between 1,200 and 2,400 vibrations per minute. The vibrations liquefy the sediment surrounding the pile allowing it to penetrate to the required seating depth, or to be removed. The type of vibratory hammer that will be used for the project will likely be an APE 400 King Kong (or equivalent) with a drive force of 361 tons.
Impact hammers are used to install plastic/steel core, wood, concrete, or steel piles. An impact hammer is a steel device that works like a piston. Impact hammers are usually large, though small impact hammers are used to install small diameter plastic/steel core piles.
Impact hammers have guides (called a lead) that hold the hammer in alignment with the pile while a heavy piston moves up and down, striking the top of the pile, and drives it into the substrate from the downward force of the hammer on the top of the pile.
To drive the pile, the pile is first moved into position and set in the proper location using a choker cable or vibratory hammer. Once the pile is set in place, pile installation with an impact hammer can take less than 15 minutes under good conditions, to over an hour under poor conditions (such as glacial till and bedrock, or exceptionally loose material in which the pile repeatedly moves out of position).
Impact hammer is also used for “proofing” after pile is driven using a vibratory hammer to set the pile firmly.
Details of pile driving activities are provided below and are summarized in Table 1.
• Vibratory driving of 24-inch temporary steel pile and steel piles for a public fishing pier. Installation of each pile will take approximately 60 minutes, 3 piles installed per day, with 117 piles installed over 39 days.
• Vibratory removal of 69 temporary 24-inch diameter steel piles. This will take approximately 15 minutes per pile, with 3 piles removed per day over 23 days.
• Vibratory driving of 40 30-inch steel piles. This will take approximately 60 minutes per pile, with 3 piles installed per day over 14 days.
• Vibratory removal of 2 30-inch test steel piles. This will take approximately 15 minutes per pile, with both piles removed in 1 day.
• Vibratory removal of 7 30-inch inner dolphin steel piles. This will take approximately 15 minutes per pile, with all 7 piles removed in 1 day.
• Vibratory driving of 6 36-inch steel piles. This will take approximately 60 minutes per pile, with 3 piles installed per day over 2 days.
• Vibratory driving of 2 78-inch diameter drilled steel shafts. This will take approximately 60 minutes to install in one day.
• Vibratory driving of a 120-inch diameter drilled steel shaft. This will take approximately 60 minutes to install in one day.
• Vibratory driving of 139 steel H-piles. This will take approximately 30 minutes per pile, with 10 piles installed per day over 14 days.
• Vibratory driving of 90 temporary steel sheet piles. This will take approximately 30 minutes per pile, with 3 sheet piles installed per day over 30 days.
• Vibratory removal of 90 temporary steel sheet piles. This will take approximately 15 minutes per pile, with 6 piles removed per day over 15 days.
• Impact driving (proofing; 300 strikes per pile) of 68 temporary 24-inch diameter steel piles. This will take approximately 15 minutes per pile, with 3 piles installed per day over 23 days.
• Impact driving (proofing; 300 strikes per pile) of 5 30-inch diameter steel piles. This will take approximately 15 minutes per pile, with all 5 piles installed in 1 day.
• Impact driving with 3000 strikes per pile of 25 30-inch diameter steel piles. This will take approximately 15 minutes per pile, with 3 piles installed per day over 9 days.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).
We have reviewed the applicants' species information—which summarizes available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and refer the reader to Sections 3 and 4 of the applications, as well as to NMFS's Stock Assessment Reports (SAR;
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock.
Nine species (with 10 managed stocks) are considered to have the potential to co-occur with the proposed construction activities. Extralimital species or stocks unlikely to co-occur with the Mukilteo project include bottlenose dolphin, long-beaked common dolphin, Risso's dolphin, Bryde's whale, and minke whale. All values presented in Table 2 are the most recent available at the time of publication and are available in the 2015 SARs (Carretta et al. 2016) and draft 2016 SARs (available online at:
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section will consider the content of this section, the “Estimated Take by Incidental Harassment” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
Potential impacts to marine mammals from the proposed Mukilteo ferry terminal construction are from noise generated during in-water pile driving and pile removal activities.
Here, we first provide background information on marine mammal hearing before discussing the potential effects of the use of active acoustic sources on marine mammals.
Marine Mammal Hearing—Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
• Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 Hz and 35 kHz, with best hearing estimated to be from 100 Hz to 8 kHz;
• Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz, with best hearing from 10 to less than 100 kHz;
• High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz.
• Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz, with best hearing between1–50 kHz;
• Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz, with best hearing between 2–48 kHz.
• The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Nine marine mammal species (5 cetacean and 4 pinniped (2 otariid and 2 phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 2. Of the cetacean species that may be present, 2 are classified as low-frequency cetaceans (
The WSDOT's Mukilteo Multimodal construction work using in-water pile driving and pile removal could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.
Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift—an increase in the auditory threshold after exposure to noise (Finneran
For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran
Lucke
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals, which utilize sound for vital biological functions (Clark
Masking occurs at the frequency band that the animals utilize. Therefore, since noise generated from vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (
Unlike TS, masking, which can occur over large temporal and spatial scales, can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of sound pressure level) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). For WSDOT's Mukilteo Multimodal construction activities, noises from vibratory pile driving and pile removal contribute to the elevated ambient noise levels in the project area, thus increasing potential for or severity of masking. Baseline ambient noise levels in the vicinity of project area are high due to ongoing shipping, construction and other activities in the Puget Sound.
Finally, marine mammals' exposure to certain sounds could lead to behavioral disturbance (Richardson
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, and/or reproduction, which depends on the severity, duration, and context of the effects.
The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory pile removal and pile driving in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.
With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga
The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas
During the coastal construction only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on marine mammals' prey availability in the area where construction work is planned.
Finally, the time of the proposed construction activity would avoid the spawning season of the ESA-listed salmonid species.
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as noise generated from in-water impact pile driving and vibratory pile driving and pile removal has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result, primarily for high frequency cetaceans (harbor and Dall's porpoises) and phocid seals (harbor and northern elephant seals) due to larger predicted auditory injury zones. Auditory injury is unlikely to occur for low- and mid-frequency cetaceans and otarrids. The proposed mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable. Below we describe how the take is estimated.
Take estimates are based on average marine mammal density in the project area multiplied by the area size of ensonified zones within which received noise levels exceed certain thresholds (
As discussed above, in-water pile removal and pile driving (vibratory and impact) generate loud noises that could potentially harass marine mammals in the vicinity of WSDOT's proposed Mukilteo Multimodal project.
Under the NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Guidance), dual criteria are used to assess marine mammal auditory injury (Level A harassment) as a result of noise exposure (NMFS 2016). The dual criteria under the Guidance provide onset thresholds in instantaneous peak SPLs (L
The cumulative SEL is the total sound exposure over the entire duration of a given day's pile driving activity, specifically, pile driving occurring within a 24-hr period.
For onset of Level B harassment, NMFS continues to use the root-mean-square (rms) sound pressure level (SPL
Table 3 summarizes the current NMFS marine mammal take criteria.
The project includes vibratory pile driving and removal of 24-, 30-, and 36-inch (in) steel piles, vibratory driving of 78- and 120-in steel shaft, vibratory driving of steel H-piles, vibratory driving and removal of steel sheet piles, and impact pile driving and proofing of 24- and 30-in steel piles.
Source levels of the above pile driving activities are based on measurements of the same material types and same or similar dimensions of piles measured at Mukilteo or elsewhere. Specifically, the source level for vibratory pile driving and removal of the 24-in steel pile is based on vibratory test pile driving of the same pile at the Friday Harbor (WSDOT, 2010a). The unweighted SPL
The source level for vibratory pile driving and removal of the 30-in steel pile is based on vibratory pile driving of the same pile at Port Townsend (WSDOT, 2010b). The unweighted SPL
The source level for vibratory pile driving the 36-in steel piles is based on vibratory test pile driving of 36-in steel piles at Port Townsend in 2010 (Laughlin 2011). Recordings of vibratory pile driving were made at a distance of 10 m from the pile. The results show that the unweighted SPL
Source level for vibratory pile driving of the 78- and 120-in steel shaft is based on measurements of 72-in steel piles vibratory driving conducted by CALTRANS. The unweighted SPL
The source level for vibratory pile driving of steel H-piles is based on measurements conducted by the California Department of Transportation (CALTRANS). The unweighted SPL
The source level for vibratory sheet pile driving and removal is based on measurements at the Elliott Bay Seawall Project. The unweighted SPL
Source levels for impact pile driving of the 24-in steel piles are based on impact test pile driving of the same steel pile during the Vashon Acoustic Monitoring by WSDOT (Laughlin, 2015). The unweighted back-calculated source levels at 10 m are 174 dB re 1 μPa
Source levels for impact pile driving of the 30-in steel pile are based on impact test pile driving for the 36-in steel pile at Mukilteo in November 2006. Recordings of the impact pile driving that were made at a distance of 10 m from the pile were analyzed using Matlab. The results show that the unweighted source levels are 178 dB re 1 μPa
A summary of source levels from different pile driving and pile removal activities is provided in Table 4.
These source levels are used to compute the Level A ensonified zones and to estimate the Level B harassment zones. For Level A harassment zones, zones calculated using cumulative SEL are all larger than those calculated using SPL
Source spectrum of the 36-in steel pile recording is used for spectral modeling for the 24-, 30-, and 36-in steel pile vibratory pile driving and removal to calculate Level A exposure distances based on cumulative SEL metric (see below).
For other piles where no recording is available, source modeling cannot be performed. In such cases, the weighting factor adjustment (WFA) recommended by NMFS acoustic guidance (NMFS 2016) was used to determine Level A exposure distances.
Calculation and modeling of applicable ensonified zones are based on source measurements of comparable types and sizes of piles driven by different methods (impact vs. vibratory hammers) as described above. As mentioned earlier, isopleths for injury zones are based on cumulative SEL (
For peak SPL (L
For cumulative SEL (
For vibratory pile driving, cumulative exposures were computed by summing 1-second noise exposure by the duration needed to drive on pile (provided in Table 1), then by the number of piles to be driven in a given day, as shown in the equation below:
Frequency-specific transmission losses,
As mentioned earlier, isopleths to Level B behavioral zones are based on root-mean-square SPL (SPL
A summary of the measured and modeled harassment zones is provided in Table 5. The maximum distance is 20,500 m from the source, since this is where landmass intercepts underwater sound propagation.
Incidental take is estimated for each species by estimating the likelihood of a marine mammal being present within a Level A or Level B harassment zone during active pile driving or removal. The Level A calculation includes a duration component, along with an assumption (which can lead to overestimates in some cases) that animals within the zone stay in that area for the whole duration of the pile driving activity within a day. For all marine mammal species except harbor seals, California sea lions, and northern elephant seals, estimated takes are calculated based on ensonified area for a specific pile driving activity multiplied by the marine mammal density in the action area, multiplied by the number of pile driving (or removal) days. In most cases, marine mammal density data are from the U.S. Navy Marine Species Density Database (Navy 2015). Harbor porpoise density is based on a recent study by Jefferson et al. (2016) for the Eastern Whidbey area near the Mukilteo Ferry Terminal. Harbor seal, northern elephant seal, and California sea lion takes are based on observations in the Mukilteo area, since these data provide the best information on distribution and presence of these species that are often associated with nearby haulouts (see below).
The Level A take total was further adjusted by subtracting animals expected to occur within the exclusion zone, where pile driving activities are suspended when an animal is observed in or approaching the zone (see Mitigation section). Further, the number of Level B takes was adjusted to exclude those already counted for Level A takes.
The harbor seal take estimate is based on local seal abundance information
The California sea lion take estimate is based on local sea lion abundance information during the Mukilteo Ferry Terminal pier removal project (WSDOT 2015). Marine mammal visual monitoring during the Mukilteo pier removal project indicates on average 7 sea lions were observed in the general area of the Mukilteo Ferry Terminal per day (WSDOT 2015). Based on a total of 175 pile driving days for the WSDOT Mukilteo Multimodal project, it is estimated that up to 1,225 California sea lions could be exposed to noise levels associated with “take”. Since the Level A harassment zones of otarids are all very small (max. 10 m, Table 5), we do not consider it likely that any sea lions would be taken by Level A harassment. Therefore, all California sea lion takes estimated here are expected to be by Level B harassment.
Northern elephant seal is not common in the Mukilteo Multimodal Project area, however, their presence has been observed in Edmonds area just south of Mukilteo (Huey, Pers. Comm. April 2017). Therefore, a potential take of 20 animals by Level B harassment during the project period is assessed. Since northern elephant seal is very uncommon in the project area, we do not consider it likely that any elephant seal would be taken by Level A harassment.
However, the method used in take estimates does not account for single individuals being taken multiple times during the entire project period of 175 days. Therefore, the percent of marine mammals that are likely to be taken for a given population would be far less than the ratio of numbers of animals taken divided by the population size. For harbor porpoise, the estimated incidences of takes at 6,759 animals would be 60.2% of the population, if each single take were a unique individual. However, this is highly unlikely because the results of telemetry and photo-identification studies in Washington waters have demonstrated that harbor porpoise shows site fidelity to small areas for periods of time that can extend between seasons (Hanson et al. 1999; Hanson 2007a, 2007b). Based on studies by Jefferson et al. (2016), harbor porpoise abundance in the East Whidbey region, which is adjunct to the Mukilteo Ferry Terminal construction, is 497, and harbor porpoise abundance in the entire surrounding area of North Puget Sound is 1,798.
For Southern Resident killer whales, potential takes based on density calculation showed that 4 animals could be exposed to noise levels for Level B harassment. However, mitigation measures prescribed below will prevent such takes.
A summary of estimated marine mammal takes is listed in Table 6.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully balance two primary factors: (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, which considers the nature of the potential adverse impact being mitigated (likelihood, scope, range), as well as the likelihood that the measure will be effective if implemented; and the likelihood of effective implementation, and; (2) the practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. In addition, all in-water construction will be limited to the period between August 1, 2017, and February 15, 2018.
To reduce impact on marine mammals, WSDOT shall use a marine pile driving energy attenuator (
Before the commencement of in-water construction activities, which include impact pile driving and vibratory pile driving and pile removal, WSDOT shall establish Level A harassment zones where received underwater SPLs or SEL
WSDOT shall also establish Level B harassment zones where received underwater SPLs are higher than 160 dB
WSDOT shall establish a maximum 160-m Level A exclusion zone for all marine mammals except low-frequency baleen whales. For Level A harassment zones that are smaller than 160 m from the source, WSDOT shall establish exclusion zones that correspond to the estimated Level A harassment distances, but shall not be less than 10 m. For low-frequency baleen whales, WSDOT shall establish exclusion zones that correspond to the actual Level A harassment distances, but shall not be less than 10 m.
A summary of exclusion zones is provided in Table 7.
NMFS-approved protected species observers (PSO) shall conduct an initial survey of the exclusion zones to ensure that no marine mammals are seen within the zones before pile driving and pile removal of a pile segment begins. If marine mammals are found within the exclusion zone, pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 30 minutes. If no marine mammals are seen by the observer in that time it can be assumed that the animal has moved beyond the exclusion zone.
If pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated exclusion zone prior to commencement of pile driving, the observer(s) must notify the pile driving operator (or other authorized individual) immediately and continue to monitor the exclusion zone. Operations may not resume until the marine mammal has exited the exclusion zone or 30 minutes have elapsed since the last sighting.
A “soft-start” technique is intended to allow marine mammals to vacate the area before the impact pile driver reaches full power. Whenever there has been downtime of 30 minutes or more without impact pile driving, the contractor will initiate the driving with ramp-up procedures described below.
Soft start for impact hammers requires contractors to provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three-strike sets. Each day, WSDOT will use the soft-start technique at the beginning of impact pile driving, or if pile driving has ceased for more than 30 minutes.
WSDOT shall implement shutdown measures if a marine mammal is detected within an exclusion zone or is about to enter an exclusion zone listed in Table 6.
WSDOT shall also implement shutdown measures if southern resident killer whales are sighted within the vicinity of the project area and are approaching the Level B harassment zone (or Zone of Influence, ZOI) during in-water construction activities.
If a killer whale approaches the ZOI during pile driving or removal, and it is unknown whether it is a Southern Resident killer whale or a transient killer whale, it shall be assumed to be a Southern Resident killer whale and WSDOT shall implement the shutdown measure.
If a Southern Resident killer whale or an unidentified killer whale enters the ZOI undetected, in-water pile driving or pile removal shall be suspended until the whale exits the ZOI to avoid further level B harassment.
Further, WSDOT shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the IHA (if issued) and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities.
Prior to the start of pile driving for the day, the Orca Network and/or Center for Whale Research will be contacted by WSDOT to find out the location of the nearest marine mammal sightings. The Orca Sightings Network consists of a list of over 600 (and growing) residents, scientists, and government agency personnel in the U.S. and Canada. Sightings are called or emailed into the Orca Network and immediately distributed to other sighting networks including: The NMFS Northwest Fisheries Science Center, the Center for
Sightings information collected by the Orca Network includes detection by hydrophone. The SeaSound Remote Sensing Network is a system of interconnected hydrophones installed in the marine environment of Haro Strait (west side of San Juan Island) to study orca communication, in-water noise, bottom fish ecology and local climatic conditions. A hydrophone at the Port Townsend Marine Science Center measures average in-water sound levels and automatically detects unusual sounds. These passive acoustic devices allow researchers to hear when different marine mammals come into the region. This acoustic network, combined with the volunteer (incidental) visual sighting network allows researchers to document presence and location of various marine mammal species.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, all of which are described above, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors.
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
WSDOT shall employ NMFS-approved PSOs to conduct marine mammal monitoring for its Mukilteo Multimodal Project. The PSOs will observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all pile removal and pile installation work. NMFS-approved PSOs shall meet the following requirements:
1. Independent observers (
2. At least one observer must have prior experience working as an observer;
3. Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;
4. Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and
5. NMFS will require submission and approval of observer CVs;
Monitoring of marine mammals around the construction site shall be conducted using high-quality binoculars (
• For Level A zones less than 160 m and Level B zones less than 1,000 m (
• For Level A zones between 160 and 500 m, and Level B zones between 1,000 and 10,000 m (
• For the rest of the pile driving and pile removal scenario, 5 land-based PSOs and 2 vessel-based PSOs on ferries will monitor the Level A and Level B harassment zones.
Locations of the land-based PSOs and routes of monitoring vessels are shown in WSDOT's Marine Mammal Monitoring Plan, which is available online at
To verify the required monitoring distance, the exclusion zones and ZOIs will be determined by using a range finder or hand-held global positioning system device.
WSDOT would be required to submit a draft monitoring report within 90 days after completion of the construction work or the expiration of the IHA (if issued), whichever comes earlier. This report would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. NMFS would have an opportunity to provide comments on the report, and if NMFS has comments, WSDOT would address the comments and submit a final report to NMFS within 30 days.
In addition, NMFS would require WSDOT to notify NMFS' Office of Protected Resources and NMFS' West Coast Stranding Coordinator within 48 hours of sighting an injured or dead marine mammal in the construction site. WSDOT shall provide NMFS and the Stranding Network with the species or description of the animal(s), the condition of the animal(s) (including carcass condition, if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).
In the event that WSDOT finds an injured or dead marine mammal that is not in the construction area, WSDOT would report the same information as listed above to NMFS as soon as operationally feasible.
NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 7, given that the anticipated effects of WSDOT's Mukilteo Multimodal Project activities involving pile driving and pile removal on marine mammals are expected to be relatively similar in nature. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis by species for this activity, or else species-specific factors would be identified and analyzed.
Although a few marine mammal species (63 harbor seals, 61 harbor porpoises, and 4 Dall's porpoise) are estimated to experience Level A harassment in the form of PTS if they stay within the Level A harassment zone during the entire pile driving for the day, the degree of injury is expected to be mild and is not likely to affect the reproduction or survival of the individual animals because most animals will avoid the area, and thus avoid injury. It is expected that, if hearing impairments occurs, most likely the affected animal would loss a few dB in its hearing sensitivity, which in most cases is not likely to affect its survival and recruitment. Hearing impairment that occur for these individual animals would be limited to the dominant frequency of the noise sources,
For the rest of the three marine mammal species, takes that are anticipated and proposed to be authorized are expected to be limited to short-term Level B harassment (behavioral and TTS). Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal and the implosion noise. These behavioral distances are not expected to affect marine mammals' growth, survival, and reproduction due to the limited geographic area that would be affected in comparison to the much larger habitat for marine mammals in the Puget Sound. A few marine mammals could experience TTS if they occur within the Level B TTS ZOI. However, as discussed earlier in this document, TTS is a temporary loss of hearing sensitivity when exposed to loud sound, and the hearing threshold is expected to recover completely within minutes to hours. Therefore, it is not considered an injury.
The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. There is no ESA designated critical area in the vicinity of the Mukilteo Multimodal Project area. The project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, WSDOT's proposed construction activity at Mukilteo Ferry Terminal would not adversely affect marine mammal habitat.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals.
The estimated takes are below 12 percent of the population for all marine mammals except harbor porpoise (Table 7). For harbor porpoise, the estimate of 6,759 incidences of takes would be 60.2 percent of the population, if each single take were a unique individual. However, this is highly unlikely because the harbor porpoise in Washington waters shows site fidelity to small areas for periods of time that can extend between seasons (Hanson et al. 1999; Hanson 2007a, 2007b). For example, Hanson et al. (1999) tracked a female harbor porpoise for 215 days, during which it remained exclusively within the southern Strait of Georgia region. Based on studies by Jefferson et al. (2016), harbor porpoise abundance in the East Whidbey region, which is
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Issuance of an MMPA authorization requires compliance with the ESA for any species that are listed or proposed as threatened or endangered.
The humpback whale and the killer whale (southern resident distinct population segment (DPS)) are the only marine mammal species listed under the ESA that could occur in the vicinity of WSDOT's proposed construction project. Two DPSs of the humpback whale stock, the Mexico DPS and the Central America DPS, are listed as threatened and endangered under the ESA, respectively. NMFS' Office of Protected Resources has initiated consultation with NMFS' West Coast Regional Office under section 7 of the ESA on the issuance of an IHA to WSDOT under section 101(a)(5)(D) of the MMPA for this activity.
NMFS will conclude the ESA consultation prior to reaching a determination regarding the proposed issuance of the authorization.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to WSDOT for conducting Mukilteo Multimodal Project phase 2 between August 1, 2016, and February 15, 2017, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).
1. This Authorization is valid from August 1, 2017, through July 31, 2018.
2. This Authorization is valid only for activities associated with in-water construction work at the Mukilteo Multimodal Project phase 2 in the State of Washington.
3. (a) The species authorized taking by, Level A and Level B harassment and in the numbers shown in Table 6 are: Pacific harbor seal (
(b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities:
• Impact pile driving;
• Vibratory pile driving; and
• Vibratory pile removal.
4. Prohibitions.
(a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 6 of this notice. The taking by death of these species or the taking by harassment, injury or death of any other species of marine mammal is prohibited unless separately authorized or exempted under the MMPA and may result in the modification, suspension, or revocation of this Authorization.
(b) The taking of any marine mammal is prohibited whenever the required protected species observers (PSOs), required by condition 7(a), are not present in conformance with condition 7(a) of this Authorization.
5. Mitigation.
(a)
(b) Establishment of Level A and Level B Harassment Zones.
(A) Before the commencement of in-water pile driving/removal activities, WSDOT shall establish Level A harassment zones. The modeled Level A zones are summarized in Table 5.
(B) Before the commencement of in-water pile driving/removal activities, WSDOT shall establish Level B harassment zones. The modeled Level B zones are summarized in Table 5.
(C) Before the commencement of in-water pile driving/removal activities, WSDOT shall establish exclusion zones. The proposed exclusion zones are summarized in Table 7.
(c) Monitoring of marine mammals shall take place starting 30 minutes before pile driving begins until 30 minutes after pile driving ends.
(d) Soft Start.
(i) When there has been downtime of 30 minutes or more without pile driving, the contractor will initiate the driving with ramp-up procedures described below.
(ii) Soft start for impact hammers requires contractors to provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three-strike sets. Each day, WSDOT will use the soft-start technique at the beginning of impact pile driving, or if pile driving has ceased for more than 30 minutes.
(e) Shutdown Measures.
(i) WSDOT shall implement shutdown measures if a marine mammal is detected within or to be approaching the exclusion zones provided in Table 7 of this notice.
(ii) WSDOT shall implement shutdown measures if southern resident killer whales (SRKWs) are sighted within the vicinity of the project area and are approaching the Level B harassment zone (zone of influence, or ZOI) during in-water construction activities.
(iii) If a killer whale approaches the ZOI during pile driving or removal, and it is unknown whether it is a SRKW or a transient killer whale, it shall be assumed to be a SRKW and WSDOT shall implement the shutdown measure identified in 6(e)(ii).
(iv) If a SRKW enters the ZOI undetected, in-water pile driving or pile removal shall be suspended until the SRKW exits the ZOI to avoid further level B harassment.
(v) WSDOT shall implement shutdown measures if the number of any allotted marine mammal takes reaches the limit under the IHA, if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during pile removal activities.
(f) Coordination with Local Marine Mammal Research Network.
Prior to the start of pile driving, WSDOT will contact the Orca Network and/or Center for Whale Research to get real-time information on the presence or absence of whales before starting any pile driving.
6. Monitoring.
(a) Protected Species Observers.
WSDOT shall employ NMFS-approved PSOs to conduct marine
(i) Independent observers (
(ii) At least one observer must have prior experience working as an observer.
(iii) Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience.
(iv) Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer.
(v) NMFS will require submission and approval of observer CVs.
(i) A 30-minute pre-construction marine mammal monitoring will be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring will be required after the last pile driving or pile removal of the day. If the constructors take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional 30-minute pre-construction marine mammal monitoring will be required before the next start-up of pile driving or pile removal.
(iii) Marine mammal visual monitoring will be conducted for different ZOIs based on different sizes of piles being driven or removed, as shown in maps in WSDOT's Marine Mammal Monitoring Plan.
(A) For Level A zones less than 160 m and Level B zones less than 1,000 m (
(B) For Level A zones between 160 and 500 m, and Level B zones between 1,000 and 10,000 m (
(C) For the rest of the pile driving and pile removal scenario, 5 land-based PSOs and 2 vessel-based PSOs on ferries will monitor the Level A and Level B harassment zones.
(iv) If marine mammals are observed, the following information will be documented:
(A) Species of observed marine mammals;
(B) Number of observed marine mammal individuals;
(C) Behavior of observed marine mammals;
(D) Location within the ZOI; and
7. Reporting:
(a) WSDOT shall provide NMFS with a draft monitoring report within 90 days of the conclusion of the construction work or within 90 days of the expiration of the IHA, whichever comes first. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.
(b) If comments are received from NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.
(c) In the unanticipated event that the construction activities clearly cause the take of a marine mammal in a manner prohibited by this Authorization (if issued), such as an injury, serious injury, or mortality, WSDOT shall immediately cease all operations and immediately report the incident to the Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) description of the incident;
(iii) status of all sound source use in the 24 hours preceding the incident;
(iv) environmental conditions (
(v) description of marine mammal observations in the 24 hours preceding the incident;
(vi) species identification or description of the animal(s) involved;
(vii) the fate of the animal(s); and
(viii) photographs or video footage of the animal (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with WSDOT to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. WSDOT may not resume their activities until notified by NMFS via letter, email, or telephone.
(E) In the event that WSDOT discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (
(F) In the event that WSDOT discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (
8. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.
9. A copy of this Authorization must be in the possession of each contractor who performs the construction work at the Mukilteo Ferry Terminal.
We request comment on our analyses, the draft authorization, and any other aspect of this Notice of Proposed IHA for the WSDOT's Mukilteo Multimodal Project Phase 2. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; Public hearings, request for comments.
The New England Fishery Management Council will hold six public hearings and one webinar to solicit comments on the Omnibus Deep Sea Coral Amendment.
These meetings will be held May 22–26, 2017. For specific dates and times, see
The hearing document is accessible electronically via the internet
Thomas A. Nies, Executive Director, New England Fishery Management Council; phone: (978) 465–0492.
The New England Fishery Management Council is conducting seven public hearings to solicit comments on the alternatives under consideration in the Draft Omnibus Deep-Sea Coral Amendment. More specifically, the Council is seeking feedback from the public on which alternatives should be selected and why. These hearings are being held by the Council in accordance with the National Environmental Policy Act. The Council plans to take final action on the amendment during its June 20–22, 2017 meeting in Portland, ME.
Deep-sea corals are fragile, slow-growing organisms that play an important role in the marine ecosystem and are vulnerable to various types of disturbance of the seafloor. The alternatives are designed to reduce the potential impacts of fishing activity on corals, as allowed under the Council's discretionary authority. Restrictions on bottom tending gear are being considered, with possible exemptions for some or all types of fixed gears. Potential coral management areas are located off the eastern Maine coast, in Jordan Basin and Georges Basin in the offshore Gulf of Maine, and in the canyon and slope region south of Georges Bank. The hearings are being held by the Council in accordance with the National Environmental Policy Act.
During each hearing, Council staff will brief the public on the draft amendment before receiving comments. The hearings will begin promptly at the time indicated above. If all attendees who wish to do so have provided their comments prior to the end time indicated, the hearing may conclude early. To the extent possible, the Council may extend hearings beyond the end time indicated above to accommodate all attendees who wish to speak.
The meetings are accessible to people with physical disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Council's Mackerel-Squid-Butterfish (MSB) Monitoring Committee will meet via webinar to develop recommendations for future MSB specifications.
The meeting will be held Tuesday, May 23, 2017, at 8 a.m. and end by 3 p.m.
The meeting will be held via webinar with a telephone-only connection option:
Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526–5255. The Council's Web site,
The Council's Mackerel-Squid-Butterfish (MSB) Monitoring Committee will meet to develop recommendations for future MSB specifications. There will be time for public questions and comments. The
Although other non-emergency issues not on the agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions of the Council will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526–5251, at least 5 days prior to the meeting date.
The Committee for the Implementation of Textile Agreements.
Determination to add a product in unrestricted quantities to Annex 3.25 of the CAFTA–DR Agreement.
The Committee for the Implementation of Textile Agreements (“CITA”) has determined that certain two-way stretch polyester/rayon/spandex twill weave fabric, as specified below, is not available in commercial quantities in a timely manner in the CAFTA–DR countries. The product will be added to the list in Annex 3.25 of the CAFTA–DR Agreement in unrestricted quantities.
Maria Goodman, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482–3651.
The CAFTA–DR Agreement; Section 203(o)(4) of the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act (“CAFTA–DR Implementation Act”), Pub. Law 109–53; the Statement of Administrative Action, accompanying the CAFTA–DR Implementation Act; and Presidential Proclamation 7987 (February 28, 2006).
The CAFTA–DR Agreement provides a list in Annex 3.25 for fabrics, yarns, and fibers that the Parties to the CAFTA–DR Agreement have determined are not available in commercial quantities in a timely manner in the territory of any Party. The CAFTA–DR Agreement provides that this list may be modified pursuant to Article 3.25.4 and 3.25.5, when the President of the United States determines that a fabric, yarn, or fiber is not available in commercial quantities in a timely manner in the territory of any Party.
The CAFTA–DR Implementation Act requires the President to establish procedures governing the submission of a request and providing opportunity for interested entities to submit comments and supporting evidence before a commercial availability determination is made. In Presidential Proclamations 7987 and 7996, the President delegated to CITA the authority under section 203(o)(4) of CAFTA–DR Implementation Act for modifying the Annex 3.25 list. Pursuant to this authority, on September 15, 2008, CITA published modified procedures it would follow in considering requests to modify the Annex 3.25 list of products determined to be not commercially available in the territory of any Party to CAFTA–DR (
On April 3, 2017, the Chairman of CITA received a request for a Commercial Availability determination (“Request”) from Sandler, Travis and Rosenberg, P.A., on behalf of Medline Industries, Inc. for certain two-way stretch polyester/rayon/spandex twill weave fabric. On April 4, 2017, in accordance with CITA's procedures, CITA notified interested parties of the Request, which was posted on the dedicated Web site for CAFTA–DR Commercial Availability proceedings. In its notification, CITA advised that any Response with an Offer to Supply (“Response”) must be submitted by April 17, 2017, and any Rebuttal Comments to a Response must be submitted by April 21, 2017, in accordance with sections 6 and 7 of CITA's procedures. No interested entity submitted a Response to the Request advising CITA of its objection to the Request and its offer to supply the subject product.
In accordance with section 203(o)(4)(C) of the CAFTA–DR Implementation Act, and section 8(c)(2) of CITA's procedures, as no interested entity submitted a Response objecting to the Request and providing an offer to supply the subject product, CITA has determined to add the specified fabric to the list in Annex 3.25 of the CAFTA–DR Agreement.
The subject product has been added to the list in Annex 3.25 of the CAFTA–DR Agreement in unrestricted quantities. A revised list has been posted on the dedicated Web site for CAFTA–DR Commercial Availability proceedings, at
The yarn size designations describe a range of yarn specifications for yarn before knitting, dyeing and finishing of the fabric. They are intended as specifications to be followed by the mill in sourcing yarn used to produce the fabric. Dyeing, finishing and knitting can alter the characteristic of the yarn as it appears in the finished fabric. This specification therefore includes yarn sizes provided that the variation occurs after processing of the greige yarn and production of the fabric. The specifications for the fabric apply to the fabric itself prior to cutting and sewing of the finished garment. Such processing may alter the measurements.
Assistant Secretary of Defense (Health Affairs), Department of Defense.
Notice of Federal Advisory Committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Uniform Formulary Beneficiary Advisory Panel will take place.
Open to the public Thursday, June 22, 2017 from 9:00 a.m. to 12:00 p.m.
The address of the open meeting is Naval Heritage Center Theater, 701 Pennsylvania Avenue NW., Washington, DC 20004.
Edward Norton, 703–681–2890 (Voice), 703–681–1940 (Facsimile),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.140 and 102–3.150.
1. Sign-In.
2. Welcome and Opening Remarks.
3. Public Citizen Comments.
4. Scheduled Therapeutic Class Reviews (Comments will follow each agenda item).
a. Ophthalmic-1 Agents.
b. Pulmonary Miscellaneous.
5. Newly Approved Drugs Review.
6. Pertinent Utilization Management Issues.
7. Panel Discussions and Vote.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), “Air Pollution Regulations for Outer Continental Shelf (OCS) Activities” to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR. Public comments were previously requested via the
Additional comments may be submitted on or before June 9, 2017.
Submit your comments, referencing Docket ID No. EPA–HQ–OAR–2011–0724, to (1) the EPA online using
The EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Ben Garwood, Air Quality Policy Division, Office of Air Quality Planning and Standards, C504–03, U.S. Environmental Protection Agency, Research Triangle Park, NC 27709; telephone number: (919) 541–1358; fax number: (919) 541–5509; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
The type and quantity of information required will depend on the circumstances surrounding the action. First, the entity must make an applicability determination. If the source is located within 25 miles of the state's seaward boundary as established in the regulations, the requirements are the same as those that would be applicable if the source were located in the corresponding onshore area. State and local air pollution control agencies are usually requested to provide information concerning regulation of offshore sources and are provided opportunities to comment on the proposed determinations. The public is also provided an opportunity to comment on the proposed determinations.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of Colorado's request to revise certain of its EPA-authorized programs to allow electronic reporting.
EPA's approval is effective June 9, 2017 for the State of Colorado's National Primary Drinking Water Regulations Implementation program, if no timely request for a public hearing is received and accepted by the Agency, and on May 10, 2017 for the State of Colorado's other authorized programs.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566–1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On November 30, 2016, the Colorado Department of Public Health and Environment (CDPHE) submitted an application titled Colorado DPHE Online System for revisions to its EPA-approved programs under title 40 CFR to allow new electronic reporting. EPA reviewed CDPHE's request to revise its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for approval of authorized program revisions set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve Colorado's request to revise its following EPA-authorized programs to allow electronic reporting under 40 CFR parts 50–52, 61–63, 65, 70, 122, 125, 141, 240–270, 272–279, 403, 412, 437, 745, and 763 is being published in the
CDPHE was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Also, in today's notice, EPA is informing interested persons that they may request a public hearing on EPA's action to approve the State of Colorado's request to revise its authorized public water system program under 40 CFR part 142, in accordance with 40 CFR 3.1000(f). Requests for a hearing must be submitted to EPA within 30 days of publication of today's
In the event a hearing is requested and granted, EPA will provide notice of the hearing in the
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of Vermont's request to revise its National Primary Drinking Water Regulations Implementation EPA-authorized program to allow electronic reporting.
EPA's approval is effective June 9, 2017 for the State of Vermont's National Primary Drinking Water Regulations Implementation program, if no timely request for a public hearing is received and accepted by the Agency.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566–1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On March 24, 2017, the Vermont Department of Environmental Conservation (VT DEC) submitted an application titled Compliance Monitoring Data Portal (CMDP) for
VT DEC was notified of EPA's determination to approve its application with respect to the authorized program listed above.
Also, in today's notice, EPA is informing interested persons that they may request a public hearing on EPA's action to approve the State of Vermont's request to revise its authorized public water system program under 40 CFR part 142, in accordance with 40 CFR 3.1000(f). Requests for a hearing must be submitted to EPA within 30 days of publication of today's
(1) The name, address and telephone number of the individual, organization or other entity requesting a hearing;
(2) A brief statement of the requesting person's interest in EPA's determination, a brief explanation as to why EPA should hold a hearing, and any other information that the requesting person wants EPA to consider when determining whether to grant the request;
(3) The signature of the individual making the request, or, if the request is made on behalf of an organization or other entity, the signature of a responsible official of the organization or other entity.
In the event a hearing is requested and granted, EPA will provide notice of the hearing in the
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, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before July 10, 2017. 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 Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele at (202) 418–2991.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
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, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before June 9, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418–2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 25, 2017.
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 May 25, 2017.
1.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by June 9, 2017.
When commenting on the proposed information collections,
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
William Parham at (410) 786–4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by July 10, 2017.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Food and Drug Administration, HHS.
Notice of availability; request for comments.
The Food and Drug Administration (FDA or Agency) is announcing the availability of draft revisions to the “FDA Blueprint for Prescriber Education for Extended-Release and Long-Acting Opioid Analgesics” (Blueprint). The Blueprint is part of the FDA-approved risk evaluation and mitigation strategy (REMS) for extended release (ER) and long-acting (LA) opioid analgesic medications (ER/LA Opioid Analgesics REMS).
FDA is seeking comment on the draft revisions to the Blueprint and has added sections of draft revised Blueprint to the background materials for the public workshop scheduled for May 9–10, 2017. Although the draft revisions to the Blueprint will not be a discussion topic at the workshop, FDA expects the draft revisions to provide important context for discussions during the workshop.
To ensure that FDA considers your comments on the draft revisions to the Blueprint, submit either electronic or written comments by July 10, 2017.
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 revised Blueprint to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Janelle Derbis, Center for Drug Evaluation and Research (HFD–1), Food and Drug Administration 20 North Michigan Ave., Suite 510, Chicago, IL 60602, 312–596–6516.
FDA is announcing the availability of draft revisions to the “FDA Blueprint for Prescriber Education for Extended-Release and Long-Acting Opioid Analgesics” (draft revisions to the Blueprint). In addition to seeking comment on the draft revisions to the Blueprint, FDA expects the draft revisions to create important context for discussions at a public workshop on issues and challenges associated with Federal efforts to support training on pain management and the safe prescribing, dispensing, and patient use of opioids (safe use of opioids) for health care providers. That workshop, which is scheduled for May 9–10, 2017, was previously announced in the
On July 12, 2012, FDA approved an ER/LA Opioid Analgesics REMS, including an FDA-created “Blueprint for Prescriber Education for Extended-Release and Long-Acting (ER/LA) Opioid Analgesics.” The goal of the REMS is to reduce serious adverse outcomes resulting from inappropriate prescribing, misuse, and abuse of ER/LA opioid analgesics while maintaining patient access to pain medications.
The ER/LA Opioid Analgesics REMS requires that training in the form of accredited continuing education be made available to health care providers who prescribe ER/LA opioid analgesics. The accredited continuing education must include all elements of the FDA Blueprint, which includes a basic outline and the core messages related to ER/LA opioid analgesics. FDA developed the Blueprint following extensive input from stakeholders and sought input on a draft version on November 7, 2011 (76 FR 68766), before approving it in 2012 as part of the ER/LA Opioid Analgesics REMS.
On May 3–4, 2016, FDA convened a joint meeting of the Drug Safety and Risk Management Advisory Committee and the Anesthetic and Analgesic Drug Products Advisory Committee to discuss whether this REMS assures safe use of these products; whether or not it is unduly burdensome to patient access to the drugs; and whether it (to the extent practicable) minimizes the burden to the health care delivery system (March 14, 2016, 81 FR 13372). FDA also sought input on possible modifications to the ER/LA Opioid Analgesic REMS, including expansion of the scope and content of prescriber training and expansion of the REMS program to include immediate release (IR) opioid analgesics. Advisory Committee members were in favor of modifying the REMS program to include the IR opioid analgesics as well as broadening the training program to include pain management. The majority of the members were in favor of a requirement for all prescribers to complete training. Many of the members recommended that the required training program be implemented through mechanisms outside the FDA REMS authority. The majority of members also stated that other health care providers involved in the management of pain should be included as a target audience for education, though they did not specify that the training should be mandatory for non-prescribing health care providers.
FDA is considering modifications to the existing Blueprint in light of recommendations from the May 2016 Advisory Committee meeting. The draft revisions to the Blueprint being made available pursuant to this notice would broaden the Blueprint to include information on pain management, including the principles of acute and chronic pain management; non-pharmacologic treatments for pain; and pharmacologic treatments for pain (both non-opioid analgesic and opioid analgesic). FDA intends to consider public input as it considers modifications to the ER/LA Opioid Analgesics REMS.
On April 18, 2017, FDA published a notice announcing a public workshop scheduled for May 9–10, 2017, to seek input on issues and challenges associated with Federal efforts to support training on pain management and the safe prescribing, dispensing, and patient use of opioids (safe use of opioids) for health care providers. Through the public workshop, FDA hopes to obtain additional insight from a variety of stakeholders on how best to ensure that health care providers receive training in pain management and the safe use of opioids. The draft revisions to the Blueprint being made available at
Department of Health and Human Services, Office of the Secretary.
Notice.
The Secretary is issuing a declaration pursuant to section 319F–3 of the Public Health Service Act to
The declaration is effective as of April 11, 2017.
George W. Korch Jr., Ph.D., Acting Assistant Secretary for Preparedness and Response, Office of the Secretary, Department of Health and Human Services, 200 Independence Avenue SW., Washington, DC 20201, Telephone (202) 205–2882 (this is not a toll-free number).
The Public Readiness and Emergency Preparedness Act (PREP Act) authorizes the Secretary of the U.S. Department of Health and Human Services to issue a declaration to provide liability immunity to certain individuals and entities (Covered Persons) against any claim of loss caused by, arising out of, relating to, or resulting from the administration or use of medical countermeasures (Covered Countermeasures), except for claims that meet the PREP Act's definition of willful misconduct. Using this authority, the Secretary is issuing this declaration for medical countermeasures against nerve agents and organophosphorus insecticides that result in organophosphorus poisoning and carbamate insecticides that result in carbamate poisoning. The purpose of issuing this declaration is to strengthen preparedness against these threats that pose an ongoing credible risk of a future public health emergency and does not indicate a change in threat information.
The declaration is published in full. We explain both the substantive and format changes in this supplementary section.
The PREP Act was enacted on December 30, 2005 as Public Law 109–148, Division C, Section 2. It amended the Public Health Service (“PHS”) Act, adding section 319F–3, which addresses liability immunity, and section 319F–4, which creates a compensation program. These sections are codified in the U.S. Code as 42 U.S.C. 247d–6d and 42 U.S.C. 247d–6e, respectively. The Pandemic and All-Hazards Preparedness Reauthorization Act (PAHPRA), Public Law 113–5, was enacted on March 13, 2013. Among other things, PAHPRA added sections 564A and 564B to the Federal Food, Drug & Cosmetic (FD&C) Act to provide new emergency authorities for dispensing approved products in emergencies and products held for emergency use. PAHPRA accordingly amended the definitions of Covered Countermeasures and qualified pandemic and epidemic products in section 319F–3 of the Public Health Service Act (the PREP Act provisions), so that products made available under these new FD&C Act authorities could be covered under PREP Act declarations. PAHPRA also extended the definition of qualified pandemic and epidemic products to include products or technologies intended to enhance the use or effect of a drug, biological product, or device used against the pandemic or epidemic or against adverse events from these products.
Unless otherwise noted, all statutory citations below are to the U.S. Code.
Before issuing a declaration under the PREP Act, the Secretary is required to determine that a disease or other health condition or threat to health constitutes a public health emergency or that there is a credible risk that the disease, condition, or threat may in the future constitute such an emergency.
In deciding whether and under what circumstances to issue a declaration with respect to a Covered Countermeasure, the Secretary must consider the desirability of encouraging the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, and use of the countermeasure.
The Secretary must recommend the activities for which the PREP Act's liability immunity is in effect. These activities may include, under conditions as the Secretary may specify, the manufacture, testing, development, distribution, administration, or use of one or more Covered Countermeasures (Recommended Activities).
The Secretary must also state that liability protections available under the PREP Act are in effect with respect to the Recommended Activities.
The PREP Act's liability immunity applies to Covered Persons with respect to administration or use of a Covered Countermeasure. The term “Covered Persons” has a specific meaning, and is defined in the PREP Act to include manufacturers, distributors, program planners, and qualified persons, and their officials, agents, and employees, and the United States.
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The PREP Act also defines the word “
The declaration lists Covered Persons in section V to include manufacturers, distributors, program planners, qualified persons, and their officials, agents, and employees, as those terms are defined in the PREP Act, and the United States.
The declaration also lists in section V Additional Covered Persons to include: (a) Any person authorized in accordance with the public health and medical emergency response of the Authority Having Jurisdiction, . . . to prescribe, administer, deliver, distribute or dispense the Covered Countermeasures, and their officials, agents, employees, contractors and volunteers, following a declaration of an emergency; (b) any person authorized to prescribe, administer, or dispense the Covered Countermeasures or who is otherwise authorized to perform an activity under an Emergency Use Authorization in accordance with section 564 of the FD&C Act; and, (c) any person authorized to prescribe, administer, or dispense Covered Countermeasures in accordance with Section 564A of the FD&C Act.
As noted above, section III describes the Secretary's Recommended Activities for which liability immunity is in effect. This section identifies the countermeasures for which the Secretary has recommended such activities. The PREP Act states that a Covered Countermeasure must be a “qualified pandemic or epidemic product,” or a “security countermeasure,” as described immediately below; or a drug, biological product or device authorized for emergency use in accordance with section 564, 564A, or 564B of the FD&C Act.
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To be a Covered Countermeasure, qualified pandemic or epidemic products and security countermeasures also must be approved or cleared under the FD&C Act;
The declaration describes the Covered Countermeasures in Section VI as: Any antidote; any other drug; all components and constituent materials of these antidotes and other drugs; all devices and their constituent components used in the administration of these antidotes and other drugs; any diagnostic; or any other device to identify, prevent, or treat organophosphorus or carbamate poisoning or adverse events from such countermeasures.
The declaration also includes in section VI a statement referencing the statutory definitions of Covered Countermeasures to make clear that these statutory definitions limit the scope of Covered Countermeasures.
The Secretary may specify that liability immunity is in effect only to Covered Countermeasures obtained
The declaration states in section VII that liability immunity is afforded to Covered Persons for Recommended Activities related to: (a) Present or future Federal contracts, cooperative agreements, grants, other transactions, interagency agreements, or memoranda of understanding or other Federal agreements or activities directly conducted by the Federal Government; or (b) Activities authorized in accordance with the public health and medical response of the Authority Having Jurisdiction to prescribe, administer, deliver, distribute, or dispense the Covered Countermeasures to respond to an event covered by a declared emergency, including authorized activities that occur as part of the response before the formal declaration of an emergency. The declaration also provides in section VII definitions for “Authority Having Jurisdiction” and “Declaration of an Emergency:”
i. The Authority Having Jurisdiction means the public agency or its delegate that has legal responsibility and authority for responding to an incident, based on political or geographical (
ii. A declaration of emergency means any declaration by any authorized local, regional, State, or Federal official of an emergency specific to events that indicate an immediate need to administer and use the Covered Countermeasures, with the exception of a Federal declaration in support of an Emergency Use Authorization under section 564 of the FD&C Act unless such declaration specifies otherwise;
Subsection (b) is intended to cover distribution, dispensing, administration, or use of the covered countermeasure under a formal government-authorized response to circumstances at any time those activities occur to respond to an event that gives rise to a declared emergency. Subsection (b) is not intended to be limited to cover those activities only after an emergency is formally declared and includes authorized activities that occur as part of the response before the formal declaration of an emergency. The Secretary recognizes that in emergency circumstances, distribution, dispensing, administration, or use of countermeasures may need to be expedient and may occur prior to a formal declaration of an emergency. This concern is particularly critical for the countermeasures covered by this declaration, where the Covered Countermeasures may need to be administered within minutes of exposure to a nerve agent to save lives. Thus, the Secretary is clarifying that coverage under subsection (b) is intended to cover any distribution, dispensing, administration, or use in accordance with the Authority Having Jurisdiction at any time that those activities address the emergency circumstances that gave rise to the declared emergency even if the activities occur prior to the declaration itself.
For governmental program planners only, liability immunity is afforded only to the extent they obtain Covered Countermeasures through voluntary means, such as (1) donation; (2) commercial sale; (3) deployment of Covered Countermeasures from Federal stockpiles; or (4) deployment of donated, purchased, or otherwise voluntarily obtained Covered Countermeasures from State, local, or private stockpiles. This limitation on distribution is intended to deter program planners that are government entities from seizing privately held stockpiles of Covered Countermeasures. It does not apply to any other Covered Persons, including other program planners who are not government entities.
The Secretary must identify, for each Covered Countermeasure, the categories of diseases, health conditions, or threats to health for which the Secretary recommends the administration or use of the countermeasure.
The PREP Act does not explicitly define the term “administration” but does assign the Secretary the responsibility to provide relevant conditions in the declaration. The declaration defines administration in section IX as: Administration of a Covered Countermeasure means physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution and dispensing of the countermeasures to recipients; management and operation of countermeasure programs; or management and operation of locations for purpose of distributing and dispensing countermeasures.
This definition of “administration” is intended to extend only to physical provision of a countermeasure to a recipient, such as vaccination or handing drugs to patients, and to activities related to management and operation of programs and locations for providing countermeasures to recipients, such as decisions and actions involving security and queuing, but only insofar as those activities directly relate to the countermeasure activities. Claims for which Covered Persons are provided immunity under the Act are losses caused by, arising out of, relating to, or resulting from the administration to or use by an individual of a Covered Countermeasure consistent with the terms of a declaration issued under the Act.
Thus, it is the Secretary's interpretation that, when a declaration is in effect, the Act precludes, for example, liability claims alleging negligence by a manufacturer in creating a vaccine, or negligence by a health care provider in prescribing the wrong dose, absent willful misconduct. Likewise, the Act precludes a liability claim relating to the management and operation of a countermeasure distribution program or site, such as a slip-and-fall injury or vehicle collision by a recipient receiving a countermeasure at a retail store serving as an administration or dispensing location that alleges, for example, lax security or chaotic crowd control. However, a liability claim alleging an injury occurring at the site that was not directly related to the countermeasure activities is not covered, such as a slip and fall with no direct connection to the countermeasure's administration or use. In each case, whether immunity is applicable will depend on the particular facts and circumstances.
The Secretary must identify, for each Covered Countermeasure specified in a declaration, the population or populations of individuals for which liability immunity is in effect with respect to administration or use of the countermeasure.
In addition, the PREP Act specifies that liability immunity is afforded: (1) To manufacturers and distributors without regard to whether the countermeasure is used by or administered to this population; and (2) to program planners and qualified persons when the countermeasure is either used by or administered to this population or the program planner or qualified person reasonably could have believed the recipient was in this population.
The Secretary must identify, for each Covered Countermeasure specified in the declaration, the geographic area or areas for which liability immunity is in effect with respect to administration or use of the countermeasure, including, as appropriate, whether the declaration applies only to individuals physically present in the area or, in addition, applies to individuals who have a described connection to the area.
In addition, the PREP Act specifies that liability immunity is afforded: (1) To manufacturers and distributors without regard to whether the countermeasure is used by or administered to individuals in the geographic areas; and (2) to program planners and qualified persons when the countermeasure is either used or administered in the geographic areas or the program planner or qualified person reasonably could have believed the countermeasure was used or administered in the areas.
The Secretary must identify, for each Covered Countermeasure, the period or periods during which liability immunity is in effect, designated by dates, milestones, or other description of events, including factors specified in the PREP Act.
The declaration states in section XII when liability immunity takes effect for different means of distribution within that time period.
The Secretary must specify a date after the ending date of the effective period of the declaration that is reasonable for manufacturers to arrange for disposition of the Covered Countermeasure, including return of the product to the manufacturer, and for other Covered Persons to take appropriate actions to limit administration or use of the Covered Countermeasure.
The declaration states in section XIII that the additional time period is twelve (12) months and also states that extended coverage applies to any products obtained for the Strategic National Stockpile during the effective period of the declaration. We included the statutory provision for clarity.
Section 319F–4 of the PREP Act authorizes a Countermeasures Injury Compensation Program (CICP) to provide benefits to eligible individuals who sustain a serious physical injury or die as a direct result of the administration or use of a Covered Countermeasure.
The Secretary may amend any portion of a declaration through publication in the
I have determined that there is a credible risk that the release of nerve agents or organophosphorus insecticides and the resulting organophosphorus
I have considered the desirability of encouraging the design, development, clinical testing or investigation, manufacture, labeling, distribution, formulation, packaging, marketing, promotion, sale, purchase, donation, dispensing, prescribing, administration, licensing, and use of the Covered Countermeasures.
I recommend, under the conditions stated in this declaration, the manufacture, testing, development, distribution, administration, or use of the Covered Countermeasures.
Liability immunity as prescribed in the PREP Act and conditions stated in this declaration is in effect for the Recommended Activities described in section III.
Covered Persons who are afforded liability immunity under this declaration are “manufacturers,” “distributors,” “program planners,” “qualified persons,” and their officials, agents, and employees, as those terms are defined in the PREP Act, and the United States.
In addition, I have determined that the following additional persons are qualified persons: (a) Any person authorized in accordance with the public health and medical emergency response of the Authority Having Jurisdiction, as described in section VII below, to prescribe, administer, deliver, distribute or dispense the Covered Countermeasures, and their officials, agents, employees, contractors and volunteers, following a declaration of an emergency; (b) Any person authorized to prescribe, administer, or dispense the Covered Countermeasures or who is otherwise authorized to perform an activity under an Emergency Use Authorization in accordance with section 564 of the FD&C Act; (c) Any person authorized to prescribe, administer, or dispense Covered Countermeasures in accordance with Section 564A of the FD&C Act.
Covered Countermeasures are: Any antidote; any other drug; all components and constituent materials of these antidotes and other drugs; all devices and their constituent components used in the administration of these antidotes and other drugs; any diagnostic; or any other device to identify, prevent, or treat organophosphorus or carbamate poisoning or adverse events from such countermeasures.
Covered Countermeasures must be “qualified pandemic or epidemic products,” or “security countermeasures,” or drugs, biological products, or devices authorized for investigational or emergency use, as those terms are defined in the PREP Act, the FD&C Act, and the Public Health Service Act.
I have determined that liability immunity is afforded to Covered Persons only for Recommended Activities involving Covered Countermeasures that are related to:
(a) Present or future Federal contracts, cooperative agreements, grants, other transactions, interagency agreements, memoranda of understanding, or other Federal agreements, or activities directly conducted by the Federal Government; or
(b) Activities authorized in accordance with the public health and medical response of the Authority Having Jurisdiction to prescribe, administer, deliver, distribute or dispense the Covered Countermeasures to respond to an event covered by a declared emergency, including authorized activities that occur as part of the response before the formal declaration of an emergency.
i. The Authority Having Jurisdiction means the public agency or its delegate that has legal responsibility and authority for responding to an incident, based on political or geographical (
ii. A declaration of emergency means any declaration by any authorized local, regional, State, or Federal official of an emergency specific to events that indicate an immediate need to administer and use the Covered Countermeasures, with the exception of a Federal declaration in support of an Emergency Use Authorization under section 564 of the FD&C Act unless such declaration specifies otherwise;
I have also determined that for governmental program planners only, liability immunity is afforded only to the extent such program planners obtain Covered Countermeasures through voluntary means, such as (1) donation; (2) commercial sale; (3) deployment of Covered Countermeasures from Federal stockpiles; or (4) deployment of donated, purchased, or otherwise voluntarily obtained Covered Countermeasures from State, local, or private stockpiles.
The category of disease, health condition, or threat for which I recommend the administration or use of the Covered Countermeasures is organophosphorus or carbamate poisoning.
Administration of the Covered Countermeasure means physical provision of the countermeasures to recipients, or activities and decisions directly relating to public and private delivery, distribution and dispensing of the countermeasures to recipients, management and operation of countermeasure programs, or management and operation of locations for purpose of distributing and dispensing countermeasures.
The populations of individuals include any individual who uses or is administered the Covered Countermeasures in accordance with this declaration.
Liability immunity is afforded to manufacturers and distributors without regard to whether the countermeasure is used by or administered to this population; liability immunity is afforded to program planners and qualified persons when the countermeasure is used by or administered to this population or the program planner or qualified person reasonably could have believed the recipient was in this population.
Liability immunity is afforded for the administration or use of a Covered Countermeasure without geographic limitation.
Liability immunity is afforded to manufacturers and distributors without regard to whether the countermeasure is used by or administered in these geographic areas; liability immunity is afforded to program planners and qualified persons when the countermeasure is used by or administered in these geographic areas, or the program planner or qualified person reasonably could have believed the recipient was in these geographic areas.
Liability immunity for Covered Countermeasures obtained through means of distribution other than in accordance with the public health and medical response of the Authority Having Jurisdiction extends through December 31, 2022.
Liability immunity for Covered Countermeasures administered and used in accordance with the public health and medical response of the Authority Having Jurisdiction begins on the date the response to an event covered by an emergency declaration begins, including authorized activities that occur as part of the response before the formal declaration of an emergency, and lasts through (1) the final day the emergency declaration is in effect or (2) December 31, 2022, whichever occurs first.
I have determined that an additional twelve (12) months of liability protection is reasonable to allow for the manufacturer(s) to arrange for disposition of the Covered Countermeasure, including return of the Covered Countermeasures to the manufacturer, and for Covered Persons to take such other actions as are appropriate to limit the administration or use of the Covered Countermeasures.
Covered Countermeasures obtained for the Strategic National Stockpile (“SNS”) during the effective period of this declaration for Covered Countermeasures obtained through means of distribution other than in accordance with the public health and medical response of the Authority Having Jurisdiction are covered through the date of administration or use pursuant to a distribution or release from the SNS.
The PREP Act authorizes a Countermeasures Injury Compensation Program (“CICP”) to provide benefits to certain individuals or estates of individuals who sustain a serious physical covered injury as the direct result of the administration or use of a Covered Countermeasure and/or benefits to certain survivors of individuals who die as a direct result of the administration or use of the Covered Countermeasure. The causal connection between the countermeasure and the serious physical injury must be supported by compelling, reliable, valid, medical and scientific evidence in order for the individual to be considered for compensation. The CICP is administered by the Health Resources and Services Administration (“HRSA”), within the Department of Health and Human Services. Information about the CICP is available at the toll free number 1–855–266–2427 or
Any amendments to this declaration will be published in the
42 U.S.C. 247d–6d.
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
Notice is hereby given of a change in the meeting of the National Library of Medicine Biomedical Library and Informatics Review Committee, June 15, 2017, 9:00 a.m. to 6:00 p.m., and June 16, 2017, 9:00 a.m. to 2:00 p.m., National Library of Medicine, Building 38, Lindberg Room, 2nd Floor, 8600 Rockville Pike, Bethesda, MD, 20892 which was published in the
The second day of the Biomedical Library and Informatics Review Committee meeting, June 16, 2017, will now be held from 8:00 a.m. to 6:00 p.m. instead of 8:00 a.m. to 2:00 p.m. The meeting is closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 of the Tariff Act of 1930, as amended, in the above-captioned investigation. The Commission has determined to issue a limited exclusion order. The investigation is terminated.
Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–2301. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on January 27, 2015, based on a Complaint filed by Cisco Systems, Inc. of San Jose, California (“Cisco”). 80 FR 4313–14 (Jan. 27, 2015). The Complaint alleges violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the sale for importation, importation, and sale within the United States after importation of certain network devices, related software and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 7,023,853; 6,377,577; 7,460,492; 7,061,875; 7,224,668; and 8,051,211. The Complaint further alleges the existence of a domestic industry. The Commission's Notice of Investigation named Arista Networks, Inc. of Santa Clara, California (“Arista”) as respondent. The Office of Unfair Import Investigations (“OUII”) was also named as a party to the investigation. The Commission previously terminated the investigation in part as to certain claims of the asserted patents. Order No. 38 (Oct. 27, 2015), unreviewed Notice (Nov. 18, 2015); Order No. 47 (Nov. 9, 2015), unreviewed Notice (Dec. 1, 2015).
On December 9, 2016, the ALJ issued her Final ID, finding a violation of section 337 with respect to claims 1, 7, 9, 10, and 15 of the '577 patent; and claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and 64 of the '668 patent. The ALJ found no violation of section 337 with respect to claim 2 of the '577 patent; claims 46 and 63 of the '853 patent; claims 1, 3, and 4 of the '492 patent; claims 1–4, and 10 of the '875 patent; and claims 2, 6, 13, and 17 of the '211 patent.
In particular, the Final ID finds that Cisco has shown by a preponderance of the evidence that the accused products infringe asserted claims 1, 7, 9, 10, and 15 of the '577 patent; and asserted claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and
The Final ID also finds that assignor estoppel bars Arista from asserting that the '577 and '853 patents are invalid. The Final ID finds, however, that if assignor estoppel did not apply, Arista has shown by clear and convincing evidence that claims 1, 7, 9, 10, and 15 of the '577 patent and claim 46 of the '853 patent are invalid as anticipated by U.S. Patent No. 5,920,886 (“Feldmeier”). The Final ID further finds that Arista has failed to show by clear and convincing evidence that any of the remaining asserted claims are invalid. The Final ID also finds that Arista has not proven by clear and convincing evidence that Cisco's patent claims are barred by equitable estoppel, waiver, implied license, laches, unclean hands, or patent misuse.
The Final ID finds that Cisco has satisfied the economic prong of the domestic industry requirement for all of the patents-in-suit pursuant to 19 U.S.C. 337(A), (B), and (C). The Final ID finds, however, that Cisco has failed to satisfy the technical prong of the domestic industry requirement with respect to the '875, '492, and '211 patents. The Final ID finds that Cisco has satisfied the technical prong with respect to the '577, '853, and '668 patents.
The Final ID also contains the ALJ's recommended determination on remedy and bonding. The ALJ recommended that the appropriate remedy is a limited exclusion order with a certification provision and a cease and desist order against Arista. The ALJ recommended the imposition of a bond of five (5) percent during the period of Presidential review.
On December 29, 2016, Cisco, Arista, and OUII each filed petitions for review of various aspects of the Final ID. On January 10, 2017, Cisco, Arista, and OUII filed responses to the various petitions for review.
On January 11, 2017, Cisco and Arista each filed a post-RD statement on the public interest pursuant to Commission Rule 210.50(a)(4). No responses were filed by the public in response to the post-RD Commission Notice issued on December 20, 2016. See Notice of Request for Statements on the Public Interest (Dec. 20, 2016); 81 FR 95194–95 (Dec. 27, 2016).
On March 1, 2017, the Commission determined to review the Final ID in part. Notice of Review (Mar. 1, 2017); 82 FR 12844–47 (Mar. 7, 2017).
With respect to the '577 patent, the Commission determined to review the Final ID's finding that Arista has indirectly infringed the '577 patent by importing Imported Components, as referenced at page 110 in the Final ID. The Commission also determined to review the Final ID's finding that Arista's post-importation direct infringement cannot alone support a finding of violation of section 337. The Commission further determined to review the Final ID's finding that Feldmeier anticipates claims 1, 7, 9, 10, and 15 of the '577 patent.
With respect to the '853 patent, the Commission determined to review the Final ID's claim construction findings with respect to claim elements (c), (d), and (f) of claim 46. The Commission also determined to review the Final ID's findings concerning direct and indirect infringement regarding the '853 patent. The Commission further determined to review the Final ID's finding that assignor estoppel applies to validity challenges based on indefiniteness. The Commission also determined to review the Final ID's finding that Feldmeier does not anticipate claim 46.
With respect to the '875 and '492 patents, the Commission determined to review the Final ID's finding of no direct infringement and the related finding of no indirect infringement. The Commission also determined to review the Final ID's finding that Cisco has failed to satisfy the technical prong of the domestic industry requirement with respect to the '875 and '492 patents.
With respect to the '668 patent, the Commission determined to review the Final ID's finding of direct infringement and the Final ID's finding of indirect infringement, in particular as concerns Arista's importation of Imported Components.
With respect to the '211 patent, the Commission determined to review the Final ID's finding that Cisco has failed to satisfy the technical prong with respect to claims 1 and 12 of the '211 patent, including the Final ID's finding that claims 1 and 12 are invalid.
The Commission determined not to review the remaining issues decided in the Final ID.
The Commission also requested briefing from the parties on nine questions concerning the issues under review, as well as remedy, the public interest, and bonding. See Notice of Review at 4–5; 82 FR at 12845–46.
On March 15, 2017, the parties submitted initial briefing in response to the notice of review. On March 24, 2017, the parties filed response submissions.
Having examined the record of this investigation, including the Final ID, the petitions for review, the responses thereto, and the parties' submissions on review, the Commission has determined to find that a violation of section 337 has occurred with respect to the asserted claims of the '577 and '668 patents.
Specifically, with respect to the '577 patent, the Commission did not review the Final ID's finding that all of Arista's Accused ACL Products directly infringe claims 1, 7, 9–10, and 13 of the '577 patent. The Commission has determined to affirm the Final ID's finding that Arista induces infringement of the '577 patent by importing both the Blank Switches and Imported Components (as defined at Final ID at 110 and Respondent Arista Networks Inc.'s Petition for Review of the Initial Determination on Violation of Section 337 (Dec. 29, 2016) at 77, 80). The Commission has further determined to affirm the Final ID's finding that Arista contributorily infringes by importing the Blank Switches. The Commission has determined not to reach the issue of whether Arista contributorily infringes the asserted claims of the '577 patent by importing the Imported Components. Based on the Final ID's unreviewed finding that assignor estoppel applies with respect to the '577 patent, the Commission has determined not to reach the issue of whether Feldmeier anticipates the '577 patent.
With respect to the '668 patent, the Commission has determined to affirm the Final ID's finding that several variations of the '668 Accused Products—including Control-Plane Access Control List, Control Plane Policing, and non-configurable Per-Input Port Control Plane Policing (“PiP CoPP”)—infringe asserted claims 1, 2, 4, 5, 7, 8, 10, 13, 56, and 64 of the '668 patent, and to affirm with modification the Final ID's finding that the variation including configurable PiP CoPP infringes those claims, to supply the Commission's reasoning. With respect to claim 64, the Commission has determined to affirm with modification the Final ID's finding of infringement with respect to claim 64 to correct a misstatement in the Final ID. The Commission has also determined to affirm the Final ID's finding that Arista induces infringement of the asserted claims of the '668 patent by importing fully assembled Blank Switches and the Imported Components. The Commission has further determined to affirm the Final ID's finding that Arista
The Commission has determined to find no violation of section 337 with respect to the remaining asserted claims of the '853, '875, '492, and '211 patents.
Specifically, with respect to the '853 patent, the Commission has determined to affirm with modification, to supply the Commission's reasoning, the Final ID's finding that Arista's Accused ACL Products do not directly infringe claim 46, and to affirm the Final ID's finding that Arista does not directly infringe claim 63 of the '853 patent. Accordingly, the Commission has determined to affirm the Final ID's finding of no indirect infringement with respect to those claims. Based on the Final ID's unreviewed finding that assignor estoppel applies with respect to the '853 patent, the Commission has determined not to reach the issue of whether Feldmeier anticipates the '853 patent.
With respect to the '875 and '492 patents, the Commission has determined to affirm with modification the Final ID's finding of no infringement of the asserted claims and that Cisco has failed to satisfy the technical prong of the domestic industry requirement.
With respect to the '211 patent, the Commission did not review the Final ID's finding of no infringement with respect to the asserted claims of the '211 patent. The Commission has also determined to vacate the Final ID's finding with respect to the validity of claims 1 and 12 of the '211 patent, and declines to reach the technical prong issue.
The Commission has determined that the appropriate form of relief is a limited exclusion order under 19 U.S.C. 1337(d)(1), prohibiting the unlicensed entry of network devices, related software and components thereof that infringe any of claims l, 7, 9, 10, and 15 of the '577 patent; and claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and 64 of the '668 patent, and an order that Arista cease and desist from importing, selling, marketing, advertising, distributing, transferring (except for exportation), soliciting United States agents or distributors, and aiding or abetting other entities in the importation, sale for importation, sale after importation, transfer (except for exportation), or distribution of certain network devices, related software and components thereof that infringe any of claims l, 7, 9, 10, and 15 of the '577 patent; and claims 1, 2, 4, 5, 7, 8, 10, 13, 18, 56, and 64 of the '668 patent.
The Commission has determined that the public interest factors enumerated in section 337(d) and (f), 19 U.S.C. 1337(d) and (f), do not preclude the issuance of the limited exclusion order or cease and desist order. The Commission has determined that bonding at five (5) percent of the entered value of the covered products is required during the period of Presidential review, 19 U.S.C. 1337(j).
The Commission's order and opinion were delivered to the President and the United States Trade Representative on the day of their issuance.
The 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.
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration announces a forthcoming meeting of the Aerospace Safety Advisory Panel.
Thursday, May 25, 2017, 9:30 a.m. to 10:45 a.m., Central Time.
NASA Marshall Space Flight Center, Building 4220, Room 1103, Huntsville, AL 35812.
Ms. Carol Hamilton, Executive Director, Aerospace Safety Advisory Panel, NASA Headquarters, Washington, DC 20546, (202) 358–1857 or
The Aerospace Safety Advisory Panel (ASAP) will hold its Second Quarterly Meeting for 2017. This discussion is pursuant to carrying out its statutory duties for which the Panel reviews, identifies, evaluates, and advises on those program activities, systems, procedures, and management activities that can contribute to program risk. Priority is given to those programs that involve the safety of human flight. The agenda will include:
The meeting will be open to the public up to the seating capacity of the room. Seating will be on a first-come basis. This meeting is also available telephonically. Any interested person may call the USA toll-free conference call number 1–800–369–1941; passcode 4539357. Attendees will be required to sign a visitor's register and to comply with NASA Marshall Space Flight Center security requirements, including the presentation of a valid picture ID and a secondary form of ID, before receiving an access badge. Due to the Real ID Act, Public Law 109–13, any attendees with driver's licenses issued from noncompliant states/territories must present a second form of ID. Noncompliant states/territories are Maine, Minnesota, Missouri, and Montana. All U.S. citizens desiring to attend the ASAP meeting at the NASA Marshall Space Flight Center must provide their full name; company affiliation (if applicable); driver's license number and state; U.S. social security number; citizenship; place of birth; and date of birth; to the Marshall Space Flight Center Protective Services and Export Control Office no later than close of business on May 17, 2017. All non-U.S. citizens must submit their full name; current address; driver's license number and state (if applicable); citizenship; company affiliation (if applicable) to include address, telephone number, and title; place of birth; date of birth; U.S. visa information to include type, number, and expiration date; U.S. social security number (if applicable); Permanent Resident (green card) number and expiration date (if applicable); place and date of entry into the U.S.; and passport information to include country of issue, number, and expiration date; to the Marshall Space Flight Center Protective Services and Export Control Office no later than close of business on May 11, 2017. If the above information is not received by the dates noted, attendees should expect a minimum delay of four (4) hours. All visitors to this meeting will be required to process in through
National Archives and Records Administration (NARA).
Notice.
NARA has submitted to OMB for approval the information collections described in this notice. We invite you to comment on them.
OMB must receive written comments on or before June 9, 2017.
Send comments to Mr. Nicholas A. Fraser, desk officer for NARA, by mail to Office of Management and Budget; New Executive Office Building; Washington, DC 20503; fax to 202–395–5167; or by email to
Direct requests for additional information or copies of the proposed information collection and supporting statement to Tamee Fechhelm by phone at 301–837–1694 or by fax at 301–713–7409.
Pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104–13), NARA invites the general public and other Federal agencies to comment on proposed information collections. We published a notice of proposed collection for this information collection on February 27, 2017 (82 FR 11948) and we received no comments. We have therefore submitted the described information collection to OMB for approval.
You should address one or more of the following points in any comments or suggestions you submit: (a) Whether the proposed information collection is necessary for NARA to properly perform its functions; (b) NARA's estimate of the burden of the proposed information collection and its accuracy; (c) ways NARA could enhance the quality, utility, and clarity of the information it collects; (d) ways NARA could minimize the burden on respondents of collecting the information, including through information technology; and (e) whether the collection affects small businesses.
In this notice, we solicit comments concerning the following information collection:
National Capital Planning Commission.
Notice of 45 day public comment period and public meetings.
The National Capital Planning Commission (NCPC or Commission) has released a draft of updated Submission Guidelines (Submission Guidelines). Federal and non-federal agency applicants whose development proposals are subject to statutory mandated Commission plan and project review must submit their proposals to the Commission following a process laid out in the Submission Guidelines. The Submission Guidelines describe the content of submissions, the submission stages, and the coordination and review process governing submissions. While the Submission Guidelines are critical to the Commission's ability to carry out its planning and review authorities, they have not been updated since October 3, 1991. As such, NCPC staff prepared recommendations to update the Submission Guidelines to ensure they are clear, consistent with agency policy and easily accessible to applicants. The proposed Guidelines accomplish three primary objectives: (1) Create clear, accessible, and efficient guidelines that are responsive to applicant needs; (2) Align NCPC's review stages and National Environmental Policy Act requirements with those of applicant agencies to save time and resources in the planning process; and (3) Allow staff to exempt from Commission review certain minor projects based on specific criteria where there is no federal interest. The draft Submission Guidelines offered for public comment are available online at
You may submit written comments on the draft Submission Guidelines by either of the methods listed below.
1.
2.
Matthew Flis, Senior Urban Designer at (202) 482–7236 or
40 U.S.C. 8721(e)(2) and 8722(a).
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting an exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and is issuing License Amendment No. 72 to Combined Licenses (COL), NPF–93 and NPF–94. The COLs were issued to South Carolina Electric & Gas Company, (the licensee); for construction and operation of the Virgil C. Summer Nuclear Station (VCSNS) Units 2 and 3, located in Fairfield County, South Carolina.
The granting of the exemption allows the changes to Tier 1 information asked for in the amendment. Because the acceptability of the exemption was determined in part by the acceptability of the amendment, the exemption and amendment are being issued concurrently.
The exemption and amendment were issued on April 17, 2017.
Please refer to Docket ID NRC–2008–0441 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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Bill Gleaves, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–5848; email:
The NRC is granting an exemption from Paragraph B of Section III, “Scope and Contents,” of appendix D, “Design Certification Rule for the AP1000,” to part 52 of title 10 of the
Part of the justification for granting the exemption was provided by the review of the amendment. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemption and issued the amendment concurrently, rather than in sequence. This included issuing a combined safety evaluation containing the NRC staff's review of both the exemption request and the license amendment. The exemption met all applicable regulatory criteria set forth in §§ 50.12, 52.7, and Section VIII.A.4 of appendix D to 10 CFR part 52. The license amendment was found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML17045A717.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for VCSNS Units 2 and 3 (COLs NPF–93 and NPF–94). The exemption documents for VCSNS Units 2 and 3 can be found in ADAMS under Accession Nos. ML17045A679 and ML17045A682, respectively. The exemption is reproduced (with the exception of abbreviated titles and additional citations) in Section II of this document. The amendment documents for COLs NPF–93 and NPF–94 are available in ADAMS under Accession Nos. ML17045A665 and ML17045A677, respectively. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to VCSNS Units 2 and Unit 3. It makes reference to the combined safety evaluation that provides the reasoning for the findings made by the NRC (and listed under Item 1) in order to grant the exemption:
1. In a letter dated November 16, 2016, the licensee requested from the Commission an exemption to allow departures from Tier 1 information in the certified DCD incorporated by reference in 10 CFR part 52, appendix D, as part of license amendment request 16–09, “Nuclear Instrumentation System Excore Detector Surface Material Inspection Clarification.”
For the reasons set forth in Section 3.1 of the NRC staff's Safety Evaluation, which can be found in ADAMS under Accession No. ML17045A717, the Commission finds that:
A. The exemption is authorized by law;
B. the exemption presents no undue risk to public health and safety;
C. the exemption is consistent with the common defense and security;
D. special circumstances are present in that the application of the rule in this circumstance is not necessary to serve the underlying purpose of the rule;
E. the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption; and
F. the exemption will not result in a significant decrease in the level of safety otherwise provided by the design.
2. Accordingly, the licensee is granted an exemption from the certified DCD Tier 1 information, with corresponding changes to Appendix C of the Facility Combined Licenses as described in the licensee's request dated November 16, 2016. This exemption is related to, and necessary for, the granting of License Amendment No. 72, which is being issued concurrently with this exemption.
3. As explained in Section 5.0 of the NRC staff's Safety Evaluation (ADAMS Accession No. ML17045A717), this exemption meets the eligibility criteria for categorical exclusion set forth in 10 CFR 51.22(c)(9). Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment needs to be prepared in connection with the issuance of the exemption.
4. This exemption is effective as of the date of its issuance.
By letter dated November 16, 2016 (ADAMS Accession No. ML16323A020), the licensee requested that the NRC amend the COLs for VCSNS, Units 2 and 3, COLs NPF–93 and NPF–94. The proposed amendment is described in Section I of this document.
The Commission has determined for these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
The Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments.
Using the reasons set forth in the combined safety evaluation, the staff granted the exemption and issued the amendment that the licensee requested on November 16, 2016. The exemption and amendment were issued on April 17, 2017, as part of a combined package to the licensee (ADAMS Accession No. ML17045A616).
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 January 16, 2017, request from LaCrosse
May 10, 2017.
Please refer to Docket ID NRC–2015–0279 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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Marlayna G. Vaaler, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–3178, email:
The La Crosse Boiling Water Reactor was an Atomic Energy Commission (AEC) Demonstration Project Reactor that first went critical in 1967, commenced commercial operation in November 1969, and was capable of producing 50 megawatts electric. The LACBWR is located on the east bank of the Mississippi River in Vernon County, Wisconsin, and is co-located with the Genoa Generating Station, which is a coal-fired electrical power plant that is still in operation. The Allis-Chalmers Company was the original licensee; the AEC later sold the plant to the Dairyland Power Cooperative (DPC) and granted it Provisional Operating License No. DPR–45 on August 28, 1973 (ADAMS Accession No. ML17080A423).
The LACBWR permanently ceased operations on April 30, 1987 (ADAMS Accession No. ML17080A422), and reactor defueling was completed on June 11, 1987 (ADAMS Accession No. ML17080A420). In a letter dated August 4, 1987 (ADAMS Accession No. ML17080A393), the NRC terminated
The NRC issued an order to authorize decommissioning of the LACBWR and approve the licensee's proposed Decommissioning Plan (DP) on August 7, 1991 (ADAMS Accession No. ML17080A454). Because the NRC approved DPC's DP before August 28, 1996, pursuant to section 50.82 of title 10 of the
By order dated May 20, 2016 (ADAMS Accession No. ML16123A073), the NRC approved the direct transfer of Possession Only License No. DPR–45 for the LACBWR from DPC to LS, a wholly-owned subsidiary of Energy
By letter dated January 16, 2017 (ADAMS Accession No. ML17018A136), LS requested an exemption from 10 CFR part 20, appendix G, “Requirements for Transfers of Low-Level Radioactive Waste Intended for Disposal at Licensed Land Disposal Facilities and Manifests,” section III.E. for the LACBWR. Section III.E requires that the shipper of any low-level radioactive waste to a land disposal facility must investigate and trace the shipment if the shipper has not received notification of the shipment's receipt by the disposal facility within 20 days after transfer. In addition, section III.E requires licensees to report such missing shipments to the NRC. Specifically, LS is requesting that the time period for LS to receive acknowledgement that the shipment has been received be extended from 20 to 45 days after transfer for rail shipments from LACBWR.
The NRC's regulations in 10 CFR 20.2301, “Applications for exemptions,” allow the Commission to grant exemptions from the requirements of the regulations if it determines the exemption would be authorized by law and would not result in undue hazard to life or property. Inherent to the decommissioning process, large volumes of slightly contaminated debris are generated and require disposal. The licensee transports low-level radioactive waste from LACBWR to distant locations such as the waste disposal facility operated by Energy
Pursuant to 10 CFR 20.2301, the Commission may, upon application by a licensee or upon its own initiative, grant an exemption from the requirements of regulations in 10 CFR part 20 if it determines the exemption is authorized by law and would not result in undue hazard to life or property. There are no provisions in the Atomic Energy Act of 1954, as amended (or in any other Federal statute) that impose a requirement to investigate and report on low-level radioactive waste shipments that have not been acknowledged by the recipient within 20 days of transfer. Therefore, the NRC concludes that there is no statutory prohibition on the issuance of the requested exemption and the NRC is authorized to grant the exemption by law.
With respect to compliance with Section 102(2) of the National Environmental Policy Act, 42 U.S.C. 4332(2) (NEPA), the NRC staff has determined that the proposed action, namely, the approval of the LS exemption request, is within the scope of the two categorical exclusions listed at 10 CFR 51.22(c)(25)(vi)(B) and 10 CFR 51.22(c)(25)(vi)(C). The categorical exclusion listed at 10 CFR 51.22(c)(25)(vi)(B) concerns approval of exemption requests from reporting requirements and the categorical exclusion listed at 10 CFR 51.22(c)(25)(vi)(C) concerns approval of exemption requests from inspection or surveillance requirements. Therefore, no further analysis is required under NEPA.
The NRC finds that the underlying purpose of 10 CFR part 20, appendix G, section III.E is to require licensees to investigate, trace, and report radioactive shipments that have not reached their destination, as scheduled, for unknown reasons. Data from the San Onofre Nuclear Generating Station found that rail shipments took over 16 days on average, and on occasion, took up to 57 days. The NRC acknowledges that, based on the history of low-level radioactive waste shipments from the San Onofre Nuclear Generating Station, the need to investigate and report on shipments that take longer than 20 days could result in an excessive administrative burden on the licensee. For rail shipments, LS will require electronic data tracking system interchange, or similar tracking systems that allow for monitoring the progress of the shipments by the rail carrier on a daily basis.
Because of the oversight and monitoring of radioactive waste shipments throughout the entire journey from the LACBWR to the disposal site, it is unlikely that a shipment could be lost, misdirected, or diverted without the knowledge of the carrier or LS. Furthermore, by extending the elapsed time for receipt acknowledgment to 45 days before requiring investigations, tracing, and reporting, a reasonable upper limit on shipment duration (based on historical analysis) is still maintained if a breakdown of normal tracking systems were to occur. Consequently, the NRC finds that extending the receipt of notification period from 20 to 45 days after transfer for the rail shipments described by LS in its January 16, 2017, letter would not
Accordingly, the Commission has determined that, pursuant to 10 CFR 20.2301, the exemption is authorized by law and will not result in undue hazard to life or property. Therefore, the Commission hereby grants LaCrosse
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “Licensing Requirements for Land Disposal of Radioactive Waste.”
Submit comments by July 10, 2017. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–2084; email:
Please refer to Docket ID NRC–2017–0067 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC–2017–0067 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility?
2. Is the estimate of the burden of the information collection accurate?
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on digital instrumentation & control systems (DI&C) will hold a meeting on May 17, 2017, at 11545 Rockville Pike, Room T–2B1, Rockville, Maryland 20852.
The meeting will be open to public attendance. The agenda for the subject meeting shall be as follows:
The Subcommittee will review the DI&C Integrated Action Plan, Rev. 1; the staff's guidance on diversity and defense-in-depth against common cause failure; and improved guidance on DI&C in existing nuclear power plants using the 10 CFR 50.59 process. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Christina Antonescu (Telephone 301–415–6792 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland 20852. After registering with Security, please contact Mr. Theron Brown (Telephone 240–888–9835) to be escorted to the meeting room.
Pursuant to its authority under section 5051 of Public Law 100–203, Nuclear Waste Policy Amendments Act (NWPAA) of 1987, the U.S. Nuclear Waste Technical Review Board will hold an open public meeting in Richland, Washington, on Wednesday, June 21, 2017, to review information on recent U.S. Department of Energy (DOE) research activities related to corrosion and long-term performance of borosilicate high-level radioactive waste (HLW) glass.
The Nuclear Waste Policy Amendments Act (NWPAA) of 1987 charges the Board with performing an ongoing and independent evaluation of the technical and scientific validity of DOE activities related to the disposition of spent nuclear fuel (SNF) and HLW.
The Board meeting will be held at the Courtyard Richland Columbia Point, 480 Columbia Point Drive, Richland, WA 99352; Tel 509–942–9400. A block of rooms has been reserved for meeting attendees at a rate of $96.00 per night. Reservations may be made by phone(1–888–236–2427, refer to group code NUCG) or online (
The meeting will begin at 8:00 a.m. on Wednesday, June 21, 2017, and is scheduled to adjourn at 5:20 p.m. Speakers from U.S. national laboratories will present DOE-funded work during Fiscal Years 2015 to 2017 on HLW glass corrosion and long-term performance. Experts from other countries will provide their perspectives on the current understanding and remaining challenges in measuring and modeling glass performance. Immediately after the meeting, there will be a poster session during which scientists and engineers from universities and national
A detailed meeting agenda will be available on the Board's Web site at
The meeting will be open to the public, and opportunities for public comment will be provided before the lunch break and at the end of the day. Those wanting to speak are encouraged to sign the “Public Comment Register” at the check-in table. Depending on the number of people who sign up to speak, it may be necessary to set a time limit on individual remarks. However, written comments of any length may be submitted, and all comments received in writing will be included in the record of the meeting, which will be posted on the Board's Web site after the meeting. The meeting will be webcast, and the link to the webcast will be available on the Board's Web site (
The Board was established in the NWPAA as an independent federal agency in the Executive Branch to evaluate the technical and scientific validity of DOE activities related to the management and disposal of SNF and HLW and to provide objective expert advice to Congress and the Secretary of Energy on these issues. Board members are experts in their fields and are appointed to the Board by the President from a list of candidates submitted by the National Academy of Sciences. The Board reports its findings, conclusions, and recommendations to Congress and the Secretary of Energy. All Board reports, correspondence, congressional testimony, and meeting transcripts and related materials are posted on the Board's Web site.
For information on the meeting agenda, contact Roberto Pabalan:
Peace Corps.
60-Day notice and request for comments.
The Peace Corps will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval. The purpose of this notice is to allow 60 days for public comment in the
Submit comments on or before July 10, 2017.
Comments should be addressed to Denora Miller, FOIA/Privacy Act Officer. Denora Miller can be contacted by telephone at 202–692–1236 or email at
Denora Miller at Peace Corps address above.
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Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. 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
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.
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This notice will be published in the
On March 9, 2017, The Depository Trust Company (“DTC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR–DTC–2017–001 pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change consists of amendments to the Rules, By-Laws and Organization Certificate of The Depository Trust Company (“DTC Rules”)
DTC states that DEGCL performs information and record-keeping services for CMS users that have entered into user agreements with DEGCL for this purpose (“CMS Users”).
This proposed rule change relates to one of the services that DEGCL proposes to offer, the DEGCL “Allocation Option” (also referred to as “auto-select”). DTC states that the Allocation Option would only be used with DTC eligible securities held in a CMS Sub-Account by a CMS Participant (“CMS
The proposed rule change would allow a CMS Participant to establish one or more CMS Sub-Accounts. Upon doing so, a CMS Participant would be able to instruct DTC to transfer securities to the CMS Participant's CMS Sub-Account. Such securities (
By establishing a CMS Sub-Account, a CMS Participant would be (i) authorizing DEGCL, as its CMS Representative, to receive in report form, the information defined below regarding CMS Securities credited to the CMS Sub-Account at the time of the report (“CMS Report”), and regarding any delivery or pledge from, or delivery or release to, the CMS Sub-Account (“CMS Delivery Information”);
The CMS Report would include, with respect to the CMS Securities credited to a CMS Sub-Account of such CMS Participant at the time of such report, (i) the Committee on Uniform Securities Identification Procedures (“CUSIP”) number, International Securities Identification Number (“ISIN”), or other identification number of the CMS Securities; and (ii) the number of shares or other units or principal amount of the CMS Securities. CMS Delivery Information would be provided in real time, and would include, with respect to each delivery or pledge of CMS Securities from, or delivery or release of CMS Securities to a CMS Sub-Account, a copy of any delivery, pledge, or release message with respect to the CMS Sub-Account, including (i) the CUSIP, ISIN, or other identification number of such CMS Securities, and (ii) the number of shares or other units or principal amount of such CMS Securities.
Section 19(b)(2)(C) of the Act
Section 17A(b)(3)(F) of the Act requires, among other things, that the rules of the clearing agency be designed to promote the prompt and accurate clearance and settlement of securities transactions.
Rule 17Ad–22(e)(20) under the Act requires a clearing agency, such as DTC, to establish, implement, maintain and enforce written policies and procedures reasonably designed to identify, monitor, and manage risks related to any link DTC establishes with one or more other clearing agencies, financial market utilities, or trading markets.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act, in particular the requirements of Section 17A of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 1, 2017, The NASDAQ Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade the Shares of the Fund under Nasdaq Rule 5745, which governs the listing and trading of Exchange-Traded Managed Fund Shares, as defined in Nasdaq Rule 5745(c)(1). The Fund is a series of Hartford Funds NextShares Trust (“Trust”).
Hartford Funds Management Company, LLC (“Adviser”) will be the adviser to the Fund and Wellington Management Company LLP will the sub-adviser to the Fund (“Sub-Adviser”). ALPS Distributors, Inc. will be the principal underwriter and distributor of the Fund's Shares. Hartford Funds Management Company, LLC will act as the administrator and accounting agent to the Fund. State Street Bank and Trust Company will act as sub-administrator, sub-accounting agent, transfer agent, and custodian to the Fund.
The Exchange has made the following representations and statements in describing the Fund.
According to the Exchange, the Fund will be actively managed and will pursue the investment strategy described below.
The investment objective of the Fund is long-term capital appreciation. The Fund seeks to achieve its objective by investing all of its assets in shares of the Global Impact Master Portfolio (“Master Portfolio;” and references to the “Fund” include, where applicable, the Master Portfolio), which has the same investment objective and strategy as the Fund. The Fund invests in equity securities of issuers located throughout the world, including non-dollar securities and securities of emerging market issuers. The Fund's Sub-Adviser specifically seeks to invest the Fund's assets in companies that focus their operations in areas that the Sub-Adviser believes are likely to address major social and environmental challenges including, but not limited to, hunger, health, clean water and sanitation, affordable housing, education and training, financial inclusion, narrowing the digital divide, alternative energy, resource stewardship and resource efficiency. The Fund may invest in companies of any market capitalization, including small capitalization securities, located anywhere in the world, although the Fund will not normally invest more than 33% of its assets in issuers that conduct their principal business activities in emerging markets or whose securities are traded principally on exchanges in emerging markets.
The Fund may also invest in depositary receipts or other securities that are convertible into securities of foreign issuers and could, at times, hold a portion of its assets in cash. Under normal circumstances, at least 40% (and normally not less than 30%) of the Fund's net assets will be invested in or exposed to foreign securities or derivative instruments with exposure to foreign securities of at least three different countries outside the United States.
The Fund will operate as a “feeder fund,” which means it will invest all of its assets in another investment company (the Master Portfolio). The Master Portfolio is a series of the Hartford Funds Master Trust, a Delaware statutory trust. The Adviser and the Sub-Adviser are also the Adviser and Sub-Adviser, respectively, of the Master Portfolio. The Fund has the same investment objective and limitations as the Master Portfolio in which it invests. The Fund does not buy investment securities directly. The Master Portfolio, on the other hand, invests directly in portfolio securities. According to the Exchange, use of the master/feeder structure enables the Fund to pool its assets with other investors in the Master Portfolio, if any, which may result in efficiencies in portfolio management and administration that could lower Fund costs and enhance shareholder returns.
Consistent with the disclosure requirements that apply to traditional open-end investment companies, a complete list of current Fund portfolio positions will be made available at least once each calendar quarter, with a reporting lag of not more than 60 days. The Fund may provide more frequent disclosures of portfolio positions at its discretion.
As defined in Nasdaq Rule 5745(c)(3), the “Composition File” is the specified portfolio of securities and/or cash that the Fund will accept as a deposit in issuing a creation unit of Shares, and the specified portfolio of securities and/or cash that the Fund will deliver in a redemption of a creation unit of Shares. The Composition File will be disseminated through the National Securities Clearing Corporation once each business day before the open of trading in Shares on that day and also will be made available to the public each day on a free Web site.
An estimated value of an individual Share, defined in Nasdaq Rule 5745(c)(2) as the “Intraday Indicative Value” (“IIV”) will be calculated and disseminated at intervals of not more than 15 minutes throughout the Regular Market Session
Because Shares will be listed and traded on the Exchange, Shares will be available for purchase and sale on an intraday basis. Shares will be purchased and sold in the secondary market at prices directly linked to the Fund's next-determined NAV using a trading protocol called “NAV-Based Trading.” All bids, offers, and execution prices of Shares will be expressed as a premium/discount (which may be zero) to the Fund's next-determined NAV (
According to the Exchange, member firms will utilize certain existing order types and interfaces to transmit Share bids and offers to Nasdaq, which will process Share trades like trades in shares of other listed securities.
To avoid potential investor confusion, Nasdaq represents that it will work with member firms and providers of market data services to seek to ensure that representations of intraday bids, offers, and execution prices of Shares that are made available to the investing public follow the “NAV−$0.01/NAV + $0.01” (or similar) display format. Specifically, the Exchange will use the NASDAQ Basic and NASDAQ Last Sale data feeds to disseminate intraday price and quote data for Shares in real time in the “NAV−$0.01/NAV + $0.01” (or similar) display format. Member firms may use the NASDAQ Basic and NASDAQ Last Sale data feeds to source intraday Share prices for presentation to the investing public in the “NAV−$0.01/NAV + $0.01” (or similar) display format. Alternatively, member firms could source intraday Share prices in proxy price format from the Consolidated Tape and other Nasdaq data feeds (
After careful review, the Commission finds that the Exchange's proposal to list and trade the Shares is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Shares will be subject to Rule 5745, which sets forth the initial and continued listing criteria applicable to Exchange-Traded Managed Fund Shares. A minimum of 50,000 Shares and no less than two creation units of the Fund will be outstanding at the commencement of trading on the Exchange.
Nasdaq deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Every order to trade Shares of the Fund is subject to the proxy price protection threshold of plus/minus $1.00, which determines the lower and upper thresholds for the life of the order and provides that the order will be canceled at any point if it exceeds $101.00 or falls below $99.00.
Nasdaq also represents that trading in the Shares will be subject to the existing trading surveillances, administered by both Nasdaq and the Financial Industry Regulatory Authority, Inc. (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
Prior to the commencement of trading in the Fund, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (a) The procedures for purchases and redemptions of Shares in creation units (and that Shares are not individually redeemable); (b) Nasdaq Rule 2111A, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers; (c) how information regarding the IIV and Composition File is disseminated; (d) the requirement that members deliver a prospectus to investors purchasing Shares prior to or concurrently with the confirmation of a transaction; and (e) information regarding NAV-Based Trading protocols.
The Information Circular also will identify the specific Nasdaq data feeds from which intraday Share prices in proxy price format may be obtained. As noted above, all orders to buy or sell Shares that are not executed on the day the order is submitted will be automatically canceled as of the close of trading on that day, and the Information Circular will discuss the effect of this characteristic on existing order types. In addition, Nasdaq intends to provide its members with a detailed explanation of NAV-Based Trading through a Trading Alert issued prior to the commencement of trading in Shares on the Exchange.
Nasdaq states that neither the Adviser nor the Sub-Adviser is a registered broker-dealer; however, each of the Adviser and the Sub-Adviser is affiliated with a broker-dealer and has implemented and will maintain a fire wall with respect to its affiliated broker-dealer regarding access to information concerning the composition of, and/or changes to, the Fund's portfolio.
The Commission finds that the proposal to list and trade the Shares on the Exchange is consistent with Section 11A(a)(1)(C)(iii) of the Act,
Once the Fund's daily NAV has been calculated and disseminated, Nasdaq will price each Share trade entered into during the day at the Fund's NAV plus/minus the trade's executed premium/discount. Using the final trade price, each executed Share trade will then be disseminated to member firms and market data services via a File Transfer Protocol (“FTP”) file
The Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily (on each day that the New York Stock Exchange is open for trading) and provided to Nasdaq via the Mutual Fund Quotation Service (“MFQS”) by the fund accounting agent. As soon as the NAV is entered into MFQS, Nasdaq will disseminate the value to market participants and market data vendors via the Mutual Fund Dissemination Service so that all firms will receive the NAV per share at the same time.
The Exchange further represents that it may consider all relevant factors in exercising its discretion to halt or suspend trading in Shares. Nasdaq will halt trading in Shares under the conditions specified in Nasdaq Rule 4120 and in Nasdaq Rule 5745(d)(2)(C). Additionally, Nasdaq may cease trading Shares if other unusual conditions or circumstances exist that, in the opinion of Nasdaq, make further dealings on Nasdaq detrimental to the maintenance of a fair and orderly market. To manage the risk of a non-regulatory Share trading halt, Nasdaq has in place back-up processes and procedures to ensure orderly trading.
Prior to the commencement of market trading in Shares, the Fund will be required to establish and maintain a public Web site through which its current prospectus may be
The Exchange represents that all statements and representations made in the filing regarding: (a) The description of the Fund's portfolio, (b) limitations on portfolio holdings or reference assets, (c) dissemination and availability of the reference asset or IIVs, or (d) the applicability of Exchange listing rules shall constitute continued listing requirements for listing the Shares on the Exchange. The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements.
This approval order is based on all of the Exchange's representations, including those set forth above, in the Notice, and Amendment Nos. 3 and 4,
For the foregoing reasons, the Commission finds that the proposed rule change, as modified by Amendment Nos. 3 and 4, is consistent with Section 6(b)(5)
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 25, 2017, NYSE MKT LLC (“Exchange” or “NYSE MKT”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to adopt new equities trading rules to facilitate the transition to Pillar, a new trading-technology platform, in order to operate as a fully-automated cash equities market. As part of this transition, the Exchange would move from the current floor-based market with a parity-allocation model to a fully automated market with a price-time-priority allocation model. Consequently,
The Exchange represents that the proposal is based on the trading rules of the NYSE Arca Equities exchange (“NYSE Arca Equities”) and current Exchange equities rules. NYSE Arca Equities already uses Pillar, the same trading technology platform that the Exchange proposes to adopt.
The Exchange would announce the transition of its cash equities trading to Pillar, if approved by the Commission, by a Trader Update. The Exchange anticipates that the transition would occur in the third quarter of 2017. If the Exchange transitions to Pillar trading platform, the Exchange would no longer trade on its current floor-based platform, and current Exchange equities rules governing the floor-based platform would no longer be applicable. The Exchange proposes to mark the affected Exchange rules with a preamble to state that these rules would no longer be in effect and represents that it will subsequently file a separate proposed rule change to delete rules no longer applicable.
A detailed description of the proposal appears in the Notice. The proposal is summarized and discussed below.
The Exchange proposes 12 new definitions to be used with the Pillar trading platform. The Exchange represents that most of the proposed definitions are based on the rules of NYSE Arca Equities. First, the Exchange proposes to define the term “Exchange Book” as the Exchange's electronic file of orders.
The Exchange proposes to define the term “ETP Holder” as a member organization that has been issued an ETP.
The Exchange proposes to define the term “Official Closing Price” as the reference price to determine the closing price in a security.
The Exchange proposes to adopt rules related to equity trading permits on the Exchange, including procedures, qualifications, fees, and employees of ETP Holders. Exchange member organizations who want to trade on Pillar would need to obtain an ETP.
The Exchange proposes that it may, under certain conditions, deny an ETP or condition trading privileges under an ETP.
Proposed Exchange Rule 2.6E would specify that the issuance of an ETP constitutes a revocable privilege and confers on its holder no right or interest of any nature to continue as an ETP Holder.
Proposed Exchange Rule 2.21E would specify registration requirements for employees of ETP Holders, including examination requirements, continuing education requirements, and procedures for registering employees. The proposed rule would prohibit an ETP Holder from employing an Exchange employee during regular Exchange business hours.
Proposed Exchange Rule 2.22E would set forth the Exchange back-up systems and mandatory testing requirements of the Exchange. The Exchange represents that the proposed rule is based on current Exchange Rule 49(b)—Equities.
The next section of proposed Exchange rules would govern the internal administration of the Exchange. Proposed Exchange Rule 3.6E would allow the Exchange to enter into agreements with domestic and foreign self-regulatory organizations to provide for the exchange of information and other forms of mutual assistance for market surveillance, investigative, enforcement, and other regulatory purposes.
The next section of proposed Exchange rules would govern the business conduct of ETP Holders and their associated persons. Proposed Exchange Rule 6.3E would establish the Exchange's requirement that every ETP Holder establish, maintain, and enforce written policies and procedures reasonably designed to prevent the misuse of material, non-public information by the ETP Holder or persons associated with the ETP Holder.
Proposed Exchange Rule 6.10E would specify an ETP Holder's obligations with respect to trading on the Exchange when holding any options that are not issued by the Options Clearing Corporation.
Proposed Exchange Rule 6.12E would govern requirements for joint accounts between an ETP Holder and another person, including reporting obligations to the Exchange.
Proposed Exchange Rule 6.15E would prohibit ETP Holders from participating in a prearranged trade.
The proposed rules under Exchange Rule 7E would set forth how trading would be conducted on the Exchange. Section 1 of proposed Exchange Rule 7E would set forth general provisions relating to cash equities trading on the Pillar trading platform, such as hours of business, clearly erroneous executions, limit up-limit down plan, and clearance and settlement. Section 3 of proposed Exchange Rule 7E would set forth the trading rules for Pillar. Other proposed Exchange rules would provide that the Exchange would not offer a retail liquidity program, set forth rules related to the Exchange routing broker, and adopt rules to comply with the Tick Size Pilot Plan. The Exchange represents that the trading system and rules are based on the rules of NYSE Arca Equities.
The general provisions of the proposed trading rules would set out the necessary rules for trading on the Exchange, including rules governing when the Exchange would be open for business, how clearly erroneous executions would be handled by the Exchange, how the Exchange would clear and settle securities transactions conducted on the Exchange, requirements for short sales, and the limit up-limit down plan.
Proposed Exchange Rule 7.1E would set forth the hours of operation for the Exchange.
Proposed Exchange Rule 7.2E would set forth the holiday schedules for the Exchange.
Proposed Exchange Rule 7.3E would specify that ETP Holders may not charge fixed commissions and that they must indicate whether they are acting as a broker or as a principal.
Proposed Exchange Rule 7.4E would set the ex-dividend or ex-right dates for stocks traded “regular” way.
Proposed Exchange Rule 7.7E would establish that all bids and offers on the Exchange would be anonymous unless otherwise specified by the ETP Holder.
Proposed Exchange Rule 7.8E would specify that all bids and offers will be considered “regular way,” and the Exchange would not accept orders that are not entered for regular way settlement.
Proposed Exchange Rule 7.9E would state that the execution price of an order is binding, notwithstanding the Exchange's clearly erroneous executions and limit up-limit down rules.
Proposed Exchange Rule 7.10E would set forth the Exchange's rules governing clearly erroneous executions.
Proposed Exchange Rule 7.11E would specify how the Exchange would comply with the Regulation NMS Plan to Address Extraordinary Market Volatility (“LULD Plan”)
The Exchange proposes to amend paragraph (c)(i) of Exchange Rule 7.12E to change the rule cross reference from Rule 123D—Equities to Rule 7.35(e).
Proposed Exchange Rule 7.13E would govern trading suspensions.
Proposed Exchange Rule 7.14E would govern clearance and settlement procedures.
Proposed Exchange Rule 7.15E would state that Market Makers may not have an interest in an option that is not issued by the Options Clearing Corporation and prohibit pool dealing in registered securities.
Proposed Exchange Rule 7.16E would set forth the short sales rule.
Proposed Exchange Rule 7.17E would establish requirements that all orders and quotes comply with Rule 602 of Regulation NMS (firm quote rule).
The trading rules for Pillar would set forth definition of orders, how auctions would operate, how orders are displayed and ranked, and how orders are executed. The Exchange represents that the proposed trading rules are based on NYSE Arca Equities rules, with the exception of rules governing orders and modifiers and rules governing trading sessions.
Proposed Exchange Rule 7.29E would specify that, to obtain authorized access to the Exchange, each ETP Holder would be required to enter into a User Agreement.
Proposed Exchange Rule 7.30E would establish requirements for ETP Holders relating to authorized traders who can obtain access to the Exchange on behalf of an ETP Holder.
Proposed Exchange Rule 7.31E would set forth the primary order types, time in force modifiers for the order types, orders with conditional or undisplayed price and/or size, non-routable and routable order instructions, operations of pegged orders, and other order types that would be available on the Pillar trading platform.
Proposed Exchange rule 7.32E would set forth the maximum order entry size at 5 million shares.
Proposed Exchange Rule 7.33E would require ETP Holders to include, with each order entered into the Exchange, their capacity code information, whether as principal, agent, or riskless principal.
Proposed Exchange Rule 7.34E would specify that the Exchange would operate three trading sessions each day: Early, Core, and Late.
Proposed Exchange Rule 7.35E would set forth the auction rules.
Proposed Exchange Rule 7.36E would set forth how orders are ranked and displayed, and the priority of orders.
Proposed Exchange Rule 7.37E would set forth how orders would execute and route, the data feeds the Exchange would use, the prohibition on quotations that lock or cross the best protected bid or offer, and exceptions to the Commission's Order Protection Rule.
Proposed Exchange Rule 7.38E sets forth how odd-lot and mixed-lot orders are treated on the Exchange.
Proposed Exchange Rule 7.39E sets forth how trading would occur on the Exchange through its off-hours trading facility.
Proposed Exchange Rule 7.40E would set forth the Exchange's obligation to report trades to an appropriate consolidated transaction reporting system.
Proposed Exchange Rule 7.41E would specify that each executed transaction on the Exchange will be automatically processed for clearance and settlement on a locked-in and anonymous basis.
The Exchange currently operates a retail liquidity program on a pilot basis.
Proposed Exchange Rule 7.45E would establish the rules for the Exchange's routing broker.
Proposed Exchange Rule 7.46E sets forth the rules for the Tick Size Pilot Plan.
Proposed Exchange Rule 12E would provide that disputes between or among ETP Holders and their associated persons would be resolved via arbitration.
Proposed Exchange Rule 13.2E would set forth requirements governing liability of the Exchange, including the limits on liability under specified circumstances.
As noted earlier, the Exchange would no longer operate a trading floor once the Exchange transitions to Pillar. As a result, the Exchange proposes that certain current rules that relate to floor-based trading would not be applicable on Pillar.
After careful review of the proposal, the Commission finds, for the reasons discussed below, that the proposal is consistent with the requirements of the Act and the rules and regulations thereunder applicable to the Exchange.
The proposal would replace the Exchange's current floor based trading, which has a parity-allocation model, with a fully automated, electronic trading system with a price-time-priority model. The Commission notes that the proposed rules closely parallel, and are substantially similar to, current NYSE Arca Equities rules and current Exchange rules, which were filed and approved by the Commission (or which became immediately effective) pursuant to Section 19(b) of the Act. NYSE Arca Equities currently operates using the Pillar trading platform, and most other national securities exchanges operate fully electronic markets that use a price-time-priority model. Accordingly, the Commission believes that the proposal raises no novel regulatory issues, that it is reasonably designed to protect investors and the public interest, and that it is consistent with the requirements of the Act.
Section 11(a)(1) of the Act
Rule 11a2–2(T)'s first requirement is that orders for covered accounts be transmitted from off the exchange floor. The Exchange represents that it will not have a physical trading floor once it transitions to the Pillar trading platform, and the Exchange's Pillar trading system will receive orders from members electronically through remote terminals or computer-to-computer interfaces.
Second, Rule 11a2–2(T) requires that neither the initiating member nor an associated person of the initiating member participate in the execution of the transaction at any time after the order for the transaction has been transmitted. The Exchange represents that the Pillar trading system would at no time following the submission of an order allow an ETP Holder or an associated person of the ETP Holder to acquire control or influence over the result or timing of the order's execution.
Third, Rule 11a2–2(T) requires that the order be executed by an exchange member that is not associated with the member initiating the order. The Commission has stated that this requirement is satisfied when automated exchange facilities are used, as long as the design of these systems ensures that members do not possess any special or unique trading advantages in handling their orders after transmitting them to the exchange.
Fourth, in the case of a transaction effected for an account with respect to which the initiating member or an associated person thereof exercises investment discretion, neither the initiating member nor any associated person may retain any compensation in connection with effecting the transaction, unless the person authorized to transact business for the account has expressly provided otherwise by written contract referring to Section 11(a) of the Act and Rule 11a2–2(T) thereunder.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether Amendment No. 1 to 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.
As noted above, in Amendment No. 1, the Exchange proposes to: (1) Amend proposed Exchange Rule 7.35E(a)(10)(A) to specify the “Auction Collar” as the greater of $0.50 or 10% away from the Auction Reference Price and delete the specified percentages to conform to SR–NYSEArca–2016–130; (2) amend proposed Exchange Rule 7.35E(d)(2) to note that the Closing Auction Imbalance Freeze will begin ten minutes (rather than one minute) before the scheduled time for the Closing Auction; (3) amend proposed Exchange Rule 7.35E(f)(2) to reject certain orders until after the Auction Processing Period for the IPO Auction has concluded; (4) amend
The Commission believes that Amendment No. 1 does not raise novel regulatory issues and is based on, and substantively identical to, the existing rules of other self-regulatory organizations. Accordingly, the Commission finds good cause, 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 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act entitled the Payment, Clearing, and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
These Advance Notices are filed by the Clearing Agencies in connection with their proposals to (1) renew (“Renewal”) their 364-day committed revolving credit facility (“Credit Facility”), described below, and (2) make annual renewals of the Credit Facility on substantially similar terms and conditions (“Future Renewals”), also described below, as described in greater detail below.
In their filings with the Commission, the Clearing Agencies included statements concerning the purpose of and basis for the Advance Notices and discussed any comments they received on the Advance Notices. The text of these statements may be examined at the places specified in Item IV below. The Clearing Agencies have prepared summaries, set forth in sections A and B below, of the most significant aspects of such statements.
The Clearing Agencies have not solicited or received any written comments relating to these proposals. The Clearing Agencies will notify the Commission of any written comments received by the Clearing Agencies.
In connection with all Future Renewals, the Clearing Agencies would not make changes to (a) the amount of aggregate commitment being sought for or accepted by DTC, which would continue to be $1.9 billion; (b) the financial institution acting as administrative agent; or (c) the commitment period, which would continue to be for 364 days.
However, in connection with all Future Renewals, the Clearing Agencies may consider changes to (1) the amount of aggregate commitment being sought for and accepted by NSCC, so long as such amounts do not vary more than 15 percent either above or below the amount of aggregate commitment being sought by NSCC under the Renewal being proposed by this Advance Notice, which would be no less than $10.285 billion and no more than $13.915 billion;
So long as the Clearing Agencies do not make changes to the terms described in items (a), (b), and (c) above in any Future Renewal, and so long as any Future Renewal adheres to the conditions described in items (1) through (4) above, the Clearing Agencies would consider such Future Renewal as being on substantially the same terms and conditions as the Renewal and predecessor agreements such that it would not need to be subject to the requirement to file an advance notice filing pursuant to Section 806(e)(1) of the Clearing Supervision Act.
The Renewal and Future Renewals would continue to promote the reduction of liquidity risk to the Clearing Agencies, DTC's Participants, NSCC's Members (collectively, “Members”), and the securities market in general because they would help the Clearing Agencies maintain sufficient liquidity resources to timely meet their settlement obligations with a high degree of confidence. The Renewal Agreement and its substantially similar predecessor agreements have been in place since the introduction of same day funds settlement at the Clearing Agencies, and the Clearing Agencies expect to continue to renew the Credit Facility annually pursuant to Future Renewals.
The Clearing Agencies require same day liquidity resources to cover the failure-to-settle of their Member, or affiliated family of Members, with the largest aggregate liquidity exposure. If a Member defaults on its end-of-day net settlement obligation, the Clearing Agencies may borrow under the Credit Facility to enable them, if necessary, to fund settlement among non-defaulting Members, including settlement of guaranteed trades due to settle. Any NSCC borrowing would be secured principally by (i) securities deposited by NSCC Members in NSCC's Clearing Fund
As integral parts of NSCC's risk management structure, the Credit Facility, the commercial paper and extendible-term note facility, and the Clearing Fund, together, provide NSCC liquidity to complete end-of-day net funds settlement.
The Credit Facility is built into DTC's primary risk management controls, the Net Debit Cap
The Credit Facility is a cornerstone of the Clearing Agencies' risk management and both the Renewal and Future Renewals are critical to the Clearing Agencies' risk management infrastructure. Because the Renewal would preserve substantially similar terms and conditions to the Existing Agreement, and Future Renewals would preserve substantially similar terms and conditions to the Renewal Agreement, the Clearing Agencies believe that the Renewal and Future Renewals would not otherwise affect or alter the management of risk at the Clearing Agencies.
The Clearing Agencies believe the Renewal and Future Renewals are consistent with Section 805(b) of the Clearing Supervision Act.
The Clearing Agencies believe the Renewal and Future Renewals are also consistent with Rule 17Ad–22(b)(3),
Rule 17Ad–22(b)(3) requires, in part, that central counterparties, like NSCC, to “establish, implement, maintain and enforce written policies and procedures reasonably designed to . . . [m]aintain sufficient financial resources to withstand, at a minimum, a default by the participant family to which it has the largest exposure in extreme but plausible market conditions . . . .”
Rule 17Ad–22(d)(11)
Rule 17Ad–22(e)(7), which was recently adopted by the Commission, will require, in part, that the Clearing Agencies “effectively measure, monitor, and manage the liquidity risk that arises in or is borne by [it], including measuring, monitoring, and managing its settlement and funding flows on an ongoing and timely basis, and its use of intraday liquidity by . . . [m]aintaining sufficient liquid resources at the minimum in all relevant currencies to effect same-day . . . settlement of payment obligations with a high degree of confidence under a wide range of foreseeable stress scenarios that includes, but is not limited to, the default of the participant family that would generate the largest aggregate payment of obligation for [each Clearing Agency] in extreme but plausible conditions.”
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the Commission is received. The Clearing Agencies shall not implement the proposed change if the Commission has any objection to the proposed change.
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission providing the Clearing Agencies with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the Advance Notices are filed, or the date further information requested by the Commission is received, if the Commission notifies the Clearing Agencies in writing that it does not object to the proposed change and authorizes the Clearing Agencies to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission.
The Clearing Agencies shall post notice on their Web site of proposed changes that are implemented.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the Advance Notices are consistent with the Clearing Supervision 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.
Although the Clearing Supervision Act does not specify a standard of review for an advance notice, its stated purpose is instructive: To mitigate systemic risk in the financial system and promote financial stability by, among other things, promoting uniform risk management standards for systemically important financial market utilities and strengthening the liquidity of systemically important financial market utilities.
• Promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
The Commission has adopted risk management standards under Section 805(a)(2) of the Act
As discussed below, the Commission believes that the changes proposed in the Advance Notice are consistent with Section 805(b) of the Clearing Supervision Act because they (i) promote robust risk management; (ii) are consistent with promoting safety and soundness; and (iii) are consistent with reducing systemic risks and promoting the stability of the broader financial system.
The Commission believes that the changes proposed in the Advance Notices are consistent with promoting robust risk management, in particular management of liquidity risk presented to the Clearing Agencies. Renewing and maintaining the currently proposed credit facility in the manner proposed by the Clearing Agencies would diversify the liquidity resources that the Clearing Agencies may use to resolve a Member default. Additionally, allowing the Clearing Agencies annually to renew the credit facility under certain specified circumstances without an additional advance notice, subject to the specific conditions described above (the “Evergreen” provisions), would provide the Clearing Agencies and market participants with greater certainty regarding a continuing source of committed liquidity to meet its settlement obligations and thus mitigate the Clearing Agencies' liquidity risk. Further, because the Evergreen provisions would ensure that any such annual renewals would be substantially similar to the currently proposed credit facility, the Commission believes that any such renewals would promote robust risk management by diversifying the liquidity resources that the Clearing Agencies may use to resolve a Member default in the same manner as the currently proposed credit facility. As such, the Commission believes that the proposal would promote robust risk management practices at the Clearing Agencies, consistent with Section 805(b) of the Clearing Supervision Act.
The Commission also believes that the changes proposed in the Advance Notices are consistent with promoting safety and soundness. As described above, the currently proposed credit facility would provide the Clearing Agencies with an additional liquidity resource in the event of a Member default. This liquidity would promote safety and soundness for Members because it would provide the Clearing Agencies with a readily available liquidity resource that would enable them to continue to meet their respective obligations in a timely fashion in the event of a Member default, thereby helping to contain losses and liquidity pressures from that default. Because the Evergreen provisions would ensure that any annual renewals implemented without filing an advance notice would be substantially similar to the currently proposed credit facility, any such annual renewals would promote safety
In addition, the Commission believes that the proposal contained in the Advance Notices is consistent with reducing systemic risks and promoting the stability of the broader financial system. As mentioned above, allowing the Clearing Agencies to enter into the currently proposed credit facility would enable the Clearing Agencies, each of which has been designated a systemically important financial market utility,
The Commission believes that the changes proposed by the Advance Notices are consistent with the requirements of Rules 17Ad–22(e)(7) under the Act.
In particular, Rule 17Ad–22(e)(7)(i) under the Act
As described above, the currently proposed credit facility would provide the Clearing Agencies with a readily available liquidity resource that would enable them to continue to meet their respective obligations in a timely fashion in the event of a Member default, thereby helping to contain losses and liquidity pressures from that default. Additionally, because the Evergreen provisions would ensure that any annual renewals would be substantially similar to the currently proposed credit facility, such renewals also would provide the Clearing Agencies with a readily available liquidity resource that would enable them to continue to meet their respective obligations in a timely fashion in the event of a Member default, thereby helping to contain losses and liquidity pressures from that default. Moreover, allowing the Clearing Agencies annually to renew the credit facility pursuant to the proposed Evergreen provisions without filing an additional advance notice would reduce the risk of gaps in liquidity coverage and better allow the Clearing Agencies to continually maintain sufficient liquidity resources. Therefore, the Commission believes that the proposal is consistent with Rule 17Ad–22(e)(7)(i).
Rule 17Ad–22(e)(7)(ii) under the Act requires the Clearing Agencies to establish, implement, maintain and enforce written policies and procedures reasonably designed to hold qualifying liquid resources sufficient to satisfy payment obligations owed to clearing members.
By the Commission.
Pursuant to the provisions of Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange is filing a proposal to amend the MIAX PEARL Fee Schedule (the “Fee Schedule”).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend the Add/Remove Tiered Rebates/Fees set forth in Section 1(a) of the Fee Schedule that apply to MIAX PEARL Market Makers
The Exchange currently assesses transaction rebates and fees to all market participants which are based upon the total monthly volume executed by the Member
Transaction rebates and fees applicable to all Market Makers are currently assessed according to the following table:
The Exchange proposes to increase the “Maker” rebate amount in Tier 3 for Penny classes from ($0.45) to ($0.47). The purpose of increasing the amount of the rebate is to provide a greater incentive to Market Makers to reach Tier 3, thereby increasing the potential for executing more volume at the Exchange and consequently receiving a higher rebate. The Exchange believes that increased Maker volume by Market Makers in Penny classes will attract more liquidity to the Exchange, which in turn will benefit all market participants.
The Exchange also proposes to add a new, alternative Volume Criteria to Tier 3 based upon the total monthly volume executed by a Market Maker solely in SPY options on MIAX PEARL, expressed as a percentage of total consolidated national volume in SPY options. Pursuant to this alternative Volume Criteria, a Market Maker can now reach the Tier 3 threshold if the Market Maker's total executed monthly volume in SPY options on MIAX PEARL is above 2.0% of total consolidated national monthly volume in SPY options. To be clear, volume that is from resting liquidity (Maker) and taking liquidity (Taker) in SPY options are counted towards this alternative Volume Criteria. Accordingly, a Market Maker could now qualify for Tier 3 rebates and fees which will then be applicable to all volume executed by the Market Maker on MIAX PEARL. The two Volume Criteria available for Tier 3 are now based upon either: (a) The total monthly volume executed by the Market Maker
In addition to modifying the MIAX PEARL Market Maker table to insert the new, alternative Volume Criteria threshold in Tier 3, in order to provide a clear explanation of the requirements for achieving that alternative Volume Criteria threshold in Tier 3, the Exchange is proposing to (i) amend the explanatory paragraph beneath the tables in Section 1(a) of the Fee Schedule, and (ii) add a new definition of “SPY TCV” to the Definitions Section of the Fee Schedule. The amended explanatory paragraph will clarify that (except as otherwise set forth in the Fee Schedule) the existing Volume Criteria threshold measures volume in all options classes on MIAX PEARL, and that the new, alternative Volume Criteria threshold in Tier 3 for Market Makers measures volume solely in SPY options on MIAX PEARL. The new definition of SPY TCV in the Definitions Section shall provide the following: “SPY TCV” means total consolidated volume in SPY calculated as the total national volume in SPY for the month for which the fees apply, excluding consolidated volume executed during the period of time in which the Exchange experiences an Exchange System Disruption (solely in SPY options).
The Exchange believes that the proposed alternative Volume Criteria threshold in Tier 3 for Market Makers will provide another opportunity for those Market Makers that concentrate their trading activity in limited options classes such as SPY options to reach a higher tier. The Exchange believes that creating this alternative Volume Criteria will extend the Tier 3 fee incentives to Market Makers that concentrate their trading activity by sending significant volume in SPY options as compared to other Market Makers that do trade in the broad range of products listed on the Exchange.
Finally, the Exchange is proposing to make a minor, non-substantive technical correction to the definition of “TCV” to insert the word “of” in between the words “period” and “time.” This word was inadvertently left out of the sentence when the definition of “TCV” was initially adopted, on February 6, 2017.
The proposed rule change is scheduled to become operative May 1, 2017.
The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act
The proposed Maker rebate increase in Penny classes applicable to Market Makers that reach the Tier 3 threshold is reasonable, equitable and not unfairly discriminatory because all similarly situated Market Makers are subject to the same tiered rebates and fees and access to the Exchange is offered on terms that are not unfairly discriminatory. The Exchange initially set its Maker rebates at the various volume levels based upon business determinations and an analysis of current Maker rebates and volume levels at other exchanges. For competitive and business reasons, the Exchange believes that a higher rebate to Market Makers that add liquidity in Penny classes in a higher tier will encourage Market Makers to execute more volume as a Maker in Penny classes. The Exchange believes for these reasons that offering a higher Maker rebate for transactions in Penny classes in Tier 3 for Market Makers is equitable, reasonable and not
Furthermore, the proposed increase to the Maker rebate amount in Penny classes for Market Makers that reach Tier 3 promotes just and equitable principles of trade, fosters cooperation and coordination with persons engaged in facilitating transactions in securities, and protects investors and the public interest because the proposed increase in the rebate amount encourages Market Makers to send more orders to the Exchange which add liquidity in order to achieve higher thresholds and resulting higher rebates. To the extent that order flow which adds liquidity in Penny classes is increased by the proposal, market participants will increasingly compete for the opportunity to trade on the Exchange, including sending more orders to reach higher tiers. The resulting increased volume and liquidity will benefit all Exchange participants by providing more trading opportunities and tighter spreads.
The Exchange's proposal to adopt the new, alternative Volume Criteria for Tier 3 based on SPY volume executed on the Exchange is reasonable, equitable, and not unfairly discriminatory, as it is a form of pricing based upon trading activity in a select symbol, which is a common practice on many U.S. options exchanges as a means to incentivize order flow to be sent to an exchange for execution in actively traded options classes. The Exchange's affiliate, Miami International Securities Exchange, LLC (“MIAX Options”), offers enhanced pricing for transactions in options underlying certain select symbols.
The Exchange is offering an alternative Tier 3 Volume Criteria threshold based on SPY options volume in Tier 3 because, as previously mentioned, SPY options are the most actively traded options in the industry, and therefore the Exchange believes that incentivizing Market Makers that concentrate their trading activity in SPY options will consequently increase order flow sent to the Exchange, which will benefit all market participants through increased liquidity, tighter markets and order interaction.
The Exchange believes that the proposed non-substantive, technical correction will promote just and equitable principles of trade, remove impediments to and perfect the mechanism of a free and open market and a national market system because it will improve the readability of the rules. The proposed change does not alter the application of the rule. As such, the proposed change would foster cooperation and coordination with persons engaged in facilitating transactions in securities and would remove impediments to and perfect the mechanism of a free and open market and a national market system. In particular, the Exchange believes that the proposed rule change will provide greater clarity to Members and the public regarding the Exchange's Rules, and it is in the public interest for rules to be accurate and concise so as to eliminate the potential for confusion.
MIAX PEARL does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed Maker rebate increase is intended to encourage the posting of liquidity. The proposed rule change should enable the Exchange to attract and compete for order flow with other exchanges and the greater rebate for adding liquidity will encourage Market Makers to submit more order flow that adds liquidity, not removes it. The Exchange also believes that paying greater rebates may create competition among market participants. However, this competition does not create an undue burden on competition but rather offers all market participants the opportunity to receive the benefit of the enhanced pricing.
Further, the Exchange believes that the proposed alternative Volume Criteria threshold in Tier 3 based on SPY options volume applicable to Market Makers provides greater incentives to those Market Makers that concentrate their trading activity in SPY options to send additional SPY orders and creates additional opportunity for additional liquidity to the market.
The Exchange does not believe that the proposed rule change to make a technical correction to its rules will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issues but rather is designed to add additional clarity and to remedy a minor, non-substantive issue in the text of a definition in the Fee Schedule.
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. In such an environment, the Exchange must continually adjust its rebates and fees to remain competitive with other exchanges and to attract order flow. The Exchange believes that the proposed rule changes reflect this competitive environment because they modify the Exchange's fees in a manner that encourages market participants to provide liquidity and to send order flow to the Exchange.
Written comments were neither solicited nor received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) 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
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 4703 (Order Attributes) to specify the behavior of Orders with Midpoint Pegging after initial entry and posting to the Exchange Book when the market is crossed, or when there is no best bid and/or offer. The Exchange also proposes to change a reference to cancelling or rejecting orders in Rule 4703.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
BX proposes to amend Rule 4703 (Order Attributes) to specify the behavior of Orders with Midpoint Pegging that are cancelled or rejected when the market is crossed, or when there is no best bid and/or offer after initial entry and posting to the Exchange Book. BX also proposes to change a reference to cancelling or rejecting orders in Rule 4703.
Rule 4703(d) describes the Pegging Order Attribute, including Midpoint Pegging. Pegging is an Order Attribute that allows an Order to have its price automatically set with reference to the NBBO. Midpoint Pegging means Pegging with reference to the midpoint between the Inside Bid and the Inside Offer (the “Midpoint”).
BX recently proposed changes to Orders with Midpoint Pegging, which were approved by the SEC on November 10, 2016.
BX now proposes to add language to Rule 4703(d) to specify the treatment of Orders with Midpoint Pegging after initial entry and posting to the Exchange Book when the Inside Bid and Inside Offer are subsequently crossed, or if there is subsequently no Inside Bid and/or Inside Offer. Specifically, for Orders with Midpoint Pegging entered through RASH or FIX, if the Order is on the Exchange Book and subsequently the Inside Bid and Inside Offer become crossed, or if there is no Inside Bid and/or Inside Offer, the Order will be removed from the Exchange Book and will be re-entered at the new midpoint once there is a valid Inside Bid and Inside Offer that is not crossed.
As stated in the filing proposing the new Midpoint Pegging functionality, BX believes that the midpoint of a crossed market, or where there is no Inside Bid and Inside Offer, is not a clear and accurate indication of a valid price, and may produce sub-optimal execution
While BX is only proposing to adopt this re-entry functionality for Orders that are entered through RASH or FIX, the Exchange believes that it is appropriate to also modify the treatment of Orders with Midpoint Pegging entered through OUCH or FLITE where the Inside Bid and Inside Offer subsequently becomes crossed, or there is subsequently no Inside Bid and/or Inside Offer. Accordingly, BX is proposing to amend Rule 4703(d) to state that if, after an Order with Midpoint Pegging is entered through OUCH or FLITE, the Inside Bid and Inside Offer changes so that the Midpoint is lower than (higher than) the price of an Order to buy (sell), the Inside Bid and Inside Offer are crossed or if there is no Inside Bid and/or Inside Offer, the Pegged Order will be cancelled back to the Participant.
Finally, BX is proposing to change a reference in Rule 4703 that describes the cancellation or rejection of an Order. Specifically, Rule 4703(d) currently states that, in the case of an Order with Midpoint Pegging, if the Inside Bid and Inside Offer are locked, the Order will be priced at the locking price, if the Inside Bid and Inside Offer are crossed or if there is no Inside Bid and/or Inside Offer, the Order will be cancelled or rejected. BX proposes to change references to cancelling or rejecting an order to “not accepting” an Order. Depending on the context, the reference to rejecting an order may have one of two meanings.
This proposed change supplements the recently-approved changes to Orders with Midpoint Pegging, and the resulting modifications to BX systems.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposal to replace the reference in Rule 4703 to rejecting or cancelling an order to “not accepting” an order is consistent with the Act because the proposed language encompasses the contexts in which the concept of order rejection or cancellation may be used and resolves any ambiguity that may arise when referring to an order rejection.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed change simply supplements the recently-approved changes to Orders with Midpoint Pegging and the resulting modifications to BX systems by adopting a functionality for Orders with Midpoint Pegging after initial entry and posting to the Exchange Book where the Inside Bid and Inside Offer subsequently becomes crossed, or where there is subsequently no Inside Bid and/or Inside Offer, that reflects the order flow management practices of the participants that use those protocols. Moreover, the use of Exchange Order types and attributes is voluntary, and no member is required to use any specific Order type or attribute or even to use any Exchange Order type or attribute or any Exchange functionality at all. If an Exchange member believes for any reason that the proposed rule change will be detrimental, that perceived detriment can be avoided by choosing not to enter or interact with the Order type modified by this proposed rule change. Finally, the proposal will apply equally to all Orders that meet its criteria.
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
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act
At any time within 60 days of the filing of 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 to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 4702 (Order Types) and Rule 4703 (Order Attributes) to specify the behavior of Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging after initial entry and posting to the Nasdaq Book when the market is crossed, or when there is no best bid and/or offer. Nasdaq also proposes to change certain references to cancelling or rejecting orders in Rule 4702 and Rule 4703.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq proposes to amend Rule 4702 (Order Types) and Rule 4703 (Order Attributes) to specify the behavior of Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging that are cancelled or rejected when the market is crossed, or when there is no best bid and/or offer after initial entry and posting to the Nasdaq Book. Nasdaq also proposes to change certain references to cancelling or rejecting orders in Rule 4702 and Rule 4703.
Rule 4702(b)(5) describes the Midpoint Peg Post-Only Order. Among other things, the Rule states that the Midpoint Peg Post-Only Order is an Order Type with a Non-Display Order Attribute that is priced at the midpoint between the National Best Bid and Offer (“NBBO”) and that will execute upon entry only in circumstances where economically beneficial to the party entering the Order. The Midpoint Peg Post-Only Order is available during Market Hours only.
Rule 4703(d) describes the Pegging Order Attribute, including Midpoint Pegging. Pegging is an Order Attribute that allows an Order to have its price automatically set with reference to the NBBO. Midpoint Pegging means Pegging with reference to the midpoint between the Inside Bid and the Inside Offer (the “Midpoint”).
Nasdaq recently proposed changes to Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging, which were approved by the SEC on November 10, 2016.
Nasdaq now proposes to add language to Rule 4702(b)(5)(B) to specify the treatment of a Midpoint Peg Post-Only Order after initial entry and posting to the Nasdaq Book when the NBBO is subsequently crossed, or when there is subsequently no NBBO. Specifically, for Midpoint Peg Post-Only Orders entered through RASH, QIX or FIX, if the Order is on the Nasdaq Book and subsequently the NBBO is crossed, or if there is subsequently no NBBO, the Order will be removed from the Nasdaq Book and will be re-entered at the new midpoint once there is a valid NBBO that is not crossed.
Similarly, Nasdaq proposes to add language to Rule 4703(d) to specify the treatment of Orders with Midpoint Pegging after initial entry and posting to the Nasdaq Book when the Inside Bid and Inside Offer are subsequently crossed, or if there is subsequently no Inside Bid and/or Inside Offer. Specifically, for Orders with Midpoint Pegging entered through RASH, QIX or FIX, if the Order is on the Nasdaq Book and subsequently the Inside Bid and Inside Offer become crossed, or if there is no Inside Bid and/or Inside Offer, the Order will be removed from the Nasdaq Book and will be re-entered at the new midpoint once there is a valid Inside Bid and Inside Offer that is not crossed.
As stated in the filing proposing the new functionality for Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging, Nasdaq believes that the midpoint of a crossed market, or where there is no NBBO, is not a clear and accurate indication of a valid price, and may produce sub-optimal execution prices for members and investors.
Similarly, prior to this change, Orders with Midpoint Pegging entered through RASH, QIX or FIX would have been nevertheless repriced to the midpoint of the Inside Bid and Inside Offer if the Inside Bid and Inside Offer subsequently became crossed, or would have been cancelled if there was subsequently no Inside Bid and/or Inside Offer. As with the change to Midpoint Peg Post-Only Orders, Nasdaq is therefore proposing to re-enter such Orders at the new midpoint once there is an Inside Bid and Inside Offer that is not crossed because the new Inside Bid and Inside Offer is indicative of a valid price. Nasdaq is proposing to re-enter Orders submitted through RASH, QIX or FIX because Nasdaq typically assumes a more active role in managing the order flow submitted by users of these protocols, and this functionality reflects the order flow management practices of these participants.
While Nasdaq is only proposing to adopt this re-entry functionality for Orders that are entered through RASH, QIX or FIX, Nasdaq believes that it is appropriate to also modify the treatment of Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging entered through OUCH or FLITE where the NBBO subsequently becomes crossed, or there is subsequently no NBBO or Inside Bid and/or Offer. Accordingly, Nasdaq is also proposing to amend Rule 4702(b)(5)(B) to state that if, after a Midpoint Peg Post-Only Order entered through OUCH or FLITE is posted to the Nasdaq Book, the NBBO changes so that the NBBO is crossed, or there is no NBBO, the Midpoint Peg Post-Only Order will be cancelled back to the Participant. Similarly, Nasdaq will amend Rule 4703(d) to state that if, after an Order with Midpoint Pegging is entered through OUCH or FLITE, the Inside Bid and Inside Offer changes so that the Midpoint is lower than (higher than) the price of an Order to buy (sell), the Inside Bid and Inside Offer are crossed or if there is no Inside Bid and/or Inside Offer, the Pegged Order will be cancelled back to the Participant.
Finally, Nasdaq is proposing to change certain instances in Rule 4702 and Rule 4703 that describe the cancellation or rejection of an Order. For example, Rule 4702(b)(5)(A) currently states that, if the NBBO is locked when a Midpoint Peg Post-Only Order is entered, the Midpoint Peg Post-Only Order will be priced at the locking price, and if the NBBO is crossed or if there is no NBBO, the Order will be cancelled or rejected. Rule 4702(b)(5)(A) also provides that a Midpoint Peg Post-Only Order that would be assigned a price of $1 or less per share will be rejected or cancelled, as applicable. Similarly, Rule 4703(d) states that, in the case of an Order with Midpoint Pegging, if the Inside Bid and Inside Offer are locked, the Order will be priced at the locking price, and if the Inside Bid and Inside Offer are crossed or if there is no Inside Bid and/or Inside Offer, the Order will be cancelled or rejected.
Nasdaq proposes to change references to cancelling or rejecting an order to “not accepting” an Order. Depending on
This proposed change supplements the recently-approved changes to Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging, and the resulting modifications to Nasdaq systems.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The proposed change is consistent with the Act because it supplements the recently-approved changes to Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging and the resulting modifications to Nasdaq systems, and reflects the Exchange's belief that the midpoint of a crossed market, or where there is no NBBO or Inside Bid and/or Inside Offer, is not a clear and accurate indication of a valid price, and may produce sub-optimal execution prices for members and investors. The proposal adopts a functionality for Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging after initial entry and posting to the Nasdaq Book where the NBBO or Inside Bid and Inside Offer subsequently becomes crossed, or where there is subsequently no NBBO or Inside Bid and/or Inside Offer, that reflects the order flow management practices of the participants that use those protocols,
The proposal to replace certain references to rejecting or cancelling an order to “not accepting” an order is consistent with the Act because the proposed language encompasses the contexts in which the concept of order rejection or cancellation may be used and resolves any ambiguity that may arise when referring to an order rejection.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed change supplements the recently-approved changes to Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging and the resulting modifications to Nasdaq systems by adopting a functionality for Midpoint Peg Post-Only Orders and Orders with Midpoint Pegging after initial entry and posting to the Nasdaq Book where the NBBO subsequently becomes crossed, or where there is subsequently no NBBO or Inside Bid and/or Inside Offer, that reflects the order flow management practices of the participants that use those protocols. Moreover, the use of Exchange Order types and attributes is voluntary, and no member is required to use any specific Order type or attribute or even to use any Exchange Order type or attribute or any Exchange functionality at all. If an Exchange member believes for any reason that the proposed rule change will be detrimental, that perceived detriment can be avoided by choosing not to enter or interact with the Order type modified by this proposed rule change. Finally, the proposal will apply equally to all Orders that meet its criteria.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b–4(f)(6) thereunder.
A proposed rule change filed pursuant to Rule 19b–4(f)(6) under the Act
At any time within 60 days of the filing of 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
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 13, 2017, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR–NSCC–2017–001, pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NSCC proposes to amend its Rules & Procedures (“Rules”)
NSCC states that it designed the Illiquid Charge to mitigate the market risk that NSCC faces when liquidating securities that lack marketability, based on insufficient access to a trading venue, and may have low and volatile share prices (“Illiquid Securities”),
NSCC calculates an Illiquid Charge for each net unsettled position in an Illiquid Security (
Depending on whether the Illiquid Positon is a net buy or a net sell position, NSCC applies different volume thresholds and calculation methods for establishing the Illiquid Charge. The purpose of this is to address the different risk profiles presented by such net buy and net sell positions.
The Illiquid Charge only applies to a member's net buy Illiquid Position if the position meets a specific volume threshold. For an NSCC member with a strong credit rating, the net buy Illiquid Position must meet a volume threshold of greater than 100 million shares.
In addition, the Illiquid Charge only applies to net buy Illiquid Positions in Illiquid Securities that have a share price below $0.01. If a transaction in any security, including an Illiquid Security, with a share price below $0.01 is entered into NSCC's Continuous Net Settlement system or Balance Order Accounting Operation,
To address this risk, NSCC states that it calculates the Illiquid Charge for net buy Illiquid Positions by multiplying the aggregate quantity of shares in such positions by $0.01.
The Illiquid Charge only applies to a member's net sell Illiquid Position if the position meets a specific volume threshold. To determine the volume threshold, NSCC first offsets the quantity of shares in the member's net sell Illiquid Position against the number of shares of the same Illiquid Security held by the member at The Depository Trust Company (“DTC inventory offset”).
If the applicable volume threshold is met, the net sell Illiquid Position is subject to the Illiquid Charge. To calculate the Illiquid Charge for net sell Illiquid Positions, NSCC considers the Current Market Price
(A) If the Illiquid Position has a Current Market Price equal to or less than $1.00, NSCC calculates the Illiquid Charge as the product of the aggregate quantity of shares in the Illiquid Position and either (i) the highest market price of the Illiquid Security during the preceding 20 trading days (“One Month High Price”),
(B) If the Illiquid Position has a Current Market Price that is greater than $1.00, NSCC calculates the Illiquid Charge as the product of the aggregate quantity of shares in the Illiquid Position and either (i) the One Month High Price, or (ii) the Current Market Price of the Illiquid Security rounded up to the next $0.50 increment.
In determining whether to use the One Month High Price or the Current Market Price of the Illiquid Security to calculate the Illiquid Charge, NSCC compares the percentage of the ADV to the share quantity in the Illiquid Position. If the quantity of shares in the Illiquid Position is less than 100 percent of the ADV, but greater than or equal to 25 percent of the ADV, then the calculation uses the lesser of the One Month High Price or the Current Market Price of the Illiquid Securities (rounded up to the next $0.50 increment, if applicable). If the quantity of shares in the Illiquid Position is greater than or equal to 100 percent of the ADV, then the calculation uses the greater of the One Month High Price or the Current Market Price of the Illiquid Security (rounded up to the next $0.50 increment, if applicable).
Furthermore, depending on the result of the calculation described above, the Illiquid Charge would remain subject to a minimum price per share, which would not be less than $0.01. Therefore, when calculating the Illiquid Charge, the One Month High Price or the Current Market Price of the Illiquid Security is substituted by the minimum price per share if the One Month High Price or the Current Market Price, as applicable, is below the minimum price per share.
NSCC states that, in order to avoid duplicate margin charges, it does not apply the Illiquid Charge when a greater Market Maker Domination Charge (“MMDC”) charge is also applicable to the same Illiquid Positions.
Similarly, NSCC proposes to exclude family-issued securities from the definition of “Illiquid Security.”
Separate from the proposed changes related to the Illiquid Charge, NSCC would amend the Rules to define the term “Market Maker Domination Charge” in Procedure XV, Section I(A)(1)(d) of the Rules and use the defined term in Section I(A)(2)(c) of the Rules. NSCC believes that this change would improve clarity and create ease of reference in the Rules.
Section 19(b)(2)(C) of the Act
Section 17A(b)(3)(F) of the Act, requires, in part, that NSCC's Rules be designed to assure the safeguarding of securities and funds that are within the custody or control of the clearing agency and to promote the prompt and accurate clearance and settlement of securities transactions.
The Commission also finds that the proposed rule change pertaining to the Market Maker Domination Charge is consistent with Section 17A(b)(3)(F) of the Act.
Rule 17Ad–22(e)(1) under the Act requires, in part, a clearing agency to “establish, implement, maintain and enforce written policies and procedures reasonably designed to . . . [p]rovide for a well-founded, clear, transparent and enforceable legal basis for each aspect of its activities.”
Rule 17Ad–22(e)(4)(i) under the Act requires a clearing agency to establish, implement, maintain and enforce written policies and procedures reasonably designed to effectively identify, measure, monitor, and manage its credit exposures to members and those exposures arising from its payment, clearing, and settlement processes, including by maintaining sufficient financial resources to cover its credit exposure to each member fully with a high degree of confidence.
Rule 17Ad–22(e)(6)(v) under the Act requires, in part, NSCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to cover its credit exposures to its members by establishing a risk-based margin system that, at a minimum, uses an appropriate method for measuring credit exposure that accounts for relevant product risk factors and portfolio effects across products.
On the basis of the foregoing, the Commission finds that the proposal is consistent with the requirements of the Act, in particular the requirements of
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 text of the proposed rule change is 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 any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes changes to Rule 6.56 (Compression Forums) to: (1) Make all existing positions in series of S&P 500® Index (“SPX”) options
SEC Rule 15c3–1 (Net Capital Requirements for Brokers or Dealers) (“Net Capital Rules”) requires registered broker-dealers, unless otherwise excepted, to maintain certain specified minimum levels of capital.
Subject to certain exceptions, CBOE Clearing Trading Permit Holders (“CTPHs”)
The Exchange believes that these higher regulatory capital requirements have the potential to impact liquidity in the SPX options market by limiting the amount of capital CTPHs can allocate to their clients' transactions. Specifically, the rules may cause CTPHs to impose stricter position limits on their client clearing members, which include CBOE Market-Makers. Such position limits may impact the liquidity Market-Makers might supply in the SPX market, and this impact may be compounded when a CTPH has multiple Market-Maker client accounts, each having largely risk-neutral portfolio holdings.
In order to mitigate the potential negative effects of these additional bank regulatory capital requirements and foster continued liquidity in the SPX options market in a manner consistent with the requirements, the Exchange recently adopted Rule 6.56 pursuant to which TPHs can reduce (or “compress”) existing positions in SPX at the end of each calendar month more efficiently through trading in an open outcry compression forum.
Under current Rule 6.56, on the final three business days of each calendar month, the Exchange holds compression forums in the SPX trading crowd. Beforehand, in order to facilitate TPHs finding counterparty offsets against which they can trade closing positions, currently, TPHs may submit lists of existing SPX positions (with either a required capital charge equal to the minimum capital charge under the risk-based haircut calculator provided by the OCC or comprised of option series with a delta of ten (10) or less) to the Exchange that they wish to close during a compression forum. The Exchange then aggregates these positions into a single list containing the series in which opposite (long/short) interest was submitted to the Exchange. Prior to the open of trading on the third-to-last business day of each calendar month (
The Exchange then holds open outcry “compression forums” in which all TPHs may participate whether or not they submitted positions for inclusion in the compression-list position file. Currently, trades executed during compression forums are subject to trading rules applicable to trading in SPX during Regular Trading Hours, including manner of bids and offers and allocation and priority rules, except: (1) Only closing transactions in SPX options (including compression-list positions) may be executed during a compression forum; and (2) the minimum increment for each series is $0.01 during a compression forum. TPHs that trade positions previously submitted to the Exchange on a compression list may then take advantage of the compression-list position fee rebate on portions of a transaction that involve their compression-list positions, which are executed through a compression forum.
The Exchange proposes to amend Rule 6.56 to enhance the effectiveness and utility of its compression forums process for market participants. Based on research, past compression forum results, and anecdotal evidence, the Exchange believes that the number of SPX contracts closed in past compression forums is only a small fraction of the number of SPX contracts that TPHs would like to close out because of bank regulatory capital-related restraints. This is due, at least in part, to TPHs submitting compression-list positions that include fewer than the total SPX contracts they would like to close. These limited TPH compression-list positions yield fewer series in which the Exchange has received two-sided interest (for publication in the compression-list positions file), and only a fraction of that two-sided interest has been closed out during previous compression forums.
The Exchange proposes to amend Rule 6.56 to remove the requirement that compression-list positions must be positions with either: (1) A required capital charge equal to the minimum capital charge under the risk-based haircut calculator provided by the OCC or (2) comprised of option series with a delta of ten (10) or less. In addition, the Exchange proposes to change the manner in which it publishes the compression-list positions file and amend the rules with respect to requirements for solicited transactions executed through a compression forum. Finally, the Exchange proposes to make certain non-substantive changes to clarify the text of Rule 6.56. The Exchange believes that these proposed amendments to Rule 6.56 would enhance the effectiveness and utility of its compression forums process.
Under current Rule 6.56(a)(1), prior to the close of Regular Trading Hours on the fourth to last business day of each calendar month, in a manner and format determined by the Exchange, a TPH may provide the Exchange with a list of open SPX options positions with either a required capital charge equal to the minimum capital charge under the risk-based haircut calculator provided by the OCC or comprised of option series with a delta of ten (10) or less that it would like to close during the compression forum for that calendar month (“compression-list positions”). Compression-list positions may consist
The Exchange proposes to amend the definition of compression-list positions to include any SPX option position submitted to the Exchange pursuant to Rule 6.56(a)(1) that a TPH wishes to close through a compression forum. Specifically, the Exchange proposes to remove the text from paragraph (a)(1) of Rule 6.56 that requires a compression-list position to either have a required capital charge equal to the minimum capital charge under the risk-based haircut calculator provided by the OCC or be comprised of an option series with a delta of ten (10) or less. Accordingly, the proposed rule text of the first sentence of Rule 6.56(a)(1) would provide that prior to the close of Regular Trading Hours on the fourth to last business day of each calendar month, in a manner and format determined by the Exchange, a TPH may provide the Exchange with a list of open SPX options positions that it would like to close through the compression forum for that calendar month (“compression-list positions”).
This proposed change would also obviate the need for the provision that compression-list positions may consist of multi-legged positions in series of SPX options, which satisfy the conditions set forth in paragraph (a)(1) of Rule 6.56. Under the current rule, TPHs may use offsetting positions to create a multi-leg position with a required capital charge equal to the minimum capital charge under the risk-based haircut calculator provided by the OCC. If the requirement that the position have a required capital charge equal to the minimum capital charge under the risk-based haircut calculator provided by the OCC were eliminated, then there would be no need to submit a multi-leg position to make it qualify as a compression-list position under Rule 6.56(a)(1); any leg of any SPX position on its own would qualify without exception. Thus, under the proposed rule, TPHs may simply submit a list of single-leg positions to the Exchange in order to qualify for a rebate of the fees for any associated transactions.
The Exchange believes that the proposed change would encourage more market participants to close out SPX positions through compression forums and help ensure continued depth of liquidity in the SPX options market. Based on the Exchange's understanding of the number of SPX contracts that TPHs would like to close out each month for bank regulatory capital-related purposes, the comparatively small numbers of contracts submitted to the Exchange on average per month as compression-list positions, and the even smaller number of SPX contracts closed during compression forums, the Exchange believes that the definition of compression-list positions ought be expanded to include any open SPX options positions that a TPH wishes to close during a compression forum (and thus be eligible for a fee rebate). Although the parameters in current Rule 6.56(a)(1) were put in place as a mechanism for market participants to close out-of-the-money (“OTM”) positions that might be held until expiration because of the cost of trading out of them and despite the large capital charges associated with such positions, the Exchange believes that market participants and, in particular, Market-Makers have a need for a mechanism that allows them to easily close other less deep OTM SPX positions and even in-the-money (“ITM”) positions at month's end in order to free up capital that could then be deployed to provide additional liquidity in the SPX options market.
The Exchange also proposes to make changes to paragraph (a)(2) of Rule 6.56 regarding the dissemination of the compression-list positions file. Under current Rule 6.56, prior to the open of Regular Trading Hours on the third to last business day of each calendar month, the Exchange makes available to all TPHs an aggregate two-sided (long/short) list including each series for which both long and short positions have been submitted to the Exchange pursuant to paragraph (a)(1) and the size on each side in each of those series (“compression-list positions file”). Based on anecdotal evidence, the Exchange believes that TPHs are submitting fractions of positions that they would like to compress to the Exchange as compression-list positions because of the format in which the Exchange publishes the compression-list positions file. Specifically, the Exchange believes TPHs are concerned about revealing large position imbalances and thus are hesitant to submit their full eligible compression-list positions to the Exchange. This results in an overall lowering of the compression forum efficiency, fewer SPX positions closed, and less reduced capital that could be used to create and maintain greater liquidity in the SPX options market.
If the Exchange were to only publish the offsetting size of long and short positions in each series, however, these concerns would be alleviated. Accordingly, the Exchange proposes to amend paragraph (a)(2) to provide that it will publish only up to the size of the offsetting compression-list positions in each series for which both long and short positions have been submitted to the Exchange. Specifically, the Exchange proposed to amend paragraph (a)(2) of Rule 6.56 to provide that prior to the open of Regular Trading Hours on the third to last business day of each calendar month, the Exchange will make available to all TPHs a list including each series for which both long and short compression-list positions have been submitted to the Exchange and the size of the offsetting compression-list positions in those series. The difference between the current and proposed compression-list positions file publication methodologies can be demonstrated through the following example, which assumes that prior to the close of trading on the fourth to last business day of a particular calendar month, the Exchange receives the following compression-list positions from TPHs XYZ, ABC, and 123:
Assuming that each of the positions listed above qualify as compression-list positions under Rule 6.56(a)(1), under the current rule, the Exchange would compile the compression-list positions file by aggregating the long and short positions in each series for which both long and short positions had been submitted to the Exchange as follows:
Under the Exchanges' proposal to show only up to the offsetting size in each series for which both long and short positions have been submitted to the Exchange, assuming the same compression-list positions above were submitted to the Exchange, the Exchange would publish the following compression-list positions filing:
As demonstrated in the examples above, using the current method for compiling the compression-list positions file, several large position imbalances would be shown to market participants, whereas under the proposed method for compiling the compression-list positions file, only the net size would be shown.
The Exchange also proposes to amend Rule 6.56(c) to provide that TPHs may solicit a TPH or a non-TPH customer or broker-dealer to transact through a compression forum in accordance with the provisions of this Rule and the solicited transaction requirements contained in Rule 6.9 and that trades executed through a compression forum pursuant to Rule 6.56 and otherwise in compliance with the Rules, including, but not limited to Rule 6.9 will not be deemed prearranged trades. Currently, Rule 6.56(c) provides that TPHs may communicate with other TPHs to determine: (1) A TPH's open single-legged or multi-legged SPX position, including side and size, and/or (2) whether a TPH anticipates participating in a compression forum at a particular date and time, but that during these communications, TPHs may not discuss the price of a potential transaction involving these positions during a compression forum. This restriction is stricter than the Exchange's normal trading rules, which, under Rule 6.9 (Solicited Transactions), permit price discovery. The Exchange believes permitting solicited transactions that include discussion of price in accordance with Rule 6.9 may enhance the compression forum process. The
The Exchange proposes to further amend the text of Rule 6.56(c) to provide that trades executed through a compression forum pursuant to Rule 6.56 and otherwise in compliance with the Rules, including but not limited to Rule 6.9 (including a discussion of price as permitted by that rule), will not be deemed prearranged trades.
The Exchange also proposes to make several clarifying changes to the rule text of Rule 6.56. In paragraphs (a)(1), (b), (b)(1), and (c), the Exchange proposes to change the word “during” to “through” to make clear that the rules apply to transactions executed through the compression forum process, rather than transactions in series of SPX options that may be executed during the hours in which a compression forum is taking place, but outside of the compression forum process.
The Exchange proposes to amend Rule 6.56(a)(4) to delete the word “conduct” and replace it with the words “make available.” Currently, Rule 6.56(a)(4) provides that the Exchange will conduct an open outcry “compression forum” in which all TPHs may participate on each of the last three business days of every calendar month at a location on the trading floor determined by the Exchange. The Exchange, however, does not conduct or participate in the compression forum process. Rather, the Exchange provides a locale for the compression forums or “makes available” compression forums to TPHs. Accordingly, the Exchange proposes changes to Rule 6.56(a)(4) to make this point clear.
Finally, the Exchange proposes changes to paragraph (b)(2) of Rule 6.56 to make clear that the minimum increment for bids and offers represented in open outcry in a compression forum is $0.01, both for single series positions and with respect to complex orders
The Exchange believes the proposed rule change is consistent with 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 Exchange believes the proposed rule change is reasonable, equitable, and does not unfairly discriminate against any market participants. The Exchange notes that all TPHs with open SPX positions submit compression-list positions (that would be eligible for a fee rebate) in accordance with the proposed rule change. In fact, the proposed rule change would encourage participation by additional participants as any market participant holding an SPX position could now submit positions eligible compression-list positions (that would therefore qualify for a fee rebate), rather than only those with positions meeting certain limiting criteria. Any market participant with an open SPX positions could participate in a compression forum (including customers through CBOE Floor Brokers), as they would for any other SPX trade. Participation in compression forums, as well as advanced submission of compression-list positions, is optional, and TPHs may also continue to trade open SPX positions during normal trading.
Furthermore, the Exchange believes that its proposal is consistent with the Act in that it seeks to foster liquidity in the SPX options market in light of the bank regulatory capital requirements. As described above, the Exchange believes that the new bank regulatory capital requirements could potentially limit the amount of capital CTPHs can allocate to their clients' transactions, which in turn, may impact liquidity, particularly in the SPX market. Specifically, the rules may cause CTPHs to impose stricter position limits on their clients, including Market-Makers. The Exchange believes that permitting TPHs to reduce open interest in offsetting SPX options positions in the manner set out in Rule 6.56 would likely contribute to the availability of liquidity in the SPX options. The Exchange believes that the proposed rule would serve to protect investors by helping to ensure consistent continued depth of liquidity in the SPX options market.
The Exchange also believes the proposed rule change is consistent with the Act, because the proposed procedure is consistent with its current rules. The proposed rule would direct that all trading through compression forums be conducted in accordance with normal SPX trading rules and thus, in the same manner as transactions during normal SPX trading, except that they must be closing only and may be in penny increments. In particular, the proposed changes to Rule 6.56(b) and (c) would eliminate discrepancies in the
The Exchange does not believe that the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the Act because it applies to all market participants with positions that meet the eligible criteria in the same manner. The proposed change would encourage the closing of positions, which, once closed, may serve to alleviate the capital requirement constraints on TPHs and improve overall market liquidity by freeing capital currently tied up in certain SPX positions. The Exchange does not believe that the proposed rule changes will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change applies only to the trading of SPX options, which are exclusively-listed on CBOE. To the extent that the proposed changes make the Exchange a more attractive marketplace for market participants at other exchanges, such market participants are eligible to participant through CBOE TPHs. Furthermore, as stated in Item 3(b) above, submission of lists of positions for compression is completely voluntary, open to all TPHs, and non-binding, in that submission of a list does not require a TPH to trade any position or even represent any position through a compression forum. Lists of positions will be made available to all TPHs simply alert TPHs to certain SPX positions that other TPHs are interested in closing at the end of each calendar month.
The Exchange neither solicited nor received written 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.
Federal Aviation Administration (FAA), DOT.
Notice of request to release airport property.
The FAA proposes to rule and invites public comment on the release of land at Walnut Ridge Regional Airport under the provisions of Section 125 of the Wendell H. Ford Aviation
Comments must be received on or before June 9, 2017.
Comments on this application may be mailed or delivered to the FAA at the following address: Mr. Glenn A. Boles, Manager, Federal Aviation Administration, Southwest Region, Airports Division, AR/OK Airports Development Office, ASW–630, Fort Worth, Texas 76137.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to The Honorable Charles Snapp, Mayor of Walnut Ridge at the following address: City of Walnut Ridge, Arkansas, 300 West Main Street, Walnut Ridge, AR 72476.
Mr. Paul Burns, Program Manager, Federal Aviation Administration, AR/OK Airports Development Office, ASW–630, 10101 Hillwood Parkway, Fort Worth, Texas 76177.
The request to release property may be reviewed in person at this same location.
The FAA invites public comment on the request to release property at the Walnut Ridge Regional Airport under the provisions of the AIR 21.
On May 3, 2017, the FAA determined that the request to release property at Walnut Ridge Regional Airport submitted by the City of Walnut Ridge met the procedural requirements of the Federal aviation Regulations, Part 155. The FAA may approve the request, in whole or in part, no later than June 19, 2017.
The following is a brief overview of the request: The City of Walnut Ridge requests the release of 15.12 acres of airport property valued at $90,000.00. The release of property will allow for the sale of the property to Custom-Pak, Inc. for the expansion of an existing industrial facility adjacent to the airport. The City of Walnut Ridge will use the $90,000.00 resulting from the sale of the 15.12 acres to fund the construction of Jet-A and AvGas fuel farm, the rehabilitation of runways and taxiway, and the rehabilitation of existing hangars and existing buildings on the airport.
Any person may inspect the request in person at the FAA office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the Walnut Ridge Regional Airport.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice.
Congress mandated the establishment of the HHG Working Group in the Fixing America's Surface Transportation (FAST) Act. The group is charged with providing recommendations on how to better educate and protect HHG moving customers (consumers) during interstate HHG moves.
The third HHG Working Group meeting will be held on June 27 and 28, 2017, from 9:00 a.m. to 4:30 p.m. and June 29, 2017, from 9:00 a.m. to 12:00 p.m. at the USDOT Headquarters, 1200 New Jersey Avenue SE., Washington, DC, 20590. Members of the public planning to attend should email Kenneth Rodgers at
Kenneth Rodgers, Chief, Commercial Enforcement and Investigations Division, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC.
Section 5503 of the FAST Act (Pub. L. 114–94) (December 4, 2015) requires the HHG Working Group to provide recommendations to the Secretary of Transportation, through the FMCSA Administrator. The Working Group will operate in accordance with the Federal Advisory Committee Act (FACA). 5 U.S.C. App. 2.
As required by Section 5503 of the FAST Act, the Working Group will make recommendations in three areas relating to “how to best convey to consumers relevant information with respect to the Federal laws concerning the interstate transportation of household goods by motor carrier.” Those areas are:
1. How to condense the FMCSA “Ready to Move?” tips published in April 2006 (FMCSA–ESA–03–005) into a more consumer friendly format;
2. How best to use state-of-the-art education techniques and technologies (including how to optimize use of the Internet as an educational tool); and
3. How to reduce and simplify the paperwork required of motor carriers and shippers in interstate transportation.
Section 5503 mandates that the Secretary of Transportation appoint a Working Group that is comprised of (i) individuals with expertise in consumer affairs; (ii) educators with expertise in how people learn most effectively; and (iii) representatives of the FMCSA regulated interstate HHG moving industry.
On April 20, 2016, FMCSA solicited applications and nominations of interested persons to serve on the HHG Working Group. Applications and nominations were due on or before May 20, 2016 [81 FR 23354]. The HHG Working Group met on January 4–5, 2017, and May 2–4, 2017.
The Working Group will terminate one year after the date its recommendations are submitted to the Secretary of Transportation.
Meetings will be open to the general public, except as provided under FACA. Notice of each meeting will be published in the
For the June 27–29, 2017, meeting, oral comments from the public will be heard from 10:00 a.m. to 11:00 a.m. on June 29, 2017. Should all public comments be exhausted prior to the end of the specified oral comment period, the comment period will close.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 9, 2017.
Comments should refer to docket number MARAD–2017–0084. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–9309, Email
As described by the applicant the intended service of the vessel ENTROPY is:
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Executive Director.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 9, 2017.
Comments should refer to docket number MARAD–2017–0082. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–9309, Email
As described by the applicant the intended service of the vessel BIG GAME is:
The complete application is given in DOT docket MARAD–2017–0082 at
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from
(Authority: 49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121)
By Order of the Executive Director.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 9, 2017.
Comments should refer to docket number MARAD–2017–0083. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–9309, Email
As described by the applicant the intended service of the vessel OVERTIME is:
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Executive Director.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 9, 2017.
Comments should refer to docket number MARAD–2017–0085. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590, Telephone 202–366–9309, Email
As described by the applicant the intended service of the vessel BOATEL is:
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Executive Director.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 9, 2017.
Comments should refer to docket number MARAD–2017–0080. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–9309, Email
As described by the applicant the intended service of the vessel BLACK LION is:
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Executive Director.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is
Submit comments on or before June 9, 2017.
Comments should refer to docket number MARAD–2017–0087. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–9309, Email
As described by the applicant the intended service of the vessel CAROLINE is:
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Executive Director.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 9, 2017.
Comments should refer to docket number MARAD–2017–0086. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–9309, Email
As described by the applicant the intended service of the vessel APOLLO is:
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
49 CFR 1.93(a), 46 U.S.C. 55103, 46 U.S.C. 12121
By Order of the Executive Director.
Maritime Administration, DOT.
Notice.
The Secretary of Transportation, as represented by the Maritime Administration (MARAD), is authorized to grant waivers of the U.S.-build requirement of the coastwise laws under certain circumstances. A request for such a waiver has been received by MARAD. The vessel, and a brief description of the proposed service, is listed below.
Submit comments on or before June 9, 2017.
Comments should refer to docket number MARAD–2017–0081. Written comments may be submitted by hand or by mail to the Docket Clerk, U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. You may also send comments electronically via the Internet at
Bianca Carr, U.S. Department of Transportation, Maritime Administration, 1200 New Jersey Avenue SE., Room W23–453, Washington, DC 20590. Telephone 202–366–9309, Email
As described by the applicant the intended service of the vessel RAIN BIRD is:
In accordance with 5 U.S.C. 553(c), DOT/MARAD solicits comments from the public to better inform its rulemaking process. DOT/MARAD posts these comments, without edit, to
By Order of the Executive Director.
Internal Revenue Service, Treasury.
Notice.
Pursuant to section 10(d), of the Federal Advisory Committee Act of the Government in the Sunshine Act, a report summarizing the closed meeting activities of the Art Advisory Panel during Fiscal Year 2016 has been prepared. A copy of this report has been filed with the Assistant Secretary for Management of the Department of the Treasury.
The report is available for public inspection and requests for copies should be addressed to: Internal Revenue Service, Freedom of Information Reading Room, Room 1621, 1111 Constitution Avenue NW., Washington, DC 20224, Telephone number (202) 622–5164 (not a toll free number). The report is also available at
Maricarmen R. Cuello, AP:SPR:AAS, Internal Revenue Service/Appeals, 51 SW. 1st Avenue, Room 1014, Miami, FL 33130, Telephone number (305) 982–5364 (not a toll free number).
It has been determined that this document is not a major rule as defined in Executive Order 12291 and that a regulatory impact analysis is, therefore, not required. Additionally, this document does not constitute a rule subject to the Regulatory Flexibility Act (5 U.S.C. Chapter 6).
Internal Revenue Service (IRS), Treasury.
Notice.
This notice is provided in accordance with IRC section 6039G of
Notice.
The Department of Veterans Affairs (VA), Center for Minority Veterans (CMV), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Minority Veterans (“the Committee”). The Committee advises the Secretary on the administration of VA benefits and services to minority Veterans; assesses the needs of minority Veterans with respect to such benefits; and evaluates whether VA compensation, medical and rehabilitation services, outreach, and other programs are meeting those needs. The Committee makes recommendations to the Secretary regarding such activities. Nominations of qualified candidates are being sought to fill upcoming vacancies on the Committee.
The Committee was established in accordance with 38 U.S.C. 544 (Public Law 103–446, Sec. 510).
Nominations for membership on the Committee must be received no later than 5:00 p.m. EST on May 26, 2017.
All nominations should be mailed to the Center for Minority Veterans, Department of Veterans Affairs, 810 Vermont Ave. NW. (00M), Washington, DC 20420, or faxed to (202) 273–7092.
Ms. Juanita J. Mullen, Center for Minority Veterans, Department of Veterans Affairs, 810 Vermont Ave. NW. (00M), Washington, DC 20420, Telephone (202) 461–6191. A copy of the Committee charter and list of the current membership can be obtained by contacting Ms. Mullen or by accessing the Web site managed by CMV at
The Committee was established pursuant to 38 U.S.C. 544. The Committee responsibilities include:
(1) Advising the Secretary and Congress on VA's administration of benefits and provisions of healthcare, benefits, and services to minority Veterans.
(2) Providing an annual report to Congress outlining recommendations, concerns and observations on VA's delivery of services to minority Veterans.
(3) Meeting with VA Officials, Veteran Service Organizations, and other stakeholders to assess the Department's efforts in providing benefits and outreach to minority Veterans.
(4) Making periodic site visits and holding town hall meetings with Veterans to address their concerns.
Management and support services for the Committee are provided by the Center for Minority Veterans (CMV).
CMV is requesting nominations for upcoming vacancies on the Committee. The Committee is currently composed of 12 members, in addition to ex-officio members. As required by statute, the members of the Committee are appointed by the Secretary from the general public, including:
(1) Representatives of Veterans who are minority group members;
(2) Individuals who are recognized authorities in fields pertinent to the needs of Veterans who are minority group members;
(3) Veterans who are minority group members and who have experience in a military theater of operations;
(4) Veterans who are minority group members and who do not have such experience and;
(5) Women Veterans who are minority group members recently separated from active military service.
Section 544 defines “minority group member” as an individual who is Asian American, Black, Hispanic, Native American (including American Indian, Alaska Native, and Native Hawaiian); or Pacific-Islander American. In accordance with § 544, the Secretary determines the number, terms of service, and pay and allowances of members of the Committee appointed by the Secretary, except that a term of
In addition to the criteria above, VA seeks—
(1) Diversity in professional and personal qualifications;
(2) Experience in military service and military deployments (please identify Branch of Service and Rank);
(3) Current work with Veterans;
(4) Committee subject matter expertise;
(5) Experience working in large and complex organizations;
Nominations should be type written (one nomination per nominator). Nomination package should include: (1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
Individuals selected for appointment to the Committee shall be invited to serve a two-year term. Committee members will receive a stipend for attending Committee meetings, including per diem and reimbursement for travel expenses incurred.
The Department makes every effort to ensure that the membership of its Federal advisory committees is fairly balanced in terms of points of view represented and the committee's function. Every effort is made to ensure that a broad representation of geographic areas, males & females, racial and ethnic minority groups, and the disabled are given consideration for membership. Appointment to this Committee shall be made without discrimination because of a person's race, color, religion, sex (including gender identity, transgender status, sexual orientation, and pregnancy), national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.