Agricultural Marketing Service
Foreign-Trade Zones Board
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Centers for Disease Control and Prevention
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Fish and Wildlife Service
Land Management Bureau
Drug Enforcement Administration
Foreign Claims Settlement Commission
Employment and Training Administration
Mine Safety and Health Administration
National Endowment for the Arts
Federal Aviation Administration
Federal Highway Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
Pipeline and Hazardous Materials Safety 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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U.S. Small Business Administration.
Direct final rule; request for comments.
The U.S. Small Business Administration (SBA) is issuing this direct final rule to amend its regulations for disclosure and production of information under the Freedom of Information Act (FOIA). This rule updates and streamlines the language of several procedural provisions and incorporates changes brought about by amendments to the FOIA under the OPEN Government Act of 2007, the OPEN FOIA Act of 2009, and the FOIA Improvement Act of 2016.
This rule is effective January 3, 2018 without further action, unless adverse comment is received by November 6, 2017. If adverse comment is received, the U.S. Small Business Administration will publish a timely withdrawal of the rule in the
Identify your comments by RIN 3245–AG52 and submit them by one of the following methods:
•
•
Please be aware that SBA will only accept comments for this direct final rule on
If you wish to submit confidential business information (CBI) as defined in the User Notice at
Oreoluwa Fashola, Freedom of Information/Privacy Acts (FOI/PA) Office, at 202–401–8203 or
SBA is issuing this direct final rule to amend its regulations for disclosure and production of information under the Freedom of Information Act, 5 U.S.C. 552 (FOIA). This direct final rule updates and streamlines the language of several procedural provisions and incorporates certain changes brought about by amendments to the FOIA under the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act), Public Law 110–175 (2007), and the OPEN FOIA Act of 2009, Public Law 111–83 (2009), which have been incorporated into agency practice but not reflected in the regulations, and the FOIA Improvement Act of 2016, Public Law 114–185 (2016). The FOIA Improvement Act of 2016 provides, among other things, that agencies must allow a minimum of 90 days for requesters to file an administrative appeal. The Act also requires that agencies notify requesters of the availability of dispute resolution services at various times throughout the FOIA process. This rule updates the Agency's regulations in 13 CFR part 102, subpart A to reflect those statutory changes.
Section 102.1 (General provisions) is revised to remove outdated wording and to incorporate additional policies and procedures relevant to the FOIA process. SBA is also amending this section to more clearly define a component. Component is defined in § 102.1(b) as each separate bureau, office, division, district office, regional office, area office service center, loan processing center or central office duty station within the SBA that is responsible for processing FOIA requests. A full list of the types of records maintained by different SBA components is provided in Appendix A of this rule. This section is being revised to include the current definition of a record under the FOIA. Section 9 of the OPEN Government Act amended the definitions section of the FOIA, 5 U.S.C. 552(f), by including within the definition of “record” any information “maintained for an agency by an entity under Government contract, for the purposes of records management.” This amendment makes clear that records, in the possession of Government contractors for purposes of records management, are considered agency records for purposes of the FOIA. Through this change to the regulations, SBA adopts the statutory definition of “record.”
Section 102.2 (Proactive disclosure of records) is revised to more clearly reflect the FOIA Improvement Act of 2016's requirement that records the FOIA requires agencies to make available for public inspection must be in an electronic format, rather than simply made available for public inspection and copying. Such records are available via the internet through the electronic reading rooms of each component. For those individuals with no access to the internet, the SBA FOI/PA Office or the component Public Liaison can provide assistance with access to records available in the electronic reading rooms.
Section 102.3 (Requirements pertaining to the submission of requests) is revised to explain that the requester will receive the quickest response if the request is directed to the component that maintains the records. This section also provides that requesters may discuss their requests with the component's FOIA Contact or the FOIA Public Liaison in advance of making a request, as well as to clarify a request already made. New paragraph (b), which describes the process under which SBA may administratively close a request if a requester fails to comply with a request for additional information.
Section 102.4 (Responsibility for responding to requests) is revised to advise requesters of who may grant or deny requests, re-routing of misdirected requests, and of the need to consult,
Section 102.5 (Timing of responses to requests) formerly § 102.4 is revised to include a requirement that components notify requesters of the availability of assistance from the Office of Government Information Services (OGIS) at the National Archives and Records Administration when the component gives notice to requesters that the request involves unusual circumstances. This notification is required by the FOIA Improvement Act of 2016.
Section 102.6 (Responses to requests) is revised to include requirements that components notify requesters of the availability of assistance from a FOIA Public Liaison and OGIS when providing requesters with responses to their requests. These notifications are required by the FOIA Improvement Act of 2016.
Section 102.7 (Confidential commercial information) is revised to update the language of the current definitions and provide a more detailed description for SBA processes for notification to a submitter of business information.
Section 102.8 (Fees) is revised to identify the different types of requester fee categories and clarify some of the definitions used by SBA in determining a requester's fee category. For instance, “Commercial use request,” would clarify that components will make determinations on commercial use on a case-by-case basis. Also this section is revised to conform to recent decisions of the D.C. Circuit Court of Appeals addressing two FOIA fee categories: “representative of the news media” and “educational institution.” See
Paragraph (d) “Charging fees,” changes the current fee schedule that SBA uses for search and review which is currently at a rate of $30 per hour, to $46 per hour for professional staff (GS–9 to GS–14) and $83 per hour for managerial staff (GS–15 and above) to be consistent with other Federal Agency costs. Because these and similar changes are consistent with current regulations and describe current processes, SBA does not expect that they will result in significant additional costs for the government or the public. Paragraph (d)(1)(iii), which discusses direct costs associated with conducting any search that requires the creation of a new computer program. This change is intended to improve comprehension and to more accurately describe the circumstances under which a requester may be charged for a computerized search or a search of electronic records. It does not represent a change in practice, as SBA currently charges direct costs for specialized data searches.
Paragraph (e) addresses restrictions on charging fees when the FOIA's time limits are not met and is revised to reflect changes made to those restrictions by the FOIA Improvement Act of 2016. Specifically, these changes reflect that agencies may not charge search fees (or duplication fees for representatives of the news media and educational/non-commercial scientific institution requesters) when the agency fails to comply with the FOIA's time limits. The restriction on charging fees is excused and the agency may charge fees as usual when it satisfies one of three exceptions detailed at 5 U.S.C. 552(a)(4)(A)(viii)(II).
This rule also revises paragraph (l), which addresses the requirements for a waiver or reduction of fees, to specify that requesters may seek a waiver of fees and to streamline and simplify the description of the factors to be considered by components when making fee waiver determinations. These updates do not substantively change the analysis, but instead present the factors in a way that is clearer to both components and requesters. Rather than six factors, the amended section provides for three overall factors. Specifically, a requester should be granted a fee waiver if the requested information (1) sheds light on the activities and operations of the government; (2) is likely to contribute significantly to public understanding of those operations and activities; and (3) is not primarily in the commercial interest of the requester. This streamlined description facilitates easier understanding and application of the statutory standard.
Again, because these changes are consistent with current regulations and case law which describe current processes, SBA does not expect that they will result in significant additional costs for the government or the public. Finally, this section is amended to include a chart showing fee applicability, for ease of reference.
Section 102.9 (Administrative appeals) is revised to extend the time to file an administrative appeal to 90 days, in conformity with the 90-day minimum time period established by the FOIA Improvement Act of 2016. This section is also revised to include a new paragraph regarding engaging in dispute resolution services provided by OGIS.
Section 102.10 (Preservation of records) outlines SBA responsibilities maintaining records responsive to FOIA requests in accordance with 44 U.S.C. or the General Records Schedule 14 of the National Archives and Records Administration.
102.11 (Subpoenas), formerly at 102.10, the text of this section remains the same as before.
Appendix A is added to list the type of records that SBA typically releases or withholds.
SBA is issuing this direct final rule to amend its procedures for disclosure and production of information under the Freedom of Information Act (5 U.S.C. 552) (FOIA), which are in 13 CFR part 102, subpart A.
Since these are conforming amendments, with no extraneous interpretation or other expanded materials, SBA expects no significant adverse comments. Based on that fact, SBA has decided to proceed with a direct final rule giving the public 30 days to comment. If SBA receives a significant adverse comment during the comment period, SBA will withdraw the rule, and proceed with a new rule.
The Office of Management and Budget (OMB) has determined that this direct final rule does not constitute a significant regulatory action under
This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
For purposes of Executive Order 13132, SBA has determined that this direct final rule will not have any substantial, direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purpose of Executive Order 13132, Federalism, SBA has determined that this direct final rule has no federalism implications warranting the preparation of a federalism assessment.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. SBA developed this rule in a manner consistent with these requirements with guidance provided by the Department of Justice, Office of Information Policy.
This rule is not an Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, regulatory action because this rule is not significant under Executive Order 12866.
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their action on small entities, including small businesses. According to the RFA, when an agency issues a rule, the agency must prepare an analysis to determine whether the impact of the rule will have significant economic impact on a substantial number of small entities. However, section 605 of the RFA allows an agency to certify a rule in lieu of preparing an analysis, if the rulemaking is not expected to have a significant impact on a substantial number of small entities. SBA has determined that this direct final rule will not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by SBA are nominal. Within the meaning of RFA, SBA certifies that this direct final rule will not have a significant economic impact on a substantial number of small entities.
SBA has determined that this direct final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
Freedom of information, Privacy.
Accordingly, for the reasons set forth in the preamble, the U.S. Small Business Administration is amending 13 CFR part 102 as follows:
5 U.S.C. 301, 552, 552a; 31 U.S.C. 3717, 9701; 44 U.S.C. 3501.
(a) This subpart contains the rules that SBA follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. The rules in this subpart should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under subpart B of this part as well as under this subpart.
(b) As referenced in this subpart, “component” means each separate bureau, office, division, district office, regional office, area office, service center, loan processing center or central office duty location within the SBA that is responsible for processing FOIA requests. See appendix A to this subpart for a list of information generally exempt from disclosure. For contact information for each office visit
(c) The SBA has a decentralized system for processing requests, with each component handling requests for its records.
(d) The term record means:
(1) Any information that would be an agency record subject to the requirements of this section when maintained by SBA in any format, including written or electronic format; and
(2) Any information described under paragraph (d)(1) of this section that is maintained for SBA by an entity under Government contract, for purposes of records management.
Records that are required by the FOIA to be made available for public inspection in an electronic format may be accessed through the SBA's Web site at
(a)
(2) A requester who is making a request for records about himself or herself must comply with the verification of identity provision set forth in subpart B of this part. The Certification of Identity form, available at
(3) Where a request for records pertains to another individual, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (
(b)
(c)
(d)
(a)
(b)
(c)
(d)
(1)
(2)
(ii) Whenever a component refers any part of the responsibility for responding to a request to another component or agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the component or agency to
(3)
(e)
(f)
(g)
(a)
(b)
(c)
(d)
(e)
(i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information.
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity that affect public confidence.
(2) A request for expedited processing may be made at any time. Requests based on paragraphs (e)(1)(i) through (iii) of this section must be submitted to the component that maintains the records requested. When making a request for expedited processing of an administrative appeal, the request should be submitted to the FOI/PA Office. Requests for expedited processing that are based on paragraph (e)(1)(iv) of this section must be submitted to the component processing the request. A component that receives a misdirected request for expedited processing under the standard set forth in paragraph (e)(1)(iv) of this section shall forward it immediately to the FOI/PA Office for its determination. The time period for making the determination on the request for expedited processing under paragraph (e)(1)(iv) of this section shall commence
(3) A requester who seeks expedited processing must submit a notarized statement, such as an affidavit or declaration, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, the SBA may waive the formal certification requirement.
(4) A component shall notify the requester within 10 working days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request must be given priority, placed in the processing track for expedited requests, and must be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously.
(a)
(b)
(c)
(d)
(e)
(1) The requested record is exempt, in whole or in part;
(2) The request does not reasonably describe the records sought;
(3) The information requested is not a record subject to the FOIA;
(4) The requested record does not exist, cannot be located, or has been destroyed; or
(5) The requested record is not readily reproducible in the form or format sought by the requester.
(f)
(1) The name and title or position of the person responsible for the denial;
(2) A brief statement of the reasons for the denial, including any FOIA exemption applied by the component in denying the request;
(3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption;
(4) A statement that the denial may be appealed under § 102.9, and a description of the appeal requirements; and
(5) A statement notifying the requester of the assistance available from the component's FOIA Public Liaison or designee, and the dispute resolution services offered by OGIS.
(g)
(a)
(b)
(c)
(i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or
(ii) The component has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.
(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(d)
(1) The component determines that the information is exempt under the FOIA;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
(e)
(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the component after the date of any disclosure decision shall not be considered by the component. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(f)
(g)
(1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(a)
(b)
(1) Commercial use requesters;
(2) Non-commercial scientific/educational institutions requesters;
(3) News media requesters, and;
(4) All other requesters.
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(d)
(1)
(ii) For each hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows: Professional (GS 9–14)—$46; and managerial (GS 15 and above)—$83.
(iii) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by SBA at a Federal Records Center operated by the National Archives and Records Administration (NARA), additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA.
(2)
(3)
(ii) The following table summarizes the fees for each type of requester.
(e)
(i) If a component fails to comply with the time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (c)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(1)(ii) through (iv) of this section.
(ii) If a component has determined that unusual circumstances as defined by the FOIA apply and SBA provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be
(iii) If a component has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000 pages are necessary to respond to the request, the component may charge search fees, or, in the case of requesters described in paragraph (c)(1) of this section, may charge duplication fees, if the following steps are taken. The component shall provide a timely written notice of unusual circumstances to the requester in accordance with the FOIA and SBA must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the component may charge all applicable fees incurred in the processing of the request.
(iv) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
(2) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(3) Except for requesters seeking records for a commercial use, components shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for other media); and
(ii) The first two hours of search.
(4) No fee will be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, is equal to or less than $46.00.
(f)
(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $46.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. Components are not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but the component estimates that the total fee will exceed that amount, the component will toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The component shall inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(4) Components shall make available their FOIA Public Liaison or other designee to assist any requester in reformulating a request to meet the requester's needs at a lower cost.
(g)
(h)
(i)
(j)
(2) When a component determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. Components may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to any component or SBA within 30 working days of the billing date, a component may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the component may require that the requester make an advance payment of the full amount of any anticipated fee before SBA begins to process a new request or continues to process a pending request or any pending appeal. When a component has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(4) In cases in which advanced payment is required, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance
(k)
(l)
(i) Disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, and
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.
(2) Components shall furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (l)(2)(i) through (iii) of this section are satisfied:
(i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.
(ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:
(A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.
(B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public must be considered. Components shall presume that a representative of the news media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the following criteria will be considered:
(A) Identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration.
(B) If there is an identified commercial interest, a determination will be made whether the primary interest is furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (l)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. Ordinarily there will be a presumption, that when a news media requester has satisfied factors (l)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
(3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver must be granted for those records.
(4) Requests for a waiver or reduction of fees should be made when the request is first submitted and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester must pay any costs incurred up to the date the fee waiver request was received.
(a)
(b)
(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, the FOI/PA Office shall take appropriate action to ensure compliance with Executive Orders 13467 and 13526.
(c)
(d) Time limit for issuing appeal decision. The statutory time limit for responding to appeals is generally 20 working days after receipt. However, the Appeals Officer may extend the time limit for responding to an appeal provided the circumstances set forth in 5 U.S.C. 552(a)(6)(B)(i) are met.
(e)
(f)
Each component shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 14 of the National Archives and Records Administration. Records shall not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
(a) The person to whom the subpoena is directed must consult with SBA counsel in the relevant SBA office, who will seek approval for compliance from the Associate General Counsel for Litigation. Except where the subpoena requires the testimony of an employee of the Inspector General's office, or records within the possession of the Inspector General, the Associate General Counsel may delegate the authorization for appropriate production of documents or testimony to local SBA counsel.
(b) If SBA counsel approves compliance with the subpoena, SBA will comply.
(c) If SBA counsel disapproves compliance with the subpoena, SBA will not comply, and will base such noncompliance on an appropriate legal basis such as privilege or a statute.
(d) SBA counsel must provide a copy of any subpoena relating to a criminal matter to SBA's Inspector General prior to its return date.
a. Non-statistical information on pending, declined, withdrawn, or canceled applications.
b. Non-statistical information on defaults, delinquencies, losses etc.
c. Loan status, other than charged-off or paid-in-full.
d. Home disaster loan status and interest rate.
e. Financial statements, credit reports, business plans, plant lay-outs, marketing strategy, advertising plans, fiscal projections, pricing information, payroll information, private sector experience and contracts, IRS forms, purchase information, banking information, corporate structure, research plans and client list of applicant/recipient.
f. Portions of: Certificate of Competency records, Requests for Size Determinations, 8(a) Business Development Plans, loan applications, SBIC applications, loan officer's reports.
g. Internal documents not incorporated into final Agency action, pending internal recommendations on applications for assistance, SBA/attorney-client communications, pending litigation documents and investigatory documents. Discretionary disclosure policy must be utilized.
h. Personal history and financial statements, tax forms, resumes, all non-government career experience, communications regarding applicant's character, home addresses and telephone numbers, social security numbers, birth dates and medical records. Portions of Inspector General (IG) reports, audit reports, program investigation records and any other records which, if released, would interfere with the Government's law enforcement proceedings and/or would reveal the identity of a confidential source and documents relating to pending litigation and investigations. Requests for IG documents must be referred to the Office of the Inspector General, Counsel Division.
i. Financial information on portfolio companies.
j. Information originating from other agencies should be referred to those agencies for disclosure determinations.
a. Names and business addresses of recipients of approved loans, SBIC licenses, Certificates of Competency, lease guarantees, surety bond guarantees and requests for counseling.
b. Names of officers, directors, stockholders or partners of recipient firms.
c. Kinds and amounts of loans, loan terms, interest rates (except on home disaster loans), maturity dates, general purpose, etc.
d. Statistical data on assistance, loans, defaults, contracts, counseling, etc.
e. Decisions, rulings and records showing final Agency actions in specific factual situations if identifying details exempt from disclosure are first deleted.
f. Awarded contracts: names, amounts, dates, contracting agencies.
g. Identity of participating banks.
h. List of 8(a) participants, date of entry, FPPT dates and NAICS codes.
i. OHA opinions and decisions.
j. Names of SBA employees, grades, titles, and duty stations.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Honeywell International Inc. (Honeywell) AS907–1–1A turbofan engines. This AD was prompted by reports of loss of power due to failure of the second stage low-pressure turbine (LPT2) blade. This AD requires a one-time inspection of the LPT2 blades and, if the blades fail the inspection, the replacement of the blades with a part eligible for installation. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 9, 2017.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 9, 2017.
For service information identified in this final rule, contact Honeywell International Inc., 111 S 34th Street, Phoenix, AZ 85034–2802; phone: 800–601–3099; Internet:
You may examine the AD docket on the Internet at
Joseph Costa, Aerospace Engineer, Los Angeles ACO Branch, FAA, 3960 Paramount Blvd., Lakewood, CA 90712–4137; phone: 562–627–5246; fax: 562–627–5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Honeywell International Inc. (Honeywell) AS907–1–1A turbofan engines. The NPRM published in the
We gave the public the opportunity to participate in developing this final rule. We received no comments on the NPRM or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We reviewed Honeywell Service Bulletin (SB) AS907–72–9067, Revision 1, dated March 20, 2017. This SB describes procedures for inspecting the LPT2 blades. 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 reviewed Honeywell SB AS907–72–9067, Revision 0, dated December 12, 2016, which also describes procedures for inspecting the LPT2 blades. We also reviewed the Honeywell Light Maintenance Manual, AS907–1–1A, 72–00–00, Section 72–05–12, dated May 25, 2016, and Section 72–55–03, dated September 27, 2011, which provide additional guidance for performing borescope inspections.
We estimate that this AD affects 40 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We estimate that 40 engines will need this replacement.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120–0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave., SW., Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES–200.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.
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.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 9, 2017.
None.
This AD applies to Honeywell International Inc. (Honeywell) AS907–1–1A turbofan engines with second stage low-pressure turbine (LPT2) rotor blades, part number (P/N) 3035602–1, installed.
Joint Aircraft System Component (JASC) Code 7250, Turbine Section.
This AD was prompted by reports of loss of power due to failure of the LPT2 blade. We are issuing this AD to prevent failure of the LPT2 blades, failure of one or more engines, and loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) For LPT2 rotor blades, P/N 3035602–1 that have more than 8,000 hours since new on the effective date of this AD, perform a one-time borescope inspection for wear of the Z gap contact area at the blade tip shroud for each of the 62 LPT2 rotor blades within 200 hours time in service after the effective date of this AD.
(2) Use the Accomplishment Instructions, Paragraph 3.B.(1), of Honeywell Service Bulletin (SB) AS907–72–9067, Revision 1, dated March 20, 2017, to do the inspection.
(3) If the measured wear and/or fretting of any Z gap contact area is greater than 0.005 inch, replace the LPT2 rotor assembly with a part eligible for installation before further flight.
(4) Do the following actions within 200 hours time in service after the effective date of this AD:
(i) Using a borescope make a clear digital image of the Z gap contact area at the blade tip shroud of the 62 LPT2 rotor blades.
(ii) Identify the three Z gap contact areas with the greatest amount of wear and/or fretting.
(iii) Record the blade position on the LPT2 rotor assembly and the measured wear of the three Z gap contact areas with the greatest amount of wear and/or fretting.
(iv) Send the results to Honeywell at
You may take credit for the actions required by paragraphs (f)(1) and (4) of this AD, if you performed these actions before the effective date of this AD using Honeywell SB AS907–72–9067, Revision 0, dated December 12, 2016.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120–0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES–200.
(1) The Manager, Los Angeles ACO Branch, FAA, may approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the Los Angeles ACO Branch, send it to the attention of the person identified in paragraph (j) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Joseph Costa, Aerospace Engineer, Los Angeles ACO Branch, FAA, 3960 Paramount Blvd., Lakewood, CA 90712–4137; phone: 562–627–5246; fax: 562–627–5210; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Honeywell Service Bulletin AS907–72–9067, Revision 1, dated March 20, 2017.
(ii) Reserved.
(3) For Honeywell service information identified in this AD, contact Honeywell International Inc., 111 S 34th Street, Phoenix, AZ 85034–2802; phone: 800–601–3099; Internet:
(4) You may view this service information at FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for The Boeing Company Model 707 airplanes equipped with a main cargo door (MCD). This AD was prompted by analysis of the cam support assemblies of the MCD that indicated the repetitive high frequency eddy current (HFEC) inspections required by the existing maintenance program are not adequate to detect cracks before two adjacent cam support assemblies of the MCD could fail. This AD requires repetitive ultrasonic inspections for cracking of the cam support assemblies of the MCD, and replacement if necessary. We are issuing this AD to address the unsafe condition on these products.
This AD is effective November 9, 2017.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 9, 2017.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600; telephone 562–797–1717; Internet
You may examine the AD docket on the Internet at
Chandra Ramdoss, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712–4137; phone: 562–627–5239; fax: 562–627–5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 707 airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.
Boeing stated that Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016, affects only Boeing factory and Boeing-converted freighters, but the proposed AD extends the applicability to all Model 707 airplanes, including the ones that have been converted by non-Boeing supplemental type certificates (STCs).
We infer the commenter is requesting that the actions of the service information only be required for Model 707 airplanes identified in the Effectivity paragraph of Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. We agree that the applicability of the proposed AD should not include Model 707 airplanes that do not have an MCD. However, we disagree that the AD applicability should be limited to the airplanes identified in the Effectivity paragraph of Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016, which only identifies Boeing factory and Boeing-converted freighters. The cam support assemblies having the affected part number could be installed at original aircraft manufacture, or during passenger-to-freighter modification. We expect that the actions specified in Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016, can be accomplished on airplanes that are not identified in that service information. However, if an operator with a Model 707 freighter that is not a part of Boeing type design cannot accomplish the required actions in the service information, or prefers to use different service information that is specific to their design, approval of an alternative method of compliance (AMOC) can be requested in accordance with paragraph (j) of this AD. We revised this AD to limit the applicability to Model 707 airplanes equipped with an MCD.
Boeing requested that we revise the NPRM to supersede AD 80–08–10 R1. Boeing stated that AD 80–08–10 R1 mandates HFEC inspections of MCD cam support assemblies having part numbers (P/Ns) 69–23588–1 and 69–23588–2, as specified in Boeing Service Bulletin 707–A3387. Boeing explained that the NPRM is adding cam support assemblies having P/Ns 69–23588–1 and 69–23588–2 to the list in Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. Boeing asserted that the addition of these components to the list of affected parts would mean that the operators have to perform HFEC inspections of cam support assemblies having P/Ns 69–23588–1 and 69–23588–2, as specified in AD 80–08–10 R1, and perform ultrasonic inspections of the same components, as specified in the proposed AD. Boeing explained that
We partially agree with Boeing's request to supersede the inspections which are still required per AD 80–08–10 Rl. These inspections will overlap with the newly mandated repetitive inspections. We disagree with the request to revise this AD to supersede AD 80–08–10 Rl. Instead, we have added language to paragraph (i) of this AD to state that accomplishing the initial inspection and all applicable replacements required by paragraph (h) of this AD on an airplane terminates the requirements of AD 80–08–10 R1, for that airplane only.
Boeing requested that we revise the compliance time in paragraph (g)(l) of the proposed AD from “before the accumulation of 18,000 total flight cycles” to “before the accumulation of 18,000 door flight cycles, or within 10 years after the utilization of MCD cam support assemblies, whichever occurs first. If the door flight cycles are not known, use total airplane flight cycles.” Boeing explained that this change would provide relief for the operators that use converted freighters by delaying the required inspection for the MCDs that have been in service less than 18,000 total door flight cycles, but are installed on the airplanes that have more than 18,000 total airframe flight cycles. Boeing also stated that the 10-year time limit is included in Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016, to address the low utilization rate of Model 707/720 airplanes.
We agree with Boeing's request. For the airplanes that have been converted to freighters, the compliance time for the initial inspection should be based on the number of cycles the MCD cam support assembly has been in service. We have revised paragraph (g)(l) of this AD accordingly. In addition, we have revised paragraph (h) of this AD to refer to the compliance times specified in paragraphs (g)(1) and (g)(2) of this AD instead of referring to Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. We have also removed the exception to the service information that was in paragraph (i) of the proposed AD.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
We reviewed Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. The service information describes procedures for an ultrasonic inspection of the cam support assemblies of the MCD for cracking, and replacement if necessary. 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 will affect 12 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need this replacement:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 9, 2017.
This AD affects AD 80–08–10 R1, Amendment 39–3830 (45 FR 46343, July 10, 1980).
This AD applies to The Boeing Company Model 707–100 Long Body, –200, –100B Long Body, and –100B Short Body series airplanes; and Model 707–300, –300B, –300C, and –400 series airplanes; certificated in any category; equipped with a main cargo door (MCD).
Air Transport Association (ATA) of America Code 52, Doors.
This AD was prompted by analysis of the cam support assemblies of the MCD that indicated the repetitive high frequency eddy current (HFEC) inspections required by the existing maintenance program are not adequate to detect cracks before two adjacent cam support assemblies of the MCD could fail. We are issuing this AD to detect and correct cracking of the cam support assemblies of the MCD. Such cracking could result in reduced structural integrity of the MCD and consequent rapid decompression of the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD: Inspect the cam support assemblies of the MCD to determine whether part number (P/N) 69–23588–1, 69–23588–2, 69–23588–5, 69–23588–6, 69–23588–9, or 69–23588–10 is installed. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number(s) of the cam support assemblies of the MCD can be conclusively determined from that review.
(1) Before the accumulation of 18,000 total flight cycles since installation of the door, or before the accumulation of 10 years on the MCD cam support assemblies, whichever occurs first. If the number of flight cycles since installation of the door are not known, use total airplane flight cycles.
(2) Within 1,790 flight cycles or 24 months after the effective date of this AD, whichever occurs later.
If, during any inspection required by paragraph (g) of this AD, any cam support assembly of the MCD having P/N 69–23588–1, 69–23588–2, 69–23588–5, 69–23588–6, 69–23588–9, or 69–23588–10 is determined to be installed: At the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD, do an ultrasonic inspection to detect cracking of the affected cam support assemblies of the MCD, and do all applicable replacements, in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. Do all applicable replacements before further flight. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016.
Accomplishment of the initial inspection and all applicable replacements on an airplane, as required by paragraph (h) of this AD, terminates all the requirements of AD 80–08–10 R1, Amendment 39–3830 (45 FR 46343, July 10, 1980), for that airplane only.
(1) The Manager, Los Angeles ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) of this AD apply.
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
For more information about this AD, contact Chandra Ramdoss, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712–4137; phone: 562–627–5239; fax: 562–627–5210; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600;
(4) You may view this service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective October 5, 2017. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of October 5, 2017.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops–M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590–0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS–420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954–4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260–3, 8260–4, 8260–5, 8260–15A, and 8260–15B when required by an entry on 8260–15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective October 5, 2017. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops—M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590–0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Thomas J. Nichols, Flight Procedure Standards Branch (AFS–420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954–4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P–NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979) ; and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721–44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Internal Revenue Service (IRS), Treasury.
Final regulations.
This document contains final regulations prescribing mortality tables to be used by most defined benefit pension plans. The tables specify the probability of survival year-by-year for an individual based on age, gender, and other factors. This information is used (together with other actuarial assumptions) to calculate the present value of a stream of expected future benefit payments for purposes of determining the minimum funding requirements for a defined benefit plan. These mortality tables are also relevant in determining the minimum required amount of a lump-sum distribution from such a plan. In addition, this document contains final regulations updating the requirements that a plan sponsor must meet to obtain IRS approval to use mortality tables specific to the plan for minimum funding purposes (instead of using the generally applicable mortality tables). These regulations affect participants in, beneficiaries of, employers maintaining, and administrators of certain retirement plans.
Concerning the regulations, Arslan Malik at (202) 317–6700; concerning the construction of the base mortality tables and the static mortality tables for 2018, Michael Spaid at (206) 946–3480.
Section 412 of the Internal Revenue Code (Code) prescribes minimum funding requirements for defined benefit pension plans. Section 430 specifies the minimum funding requirements that apply generally to defined benefit plans that are not multiemployer plans.
Section 430(h)(3) contains rules regarding the mortality tables to be used under section 430. Under section 430(h)(3)(A), except as provided in section 430(h)(3)(C) or (D), the Secretary is to prescribe by regulation mortality tables to be used in determining any present value or making any computation under section 430. Those mortality tables must be based on the actual mortality experience of pension plan participants and projected trends in that experience. In prescribing those mortality tables, the Secretary is required to take into account results of available independent studies of mortality of individuals covered by pension plans.
Section 430(h)(3)(C) prescribes rules for a plan sponsor's use of substitute mortality tables reflecting the specific mortality experience of a plan's population instead of using the generally applicable mortality tables. Under section 430(h)(3)(C), the plan sponsor may request the Secretary's approval to use plan-specific substitute mortality tables that meet requirements specified in the statute.
Section 430(h)(3)(D) provides for the use of separate mortality tables with respect to certain individuals who are entitled to benefits on account of disability. These separate mortality tables are permitted to be used with respect to disabled individuals in lieu of the generally applicable mortality tables provided pursuant to section 430(h)(3)(A) or the substitute mortality tables under section 430(h)(3)(C). The Secretary is to establish separate tables for individuals with disabilities occurring in plan years beginning before January 1, 1995, and in later plan years, with the mortality tables for individuals with disabilities occurring in those later plan years applying only to individuals who are disabled within the meaning of Title II of the Social Security Act.
Final regulations (TD 9419) under section 430(h)(3) were published in the
The 2008 general mortality table regulations prescribe a base mortality table and a set of mortality improvement rates that are used to project mortality rates for years after the year 2000. The mortality tables included in those regulations are based on the mortality tables included in the RP–2000 Mortality Tables Report (based on an experience study for the period 1990–1994 and referred to in this preamble as the RP–2000 mortality tables) released by the Society of Actuaries in July 2000 (updated in May 2001). The mortality improvement rates included in those regulations are the Scale AA Projection Factors (which are based on mortality improvement for the period 1977 through 1993), which were included in the RP–2000 Mortality Tables Report for use in conjunction with the RP–2000 mortality tables.
The 2008 general mortality table regulations prescribe the use of generational mortality tables,
Notice 2013–49 also requested comments on whether a separate disability mortality table is still warranted with respect to participants who became disabled before 1995. In addition, Notice 2013–49 noted that the Treasury Department (Treasury) and the IRS were aware that the Society of Actuaries was conducting a mortality study of pension plan participants and specifically requested comments on whether other studies of actual mortality experience of pension plan participants and projected trends of that experience were available that should be considered for use in developing mortality tables for future use under section 430(h)(3).
In October 2014, the Retirement Plans Experience Committee (RPEC) of the Society of Actuaries issued a new mortality study of participants in private pension plans. The study, which is based on mortality experience for the years 2004 to 2008, is referred to as the RP–2014 Mortality Tables Report (and sets forth mortality tables that are referred to as the RP–2014 mortality tables). The RP–2014 Mortality Tables Report, as revised November 2014, is available at
In October 2015, RPEC released an update to the Scale MP–2014 rates. The updated rates, referred to as the Scale MP–2015 rates, were released as part of the Mortality Improvement Scale MP–2015 Report (available at
In October 2016, RPEC released a further update to the Scale MP–2014 rates, which are referred to as the Scale MP–2016 rates. The Scale MP–2016 rates take into account data for mortality improvement for the general population for 2012 and 2013, along with an estimate of mortality rates for 2014. As described in the Mortality Improvement Scale MP–2016 Report (available at
Section 430(h)(3)(C) permits a plan sponsor to request approval by the Secretary to use plan-specific substitute mortality tables in lieu of the generally applicable mortality tables. If the Secretary determines that the proposed
The 2008 substitute mortality table regulations provide for review by the Commissioner of a plan sponsor's request for approval to use substitute mortality tables. Under those regulations, to use substitute mortality tables with respect to a plan, a plan sponsor must submit a written request to the Commissioner that demonstrates that those substitute mortality tables comply with applicable requirements. A request for approval to use substitute mortality tables must specify the first plan year and the term of years for which the tables are requested to be used.
Substitute mortality tables may not be used for a plan year unless the plan sponsor submits the request at least 7 months before the first day of the first plan year for which the substitute mortality tables are to apply. The Commissioner has 180 days to review a request for approval to use substitute mortality tables. If the Commissioner does not deny the request within this 180-day period, the request is deemed to have been approved unless the Commissioner and the plan sponsor have agreed to extend that period.
Under the 2008 substitute mortality table regulations, substitute mortality tables for a plan must be established separately for each gender, and a substitute mortality table may be established for a gender only if there is credible mortality experience with respect to that gender. If the mortality experience for one gender is credible but the mortality experience for the other gender is not credible, the substitute mortality tables are used for the gender that has credible mortality experience, and the generally applicable mortality tables are used for the gender that does not have credible mortality experience.
Under the 2008 substitute mortality table regulations, there is credible mortality experience with respect to a gender if and only if, over the period covered by the experience study, there are at least 1,000 deaths of individuals of that gender.
Under the 2008 substitute mortality table regulations, development of substitute mortality tables for a plan requires creation of a base table and identification of a base year, which are then used to determine the substitute mortality tables. The base table must be developed from a study of the mortality experience of the plan using amounts-weighted data. Under those regulations, a plan's substitute mortality tables must be generational mortality tables that are determined using the base mortality tables developed from the experience study and the Scale AA Projection Factors (that is, using the same basis for mortality improvement that is used under 2008 general mortality table regulations).
Under the 2008 substitute mortality table regulations, the use of substitute mortality tables is terminated early in certain circumstances, including pursuant to a replacement of the generally applicable mortality tables. The early termination pursuant to such a replacement must be effective as of a date specified in guidance published in the Internal Revenue Bulletin.
Rev. Proc. 2008–62 (2008–2 C.B. I.R.B. 935) sets forth the procedure by which a plan sponsor of a defined benefit plan may request and obtain approval to use plan-specific substitute mortality tables in accordance with section 430(h)(3)(C). The revenue procedure specifies the information that must be provided in a request for approval to use substitute mortality tables and specifies two alternative acceptable methods of construction for base substitute mortality tables. Under section 11 of Rev. Proc. 2008–62, a base table for a population may be created from the unadjusted base table for the population through the application of a graduation method generally used by the actuarial profession in the United States.
Section 503 of the Bipartisan Budget Act of 2015, Public Law 114–74 (129 Stat. 584 (2015)), which was enacted November 2, 2015, provides for changes to the rules on the use of substitute mortality tables. Under that section, “the determination of whether plans have credible information shall be made in accordance with established actuarial credibility theory, which (1) is materially different from the rules under [section 430(h)(3)(C)], including Revenue Procedure 2007–37,
Proposed regulations regarding revisions to mortality tables under section 430(h)(3) (REG–112324–15) were published in the
These final regulations revise the methodology for developing the
These regulations also revise the rules regarding substitute mortality tables. This revision is being made pursuant to section 503 of the Bipartisan Budget Act of 2015, which requires that the determination of whether a plan has credible information be made in accordance with established actuarial credibility theory. Following enactment of that requirement, Treasury and the IRS undertook a review of actuarial literature regarding credibility theory and consulted with experts on that topic from the Society of Actuaries. Based on that review and analysis, these regulations set forth a method for developing substitute mortality tables that is materially different from the method that is required under the 2008 substitute mortality table regulations and the associated revenue procedure. The method for developing substitute mortality tables that is set forth in the final regulations is simpler than the graduation method that applies under the 2008 substitute mortality table regulations and also accommodates the use of substitute mortality tables for plans with smaller populations that have only partially credible mortality experience.
Under these regulations, the generally applicable base mortality tables are derived from the tables contained in the RP–2014 Mortality Tables Report. In response to Notice 2013–49, commenters generally recommended that the RP–2014 mortality tables form the basis for the mortality tables used under section 430. After reviewing the RP–2014 mortality tables, the accompanying report published by the Society of Actuaries, and related public comments, Treasury and the IRS determined that the experience study used to develop the RP–2014 mortality tables is the best available study of the actual mortality experience of pension plan participants (other than disabled individuals). As a result, Treasury and the IRS issued proposed regulations that use the RP–2014 mortality tables as the foundation for the base mortality tables used to project the mortality rates of pension plan participants (other than disabled individuals).
Most commenters supported the selection of the base mortality tables in the proposed regulations. One commenter opposed this selection but did not suggest any alternative. Accordingly, the base mortality tables under these final regulations are the same as in the proposed regulations. Like the mortality tables provided in the 2008 general mortality table regulations, the mortality tables under these final regulations are gender-distinct because of significant differences between expected male mortality and expected female mortality. In addition, as under the 2008 general mortality table regulations, these regulations set forth separate mortality rates for annuitants and nonannuitants.
The base tables that are set forth in these final regulations are used to develop the mortality tables for future years. These base tables have a base year of 2006 (the central year of the experience study used to develop the mortality tables in the RP–2014 Mortality Tables Report). These base tables generally have the same mortality rates as the RP–2014 mortality tables after factoring out the mortality improvements from 2007 to 2014 (calculated using the Scale MP–2014 rates). However, these base tables also include nonannuitant mortality rates for ages below age 18 and above age 80 and annuitant mortality rates for ages below age 50. This generally is the same approach that was used to develop the base tables included in the 2008 general mortality table regulations.
The proposed regulations, like the 2008 general mortality table regulations, provided that expected trends in mortality experience must be taken into account through the use of either generational or annually updated static mortality tables. In accordance with section 430(h)(3)(B), the proposed regulations updated the mortality improvement rates used under the 2008 general mortality table regulations. To select up-to-date mortality improvement rates, Treasury and the IRS reviewed the Mortality Improvement Scale MP–2014 Report, related public comments, the data sources cited in those comments, the Mortality Improvement Scale MP–2015 Report, the Mortality Improvement Scale MP–2016 Report, and other published data sources.
Some commenters supported the selection of the mortality improvement rates in the proposed regulations, while other commenters expressed concerns about the selection of those rates. Those commenters who expressed concern about the mortality improvement rates noted that the selection of a long-term mortality improvement rate assumption is inherently speculative and cautioned against using the assumptions regarding the rate of long-term mortality improvement that were used by RPEC (which are a long-term rate of 1.0 percent per year for ages 85 and younger, grading down to 0.85 percent at age 95, and further grading down to 0 at age 115). Instead of the RPEC assumptions, these commenters suggested that Treasury and the IRS use assumptions regarding the rate of long-term mortality improvement that are closer to the rates that are used by the Office of the Actuary within the Social Security Administration. Those rates also vary by age group, and the documentation accompanying the 2017 report of the Board of Trustees of the Federal Old-Age, Survivors Insurance and Disability Insurance Trust Funds indicates that, under the intermediate assumptions (which reflect the Trustees' best estimates of future experience), the weighted average over all ages of those assumed long-term mortality improvement rates is 0.72 percent per year.
Treasury and the IRS carefully considered the assumptions used by Office of the Actuary within the Social Security Administration and compared it with the long-term assumptions
After review and consideration of the comments, the documentation accompanying the Trustees' Report, and the views of the Technical Panel of the Social Security Advisory Board, Treasury and the IRS have concluded that the procedures that RPEC used to develop the Scale MP–2016 rates generate mortality improvement rates that currently are the appropriate rates for use in developing mortality tables to be used for purposes of pension funding. Accordingly, these regulations provide that the mortality improvement rates for valuation dates in 2018 are the Scale MP–2016 rates.
Treasury and the IRS understand that RPEC expects to issue updated mortality improvement rates that reflect new data for mortality improvement trends for the general population on an annual basis. As noted by the commenters, while the rate of mortality improvement has fluctuated significantly on a year-to-year basis, there has been a significant reduction in the rate of improvement over the past few years compared to the rate of improvement for the past 25 years. RPEC has indicated the intent to continually review the methodology used in its mortality improvement model in an effort to improve the overall effectiveness of the model, especially with respect to year-over-year stability and forecast accuracy, and it has identified the assumed long-term rate of mortality improvement and graduation techniques as two of the items included in this review. In establishing the mortality improvement rates to be used under section 430(h)(3) for valuation dates in years after 2018, Treasury and the IRS will continue to take into account RPEC's updates (including any modifications to RPEC's methodology), as well as other sources of data or analyses regarding mortality improvement. These regulations provide that the mortality improvement rates applicable for those future valuation dates will be specified in guidance to be published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter. If Treasury and the IRS determine that significant revisions to the mortality improvement rates are appropriate, the revisions may first be proposed in a new rulemaking in order to allow for public comment before the rule is finalized.
Some commenters asked that Treasury and the IRS commit to providing the mortality improvement rates for a calendar year at least 12 months before the start of that year. Treasury and the IRS understand that a significant motivation for this request is to avoid the issuance of new mortality improvement rates in the early part of a calendar year (because issuance of new mortality improvement rates at that time could result in the need to revise calculations that have already been made in the course of preparing a plan sponsor's financial statement as of the previous December 31). While Treasury and the IRS intend that the mortality improvement rates for a calendar year generally will be issued more than 12 months in advance of that year, the final regulations do not include a provision requiring that the mortality improvement rates for a calendar year be issued within this timeframe. Retaining the flexibility to issue mortality improvement rates closer to the date they would become effective will allow additional time for the possibility that certain revisions to the mortality improvement rates will first be published in proposed form.
Other commenters requested that Treasury and the IRS consider updating the mortality tables on a less frequent basis than annually. Although the RPEC indicated its intent to issue updated mortality improvement rates on an annual basis, the final regulations do not require the mortality improvement rates under section 430(h)(3) to be updated annually. However, to minimize the discontinuities in mortality rates that could arise from infrequent updates, Treasury and the IRS contemplate that generally the rates will be updated annually. If the changes from one year to the next are minimal, Treasury and the IRS may choose not to update the rates for that year.
As under the 2008 general mortality table regulations, the proposed regulations take into account the limitations of some current actuarial software that is not designed to use generational mortality tables and continue to permit the use of static mortality tables. These static mortality tables, when used to determine the present value of an annuity, approximate the present value that would be determined using the generational mortality tables. All but one commenter supported the option to use static mortality tables, and these final regulations provide for this option. These static tables consist of separate gender-specific tables, which are updated annually. The static mortality tables that will be used for 2018 are included in these regulations. For later years, updated static mortality tables will be set forth in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.
Section 417(e)(3) generally provides that the present value of certain benefits under a qualified pension plan (including single-sum distributions) must not be less than the present value of the accrued benefit using applicable interest rates and the applicable mortality table. Section 417(e)(3)(B) defines the term “applicable mortality table” as the mortality table specified for the plan year for minimum funding purposes under section 430(h)(3)(A) (without regard to the rules for substitute mortality tables under section 430(h)(3)(C) or mortality tables for disabled individuals under section 430(h)(3)(D)), modified as appropriate by the Secretary. The modifications to the section 430(h)(3)(A) mortality table used to determine the section 417(e)(3)(B) applicable mortality table are not addressed in these regulations and are currently provided in Revenue Ruling 2007–67 (2007–2 C.B. 1047).
As under the proposed regulations, the final regulations provide that the same mortality assumptions that apply for purposes of section 430(h)(3)(A) and § 1.430(h)(3)–1(a)(2) are used to determine a plan's current liability for purposes of applying the full-funding
The proposed regulations provide that the regulations will be effective beginning in 2018. Some commenters expressed concern that this effective date would not allow adequate time for compliance. One commenter requested that the effective date of the regulations be no sooner than 18 months after the regulations are finalized in order to give plan sponsors adequate time to plan for the higher level of contributions that will be required under the new mortality assumptions. Treasury and the IRS understand that most employers have been planning for the issuance of updated mortality tables for the purposes of section 430 since the RP–2014 Mortality Tables Report was issued in 2014 and many of those employers are already using updated mortality tables for financial reporting purposes. Furthermore, any additional required contributions for a plan resulting from the adoption of the new tables will not be due before September 15, 2019. For a plan with a calendar plan year, this date is 8
Moreover, as described in section II.C of this Explanation of Provisions, the amount of a single-sum distribution computed as the present value of an annuity is determined using a mortality table that is based on the generally applicable mortality tables used for minimum funding purposes. Thus, retaining the mortality tables under existing regulations for the 2018 plan year, as requested by some commenters, would result in inappropriately depressing the amount of single-sum distributions payable to affected participants during the 2018 plan year (resulting in a permanent loss of retirement assets for those participants). A 2013 study indicates that approximately 56 percent of retiring participants in a traditional defined benefit plan with an unlimited single-sum option choose that option.
Because these rules were proposed in December of 2016 to be applicable as final regulations for plan years beginning on and after January 1, 2018, the Treasury Department and the IRS believe that many plan sponsors have had adequate time to set aside funds needed for additional pension contributions for the 2018 plan year. Furthermore, because the steps that plan sponsors will need to take to update their administrative systems in response to these final regulations are not significantly different from the steps they would need to take in response to the annual update of mortality tables that has previously occurred at this time of the year, the Treasury Department and the IRS believe that plan sponsors generally will have sufficient time to make any needed changes to these administrative systems.
The final regulations generally retain the effective date that was proposed, and apply to plan years beginning on or after January 1, 2018. In response to comments indicating that this effective date may create certain administrative or financial difficulties, the final regulations provide an option that may be used in certain circumstances for the 2018 plan year to apply the regulations that were formerly in effect. Specifically, for a plan for which substitute mortality tables are not used for the 2018 plan year, mortality tables determined in accordance with regulations previously in effect may be used for purposes of applying the rules of section 430 for a valuation date occurring during 2018 if the plan sponsor (1) concludes that the use of mortality tables determined in accordance with the final regulations for the plan year would be administratively impracticable or would result in an adverse business impact that is greater than de minimis, and (2) informs the actuary of the intent to apply this option. While this option provides significant flexibility to plan sponsors, the use of the option will not affect the mortality table used to determine minimum present value for distributions with annuity starting dates in stability periods that begin during 2018 (which is based on the generally applicable mortality tables under section 430(h)(3)(A) that apply if this option is not used). Therefore, the lump-sum distributions received by participants retiring in 2018 will appropriately reflect their expected longevity.
These final regulations contain a comprehensive revision of the rules regarding plan-specific substitute mortality tables for plans that are subject to the rules of section 430.
Use of mortality ratios (rather than providing for the graduation of raw mortality rates as under the 2008 substitute mortality table regulations) will make it easier for plan sponsors to develop substitute mortality tables because it eliminates the need to apply a complex graduation technique. It also facilitates efficient IRS review of applications for approval to use substitute mortality tables, which is particularly important in light of the other major change made in the regulations (permitting the use of substitute mortality tables for a plan that has mortality experience that is only partially credible). As a result of the changes made in these regulations, Treasury and the IRS expect that significantly more plan sponsors will request approval to use substitute mortality tables.
The substitute mortality table for a population with full credibility must be determined by applying projected mortality improvement to a base substitute mortality table developed using an experience study of the population. Like the proposed regulations, the final regulations use the same general requirements for an experience study as under the 2008 substitute mortality table regulations but reflect certain changes from the proposed regulations in response to comments. Specifically, the experience study generally must cover a period of at least 2 (and no more than 5) consecutive 12-month periods that ends less than 3 years before the first day of the first plan year for which the substitute mortality tables are to apply, and must cover the same period for all populations within a plan.
A base substitute mortality table generally is determined by multiplying the mortality rates from the corresponding standard mortality table (that is, the generally applicable base mortality table for the population, projected with mortality improvement to the base year for the base substitute mortality table) by the mortality ratio for the population. For this purpose, the mortality improvement rates that apply for the calendar year during which the plan sponsor submits the request for approval to use substitute mortality tables are used to project the generally applicable base mortality table to the base year for the base substitute mortality table.
Some commenters pointed out that multiplying mortality ratios for a population by the mortality rates in the applicable standard mortality table could yield inappropriate results at extremely old ages. In response to those comments, the final regulations provide that mortality rates under the base substitute mortality tables must be the same as the mortality rates under the standard mortality table for ages above 109 and that a modified mortality ratio is used for ages from 96 through 109 (to accomplish a gradual transition to the standard mortality table while avoiding inappropriate results). If the mortality ratio for the population is greater than 1.0, the modified mortality ratio for an age within this range is equal to the mortality ratio for the population reduced by 1/15th of the excess of the mortality ratio over 1.0 for each year by which the age exceeds 95. If the mortality ratio for the population is less than 1.0, the modified mortality ratio for an age within this range is equal to the mortality ratio for the population increased by 1/15th of the excess of 1.0 over the mortality ratio for each year by which the age exceeds 95.
The proposed regulations revised the standard for full credibility of a population under the 2008 substitute mortality table regulations (which is 1,000 actual deaths for the relevant population during the experience study period) to better reflect established actuarial credibility theory. Under established actuarial credibility theory, the 1,000-death threshold (which is a rounding down of the 1,082 actual deaths that would be needed for a 90% confidence level that the measured rate is within 5% of the underlying mortality rate) should apply to the credibility for a single mortality rate and not an entire mortality table.
Using established actuarial credibility theory to evaluate whether a population has fully credible mortality experience entails the use of a threshold that takes into account the dispersion of benefits within the population. Accordingly, under the proposed regulations, the number of deaths that are needed for a population within a plan to have fully credible mortality experience is determined as the product of 1,082 and the benefit dispersion factor for the population.
Commenters supported the actuarial soundness of the standard for fully credible mortality information under the proposed regulations, and the final regulations adopt the provisions of the proposed regulations regarding full credibility. At the request of commenters, the regulations include expressions of various formulas in mathematical notation to assist actuaries in making computations under the regulations.
One commenter noted that the increase of the threshold for full credibility (together with the inability to reflect the pattern of the plan's mortality experience at different ages) may produce substitute mortality tables that are substantially different than those that are currently in use. To address this concern, in part, the final regulations include an option to increase the credibility of a plan's mortality experience by basing it on the combined mortality experience of both genders.
As under the proposed regulations, the final regulations permit substitute mortality tables to be used for a plan that does not have sufficient deaths to have fully credible mortality information. In accordance with established actuarial credibility theory, the substitute mortality table used for such a plan is the weighted average of the standard mortality table and the substitute mortality table that would be developed for the plan if it were to have fully credible mortality information. The weight for the substitute mortality table that would be developed for the plan if the plan were to have fully credible mortality information is the square root of a fraction, the numerator of which is the actual number of deaths for the population within the experience study period and the denominator of which is the number of deaths needed for the plan to have fully credible mortality information.
Under section 430(h)(3)(iv) there is a general consistency requirement for the use of substitute mortality tables with respect to all plans within a controlled group. Thus, use of substitute mortality tables for a plan is generally permitted only if substitute mortality tables are used for all plans subject to section 430 that are maintained within the controlled group of the plan sponsor.
The 2008 substitute mortality table regulations set forth an exception from this consistency requirement for plans that did not have credible mortality experience. As a result of the change permitting the use of substitute mortality tables for plans that have only partially credible mortality information, Treasury and the IRS concluded that the exception should be modified so that it only applies to plans with a relatively small population. Accordingly, the regulations provide that a population does not have credible mortality information (and so a substitute mortality table is neither permitted nor required to be used for that population) if the actual number of deaths for that population during the experience study period is less than 100. For this purpose, the length of the experience study period must be the same length as the longest experience study period for any plan in the controlled group
In response to comments, the final regulations provide rules regarding the use of substitute mortality tables in connection with multiple-employer plans. Under the final regulations, the application for use of substitute mortality tables in the case of a multiple-employer plan must be made by the plan administrator, and the substitute mortality tables must apply on a plan-wide basis (even if the plan is subject to the rules of section 413(c)(4)(A)).
In addition, the final regulations provide special rules for the application of the controlled group consistency rule in the case of a multiple-employer plan. Under this special rule, an employer participating in a multiple-employer plan is treated as maintaining that plan if and only if the proportion of the plan's funding target attributable to the employees and former employees of the employer and members of the employer's controlled group is greater than 50 percent. Thus, such an employer is subject to the controlled group consistency rule with respect to the multiple-employer plan and any other plans subject to section 430 maintained by that employer (or any member of that employer's controlled group). By contrast, if the proportion of the multiple-employer plan's funding target attributable to the employees and former employees of the employer and members of the employer's controlled group is less than or equal to 50 percent, then that employer is not subject to the controlled group consistency rule with respect to the multiple-employer plan and any other plans subject to section 430 maintained by that employer (and any member of that employer's controlled group).
Some commenters requested the ability to develop and use substitute mortality tables based on the combined experience of both males and females in the plan, to increase the credibility of mortality experience for a smaller population. Treasury and the IRS have determined that this approach is consistent with established actuarial credibility theory. Accordingly, the final regulations provide that a single mortality ratio may be developed for both genders and then used to construct separate gender-specific base substitute mortality tables for the plan. If this option is applied for a plan, then substitute mortality tables used for all plans in the plan sponsor's controlled group must be constructed in this manner (except for plans for which both the male and female populations, considered separately, have mortality experience with full credibility). In addition, if this option is applied for a plan, then the mortality experience for both genders must be combined for all other purposes under the regulations, including the determination of: (1) Whether a plan has credible mortality information for purposes of the controlled group consistency requirement; (2) whether the mortality experience for a plan has full credibility; and (3) the partial credibility weighting factor.
The proposed regulations provide for a transition period during which the controlled group consistency requirement does not apply with respect to a newly-affiliated plan (that is, a plan that has become maintained within the new controlled group in connection with a transaction described in § 1.410(b)–2(f)). In response to comments, the final regulations extend the transition period during which the controlled group consistency requirement does not apply with respect to a newly-affiliated plan so that it ends on the last day of the plan year that immediately follows the period described in section 410(b)(6)(C)(ii) for any of the plans in the controlled group (whichever ends latest). For example, if all of the plans involved have a plan year that is the calendar year and a corporate transaction occurs during 2017, then the transition period during which the controlled group consistency requirement does not apply ends on December 31, 2019 (the end of the plan year that immediately follows December 31, 2018, which is the end of the period described in section 410(b)(6)(C)(ii)). This longer transition period will ensure that the plan sponsor has adequate time to complete an experience study covering the newly-affiliated plan for use in its submission for approval of substitute mortality tables for a plan year beginning January 1, 2020. As under the proposed regulations, the final regulations provide that this experience study may exclude the pre-affiliation data and the experience study period may be as short as 1 year (instead of 2 years). Therefore, under the facts of this example, the experience study used to develop substitute mortality tables for the plan may cover only calendar year 2018.
The final regulations retain the rules from the 2008 substitute mortality table regulations regarding the termination of use of substitute mortality tables before their originally scheduled expiration. Among the circumstances that lead to early termination is the replacement of the generally applicable mortality tables (other than annual updates to the static mortality tables or changes to the mortality improvement rates).
In response to comments, the final regulations include a transition rule under which previously approved base substitute mortality tables continue to apply for plan years beginning in 2018 (assuming that plan year is covered by the original approval and that substitute mortality tables are used by all of the plans within the controlled group that have credible mortality experience under the standards in the 2008 substitute mortality table regulations). In addition, previously approved base substitute mortality tables continue to apply to later plan years during the term of their original approval, provided that the plan sponsor satisfies the requirement that substitute mortality tables be used for all plans in the controlled group that have credible mortality information under the standards in these regulations. However, the mortality improvement rates under the final regulations, rather than the Scale AA Projection Factors (which were used under the 2008 substitute mortality table regulations), must be applied to previously approved base substitute mortality tables beginning in 2019.
These regulations regarding substitute mortality tables apply to plan years beginning on or after January 1, 2018, subject to certain transition relief. In addition to the transition relief for previously approved base mortality tables described in section III.F.4 of the Explanation of Provisions portion of this preamble, the requirement that a plan sponsor apply for approval to use substitute mortality tables at least 7 months before the beginning of the plan year will be treated as satisfied if the plan sponsor's application is submitted on or before February 28, 2018, provided that the plan sponsor agrees to a 90-day extension of the 180-day review period.
IRS Revenue Rulings, Revenue Procedures, and Notices cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS Web site at
It has been determined that these regulations constitute a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Accordingly, these rules have been reviewed by the Office of Management and Budget. The Regulatory Impact Assessment prepared by Treasury for these regulations is provided below. This rule is not subject to the requirements of Executive Order 13771 because this rule results in no more than
Section 430 of the Internal Revenue Code specifies the minimum funding requirements that apply generally to defined benefit plans that are not multiemployer plans. Section 430(h)(3) contains rules regarding the mortality tables to be used under section 430. Under section 430(h)(3)(A), the Secretary is to prescribe by regulation mortality tables to be used in determining any present value or making any computation under section 430.
Section 430(h)(3)(C) prescribes rules for a plan sponsor's use of substitute mortality tables reflecting the specific mortality experience of a plan's population. Section 503 of the Bipartisan Budget Act of 2015 requires certain changes in the rules for developing a plan's substitute mortality tables.
The existing regulations regarding mortality tables were issued in 2008, for use beginning in 2008. Those tables were based on a study of mortality experience of pension plan participants covering the years 1990–1994 that was published in 2000. Since that time, studies have shown that people are living longer. For example, a study that RPEC published in 2014 indicates that the mortality tables issued under the 2008 general mortality table regulations no longer reflect the actual mortality experience of pension plan participants and projected trends in that experience. In accordance with section 430(h)(3)(B), the Secretary is required to revise the mortality tables in the existing regulations as a result of these changes in the actual mortality experience and projected trends in that experience. In addition, changes in the existing regulations regarding substitute mortality tables are required under the provisions of the Bipartisan Budget Act of 2015.
The final regulations affect participants in private-sector defined benefit plans and employers sponsoring those plans.
As required by OMB Circular A–4, the following table summarizes the estimated economic impact of the final regulations. The baseline for this estimate is the mortality tables issued under the existing regulations. Because the new tables reflect the fact that participants are living longer, the primary impact of the final regulations is to increase the reported liability for future benefit payments from pension plans; this higher reported liability will result in higher pension contributions. The higher liability will also result in an increase in PBGC premiums, which are a function of a plan's funded status. Because pension contributions and premiums are deductible from firms' incomes, tax revenues will fall.
As described in the effective date discussion in section II.D of the Explanation of Provisions portion of this preamble, these regulations include an option for a plan sponsor that is not using plan-specific mortality tables to delay the application of the new tables in certain circumstances. Because it is difficult to predict how many plan sponsors will utilize this option, the following tables provide a range of estimates of the economic impact of these regulations. The first row of numbers in the tables, labeled “full take-up amount,” is based on the assumption that all plan sponsors will use the option to delay the application of the new mortality tables; the second row of numbers, labeled “no take-up amount,” is based on the assumption that no plan sponsors will use the option to delay application of the new mortality tables. As noted in the effective date discussion in section II.D of the Explanation of Provisions portion of this preamble, the use of this option will not affect the mortality table used to determine minimum present value under section 417(e).
For pension payments that are paid over a retiree's lifetime, the actual liability will depend on how long the retiree actually lives, and the impact of reflecting longer life expectancies in the calculation of present values under these regulations will merely accelerate the time when additional contributions attributable to longer lifetimes will need to be made. For pension payments that are lump-sum settlements in lieu of lifetime payments, the new tables will increase the amount of the lump sum. If the plan has a lump sum-based benefit formula, such as a cash balance plan, there will be no impact on the amount of a lump sum, but the optional annuity may be smaller.
Substantially all of the amounts involved (decreased tax revenue, increased plan contributions and PBGC premiums) constitute transfer payments, rather than costs. This is because these amounts are monetary payments from one entity to another that do not affect total resources available to society.
We believe that the incremental administrative costs to implement this regulation are negligible, because plan sponsors would have to incur the same costs to update their plan administration software to reflect the new mortality tables under these regulations as they would incur in implementing the annual update to the mortality tables that would apply in the absence of these regulations. Moreover, the specific mortality rates used to calculate benefits for individuals normally are not provided to individual plan participants, so there will be no need to distribute information about the new mortality tables. Rather, plan sponsors and administrators provide individual participants who are considering retiring in the near future with individualized estimates of their benefits and that process is not dependent on the specific mortality rates used to determine benefits under the plan. Furthermore, Treasury and the IRS are issuing these regulations at a similar time of year as mortality tables were issued in prior years (and close in time to the issuance of the earliest interest rates that may be used in calculating the amount of a lump sum benefit to be distributed during a plan year beginning in 2018). In other words, these costs are included in the baseline of the analysis, not as new incremental costs associated with this rulemaking.
In terms of the use of the mortality tables for purposes of applying the funding requirements of section 430, these regulations (like the current regulations) permit actuaries to use static mortality tables that approximate the present value determined using the generational mortality tables. Even if a plan's actuary chooses to use generational mortality tables (including plan-specific mortality tables) instead of the static mortality tables, actuarial software capable of applying that approach (including generational mortality tables determined using mortality improvement rates that vary by both age and calendar year) should be readily available, as such generational mortality tables determined using varying mortality improvement rates have been used routinely for financial reporting purposes by large employers since the Mortality Improvement Scale MP–2014 Report was issued in 2014. In addition, these regulations permit any previously approved plan-specific mortality tables to continue to be used for the duration of the original approval period. Accordingly, any additional cost as a result of the issuance of these regulations should be negligible.
It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. This rule applies to all employers that sponsor defined benefit plans regardless of size. As stated above, this rule implements the statutorily-required updates and any compliance costs related to this rule are small and are consistent with previously issued annual updates.
Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.
The principal authors of these regulations are Arslan Malik and Linda S.F. Marshall of the Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from Treasury and the IRS participated in the development of these regulations.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
(a)
(2)
(B)
(C)
(D)
(E)
(F)
(ii)
(B)
(3)
(b)
(ii)
(2)
(c)
(2)
(3)
(A) The cumulative mortality improvement factor (determined under the rules of paragraph (a)(2) of this section) for the period from 2006 through that calendar year; and
(B) The cumulative mortality improvement factor (determined under the rules of paragraph (a)(2) of this section) for the period beginning in that calendar year and continuing beyond that calendar year for the number of years in the projection period described in paragraph (c)(3)(ii) of this section.
(ii)
(B)
(iii)
(A) The mortality rate for that age that would be determined under paragraph (c)(3)(i) of this section if the number of years in the projection period were the next lower whole number; and
(B) The mortality rate for that age that would be determined under paragraph (c)(3)(i) of this section if the number of years in the projection period were the next higher whole number.
(iv)
At age 85, the projection period for a male is 6
(d)
(e)
(f)
(2)
(i) Concludes that the use of mortality tables determined in accordance with this section for the plan year would be administratively impracticable or would result in an adverse business impact that is greater than
(ii) Informs the actuary of the intent to apply the option under this paragraph (f)(2).
(a)
(b)
(ii)
(2)
(ii)
(iii)
(iv)
(c)
(ii)
(2)
(ii)
(B)
(iii)
(B)
(3)
(ii)
(4)
(5)
(ii)
(iii)
(A) The period over which mortality experience is collected for each plan (the data study period) is a multiple of 12 months and is based on the plan year for that plan;
(B) The data study periods for all of the plans consist of the same number of years;
(C) The data study periods for all of the plans satisfy the experience study period requirements of paragraph (d)(2)(ii) of this section; and
(D) The data study periods for all of the plans have been selected to minimize the total period of time covered by the experience study period by overlapping (to the greatest extent possible) those data study periods.
(6)
(ii)
(A) For a plan using a substitute mortality table for only one gender because of a lack of credible mortality information with respect to the other gender, the first plan year for which there is credible mortality information with respect to the gender that had lacked credible mortality information (unless an approved substitute mortality table is used for that gender);
(B) The first plan year for which the plan fails to satisfy the requirements of paragraph (c)(1) of this section (regarding use of substitute mortality tables for all plans in the controlled group), taking into account the rules of paragraph (f)(3) of this section (regarding the transition period for newly-affiliated plans);
(C) The second plan year following the plan year for which there is a significant change in individuals covered by the plan as described in paragraph (c)(6)(iii) of this section;
(D) The first plan year following the plan year for which a substitute mortality table used for a population is no longer accurately predictive of future mortality of that population, as determined by the Commissioner or as certified by the plan's actuary to the satisfaction of the Commissioner; or
(E) The date specified in guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii)(b) of this chapter) in conjunction with a replacement of mortality tables specified under section 430(h)(3)(A) and § 1.430(h)(3)–1 (other than annual updates to the static mortality tables issued pursuant to § 1.430(h)(3)–1(a)(3) or changes to the mortality improvement rates pursuant to § 1.430(h)(3)–1(a)(2)(i)(C)).
(iii)
(B)
(7)
(ii)
(d)
(2)
(ii)
(B)
(iii)
(3)
(ii)
(A) The number of expected deaths for the population during the experience study period (as defined in paragraph (d)(3)(iii) of this section); multiplied by
(B) The sum of the mortality-weighted squares of the benefits (as defined in paragraph (d)(3)(iv) of this section); divided by
(C) The square of the sum of the mortality-weighted benefits (as defined in paragraph (d)(3)(v) of this section).
(iii)
(iv)
(
(
(B)
(v)
(
(
(B)
(4)
(ii)
(
(
(
(
(B)
(iii)
(B)
(iv)
(A) For ages 96 through 109, if the mortality ratio is greater than 1.0, the modified mortality ratio is equal to the mortality ratio for the population reduced by 1/15th of the excess of the mortality ratio over 1.0 for each year that the age exceeds 95.
(B) For ages 96 through 109, if the mortality ratio is less than 1.0, the modified mortality ratio is equal to the mortality ratio for the population increased by 1/15th of the excess of 1.0 over the mortality ratio for each year that the age exceeds 95.
(C) For ages 110 and older, the modified mortality ratio is equal to 1.0.
(v)
(5)
(A) All individuals of that gender are divided into separate populations;
(B) Each separate population has mortality experience that has full credibility as determined under the rules of paragraph (d)(5)(iii) of this section; and
(C) The separate base substitute mortality table for each separate population is developed applying the rules of paragraphs (d)(1) through (4) of this section using an experience study that takes into account solely members of that population.
(ii)
(iii)
(6)
(e)
(i) The product of—
(A) The partial credibility weighting factor determined under paragraph (e)(2) of this section; and
(B) The mortality rates that are derived from the experience study determined under paragraph (d)(4)(i) of this section, and
(ii) The product of—
(A) One minus the partial credibility weighting factor described in paragraph (e)(2) of this section; and
(B) The mortality rate from the standard mortality tables described in paragraph (d)(4)(iii) of this section.
(2)
(i) The numerator of which is the actual number of deaths for the population during the experience study period, and
(ii) The denominator of which is the full credibility threshold for the population described in paragraph (d)(3) of this section.
(f)
(2)
(3)
(4)
(ii)
(iii)
(g)
(2)
(A) The previous approval period had not ended;
(B) Substitute mortality tables are used for all plans in the plan sponsor's controlled group in accordance with the terms of that approval; and
(C) The projection factors provided in Projection Scale AA, as set forth in § 1.430(h)(3)–1(d) as in effect on December 31, 2017 (as contained in 26 CFR part 1 revised April 1, 2017) are applied to the base substitute mortality table.
(ii)
(A) The previous approval period had not ended;
(B) Substitute mortality tables are used for all plans in the plan sponsor's controlled group that have credible mortality information within the meaning of paragraph (c)(2)(ii) of this section; and
(C) The mortality improvement factors described in paragraph (c)(3)(ii) of this section are applied to the base substitute mortality table.
(3)
(a)
(b)
(a)
(b)
Mine Safety and Health Administration, Labor.
Final rule; stay of effective date; reinstatement of rules.
The Mine Safety and Health Administration is staying the effective date of the Agency's January 23, 2017, final rule that amended standards for examination of working places in metal and nonmetal mines to June 2, 2018. MSHA also is reinstating the provisions of the working place examinations standards that were in effect as of October 1, 2017. This stay and reinstatement offers additional time for MSHA to provide stakeholders training and compliance assistance.
As of October 5, 2017, 30 CFR 56.18002 and 57.18002 are stayed until June 2, 2018, and 30 CFR 56.18002T and 57.18002T are added until June 2, 2018.
Sheila A. McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at
On January 23, 2017, MSHA published a final rule in the
In the same issue of the
Most commenters on the proposed rule to delay the effective date of the final rule supported extending the date beyond October 2, 2017. One commenter who supported extending the effective date to March 2, 2018, stated that the extension of time would offer additional time for MSHA to provide stakeholders training and compliance assistance, would further permit MSHA to address issues raised by stakeholders during quarterly training calls and stakeholder meetings and compliance assistance visits, and would also provide MSHA more time to train its inspectors to help ensure consistency in MSHA enforcement. This commenter also supported a further delay of the effective date of the final rule, should such be required, if the Agency has yet to achieve its stated goals.
Many commenters stated that an extension beyond October 2, 2017 is necessary and appropriate and recommended an indefinite suspension of the effective date. The commenters maintained that, since substantive changes to the January 2017 final rule were proposed at the same time as the proposed delay, it is imprudent to establish any effective date until an amended final rule is promulgated and the substance of the rule is known. In addition, they acknowledged MSHA's stated intent to provide compliance assistance to industry and specific training to inspectors prior to the effective date. The commenters expressed concern that, for any compliance assistance measures to have any meaning, it is necessary for the exact terms of the final rule to be known before the final rule's effective date. Then, after the period of compliance assistance from MSHA, mine operators will be required to develop appropriate compliance programs to comply with the final rule. Given the uncertainty of the final rule's provisions and the compliance assistance efforts to be scheduled, the commenters believed that an appropriate effective date cannot be established.
Other commenters stated that the proposed delay to March 2, 2018, was arbitrary and does not increase the likelihood that MSHA will complete all of the compliance assistance, outreach, and training tasks in that timeframe, or that the MNM industry will be ready to comply on the new effective date. They recommended that MSHA establish an effective date that is six months after the date on which any changes to the final Examinations rule are published in the
MSHA agrees with commenters who support an extension beyond the proposed March 2, 2018 effective date so that the Agency will complete its stated goals by the effective date of the final rule. To ensure compliance readiness on that date, MSHA is developing compliance assistance materials to assist the industry. A stay beyond the proposed March 2, 2018, effective date will provide MSHA the time and flexibility to make these materials available to stakeholders and post them on MSHA's Web site (
Labor union commenters did not support the proposed delay in the effective date, stating that a delay was unnecessary and miners' health and safety would be affected by an extension. Labor also stated that the
Staying the effective date does not negatively affect miners' safety and health; the standards that have been in effect for many years are reinstated and MSHA will continue to enforce those standards. MSHA will also continue to proactively provide compliance assistance and training needed to assure that miners' safety and health are protected. Staying the effective date of the January 2017 rule is necessary so that the diverse MNM mining industry is provided the educational, technical, and compliance assistance to ensure miners' safety and health and to comply with final rule requirements. The diversity in the MNM mining industry relates not only to commodities produced at mines and mills, but also differences for small and large mines in complying with the final rule. Based on data reported to MSHA, 90 percent of over 11,000 MNM mines employ fewer than 20 miners and almost all (98 percent) are surface mines.
Since most MNM mines are small operations, MSHA recognizes that they have limited staff, including limited administrative staff, as well as limited resources, and many are located in remote areas. These small mines may have limited access or no access to the internet at the mine site and may rely on stakeholder meetings and other types of MSHA assistance to acquire informational materials needed to comply with the rule. In MSHA's experience with previous changes to metal and nonmetal standards and regulations, outreach to these small mine operators requires MSHA to be flexible regarding different approaches that may be needed and regarding the time necessary to ensure that all miners and mine operators have the tools and the information to comply with the rule.
MSHA has concluded that miners are better protected when operators and miners are provided needed informational and instructional materials and training and technical assistance regarding the rule's requirements. The stayed effective date to June 2, 2018 provides MSHA the flexibility the Agency needs to promote compliance, thereby increasing protections for miners.
Further, staying the January 2017 rule without also reinstating the provisions that were in effect as of October 1, 2017, would leave miners unprotected. Reinstatement without delay is necessary to continue historical protection of metal and nonmetal miners through workplace examinations.
Some commenters raised concern that the substance of the final rule is uncertain because litigation is pending on the January 2017 final rule. The commenters suggested that MSHA delay the effective date indefinitely until the rule's status is finally resolved. These comments are outside the scope of the September 12, 2017, proposed rule, which was limited to delaying the rule's effective date to ensure compliance readiness.
Having given due consideration to all comments received, MSHA has determined that it is appropriate to stay the effective date until June 2, 2018, and to reinstate the workplace examinations rules that were in effect as of October 1, 2017. The stay will address commenters' concerns regarding sufficient time for MSHA to fully inform and educate the mining community on the rule's requirements. A June 2, 2018, effective date provides more time and flexibility for MSHA to complete development of compliance assistance materials and make them available to stakeholders, hold informational meetings for stakeholders and conduct compliance assistance visits at MNM mines throughout the country. In addition, the extension will permit more time for MSHA to address issues that have been or may be raised during quarterly training calls and upcoming stakeholder meetings and compliance assistance visits and to train MSHA inspectors to help ensure consistency in MSHA enforcement. MSHA has determined that the educational, technical, and compliance assistance that will be provided to mine operators and miners during the period of the stayed effective date will enhance their understanding of the rule's requirements, thereby increasing protections for miners.
For the foregoing reasons, MSHA has concluded that it is appropriate to stay the effective date until June 2, 2018.
Accordingly, the effective date of the final rule published January 23, 2017 (82 FR 7680), delayed on May 22, 2017 (82 FR 23139), is stayed until June 2, 2018. The standards that were in effect as of October 1, 2017, are reinstated.
Metals, Mine safety and health, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006, MSHA is amending parts 56 and 57 as follows:
30 U.S.C. 811.
(a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.
(b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.
(c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.
30 U.S.C. 811.
(a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.
(b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.
(c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a special local regulation for all navigable waters of the Ohio River from mile marker (MM) 595.0 to MM 597.0. This action is necessary to provide for the safety of life on these navigable waters near Louisville, KY, during a regatta. Entry into, transiting through, or anchoring within this regulated area is prohibited unless authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative.
This rule is effective from 11 a.m. on October 7, 2017 through 4 p.m. on October 8, 2017.
If you have questions on this rule, call or email MST1 Kevin Schneider, Waterways Department Sector Ohio Valley, U.S. Coast Guard; telephone 502–779–5333, email
The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this Special Local Regulation by October 7, 2017 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with a regatta from 11 a.m. on October 7, 2017 through 4 p.m. on October 8, 2017 will present a safety concern on all navigable waters on the Ohio River extending from mile marker (MM) 595.0 to MM 597.0. The purpose of this rule is to ensure the safety of life and vessels on these navigable waters before, during, and after the scheduled event.
This rule establishes a temporary special local regulation that will be enforced from 11 a.m. to 5 p.m. on October 7 and 11 a.m. to 4 p.m. on October 8. The temporary special local regulation will cover all navigable waters of the Ohio River from MM 595.0 to MM 597.0. The duration of the special local regulation is intended to ensure the safety of waterway users and these navigable waters before, during, and after the scheduled event. No vessel or person is permitted to enter the special local regulated area without obtaining permission from the COTP.
We developed this 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 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Entry into the regulated area will be prohibited from 11 a.m. to 5 p.m. on October 7 and 11 a.m. to 4 p.m. on October 8 from MM 595.0 to MM 597.0, unless authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative. Moreover, the Coast Guard will issue written Local Notice to Mariners and Broadcast Notice to Mariners via VHF–FM marine channel 16 about the temporary special local regulation that is in place.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the special local regulation, may be small entities, for the reasons stated in section V. A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1–888–REG–FAIR (1–888–734–3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under 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 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 rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves special local regulated area lasting eleven hours over two days on all navigable waters extending two miles of the Ohio River. It is categorically excluded from further review under paragraph 34(h) and 35(a) of Figure 2–1 of the Commandant Instruction. A Record of Environmental Consideration 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
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
33 U.S.C 1233.
(a)
(b)
(c)
(2) Recreational vessels may be permitted to transit the regulated area, but are restricted to at least 1,000 feet from the perimeter of the race course and restricted to the Indiana side of the Ohio River. Recreational vessels transiting into and away from this area are restricted to the slowest safe speed creating minimum wake.
(3) The COTP may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property.
(4) All other persons or vessels desiring entry into or passage through the area must request permission from the COTP or a designated representative. U.S. Coast Guard Sector Ohio Valley may be contacted on VHF Channel 13 or 16, or at 1–800–253–7465.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State Implementation Plan (SIP) submitted by the state of Nebraska on November 14, 2011. Nebraska is adding a new chapter titled “Visibility Protection” which provides Nebraska authority to implement Federal regulations relating to Regional Haze and Best Available Retrofit Technology (BART). The new chapter incorporates by reference EPA's Guidelines for BART Determinations Under the Regional Haze Rule. The revision to the SIP meets the visibility component of the Clean Air Act (CAA).
This direct final rule will be effective December 4, 2017, without further notice, unless EPA receives adverse comment by November 6, 2017. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA–R07–OAR–2017–0386, to
Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551–7391, or by email at
Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:
EPA is taking direct final action to approve revisions to Nebraska's SIP that will amend title 129 of the Nebraska Administrative Code to include rules regulating regional haze. This revision adds a new chapter, chapter 43, entitled “Visibility Protection”, to title 129 which incorporates by reference EPA Code of Federal Regulations under title 40 part 51 of EPA's Guidelines for BART determiniations under the Regional Haze Rule. This new chapter provides the Nebraska Department of Environmental Quality (NDEQ) the authority to require sources to conduct BART determinations for the purpose of issuing BART permits. This revision to title 129 is consistent with Federal regulations related to Regional Haze and BART, adopting by reference the definitions for the Federal Regional Haze rule at 40 CFR 51.301 and adopts by reference, appendix Y, to 40 CFR part 51, “Guidelines for BART Determinations under the Regional Haze Rule.” The revision to the SIP also meets the visibility component of the CAA section 110(a)(2)(J). Approval of these revisions will not impact air quality and will ensure consistency between the State and Federally approved rules.
The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The revised chapter was placed on public notice and a public hearing was held by the State on July 13, 2007, where no comments were received. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
EPA is approving the state's request to revise the SIP to include amendments to the Nebraska air quality rules as it relates to the Regional Haze and Best Available Retrofit Technology.
We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. EPA does not anticipate adverse comment because the revisions to the existing rules are routine and consistent with the Federal regulations, thereby, strengthening the SIP. 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 Nebraska regulations described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through
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
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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).
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 December 4, 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. (See section 307(b)(2).)
Environmental protection, Air pollution control, Best available retrofit technology, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Regional haze, Sulfur dioxide, Visibility, Volatile organic compounds.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve State Implementation Plan (SIP) revisions submitted by the State of Utah on August 20, 2013, and on June 29, 2017. The submittals revise the portions of the Utah Administrative Code (UAC) that pertain to ozone offset requirements in Davis and Salt Lake Counties for major sources. This action is being taken under section 110 of the Clean Air Act (CAA) (Act).
This final rule is effective on November 6, 2017.
The EPA has established a docket for this action under Docket Identification Number EPA–R08–OAR–2016–0620. All documents in the docket are listed on the
Kevin Leone, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P–AR, 1595 Wynkoop, Denver, Colorado 80202–1129, (303) 312–6227,
On August 20, 2013, with supporting administrative documentation submitted on September 12, 2013, Utah sent the EPA revisions to their nonattainment permitting regulations, specifically to address EPA identified deficiencies in those regulations that may also affect the EPA's ability to approve Utah's fine particulate matter (PM
On February 3, 2017, the EPA published a final rulemaking (82 FR 9138) to conditionally approve the revisions in Utah's August 20, 2013 submittal, except for the revisions to R307–420. The submittal did not contain the appropriate supporting documentation required for the EPA to take action on R307–420. As a result, the EPA requested an extension for taking action on R307–420, and on December 20, 2016, the EPA was granted an extension which moved the deadline for taking final action on R307–420 from January 3, 2017, to September 29, 2017 (See docket). Utah submitted on June 29, 2017, an additional SIP revision that addresses the lack of appropriate supporting documentation for R307–420.
No comments were received on our July 14, 2017 notice of proposed rulemaking (82 FR 32517).
The EPA is taking final action to approve Utah's revisions to R307–420 and R307–403–6, as submitted on August 20, 2013, and June 29, 2017. R307–420 maintains the offset provisions of the nonattainment area new source review (NNSR) permitting program in Salt Lake and Davis Counties after the area is re-designated to attainment for ozone. R307–420 also establishes more stringent offset requirements for nitrogen oxides that may be triggered as a contingency measure under Utah's ozone maintenance plan. R307–420 was also modified to include the definitions and applicability provisions of R307–403 (Permits: New and Modified Sources in Nonattainment Areas and Maintenance Areas) to ensure that the definitions and applicability provisions in R307–420 are consistent with related permitting rules in R307–403. The EPA is taking final action to approve these revisions.
On August 20, 2013, Utah submitted revisions to the definitions in the NNSR program that addressed certain deficiencies in the program. Utah also submitted revisions to the corresponding definitions in R307–420. As explained in our proposed rulemaking published on July 14, 2017 (82 FR 32517), since the EPA had not received the 1999 rulemaking that created R307–420 as a SIP submittal, we were unable to take action on the revisions to R307–420 in our February 3, 2017 (82 FR 9138) final rulemaking for Utah's revisions to Nonattainment Permitting Regulations.
Utah's June 29, 2017 submittal addressed this issue by submitting the 1999 rule revisions that created R307–420 and modified R307–403–6. As these rule revisions preserve the ozone maintenance plan requirements for offsets and contingency measures in Salt Lake and Davis Counties while improving the clarity of those requirements, we proposed to approve the 1999 rule revisions on July 14, 2017 (82 FR 32517). We also proposed to approve the remaining portion of the August 20, 2013 submittal.
The EPA is taking final action to approve the subsequent revisions to R307–420, submitted on August 20, 2013, that Utah promulgated to ensure that the definitions and applicability provisions in R307–420 are consistent with related permitting rules in R307–403. For the reasons explained in our July 14, 2017 notice of proposed rulemaking, the definitions and applicability provisions in R307–403 are consistent with requirements for NNSR programs found in 40 CFR 51.165. While R307–420 is part of the ozone maintenance plan for Salt Lake and Davis Counties and not part of the NNSR program, and therefore, not directly subject to the requirements in 40 CFR 51.165, we view the corresponding revisions to the definitions and applicability provisions as strengthening the maintenance plan. Specifically, the EPA is approving the
Please refer to the August 20, 2013 and June 29, 2017 submittal for further details on these revisions.
In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the UDAQ rules as described in the amendments to 40 CFR part 52 set forth in this document. The EPA has made, and will continue to make, these materials generally available through
Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the 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 the 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 Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. 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 in a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 4, 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. (See CAA section 307(b)(2)).
Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The revision and additions read as follows:
(c) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving revisions to the State Implementation Plan (SIP), Operating Permits Program, and 112(l) program submitted on July 14, 2014, by the State of Nebraska. This action amends the SIP to revise two chapters, “Definitions” and “Operating Permit Modifications; Reopening for Cause”. Specifically, these revisions incorporate by reference the list of organic compounds exempt from the definition of volatile organic compound (VOC) found in the Code of Federal Regulations; notification requirements for the operating permit program are being amended to be consistent with the Federal operating permit program requirements; the definition of “solid waste” is being revised by the state, however, because the state's definition is inconsistent with the Federal definition, EPA is not approving this definition into the SIP. Finally, the state is extending the process of “off-permit changes” to Class I operating permits. Additional grammatical and editorial changes are being made in this revision. Approval of these revisions will not impact air quality, ensures consistency between the State and Federally-approved rules, and ensures Federal enforceability of the State's rules.
This direct final rule will be effective December 4, 2017, without further notice, unless EPA receives adverse comment by November 6, 2017. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA–R07–OAR–2017–0485, to
Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551–7391, or by email at
Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:
Nebraska's July 14, 2014, submission requested revisions to seven chapters of “Title 129—Nebraska Air Quality Regulations”. This action will amend the SIP to include revisions to two of those chapters, title 129 of the Nebraska Administrative Code, chapter 1 “Definitions”, and chapter 15 “Operating Permit Modifications; Reopening for Cause”. Of the remaining five chapters, EPA previously approved revisions to two of the chapters in separate direct final rulemakings published in the
EPA is approving revisions to the Nebraska SIP and Operating Permits Program in title 129, chapter 1 “Definitions”. The definition of VOC contained in section 160 of chapter 1 “Definitions” is being revised. Specifically, section 160 of chapter 1 contains a definition of VOC that provides exceptions to the definition based upon a list of organic compounds, which have been determined to have negligible photochemical reactivity. Because it is difficult to stay current in regard to the list of compounds, the revision EPA is approving removes the list at section 160, and references the list contained in the Code of Federal Regulations at 40 CFR 51.100(s)(1) and (5). In addition, revisions to chapter 1, section 139, are being made to the SIP and the Operating Permits Program to change the notification requirements for “Section 502(b)(10) changes” to require facilities to provide written notification at least 7 days in advance, rather than 30 days. This revision makes the notification requirements consistent with the Federal operating permit program requirements. In addition, Nebraska requested revisions to the definition of “solid waste” at chapter 1, section 144, to make it consistent with the definition of “solid waste” included in the Nebraska Environmental Protection Act and other applicable regulations in Nebraska.
EPA is approving revisions to the Nebraska SIP, Operating Permits Program and 112(l) program for chapter 15 “Operating Permit Modifications; Reopening for Cause”, which extends “off-permit changes” to Class I and II
The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The revised chapters were placed on public notice and a public hearing was held by the State on January 6, 2014, where no comments were received. In addition, as explained in this preamble, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. EPA does not anticipate adverse comment because the revisions to the existing rules are routine and consistent with the Federal regulations, thereby, strengthening the SIP. 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 Nebraska Regulations described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through
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 Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
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).
This action also does not have Federalism implications because it does 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus Executive Order 13132 does not apply to this action. This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rulemaking also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it approves a state rule implementing a Federal standard.
In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
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 December 4, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 70 as set forth below:
42 U.S.C. 7401
(c) * * *
42 U.S.C. 7401
(o) The Nebraska Department of Environmental Quality submitted revisions to the Nebraska Administrative Code, title 129, chapter 1, “Definitions” and chapter 15, “Operating Permit Modifications; Reopening for Cause” on July 14, 2014. The state effective date is May 13, 2014. This revision is effective December 4, 2017.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reallocation.
NMFS is exchanging unused flathead sole and rock sole Community Development Quota (CDQ) for yellowfin
Effective October 5, 2017 through December 31, 2017.
Steve Whitney, 907–586–7228.
NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The 2017 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,552 metric tons (mt), 5,740 mt, and 15,778 mt as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017) and revised by flatfish exchange (82 FR 24253, May 26, 2017). The 2017 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 5,754 mt, 10,856 mt and 12,128 mt as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017) and revised by flatfish exchange (82 FR 24253, May 26, 2017).
The Coastal Villages Region Fund has requested that NMFS exchange 89 mt of flathead sole sole CDQ reserves and 250 mt of rock sole CDQ reserves for 339 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 89 mt of flathead sole CDQ reserves and 250 mt of rock sole CDQ reserves for 339 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017), and revised by flatfish exchange (82 FR 24253, May 26, 2017), are further revised as follows:
This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Coastal Villages Regional Fund in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised
The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
This action is required by § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Agricultural Marketing Service, USDA.
Withdrawal of proposed rule.
This document withdraws a proposed rule to change the reporting of export certificate information under regulations issued pursuant to the Export Apple Act and the Export Grape and Plum Act. After reviewing and considering the comments received, the agency has decided not to proceed with this action.
As of October 5, 2017, the proposed rule published on December 5, 2016, at 81 FR 87486, is withdrawn.
Shannon Ramirez, Compliance and Enforcement Specialist, or Vincent Fusaro, Compliance and Enforcement Branch Chief, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (202) 720–2491, Fax: (202) 720–8938, or Email:
This withdrawal is issued under the Export Apple Act (7 U.S.C. 581–590) and the Export Grape and Plum Act (7 U.S.C. 591–599) (together hereinafter referred to as the “Export Fruit Acts”). The Export Fruit Acts promote foreign trade of fruit grown in the United States by authorizing the implementation of regulations related to quality, container markings, and inspection requirements. These regulations are contained in 7 CFR part 33 (Regulations Issued under the Export Apple Act) and 7 CFR part 35 (Export Grapes and Plums).
This action withdraws a proposed rule published in the
In addition, the proposed rule would have defined “shipper” and removed the requirement that carriers of exported apples and grapes retain certificates on file (because the requirement to retain the certificates would have shifted to shippers of exported apples and grapes). It would have also removed regulations that are no longer applicable to grape exports and would have added structure and language to clarify the regulations.
Plums are not currently regulated under the Export Grape and Plum Act; therefore, this change would not have impacted shipments of plums exported from the United States.
During the proposed rule's initial 30-day comment period (December 5, 2016, through January 4, 2017), six comments were received. Two of those comments included requests to extend the comment period. To allow further public review of the proposed changes, USDA reopened the comment period for 60 days on January 23, 2017, and then further extended the comment period for an additional 30 days, through April 24, 2017. Four comments were received during the reopened comment period. Two comments were also received on May 1, 2017, one week after the close of the comment period (these two comments, which were in letter form, were dated before the end of the comment period: March 22, 2017, and April 10, 2017). All the comments may be viewed on the internet at
In summary, the five supporting comments were generally brief and in favor of the proposed changes. The opposing comments detailed concerns about the impact of the proposed changes on shippers, specifically, and the export industry, generally. Some commenters noted that the changes would result in a substantive increase in burden and costs to shippers without adding quality benefits, stating that this could lead to reduced efficiency and vitality of export operations. One commenter indicated that requiring a shipper to maintain the export certificates on file would be a duplication of recordkeeping, because those same certificates are maintained for five years by the commenter's state agricultural department. Another commenter noted that the changes would represent a major barrier to trade because of the complicated logistics of ocean shipments of exported apples and could cause economic harm.
Some commenters stated that the proposed rule did not contain quantifiable data that demonstrated non-compliance with the existing requirements, observing that shipments appear to have been properly inspected and certified for years without the proposed additional monitoring to ensure compliance with these requirements. One commenter questioned using a special USDA-defined code in AES for exempt bulk shipments of apples to Canada because it appears to be a temporary workaround that would be used only until a new harmonized tariff code could be developed to identify these exempt shipments; the commenter suggested delaying the change until a permanent solution was developed in light of the non-urgent nature of the change. Some commenters also raised issues about the
Given the opposing comments received, AMS has determined that the proposed rule changing the reporting requirements under the Export Fruit Acts should not be finalized. AMS intends to conduct outreach with export industry stakeholders and consider other compliance monitoring activities as it reconsiders whether changes will be proposed in the future. Accordingly, the proposed rule to change the reporting of export certificate information under regulations issued pursuant to the Export Fruit Acts published in the
Apples, Exports, Pears, Reporting and recordkeeping requirements.
48 Stat. 124; 7 U.S.C. 581–590.
Administrative practice and procedure, Exports, Grapes, Plums, Reporting and recordkeeping requirements.
74 Stat. 734; 75 Stat. 220; 7 U.S.C. 591–599.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace extending upward from 700 feet above the surface at Fort Scott Municipal Airport, Fort Scott, KS, and Phillipsburg Municipal Airport, Phillipsburg, KS. The FAA is proposing this action due to the decommissioning of the Fort Scott non-directional beacon (NDB) and the Phillipsburg NDB and the cancellation of the associated instrument approach procedures. This action would enhance the safety and management of instrument flight rules (IFR) operations at these airports.
Comments must be received on or before November 20, 2017.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590; telephone (202) 366–9826, or (800) 647–5527. You must identify FAA Docket No. FAA–2017–0523; Airspace Docket No. 17–ACE–9 at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222–5711.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace extending upward from 700 feet above the surface at Fort Scott Municipal Airport, Fort Scott, KS, and Phillipsburg Municipal Airport, Phillipsburg, KS, to support IFR operations at these airports.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA–2017–0523/Airspace Docket No. 17–ACE–9.” The postcard will be date/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by:
Modifying Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile radius (reduced from a 7-mile radius) of Fort Scott Municipal Airport, Fort Scott, KS; removing the Fort Scott NDB from the legal description; and removing the extension north of the NDB; and
Modifying Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile radius (reduced from a 7.6-mile radius) of Phillipsburg Municipal Airport, Phillipsburg, KS; removing the Phillipsburg NDB from the legal description; and removing the extension southeast of the NDB.
Airspace reconfiguration is necessary due to the decommissioning of the Fort Scott NDB and the Phillipsburg NDB, the cancellation of the associated instrument approach procedures, and to bring the airspace in compliance with FAA Order 7400.2L, Procedures for Handling Airspace Matters. Controlled airspace is necessary for the safety and management of standard instrument approach procedures for IFR operations at these airports.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Fort Scott Municipal Airport.
That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Phillipsburg Municipal Airport.
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
This NPRM follows a series of related rules that established a set of performance measures for State departments of transportation (State DOT) and Metropolitan Planning Organizations (MPO) to use as required by Moving Ahead for Progress in the 21st Century Act (MAP–21) and the Fixing America's Surface Transportation (FAST) Act. In the last of that series of rules, published on January 18, 2017, FHWA established a measure on the percent change in carbon dioxide (CO
Comments must be received on or before November 6, 2017. Late comments will be considered to the extent practicable.
You may submit comments identified by the docket number
For technical information: Susanna Hughes Reck, Office of Infrastructure, (202) 366–1548; for legal information: Anne Christenson, Office of Chief Counsel, (202) 366–1356, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8 a.m. to 4:30 p.m. ET, Monday through Friday, except Federal holidays.
A copy of the NPRM, all comments received, and all background material may be viewed online at
The MAP–21
As part of this mandate, FHWA issued three related national performance management measure rules
One of the measures FHWA created to assess the performance of the NHS under the National Highway Performance Program (NHPP) is Percent Change in Tailpipe Carbon Dioxide (CO
As part of the rulemaking that was finalized in January 2017, FHWA estimated the incremental costs associated with the new requirements for a GHG Measure that represented a change to current practices of DOT, State DOTs, and MPOs. The FHWA
Table X displays the Office of Management and Budget (OMB) A–4 Accounting statement as a summary of the cost savings associated with repealing the GHG measure.
The third performance measure NPRM was published on April 22, 2016 (81 FR 238060).
In the preamble to the third performance measure NPRM, FHWA sought public comment on whether and how to establish a CO
The FHWA received thousands of comments on whether to establish such a measure and how a measure should be designed and implemented. Supporting comments came from 9 State DOTs, 24 MPOs, 19 U.S. Senators, 48 Members of the U.S. House of Representatives, over 100 cities, numerous local officials, over 100 businesses, 91,695 citizens, and over 100 public interest, non-profit and advocacy organizations. Some State DOTs and MPOs already use GHG emissions as a performance measure.
Comments against a GHG measure were submitted by 10 State DOTs, 2 MPOs, 5 U.S. Senators, 31 Members of the U.S. House of Representatives, and 27 transportation and infrastructure industry associations. In addition, nine State DOTs and three industry associations requested that FHWA not establish any performance measures not explicitly authorized in legislation, because GHG is not identified in the legislation.
Several of the commenters in both groups addressed whether FHWA has the legal authority to establish a GHG measure and whether such measure could be established in this rulemaking.
The FHWA published the third performance measure final rule on January 18, 2017, at 82 FR 5971.
On January 30, 2017, President Donald J. Trump issued Executive Order 13771, entitled, “Reducing Regulation and Controlling Regulatory Costs,”
This rulemaking proposes to repeal the GHG measure, while seeking additional public comment on whether to retain, or revise the GHG measure established in the third performance measure final rule. This rulemaking seeks additional information that may not have been available to the Agency during the development of the final rule. Additional information will aid FHWA in determining whether the measure should be repealed, retained, or revised.
During the first public comment period, several commenters argued that, should FHWA decide to establish a GHG measure, it should do so through a separate rulemaking. They claimed that the third performance measure NPRM did not provide sufficient detail about the type of measure FHWA might adopt for them to comment on the issue meaningfully. The FHWA believes that sufficient notice was provided in the third performance measure NPRM under the Administrative Procedure Act (APA); however, we are mindful that the third performance measure NPRM did not include proposed regulatory text for the GHG measure. Although the APA does not require proposed regulatory text to be included in the third performance measure NPRM, FHWA acknowledges that the GHG measure was presented differently than the other measures in that it was discussed in the preamble using a series of questions to limit the scope of the proposal. Some commenters stated that they found it difficult to formulate meaningful comments using this approach alone.
In the third performance measure final rule preamble, FHWA recognized that the GHG measure chosen—the percent change in tailpipe CO
The FHWA is interested in whether data are available to more directly measure GHG emissions effects of NHS projects undertaken by States or MPOs. The FHWA is responsible for establishing the data elements that are necessary to collect and maintain the standardized data to carry out a performance-based approach under 23 U.S.C. 150(c)(3)(A)(iv). We request comments on whether the data used to calculate the measure is precise enough
In addition, commenters are encouraged to provide information regarding whether the measure, including the methodology adopted in the final rule, provides meaningful utility for assessment of environmental performance of the NHS by States and MPOs. Please provide any information or data that would justify the utility of the measure relative to the increased burden to the States and MPOs reporting this information.
Finally, FHWA also requests input from States and MPOs on the potential costs imposed by the addition of this measure in the third performance measure final rule. Because a GHG measure was not proposed in the NPRM, the costs were not presented in that economic analysis. The FHWA did provide an assessment of the benefits and costs of all the measures in the final rule. As part of this rulemaking, FHWA is analyzing the costs associated solely with the GHG measure, and the attendant savings that would result from its repeal. The FHWA requests data from States and MPOs on the costs imposed due solely to the addition of this measure. Given that several States are already conducting efforts in this area, FHWA requests information on whether the GHG measure is a duplicative requirement and whether FHWA's estimate of the cost savings associated with a repeal of the GHG measure are accurate. Additionally, FHWA requests information from States not currently conducting similar efforts on the burdens this measure would impose.
Further, in the final rule, the GHG measure was adopted under 23 U.S.C. 150(c)(3) (NHPP) and not 23 U.S.C. 150(c)(5) (CMAQ). As the measure is under the NHPP program, State DOTs are subject to a significant progress determination if they fail to achieve their targets and, if they fail to make significant progress, additional reporting requirements. Because of these potential burdens, FHWA requests comments on any costs to States associated with the NHPP significant progress determination for the GHG measure.
The FHWA has determined that this action is a significant regulatory action within the meaning of Executive Order (E.O.) 12866 and within the meaning of DOT regulatory policies and procedures due to the significant public interest in regulations related to performance management. It is anticipated that the economic impact of this rulemaking will not be economically significant within the meaning of E.O. 12866 as discussed below. This action complies with E.O.s 12866, 13563, and 13771 to improve regulation. This action is considered significant because of widespread public interest in the transformation of the Federal-aid highway program to be performance-based, although it is not economically significant within the meaning of E.O. 12866.
The FHWA considers this proposed rule to be an E.O. 13771 deregulatory action, resulting in $11.0 million in cost-savings discounted at 7 percent over 9 years. Details on the estimated cost savings of this proposed rule are presented in the RIA (or regulatory impact analysis), which may be accessed from the docket (docket number FHWA–2013–0054). The RIA evaluates the economic impact, in terms of costs and benefits, on Federal, State, and local governments, as well as private entities regulated under this action, as required by E.O. 12866 and E.O. 13563. However, the RIA does not attempt to quantify any changes from improved decisionmaking that would result in benefits if the GHG measure requirement were retained.
To estimate cost savings from repealing the GHG measure, FHWA assessed the level of effort, expressed in labor hours and categories, and the capital needed to comply with the requirement as provided in the third performance management final rule. Level of effort by labor category is monetized with loaded wage rates to estimate total costs.
Table X displays the total cost for the GHG measure for the 9-year study period (2018–2026). The FHWA chose an 9-year analysis period and displayed the values in 2014 dollars in order to correlate the values presented in this NPRM with those presented in the third performance measure final rule. Total costs are estimated to be $10,960,828 discounted at 7 percent, and $12,888,091 discounted at 3 percent.
This action complies with the principles of E.O. 13563. After evaluating the costs and benefits of the rule, FHWA believes that the cost savings from this rulemaking would exceed the foregone benefits. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. In addition, these
In compliance with the Regulatory Flexibility Act (Pub. L. 96–354, 5 U.S.C. 601–612), FHWA has evaluated the effects of this action on small entities and has determined that the action would not have a significant economic impact on a substantial number of small entities. The rule addresses the obligation of Federal funds to State DOTs for Federal-aid highway projects. The rule affects two types of entities: State governments and MPOs. State governments do not meet the definition of a small entity under 5 U.S.C. 601, which have a population of less than 50,000.
The MPOs are considered governmental jurisdictions, and to qualify as a small entity they would need to serve less than 50,000 people. The MPOs serve urbanized areas with populations of 50,000 or more. As discussed in the RIA, the rule is expected to impose costs on MPOs that serve populations exceeding 200,000. Therefore, the MPOs that incur economic impacts under this rule do not meet the definition of a small entity.
I hereby certify that this regulatory action would not have a significant economic impact on a substantial number of small entities.
The FHWA has determined that this action does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, March 22, 1995, 109 Stat. 48). This rule does not include a Federal mandate that may result in expenditures of $151 million or more in any 1 year (when adjusted for inflation) in 2012 dollars for either State, local, and tribal governments in the aggregate, or by the private sector. Additionally, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.
The FHWA has analyzed this action in accordance with the principles and criteria contained in E.O. 13132. The FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction, for further information.
Under the PRA (44 U.S.C. 3501,
The FHWA has analyzed this action for the purpose of NEPA, as amended (42 U.S.C. 4321
The FHWA has analyzed this action under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under E.O. 12630.
This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not cause an environmental risk to health or safety that might disproportionately affect children.
The FHWA has analyzed this action under E.O. 13175, dated November 6, 2000, and believes that the action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. The rulemaking addresses obligations of Federal funds to State DOTs for Federal-aid highway projects and would not impose any direct compliance requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required.
The FHWA has analyzed this action under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that this is not a significant energy action under that order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.
The E.O. 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The FHWA has determined that this rule does not raise any environmental justice issues.
An RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Bridges, Highway safety, Highways and roads, Reporting and recordkeeping requirements.
In consideration of the foregoing, FHWA proposes to amend 23 CFR part 490 to read as follows:
23 U.S.C. 134, 135, 148(i), and 150; 49 CFR 1.85.
(d) * * * (1) * * *
(vi) Baseline condition/performance data contained in HPMS and NBI of the year in which the Baseline Period Performance Report is due to FHWA that represents baseline conditions/performances for the performance period for the measures in §§ 490.105(c)(1) through (4).
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the State Implementation Plan (SIP) revision submitted by the state of Nebraska on November 14, 2011. Nebraska is adding a new chapter titled “Visibility Protection” which provides Nebraska authority to implement Federal regulations relating to Regional Haze and Best Available Retrofit Technology (BART). The chapter incorporates by reference EPA's Guidelines for BART Determiniations under the Regional Haze Rule. The revision to the SIP meets the visibility component of the Clean Air Act (CAA).
Comments on this proposed action must be received in writing by November 6, 2017.
Submit your comments, identified by Docket ID No. EPA–R07–OAR–2017–0386, to
Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551–7391, or by email at
This document proposes to take action to add chapter 43, “Visibilty Protection”. We have published a direct final rule approving the State's SIP revision in the “Rules and Regulations” section of this
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions, which Illinois submitted to EPA on March 2, 2016, and supplemented on August 8, 2016 and May 4, 2017, for attaining the 2010 1-hour sulfur dioxide (SO
Comments must be received on or before November 6, 2017.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2016–0138 at
John Summerhays, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–6067,
This supplementary information section is arranged as follows:
On June 22, 2010, EPA promulgated a new 1-hour primary SO
For a number of areas, EPA published notice on March 18, 2016, that the pertinent states had failed to submit the required SO
Illinois submitted nonattainment plans for the Lemont and Pekin areas on March 2, 2016 and submitted supplemental information on August 8, 2016 and May 4, 2017.
Nonattainment plans must meet the applicable requirements of the CAA, specifically CAA sections 172, 191 and 192. On April 23, 2014, EPA issued guidance for meeting these statutory requirements, in a document entitled, “Guidance for 1-Hour SO
In order for EPA to fully approve a SIP as meeting the requirements of CAA sections 172, 191 and 192, the SIP for the affected area must demonstrate, to EPA's satisfaction, that each of the aforementioned requirements are met. In addition, the SIP must meet the applicable regulatory procedural and substantive requirements set forth in EPA's regulations at 40 CFR part 51. Under CAA sections 110(l) and 193,
As required under CAA section 172(c)(3), the state must develop and submit a comprehensive, accurate and current inventory of actual emissions from all sources of SO
CAA section 172(c)(1) directs states with areas designated as nonattainment to demonstrate that the submitted plan provides for attainment of the NAAQS. 40 CFR part 51, subpart G further delineates the control strategy requirements that SIPs must meet. SO
The 2014 SO
The 2014 SO
As specified in 40 CFR 50.17(b), the 1-hour primary SO
For SO
EPA recognizes that some sources have highly variable emissions due to, for example, variations in fuel sulfur content and operating rate that can make it extremely difficult, even with a well-designed control strategy, to ensure in practice that emissions for any given hour do not exceed the critical emission value. EPA also acknowledges the concern that longer term emission limits may allow short periods with emissions above the critical emissions value, which in turn would create the possibility of a NAAQS exceedance occurring when it otherwise would not if emissions were continuously controlled at the level corresponding to the critical emission value. However, for several reasons, EPA believes that the approach set forth in the 2014 SO
Second, from a more theoretical perspective, EPA has compared the likely air quality with a source having maximum allowable emissions under an appropriately set longer term limit, as compared to the likely air quality with the source having maximum allowable emissions under the comparable 1-hour limit. In this comparison, in the 1-hour average limit scenario, the source is presumed at all times to emit at the critical emission level, and in the longer term average limit scenario, the source is presumed occasionally to emit more than the critical emission value but on average, and presumably at most times, to emit well below the critical emission value. In an “average year,” compliance with the 1-hour limit is expected to result in three exceedance days (
As a hypothetical example to illustrate these points, suppose a source always emits 1000 pounds of SO
This simplified example illustrates the findings of a more complicated statistical analysis that EPA conducted using a range of scenarios using actual plant data. As described in appendix B of EPA's 2014 SO
Based on analyses described in appendix B of the 2014 SO
EPA must then evaluate whether this approach—which is likely to produce a lower number of overall exceedances even though it may produce some unexpected exceedances above the critical emission value—meets the requirement in section 110(a)(1) and 172(c)(1) for state implementation plans to “provide for attainment” of the NAAQS. For SO
The 2014 SO
Preferred air quality models for use in regulatory applications are described in appendix A of EPA's
As stated previously, attainment demonstrations for the 2010 1-hour primary SO
The meteorological data used in the analysis should generally be processed with the most recent version of AERMET. Estimated concentrations should include ambient background concentrations, follow the form of the standard, and be calculated as described in section 2.6.1.2 of the August 23, 2010, clarification memo on “Applicability of appendix W Modeling Guidance for the 1-hr SO
To be approved by EPA, the SIP must provide for attainment of the standard based on SO
Part D of title I of the CAA prescribes the procedures and conditions under which a new major stationary source or major modification may obtain a preconstruction permit in an area designated nonattainment for any criteria pollutant. The nonattainment NSR permitting requirements in section 172(c)(5) and 173 of the CAA are among “the requirements of this part” to be submitted to EPA as part of a revised SIP for a nonattainment area within 18 months of the effective date of a designation or redesignation to nonattainment. Air agencies that already have a nonattainment NSR permitting program applicable to areas previously designated nonattainment on the basis of the previous SO
Section 171(1) of the CAA defines RFP as “such annual incremental reductions in emissions of the relevant air pollutant as are required by part D or may reasonably be required by EPA for the purpose of ensuring attainment of the applicable NAAQS by the applicable attainment date.” As EPA has previously explained, this definition is most appropriate for pollutants that are emitted by numerous and diverse sources, where the relationship between any individual source and the overall air quality is not explicitly quantified, and where the emission reductions necessary to attain the NAAQS are inventory-wide. General Preamble, at 13547. EPA has also previously
In accordance with section 172(c)(9) of the CAA, SO
EPA has explained that planning for SO
The following discussion evaluates various features of the modeling and other elements of Illinois' nonattainment plans for the Lemont and Pekin areas.
Illinois' attainment demonstrations used AERMOD, the preferred model for these applications. Illinois used version 14134 of this model, using regulatory default mode, with no beta options. This version of AERMOD was the recommended version at the time the state conducted its nonattainment planning, and in any case the results of this version are likely to be similar to those that more recent versions would provide, so EPA finds use of this version of AERMOD to be acceptable.
Illinois performed an Auer's land use analysis which indicates that the Lemont area is approximately 79 percent rural, and the Pekin area is approximately 88 percent rural. A technical support document provides figures, taken from Illinois' submittal, that show the land use in the Lemont and Pekin areas, respectively, illustrating the areas that are characterized as rural, not urban, in the Auer classification system. EPA finds it appropriate to model these areas as rural areas.
Illinois chose the Chicago O'Hare surface station (WBAN #94846) and the Davenport, Iowa upper air station (WBAN #94982) as the most representative meteorological stations for the Lemont area. Illinois chose the Peoria surface station (WBAN #14842) and Lincoln upper air station (WBAN #048233) as the most representative meteorological stations for the Pekin area. These are the closest National Weather Service surface stations to each respective area. The State determined these stations to be the most representative for the respective modeling domains. The upper air stations were chosen on the basis of regional representativeness. EPA finds Illinois' choices of surface and upper air meteorological stations appropriate based on: (1) The suitability of meteorological data for the study area; and (2) the actual similarity of surface conditions and surroundings at the emissions source/receptor impact area compared to the locations of the meteorological instrumentation towers.
Illinois chose to include emissions data from all permitted sources within each modeling domain, which consists of a 50 kilometer radius circumscribing an area centered on the violating monitor. Illinois chose not to evaluate which sources would “cause a significant concentration gradient” (40 CFR part 51, appendix W), because that analysis would result in a greater modeling burden, along with significant subjectivity. The inclusion of all permitted sources assures that Illinois' modeled concentrations are conservative, in that it adds impacts that may also be represented in the background concentration.
Except for the Powerton Generating Station (Powerton) located in the Pekin area, the emission limits for newly limited sources, as outlined in Illinois' attainment demonstration, correspond to the revised sulfur limitations on a 1-hour basis and are found in 35 Illinois Administrative Code Part 214. The applicable emission limit for Powerton is established on a 30-day average basis and is lower than the modeled 1-hour attainment emission rate (the critical emission value) by virtue of application of an adjustment factor determined and applied in accordance with the 2014 SO
Specifically, as discussed further below, the 30-day average limit is about 58 percent of the modeled 1-hour emission rate, or, conversely, the modeled emission rate (the critical emission value) is about 74 percent higher than the 30-day average limit. The emission limits for sources in the Lemont area are all on a 1-hour average basis and equal the modeled emissions rate. EPA finds Illinois' choice of included sources and modeled emissions appropriate.
An important prerequisite for approval of an attainment plan is that the emission limits that provide for attainment be fully enforceable. The revised limits for significant contributing sources are codified in Illinois' sulfur limitations rule at 35 Illinois Administrative Code Part 214, Subpart AA, titled “Requirements for Certain SO
Illinois also modeled a number of other sources in its attainment demonstration, basing allowable emissions on limits established in state permits. EPA addresses the enforceability of the limits in the plans and Illinois' use of a 30-day average emission limit for Powerton below.
In preparing its plans, Illinois adopted revisions to a previously approved state regulation governing emissions of SO
In comments to the state, Sierra Club requested that the rule being adopted by Illinois “incorporate enforceable restrictions for all sources for which emissions reductions were included in the modeling that demonstrated attainment.” EPA's 2014 SO
The most significant sources in and near the designated nonattainment areas are subject to new emission limits that Illinois adopted as part of its part 214 rules. In particular, all of the sources that needed to reduce emissions in order for the nonattainment areas to attain the standard or that needed a reduced allowable emission level in order for the areas to maintain attainment of the standard are subject to limits adopted as part of the rule. Thus, the sources that are most critical to the future success of the attainment plans (including all of the significant units at these sources) are subject to limitations adopted in Illinois' rule. Illinois did not submit already federally enforceable permits for incorporation into the SIP, even if the modeling showing future attainment accounted for such limits. However, as previously discussed, all of the emission reductions that Illinois identified as necessary to bring the Lemont and Pekin areas into attainment are mandated by emission limits in the rule. Those sources for which Illinois' modeled emissions were based on federally enforceable limits already established in permits rather than in the new rules are sources that are already required to meet emission levels that should, combined with the new rule limits, provide for attainment of the standard, so that no further emission reductions are necessary for these sources in order for the SIP to provide for NAAQS attainment.
EPA reviewed the basis of the existing emission limits for the most significant of those sources not needing to reduce emissions below existing levels. In general, for these sources, the limits that underlie the allowable emission levels that Illinois modeled were established in federally enforceable construction permits. In some cases, these permits were to authorize major modifications or major new sources, in accordance with requirements for prevention of significant deterioration (PSD). In other cases, notably for the refineries, Illinois issued these limits in federally enforceable form in accordance with a federal-state consent decree. For example, the limits on emissions from the primary emission sources at CITGO, originally established by consent decree, have been incorporated into PSD permit number 05070003. The limits established in such permits are federally enforceable. In accordance with EPA's guidance on the use of federally enforceable limits, EPA finds that these limits are an appropriate estimate of the maximum allowable emissions under the plans, and so EPA finds that these limits represent an appropriate basis for modeling to determine whether Illinois' nonattainment plan provides for attainment.
Illinois has requested EPA to approve revisions to emission limits for significant sources within the Pekin and Lemont areas in 35 Illinois Administrative Code part 214, as part of the SIP, and EPA proposes to approve these new emission limits because they, in combination with permit limits that are already federally enforceable, provide adequate enforceability of the necessary emission limits for the purposes of Illinois' nonattainment plans.
As noted above, the 2014 SO
Based on the variability of emissions at Powerton, Illinois opted to set the emission limit for this facility on a 30-day average basis. Illinois closely followed the recommendations of the 2014 SO
Illinois then used a database of hourly SO
As noted above, EPA's 2014 SO
Based on a review of the state's submittal, the 3,452 pounds per hour 30-day average limit for Powerton, supplemented with a limit on the percentage of time that Powerton may exceed the 6,000 pounds per hour critical emission value, provides a suitable alternative to establishing a 6,000 pounds per hour 1-hour average emission limit for this source. The state used a suitable database and then applied an appropriate adjustment, yielding an emission limit that has comparable stringency to the 1-hour average limit that the state determined would otherwise have been necessary to provide for attainment. While the 30-day average limit allows for occasions in which emissions are higher than the level that would be allowed under the 1-hour limit, the state's limit compensates by requiring average emissions to be lower than the level that would otherwise have been required by a 1-hour average limit. Further, the supplemental limit adopted by Illinois ensures that elevated emissions will be infrequent. Thus, the 30-day average limit of 3,452 pounds per hour as supplemented is comparably as stringent as a 1-hour limit of 6,000 pounds per hour. Furthermore, Illinois' modeling of 6,000 pounds per hour for Powerton is an appropriate means of assessing whether the 30-day average limit of 3,452 pounds per hour plus supplemental limit provides for attainment.
Based on EPA's review of this information, the 30-day average limit for Powerton, in combination with other limitations in the state's plan (most notably the limits summarized in Table 1 above), should provide for attainment.
Illinois used seasonally varying hourly background data. These values were taken from an SO
During preparation of its nonattainment plans, Illinois received and responded to a number of comments by, among others, the Sierra Club and the Environmental Law and Policy Center that EPA believes warrant further review and explanation. Sierra Club noted that the nonattainment plans provide only a relatively small margin of attainment, and Sierra Club commented (among other comments)
First, Sierra Club expressed concerns about emissions from modeled sources that are not subject to Illinois Administrative Code section 214.603. Section 214.603 includes the following sources: Aventine Renewable Energy; Illinois Power Holdings E.D. Edwards; Ingredion Bedford Park; Midwest Generation Joliet; Midwest Generation Powerton; Midwest Generation Will County; Owens Corning; and Oxbow Midwest Calcining. Sierra Club commented that emissions from start-up, shutdown, and malfunction that represent noncompliance could lead to a violation of the NAAQS. Illinois responded that maximum allowable emissions for the sources were used, and that these allowable emissions are enforceable through emission limitations in other regulations or permit conditions. EPA agrees with Illinois' response, finding that while emissions above allowable levels may occasionally occur, excess emissions that are prohibited by applicable requirements (whether they are occurring during start-up, shutdown, or malfunctions or at other times) need not be considered in evaluating whether a plan provides for attainment. That is, if a plan requires emissions to be sufficiently low to achieve attainment, EPA considers the plan to satisfy the requirement to provide for attainment, and the possibility of noncompliance that causes violations is an enforcement concern and not an indication that the plan has failed to provide for attainment.
Second, Sierra Club expressed concern regarding emissions from minor sources. Sierra Club expressed particular concern about minor sources being authorized by “permits by rule” that exempt the sources from review of their impact on SO
Third, Sierra Club contended that while Illinois claims more than 99 percent emission reduction at many sources, presumably based on the requirement that Illinois has now adopted rules requiring industrial sources that burn diesel fuel or residual oil to burn ultra-low sulfur fuel, these requirements cannot achieve the 99 percent reduction at modeled sources that Illinois claimed. It appears that Illinois is claiming that the rules reduced allowable emissions by more than 99 percent, while Sierra Club is asserting that there will be no such percent reduction in actual emissions. Illinois responded that the relevant issue is whether the emission level required by the rules is an appropriate level consistent with attaining the standard, not the percent reduction in relation to prior actual or allowable emissions. That is, the percent reduction that results from Illinois' rules, and whether it is calculated on the basis of actual or allowable emissions, is not germane to the attainment demonstration, which is designed to demonstrate that allowable emissions are sufficiently low to provide for attainment. EPA agrees that, irrespective of the precise relationship between current and required future emissions,
Fourth, Sierra Club expressed concern that the flares modeled by Illinois will have “much higher” emissions during routine operations, such as flaring off gases during start-up, shutdown, and malfunction events when compared to pilot emissions, and that Illinois did not model these higher emission rates. Illinois responded that the flares have limits on their allowable emissions (which apply at all times, including during the events of concern to the Sierra Club), and the flares were modeled at their maximum allowable emission rates. The most significant flares in the Lemont area are at the CITGO and Exxon-Mobil refineries; these flares were addressed in a consent decree,
Finally, Sierra Club expressed concern regarding the impacts of possible emission “spikes” at Powerton,
The final dispersion modeling results submitted by Illinois show design value concentrations of 190.9 and 196.2 μg/m
In conjunction with its adoption of SO
On and after January 1, 2017, the sulfur content of residual fuel oil combusted at stationary sources will be limited to 1,000 parts per million (ppm), and sulfur content of distillate fuel oil will be limited to 15 ppm. These limits apply to facilities that exclusively burn liquid fuel. These limits were adopted as part of Title 35 of Illinois Administrative Code part 215 subparts B and D, in sections 214.121, 214.122, and 214.161. Section 214.121(b) sets these limits for large sources (sources with actual heat input greater than 73.2 megawatts (MW)), and section 214.122(b) sets these limits for small sources (sources with actual heat input smaller than, or equal to, 73.2 MW).
Section 214.161(c) and (d) set exceptions from the sulfur content limitations mentioned above for specific sources. Section 214.161(c) lists exceptions for Midwest Generation Joliet, Powerton, Waukegan, and Will County power stations or electric generating units (EGUs). These sources must comply with the following limitations: (1) From January 1, 2016 through December 31, 2018, the sulfur content of all distillate fuel oil purchased for use by the listed EGUs must not exceed 15 ppm; (2) from January 1, 2017 through December 31, 2018, the sulfur content of all distillate fuel oil used by the listed EGUs must not exceed 500 ppm; and (3) on and after January 1, 2019, the sulfur content of all distillate fuel oil used by the listed EGUs must not exceed 15 ppm. Section 214.161(d) sets an exception for Caterpillar Montgomery, and sets the following limit: On and after January 1, 2016, the sulfur content of all distillate fuel oil purchased for use by this source must not exceed 15 ppm, and the sulfur content of all distillate fuel oil used by this source must not exceed 500 ppm. These exemptions provide the listed sources with additional time to burn existing stocks of higher sulfur oils, but ultimately require these sources to meet the same sulfur content limits as apply to other sources in the state.
For the sources to which these alternate provisions apply that are in or near the Lemont or Pekin areas, the attainment modeling reflects the emissions that are allowable as of January 1, 2017, without regard to the tighter limits that apply two years thereafter. Thus, Illinois' modeling shows that these short term extensions of the deadline for complying with the generally applicable oil sulfur content limits do not prevent timely attainment. In addition, for the rest of the state, these limits strengthen the SIP and help improve air quality. For these reasons, EPA proposes to approve these rule amendments.
In the rulemaking adopting the above elements of its Part 214 rules, Illinois also adopted revisions to Part 225 and 217. However, Illinois' Lemont and Pekin nonattainment plans are not contingent on any of the provisions of these parts of Illinois administrative code, and these rules were not submitted as a part of this SIP revision request. Thus, EPA is taking no action with respect to those revisions as part of this action.
The emissions inventory and source emission rate data for an area serve as the foundation for air quality modeling and other analyses that enable states to: (1) Estimate the degree to which different sources within a nonattainment area contribute to violations within the affected area; and (2) assess the expected improvement in air quality within the nonattainment area due to the adoption and implementation of control measures. As noted above, the state must develop and submit to EPA a comprehensive, accurate and current inventory of actual emissions from all sources of SO
Illinois provided a comprehensive, accurate, and current inventory of emissions of SO
As noted above, these inventories addressed sources within 50 kilometers of the Lemont and Pekin nonattainment areas. These inventories addressed 425 sources in and near Lemont and 48 sources in and near Pekin. Once Illinois compiled its inventory of current allowable emissions, Illinois conducted modeling to determine the degree to which the applicable emission limitations allowed violations of the SO
Illinois's plan reflects a number of strategies to reduce emissions at various facilities. In the Lemont area, the Joliet power plant and Unit 3 of the Will County power plant will cease burning coal and will instead either burn natural gas or ultra-low sulfur diesel. In the Pekin area, substantial emission reductions will result from conversion of the Aventine facility switching from burning coal to burning natural gas and from implementation of emission control equipment at the E.D. Edwards and Powerton power plants. Both areas will also benefit from statewide requirements for boilers burning fuel oil to burn low sulfur fuel.
In its August 8, 2016, supplemental submittal, Illinois explained its rationale for concluding that the plans meet the RACM/RACT requirement in accordance with EPA guidance. Specifically, following EPA's interpretation that RACT and RACM reflect “the level of emissions control that is necessary to provide for expeditious attainment of the NAAQS within a nonattainment area,” Illinois noted that its nonattainment plans require permanent and enforceable control measures that provide for timely attainment. 35 Illinois Administrative Code section 214.603 lists the appropriate source-specific SO
EPA approved Illinois' nonattainment new source review rules on December 17, 1992 (57 FR 59928); September 27, 1995 (60 FR 49780) and May 13, 2003 (68 FR 25504). These rules provide for appropriate new source review for SO
In its August 8, 2016, supplemental submittal, Illinois explained its rationale for concluding that the plans met the requirement for RFP in accordance with EPA guidance. Specifically, Illinois's rationale is based on EPA guidance interpreting the RFP requirement being satisfied for SO
In its August 8, 2016, supplemental submittal, Illinois explained its rationale for concluding that the plans met the requirement for contingency measures in accordance with EPA guidance. Specifically, Illinois relies on EPA's guidance, noting the special circumstances that apply to SO
EPA is proposing to approve Illinois' submission as a SIP revision, which the state submitted to EPA on March 2, 2016, and supplemented on August 8, 2016, and May 4, 2017, for attaining the 2010 1-hour SO
These SO
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Illinois Administrative Code, Title 35, Subtitle B, Chapter I, Subchapter c, Part 214, Sections 214.121, 214.122, 214.161, 214.600, 214.601, 214.602, 214.603, 214.604, and 214.605, effective December 7, 2015. EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed 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 proposed 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 Clean Air Act; 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).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the second 10-year maintenance plan for the San Manuel area in Arizona for the 1971 National Ambient Air Quality Standards (NAAQS or “standards”) for sulfur dioxide (SO
Any comments on this proposal must arrive by November 6, 2017.
Submit your comments, identified by Docket ID No. EPA–R09–OAR–2017–0377 at
Ashley Graham, EPA Region IX, (415) 972–3877,
Throughout this document, the words “we,” “us,” or “our” mean the EPA.
We are proposing to approve the second 10-year maintenance plan for the San Manuel, Arizona SO
Sulfur dioxide (SO
In 1971, the EPA established both short- and long-term primary NAAQS for SO
In 2010, the EPA revised the primary SO
The Clean Air Act (CAA or “Act”) requires states to attain and maintain ambient air quality equal to or better than the NAAQS. The state's commitments for attaining and maintaining the NAAQS are outlined in the state implementation plan (SIP) for that state. The SIP is a planning document that, when implemented, is designed to ensure the achievement of the NAAQS. The Act requires that SIP revisions be made periodically as necessary to provide continued compliance with the standards.
SIPs include, among other things, the following: (1) An inventory of emission sources; (2) statutes and regulations adopted by the state legislature and executive agencies; (3) air quality analyses that include demonstrations that adequate controls are in place to meet the NAAQS; and (4) contingency measures to be undertaken if an area fails to attain the standard or make reasonable progress toward attainment by the required date, or a contingency plan if the area fails to maintain the NAAQS once redesignated. The state must make the SIP available for public review and comment, must hold a public hearing or provide the public the opportunity to request a public hearing, and the SIP must be adopted by the state and submitted to us by the governor or her/his designee. The EPA acts on the SIP submittal, thus rendering the rules and regulations federally enforceable. The approved SIP serves as the state's commitment to take actions that will reduce or eliminate air quality problems. Any subsequent revisions to the SIP must go through the formal SIP revision process specified in the Act.
The San Manuel maintenance area is located in southern Arizona. On March 3, 1978, for lack of a state recommendation, the EPA designated Pima and Pinal counties as a primary SO
On the date of enactment of the 1990 CAA Amendments, SO
During its operation, the BHP Copper Incorporated (Inc.) copper smelter was the largest SO
The remaining SO
Currently, no ambient SO
Section 175A of the CAA provides the general framework for maintenance plans. The initial 10-year maintenance plan must provide for maintenance of the NAAQS for at least 10 years after redesignation, including any additional control measures as may be necessary to ensure such maintenance. In addition, maintenance plans are to contain contingency provisions necessary to assure the prompt correction of a violation of the NAAQS that occurs after redesignation. The contingency measures must include, at a minimum, a requirement that the state will implement all control measures contained in the nonattainment SIP prior to redesignation.
Section 175A(b) of the CAA requires states to submit a subsequent maintenance plan revision (second 10-year maintenance plan) eight years after redesignation. The Act requires only that this second 10-year maintenance plan maintain the applicable NAAQS for 10 years after the expiration of the first 10-year maintenance plan. Beyond these provisions, section 175A of the CAA does not define the content of a second 10-year maintenance plan.
The primary guidance on maintenance plans and redesignation requests is a September 4, 1992, memo from John Calcagni, titled “Procedures for Processing Requests to Redesignate Areas to Attainment” (“Calcagni Memo”). Specific guidance on SO
While the Calcagni Memo primarily addresses redesignations, we find it is appropriate to apply the Calcagni Memo to second 10-year maintenance plans for areas that were redesignated in accordance with the memo and continue to experience similar conditions to those at the time of redesignation. For areas to qualify for redesignation to attainment, this policy recommends that the maintenance plan address otherwise applicable provisions, and include:
(1) An attainment emissions inventory that identifies the level of emissions in the area that is sufficient to attain the NAAQS;
(2) a maintenance demonstration showing that future emissions of the pollutant or its precursors will not exceed the level of the attainment inventory, or modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS;
(3) provisions for continued operation of air quality monitors to provide verification of the attainment status of the area;
(4) verification that the state has the legal authority to implement and enforce all measures necessary to maintain the NAAQS and information on how the state will track the progress of the maintenance plan; and
(5) contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of the area.
On April 21, 2017, the ADEQ submitted to the EPA the “San Manuel Sulfur Dioxide Maintenance Plan Renewal, 1971 Sulfur Dioxide National Ambient Air Quality Standards” (“2017 San Manuel Second Maintenance Plan”). The State verified that it had adhered to its SIP adoption procedures in Appendix B to the 2017 San Manuel Second Maintenance Plan, which includes the notice of public hearing; the agenda for the April 20, 2017 public hearing; the sign-in sheet; the public hearing officer certification and transcript of the hearing; and the State's responsiveness summary.
The EPA reviewed the 2017 San Manuel Second Maintenance Plan for completeness and found the plan to be complete on September 14, 2017. See 40 CFR part 51, Appendix V, for the EPA's completeness criteria, which must be satisfied before formal review of the SIP.
The 2017 San Manuel Second Maintenance Plan covers the second 10 years of the 20-year maintenance period, as required by Section 175A(b) of the CAA. As discussed below, the State has addressed the recommendations in the Calcagni Memo for emissions inventories, a maintenance demonstration, provisions for continued operation of air quality monitors, a commitment to track continued maintenance, and contingency provisions. We provide more details on each requirement and how the 2017 San Manuel Second Maintenance Plan meets each requirement in the following sections.
On June 7, 2007, the ADEQ submitted to the EPA its “Final Arizona State Implementation Plan Revision, San Manuel Sulfur Dioxide Nonattainment Area” and its request for redesignation to attainment (“2007 San Manuel Maintenance Plan”). The State's June 2007 submittal also requested that the EPA withdraw the June 2002 “Final San Manuel Sulfur Dioxide Nonattainment Area State Implementation and Maintenance Plan.” The June 2007 submittal updated the SIP to account for the closure of the dominant source of SO
The ADEQ's 2007 San Manuel Maintenance Plan included updated emissions inventories for sources in the San Manuel maintenance area for 1998, a year in which the smelter was operating and the area was attaining the SO
The Calcagni Memo recommends that a state demonstrate maintenance of the NAAQS by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS.
The 2017 San Manuel Second Maintenance Plan demonstrates continued maintenance of the 1971 primary SO
The emissions inventories in the 2017 San Manuel Second Maintenance Plan (
Mobile and area source emissions in the ADEQ's 2014 and subsequent year inventories were derived from the EPA's National Emissions Inventory Version 1 and the EPA's Motor Vehicle Emission Simulator model. In the 2014 base year, the ADEQ estimated that area sources contributed 2.58 tons of SO
Based on our review of the emissions inventories in the 2017 San Manuel Second Maintenance Plan, including the supporting information in Appendix A, we conclude that the inventories are complete and consistent with applicable CAA provisions and the Calcagni Memo.
As discussed above, no new sources of SO
The Calcagni Memo also specifies that projected emissions should reflect permanent, enforceable measures. Emission reductions from source shutdowns are considered permanent and enforceable if the shutdowns have been reflected in the SIP and all applicable permits have been modified accordingly. The ADEQ terminated the permit for the BHP Copper Inc. copper smelter in March 2005, and the smelter stacks were dismantled in January 2007. The smelting facility cannot reopen without submitting New Source Review (NSR) and Title V (Part 70) permit applications to the ADEQ. We therefore propose to conclude that the State has demonstrated that the 1971 SO
The Calcagni Memo recommends that once an area has been redesignated from nonattainment to maintenance, the state should continue to operate the appropriate air quality monitoring network to allow for continued verification of the attainment status of the area. However, following five years of clean data, SO
The ADEQ does not anticipate a substantial increase in point source emissions in future years and commits to resume monitoring before any major source of SO
The Calcagni Memo recommends that states ensure that they have the legal authority to implement and enforce all measures necessary to maintain the NAAQS, and that they specify how they will track progress of the maintenance plan in their submittal. One option for tracking maintenance would be through periodic updates to the emissions inventory.
The 2017 San Manuel Second Maintenance Plan submittal notes that the ADEQ, the Pima County Department of Environmental Quality (PDEQ), and the Pinal County Air Quality Control District (PCAQCD) have permitting and planning jurisdiction in the San Manuel SO
In the 2017 San Manuel Second Maintenance Plan, the State commits to track maintenance of the SO
Section 175A(d) of the CAA requires that maintenance plans contain contingency provisions deemed necessary by the Administrator to assure that the state will promptly correct any violation of the standard that occurs after the redesignation of the area as an attainment area. The Calcagni Memo provides additional guidance, noting that although a state is not required to have fully-adopted contingency measures that will take effect without further action by the state for the maintenance plan to be approved, the maintenance plan should ensure that the contingency measures are adopted expediently once they are triggered. Specifically, the maintenance plan should clearly identify the measures to be adopted, include a schedule and procedure for adoption and implementation of the measures, and contain a specific time limit for action by the state. In addition, the state should identify specific indicators or triggers, that will be used to determine when the contingency measures need to be implemented.
Since there are no remaining sources of SO
Furthermore, the ADEQ anticipates no relaxation of any implemented control measures used to attain and maintain the NAAQS, and commits to submit to us any changes to rules or emission limits applicable to SO
Upon review of the contingency plan summarized above, we find that the ADEQ has established a contingency plan for the San Manuel area that satisfies the requirements of CAA section 175A(d) and the Calcagni Memo.
As discussed above, section 175A of the CAA sets forth the statutory requirements for maintenance plans, and the Calcagni and Shaver memos cited above contain specific EPA guidance. Additional maintenance plan elements not covered by the Calcagni Memo are the transportation and general conformity provisions.
Conformity is required under section 176(c) of the CAA to ensure that federal actions are consistent with (“conform
Transportation conformity applies to projects that require Federal Highway Administration or Federal Transit Administration funding. 40 CFR part 93 describes the requirements for federal actions related to transportation plans, programs, and projects to conform to the purposes of the SIP. Because the EPA does not consider SO
Section 176(c)(4) of the CAA establishes the framework for general conformity. Besides ensuring that federal actions not covered by the transportation conformity rule will not interfere with the SIP, the general conformity regulations encourage consultation between the federal agency and the state or local air pollution control agencies before and during the environmental review process; public notification of and access to federal agency conformity determinations; and air quality review of individual federal actions.
Section 176(c) of the CAA requires states to revise their SIPs to establish criteria and procedures to ensure that federally supported or funded projects in nonattainment and maintenance areas “conform” to the air quality planning goals in the applicable SIP. SIP revisions intended to meet the conformity requirements in section 176(c) are referred to as “conformity SIPs.” In 2005, Congress amended section 176(c). Under the amended conformity provisions, states are no longer required to submit conformity SIPs for general conformity, and the conformity SIP requirements for transportation conformity have been reduced to include only those relating to consultation, enforcement, and enforceability.
The EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of a redesignation request under section 107(d)(3)(E)(v) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved.
Criteria for making determinations and provisions for general conformity are contained in A.A.C. R18–2–1438. Arizona has an approved general conformity SIP.
The ADEQ commits in the 2017 San Manuel Second Maintenance Plan to review and comment, as appropriate, on any federal agency draft general conformity determination it receives consistent with 40 CFR 93.155 for any federal plans or actions in this planning area, although none are currently planned for the area.
We propose to approve the second 10-year SO
We will accept comments from the public on this proposal for 30 days from the date of publication of this notice, and we will consider any relevant comments in taking final action on today's proposal.
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• 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 Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur dioxide.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
Pursuant to the Federal Clean Air Act (CAA or ACT), the Environmental Protection Agency (EPA) is proposing approval of revisions to the State Implementation Plan (SIP) submitted by the State of Texas through the Texas Commission on Environmental Quality (TCEQ) on July 10, 2015. The Texas SIP submission revises rules for control of volatile organic compounds (VOC) to assist the Dallas-Fort Worth (DFW) moderate nonattainment area (NAA) in attaining the 2008 eight-hour ozone (O
Written comments must be received on or before November 6, 2017.
Submit your comments, identified by Docket No. EPA–R06–OAR–2015–0832, at
For additional submission methods, please contact Mr. Robert M. Todd, (214) 665–2156,
Robert M. Todd, (214) 665–2156,
Throughout this document “we,” “us,” or “our” means the EPA.
On March 27, 2008, the EPA revised the primary and secondary O
On May 21, 2012, the EPA established initial area designations for most areas of the country with respect to the 2008 primary and secondary eight-hour O
Effective July 20, 2012, the DFW 2008 eight-hour O
States are required to adopt control measures that implement Reasonably Available Control Technology (RACT) on major sources of VOC emissions. The major source emission threshold level for the first nine counties (Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant) remains at a potential to emit (PTE) of 50 tons per year (tpy) VOC based on its serious classification under the 1997 standard. The major source threshold in Wise County is 100 tpy VOC based on the moderate classification requirement.
On July 10, 2015 the EPA received the TCEQ's submitted rule revisions to 30 TAC, Chapter 115 “Control of Air Pollution from Volatile Organic Compounds.” The State revised Chapter 115 for all major sources of VOC in the 2008 DFW O
• Add VOC emission limits and control requirements to major sources in newly designated Wise County.
• Amend VOC emissions control requirements in the DFW NAA;
• Amend testing, monitoring and recordkeeping requirements for VOC sources in the DFW NAA;
• Amend exemptions from VOC control requirements in the DFW NAA;
• Amend compliance schedules for affected sources in the DFW NAA, including adding new compliance date of January, 2017 for newly affected sources in Wise County;
• Add definitions to reflect the change in attainment status of Wise County;
A complete summary along with all non-substantive changes pertaining to reformatting, restructuring, reorganizing, and administrative revisions will be referenced in the Technical Support Document (TSD), “2008 8-Hour Ozone Nonattainment Area VOC SIP Demonstration and Reasonably Available Control Technology for Volatile Organic Compounds Sources in the Dallas-Fort Worth 2008 8-Hour Ozone Nonattainment Area” a copy of which is posted in the docket of this proposal.
Table 1 contains a list of the new sections of Chapter 115 with adopted subchapters, divisions, and key sections associated with the July 10, 2015 DFW 2008 eight-hour O
Table 2 contains a list of the sections of Chapter 115 with adopted subchapters, divisions, and key sections with modifications associated with the July 10, 2015 DFW 2008 eight-hour O
Table 3 contains a section of Chapter 115 proposed for repeal from the SIP by the TCEQ, along with the relevant identifying subchapter and division.
Previous Chapter 115 modifications addressed TCEQ's plan to comply with the 1997 eight-hour O
In today's action, we are proposing to approve revisions for TCEQ rule changes as part of the DFW moderate NAA area that would extend these same control requirements to sources in Wise County. The TCEQ provided information addressing the applicability of Chapter 115, Control of Air Pollution from Volatile Organic Compounds Regulations to sources with emissions equal to or greater than 100 tpy of VOCs in Wise County.
A complete evaluation of the TCEQ rules changes can be found in the TSD to this proposal that is included in the official docket. The changes TCEQ made includes ministerial changes as well as substantive ones such as the addition of control requirements that apply to sources in Wise County.
As noted above, the TCEQ's July 12, 2015, submission included a RACT demonstration that VOC control measures in 30 TAC Chapter 115 applied to major sources in the DFW moderate NNA, including Wise County. The TCEQ also provided information addressing the applicability of Control Technology Guidelines (CTG) and Alternative Control Technology (ACT) documents for VOC sources with emissions equal to or greater than 100 tpy of VOCs in Wise County. The TCEQ also provided negative declaration information for certain of these source categories in Wise County. Furthermore, the TCEQ demonstrated that any major source in the DFW NNA not covered by a CTG or ACT is controlled and meets RACT and that the negative declarations provided by the TCEQ and addressed in detail in the TSD to this proposal, are approvable.
The requirements for RACT are included in 182(b)(2) of the Act and further explained in our “SIP Requirements Rule” of March 6, 2015 (80 FR 12279), which explains States should refer to existing CTGs and ACT documents as well as all relevant technical information including recent technical information received during the public comment period to determine if RACT is being applied. States may conclude, in some cases, that sources already addressed by RACT determinations to meet the 1-Hour and/or the 1997 8-Hour O
We have reviewed the emission limitations and control requirements detailed in 30 TAC Chapter 115 and compared them against EPA's CTG documents and guidelines. Based on our review and evaluation, we found the emission limitations and control requirements in 30 TAC Chapter 115 apply to the source categories covered by our guidance and CTG documents, and that the corresponding sections in 30 TAC Chapter 115 provide for the lowest emission limitation through application of control techniques that are reasonably available considering technological and economic feasibility. Also, the TCEQ demonstrated that any major source in the DFW NNA not covered by a CTG or ACT is controlled and meets RACT.
Based on the above evaluation, we are proposing to determine that the applicable emission limitations and control requirements in 30 TAC Chapter 115 represent RACT under the 2008 8-Hour ozone NAAQS.
A complete evaluation of how the TCEQ rules meet the requirements of the EPAs CTGs, ACTs and RACT requirements can be found in the TSD to this proposal that is included in the official docket. In particular, see pages 13–21 of the TSD.
The EPA is proposing to approve the submitted TAC Chapter 115 SIP revisions into the SIP because these revisions will assist the DFW area reach attainment under the 2008 8-Hour O
In this action, the EPA is proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference revisions to the Texas regulations as described in the Proposed Action section above. The EPA has made, and will continue to make, these documents generally available electronically through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993), 13563 (76 FR 3821, January 21, 2011) and 13771 (82 FR 9339, February 2, 2017);
• 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 proposed 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).
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP), Operating Permits Program, and 112(l) program submitted on July 14, 2014, by the State of Nebraska. This action amends the SIP to revise two chapters, “Definitions” and “Operating Permit Modifications; Reopening for Cause”. Specifically, these revisions incorporate by reference the list of organic compounds exempt from the definition of volatile organic compound (VOC) found in the Code of Federal Regulations; notification requirements for the operating permit program are being amended to be consistent with the Federal operating permit program requirements; the definition of “solid waste” is being revised by the state, however, because the state's definition is inconsistent with the Federal definition, EPA is not approving this definition into the SIP. Finally, the state is extending the process of “off-permit changes” to Class I operating permits. Additional grammatical and editorial changes are being made in this revision. Approval of these revisions will not impact air quality, ensures consistency between the State and Federally-approved rules, and ensures Federal enforceability of the State's rules. In the “Rules and Regulations” section of this
Comments must be received by November 6, 2017.
Submit your comments, identified by Docket ID No. EPA–R07–OAR–2017–0485, to
Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551–7391, or by email at
Nebraska's July 14, 2014, submittal included revisions to Chapters 1, 4, 15, 18, 20, 28 and 34 of title 129. In previous direct final actions, EPA approved revisions to chapter 4 “Ambient Air Quality Standards” on October 11, 2016 (81 FR 70023), and chapter 34 “Emission Sources; Testing; Monitoring” on October 7, 2016 (81 FR 69693).
This document proposes to take action on chapter 1, “Definitions”, and chapter 15, “Operating Permit Modifications; Reopening for Cause”. Revisions to chapter 1 “Definitions” involve various grammatical and numerical edits. In addition, section 160 of chapter 1 contains a definition of VOC that provides exceptions to the definition based upon a list of organic compounds, which have been determined to have negligible photochemical reactivity. The revision removes the list of VOC exceptions at section 160, and instead references the list in the Code of Federal Regulations. Revisions to title 129, chapter 1, section 139 change the notification requirements for “Section 502(b)(10) changes” making it consistent with the Federal operating permit program. And finally, Nebraska's requested revisions to the chapter 1 definition of “solid waste” are inconsistent with the Federal definition. For that reason, EPA is not approving the State's revised “solid waste” definition into the SIP.
The proposed part 70 revision to chapter 15 extends “off-permit changes”, to Class I and II operating permits as allowed under the Federal program. Additional changes ensure that chapter 15 conforms to the applicable Federal regulations, including updating section 007, which allows changes in a permitted facility without a permit revision if certain criteria is met. Finally, revisions to chapter 15 shorten notice periods under certain circumstances when changing Class I and II operating permits, and are making various grammatical revisions for clarity purposes.
Chapter 18 is not a part of the State's approved SIP, and will be addressed through a separate future rulemaking process under the CAA section 111(d). EPA has elected to address changes to chapter 20 with a future SIP revision. Chapter 28 is not a part of the State's approved SIP and therefore, no action is required by the EPA.
We have published a direct final rule approving the State's SIP revision(s) in the “Rules and Regulations” section of this
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental
Environmental Protection Agency (EPA).
Proposed rule.
Arizona has applied to the EPA for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). These changes correspond to certain federal rules promulgated between May 26, 1998 and July 28, 2006 (also known as RCRA Cluster VIII (checklist 167D) and Clusters IX through XVII). EPA has reviewed Arizona's application with regards to federal requirements and is proposing to authorize the state's changes.
Comments on this proposed rule be received by November 6, 2017.
Submit your comments, identified by Docket ID Number EPA–R09–RCRA–2017–0523 at
Laurie Amaro, U.S. Environmental Protection Agency, Region 9, Land Division, 75 Hawthorne Street (LND–1–1), San Francisco, CA 94105, phone number: 415–972–3364, email:
States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, states must change their programs and ask EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
EPA concludes that Arizona's application to revise its authorized program meets all statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA proposes to grant Arizona final authorization to operate as part of its hazardous waste program the changes listed below in Section F of this document, as further described in the authorization application.
Arizona has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA).
The effect of this decision is that the changes described in Arizona's authorization application will become part of the authorized state hazardous waste program, and therefore will be federally enforceable. Arizona will continue to have primary enforcement authority and responsibility for its state hazardous waste program. EPA retains its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:
• Conduct inspections, and require monitoring, tests, analyses or reports;
• Enforce RCRA requirements, including authorized state program requirements, and suspend or revoke permits; and
• Take enforcement actions regardless of whether the state has taken its own actions.
This action does not impose additional requirements on the regulated community because the regulations for which Arizona is being authorized by today's action are already effective, and are not changed by today's action.
EPA will consider all comments received during the comment period and address all such comments in a final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.
Arizona initially received final authorization on November 20, 1985 to implement its base hazardous waste management program. Arizona received authorization for revisions to its program on August 6, 1991 (56 FR 37290 effective October 7, 1991), July 13, 1992 (57 FR 30905 effective September 11, 1992), November 23, 1992 (57 FR 54932 effective January 22, 1993), October 27, 1993 (58 FR 57745 effective December 27, 1993), July18, 1995 (60 FR 36731 effective June 12, 1995), March 7, 1997 (62 FR 10464 effective May 6, 1997), October 28, 1998 (63 FR 57605–57608 effective December 28, 1998), and March 17, 2004 (69 FR 12544 effective March 17, 2004), originally published on October 27, 2000 (65 FR 64369).
Arizona submitted a final complete program revision application to EPA dated July 14, 2017 seeking authorization of changes to its hazardous waste program that correspond to certain federal rules promulgated between May 26, 1998 and July 28, 2006 (also known as RCRA Cluster VIII (Checklist 167D only) and
Arizona adopts by reference the federal RCRA regulations in effect January 29, 2007, at Arizona Administrative Code (AAC) Title 18, Chapter 8, Article 2 (AAC R18–8–260 through 280 effective September 30, 2016). The federal requirements for which the State is being authorized are listed in the table below noting the Arizona Administrative Register (AAR) volume and page and the AAC implementing rule sections. An asterisks (*) after a checklist number indicates a rule which is optional for state adoption.
Since 1984, Arizona hazardous waste rules have contained several procedural requirements that are more stringent than EPA's. These more stringent procedural requirements are authorized by Arizona Revised Statutes (ARS) section 49–922, which in directing Arizona to adopt hazardous waste rules, prohibits only nonprocedural standards that are more stringent than EPA:
1. Hazardous Waste Manifests. Arizona requires hazardous waste generators; transporters; and treatment, storage, and disposal facilities (TSDFs) to provide a copy of all hazardous waste manifests to Arizona monthly. [See AAC R18–8–262(I) and (J); R18–8–263(C), R18–8–264(J) and R18–8–265(J).] Federal regulations governing distribution of copies of the manifest do not require manifests to be provided to the state.
2. Annual Reports. Hazardous waste large quantity generators (LQGs) and TSDFs must submit reports to Arizona annually rather than every two years as the federal regulations require. [See AAC R18–8–260(E)(3); R18–8–262(H), R18–8–264(I) and R18–8–265(I).] Small quantity generators (SQGs) must also submit annual rather than biennial reports under R18–8–262(H).
3. Recyclers are required to submit annual reports to Arizona rather than no reports at all. [AAC R18–8–261(J)].
EPA cannot delegate the federal requirements in 40 CFR 261.39(a)(5) and 261.41 contained in the Cathode Ray Tubes Rule set forth in 71 FR 42928, July 28, 2006. While Arizona adopted these requirements by reference in 14 AAR 409, AAC R18–8–260 and 261, EPA will continue to implement these requirements.
EPA gave notice at 80 FR 18777 of the removal of the provisions at 40 CFR 261.4(a)(16) and 40 CFR 261.38 related to comparable fuels due to the D.C. Circuit's vacatur of the “Hazardous
Other than the differences discussed above, Arizona incorporates by reference the remaining federal rules listed in Section F; therefore, there are no significant differences between the remaining federal rules and the revised state rules being authorized today.
Arizona will issue permits for all the provisions for which it is authorized and will administer the permits it issues. Section 3006(g)(1) of RCRA, 42 U.S.C. 6926(g)(1), gives EPA the authority to issue or deny permits or parts of permits for requirements for which the State is not authorized. Therefore, whenever EPA adopts standards under HSWA for activities or wastes not currently covered by the authorized program, EPA may process RCRA permits in Arizona for the new or revised HSWA standards until Arizona has received final authorization for such new or revised HSWA standards. EPA and Arizona have agreed to a joint permitting process for facilities covered by both the authorized program and standards under HSWA for which the State is not yet authorized, and for handling existing EPA permits after the State receives authorization.
Arizona is not authorized to carry out its hazardous waste program in Indian country within the State, which includes the Cocopah Tribe of Arizona; Fort Mojave Indian Tribe of Arizona, California & Nevada; Gila River Indian Community of the Gila River Indian Reservation; Havasupai Tribe of the Havasupai Reservation; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation; Navajo Nation; Quechan Tribe of the Fort Yuma Indian Reservation; Salt River Pima-Maricopa Indian Community of the Salt River Reservation; San Carlos Apache Tribe of the San Carlos Reservation; San Juan Southern Paiute Tribe of Arizona; Tohono O'odham Nation; Yavapai-Apache Nation of the Camp Verde Indian Reservation; and the Yavapai-Prescott Indian Tribe. Therefore, this action has no effect on Indian country. EPA retains jurisdiction over Indian country and will continue to implement and administer the RCRA program on these lands.
Codification is the process of placing the state's statutes and regulations that comprise the state's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized state rules in 40 CFR part 272. EPA is not codifying the authorization of Arizona's changes at this time. However, EPA reserves the amendment of 40 CFR part 272, subpart D for this authorization of Arizona's program changes until a later date.
The Office of Management and Budget (OMB) has exempted this action (RCRA State authorization) from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's proposed authorization of Arizona's revised hazardous waste program under RCRA are exempted under Executive Order 12866. This action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
Under RCRA 3006(b), the EPA grants a State's application for authorization, as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.
This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Bureau of Land Management, Interior.
Proposed rule.
On November 18, 2016, the Bureau of Land Management (BLM) published in the
Send your comments on this proposed rule to the BLM on or before November 6, 2017. As explained later, the BLM is also requesting that the Office of Management and Budget (OMB) extend the control number (1004–0211) for the 24 information collection activities that would continue in this proposed rule. If you wish to comment on this request, please note that such comments should be sent directly to the OMB, and that the OMB is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the
Catherine Cook, Acting Division Chief, Fluid Minerals Division, 202–912–7145, or
If you wish to comment on this proposed rule, you may submit your comments by any of the methods described in the
Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. The BLM is not obligated to consider or include in the Administrative Record for the final rule comments that we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review at the address listed under “
The BLM's onshore oil and gas management program is a major contributor to our nation's oil and gas production. The BLM manages more than 245 million acres of Federal land and 700 million acres of subsurface estate, making up nearly a third of the nation's mineral estate. In fiscal year (FY) 2016, sales volumes from Federal onshore production lands accounted for 9 percent of domestic natural gas production, and 5 percent of total U.S. oil production. Over $1.9 billion in royalties were collected from all oil, natural gas, and natural gas liquids transactions in FY 2016 on Federal and Indian Lands. Royalties from Federal lands are shared with States. Royalties from Indian lands are collected for the benefit of the Indian owners.
In response to oversight reviews and a recognition of increased flaring from Federal and Indian leases, the BLM developed a final rule entitled, “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” which was published in the
Immediately after the 2016 final rule was issued, industry groups and States with significant BLM-managed Federal and Indian minerals filed petitions for judicial review. The petitioners in this litigation are the Western Energy Alliance (WEA), the Independent Petroleum Association of America, the State of Wyoming, the State of Montana, the State of North Dakota, and the State of Texas. This litigation has been consolidated and is now pending in the U.S. District Court for the District of Wyoming.
In the Regulatory Impact Analysis (RIA) for the 2016 final rule, the BLM estimated that the requirements of the 2016 final rule would impose compliance costs, not including potential cost savings for product recovery, of approximately $114 million to $279 million per year (2016 RIA at 4). The BLM had concluded that, while many of the requirements were consistent with EPA regulations for new sources, current industry practice, or similar to the requirements found in some existing State regulations, the 2016 final rule would be an economically significant rule with estimated costs and benefits exceeding $100 million per year (2016 RIA at 138). Comments received by many oil and gas companies and trade associations representing members of the oil and gas industry suggested that the BLM's proposed and final rules were unnecessary and would cause substantial harm to the industry. During the litigation following the issuance of the 2016 final rule, the petitioners argued that the BLM underestimated the compliance costs of the final rule and that the costs would drive the industry away from Federal and Indian lands, thereby reducing royalties and harming State and tribal economies. The petitioners also argued that the final rule would cause marginal wells to be shut-in, thereby ceasing production and reducing economic benefits to local, State, tribal, and Federal governments. The BLM is concerned that the RIA for the 2016 final rule may have underestimated costs and overestimated benefits, and is therefore presently reviewing that analysis for potential inaccuracies. In any event, the RIA for the 2016 rule indicates that the rule poses a substantial burden on industry, particularly those requirements that are set to become effective on January 17, 2018.
Since late January 2017, the President has issued several Executive Orders that necessitate a review of the 2016 final rule by the Department. On January 30, 2017, the President issued Executive Order 13771, entitled, “Reducing Regulation and Controlling Regulatory Costs,” which requires Federal agencies to take proactive measures to reduce the costs associated with complying with Federal regulations. In addition, on March 28, 2017, the President issued Executive Order 13783, entitled, “Promoting Energy Independence and Economic Growth.” Section 7(b) of Executive Order 13783 directs the Secretary of the Interior to review four specific rules, including the 2016 final rule, for consistency with the policy articulated in section 1 of the Order and, “if appropriate,” to publish proposed rules suspending, revising, or rescinding those rules. Among other things, section 1 of Executive Order 13783 states that “[i]t is in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”
To implement Executive Order 13783, Secretary of the Interior Ryan Zinke issued Secretarial Order No. 3349, entitled, “American Energy Independence” on March 29, 2017, which, among other things, directs the BLM to review the 2016 final rule to determine whether it is fully consistent with the policy set forth in section 1 of Executive Order 13783. The BLM conducted an initial review of the 2016 final rule and found that it appears to be inconsistent with the policy in section 1 of Executive Order 13783. The BLM found that some provisions of the rule appear to add regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. Following up on its initial review, the BLM is currently reviewing the 2016 final rule to develop an appropriate proposed
Today, the BLM is proposing to temporarily suspend or delay certain requirements contained in the 2016 final rule until January 17, 2019. The BLM is currently reviewing the 2016 final rule, as directed by the aforementioned Executive Orders and by Secretarial Order No. 3349. The BLM wants to avoid imposing temporary or permanent compliance costs on operators for requirements that might be rescinded or significantly revised in the near future. The BLM also wishes to avoid expending scarce agency resources on implementation activities (internal training, operator outreach/education, developing clarifying guidance, etc.) for such potentially transitory requirements.
For certain requirements in the 2016 final rule that have yet to be implemented, this proposed rule would temporarily postpone the implementation dates until January 17, 2019, or for one year. For certain requirements in the 2016 final rule that are currently in effect, this proposed rule would temporarily suspend their effectiveness until January 17, 2019. A detailed discussion of the proposed suspensions and delays is provided below. The BLM has attempted to tailor the proposed rule so as to target the requirements of the 2016 final rule for which immediate regulatory relief appears to be particularly justified. Although the requirements of the 2016 final rule that would not be suspended under the proposed rule may ultimately be revised in the near future, the BLM is not proposing to suspend them because it does not, at this time, believe that suspension is necessary.
The BLM promulgated the 2016 final rule, and now proposes to suspend and delay certain provisions of that rule, pursuant to its authority under the following statutes: The Mineral Leasing Act of 1920 (30 U.S.C. 188–287), the Mineral Leasing Act for Acquired Lands (30 U.S.C. 351–360), the Federal Oil and Gas Royalty Management Act (30 U.S.C. 1701–1758), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701–1785), the Indian Mineral Leasing Act of 1938 (25 U.S.C. 396a–g), the Indian Mineral Development Act of 1982 (25 U.S.C. 2101–2108), and the Act of March 3, 1909 (25 U.S.C. 396). See 81 FR 83008 and 83019–83021 (Nov. 18, 2016). These statutes authorize the Secretary of the Interior to promulgate such rules and regulations as may be necessary to carry out the statutes' various purposes.
The BLM seeks comment on this proposed rule. Issues of particular interest to the BLM include the necessity of the proposed suspensions and delays, the costs and benefits associated with the proposed suspensions and delays, and whether suspension of other requirements of the 2016 rule is warranted. The BLM is also interested in the appropriate length of the proposed suspension and delays and would like to know whether the period should be longer or shorter (
In the 2016 final rule, the BLM added a paragraph (j) to 43 CFR 3162.3–1, which presently requires that when submitting an Application for Permit to Drill (APD) for an oil well, an operator must also submit a waste-minimization plan. Submission of the plan is required for approval of the APD, but the plan is not itself part of the APD, and the terms of the plan are not enforceable against the operator. The purpose of the waste-minimization plan is for the operator to set forth a strategy for how the operator will comply with the requirements of 43 CFR subpart 3179 regarding the control of waste from venting and flaring from oil wells.
The waste-minimization plan must include information regarding: The anticipated completion date(s) of the proposed oil well(s); a description of anticipated production from the well(s); certification that the operator has provided one or more midstream processing companies with information about the operator's production plans, including the anticipated completion dates and gas production rates of the proposed well or wells; and identification of a gas pipeline to which the operator plans to connect. Additional information is required when an operator cannot identify a gas pipeline with sufficient capacity to accommodate the anticipated production from the proposed well, including: A gas pipeline system location map showing the proposed well(s); the name and location of the gas processing plant(s) closest to the proposed well(s); all existing gas trunklines within 20 miles of the well, and proposed routes for connection to a trunkline; the total volume of produced gas, and percentage of total produced gas, that the operator is currently venting or flaring from wells in the same field and any wells within a 20-mile radius of that field; and a detailed evaluation, including estimates of costs and returns, of potential on-site capture approaches.
In the RIA for the 2016 final rule, the BLM estimated that the administrative burden of the waste-minimization plan requirements would be roughly $1 million per year for the industry and $180,000 per year for the BLM (2016 RIA at 96 and 100). The BLM is currently reviewing the requirements of § 3162.3–1(j) in order to determine whether the burden it imposes on operators is necessary and whether this burden can be reduced. The BLM is also evaluating whether there are circumstances in which compliance with § 3162.3–1(j) is infeasible because some of the required information is in the possession of a midstream company that is not in a position to share it with the operator. The BLM is considering narrowing the required information and
This proposed rule would revise § 3162.3–1 by adding “Beginning January 17, 2019” to the beginning of paragraph (j). The rest of this paragraph would remain the same as in the 2016 final rule and the introductory paragraph is repeated in the proposed rule text only for context.
In the 2016 final rule, the BLM sought to constrain routine flaring through the imposition of a “capture percentage” requirement, requiring operators to capture a certain percentage of the gas they produce, after allowing for a certain volume of flaring per well. The capture-percentage requirement would become more stringent over a period of years, beginning with an 85 percent capture requirement (5,400 Mcf per well flaring allowable) in January 2018, and eventually reaching a 98 percent capture requirement (750 Mcf per well flaring allowable) in January 2026. An operator would choose whether to comply with the capture targets on each of the operator's leases, units or communitized areas, or on a county-wide or state-wide basis.
In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of up to $162 million per year and generate cost savings from product recovery of up to $124 million per year, with both costs and cost savings increasing as the requirements increased in stringency (2016 RIA at 49).
The BLM is currently considering whether the capture-percentage requirement of § 3179.7 is unnecessarily complex and whether it will, in fact, be a significant improvement on the requirements of NTL–4A. The BLM is considering whether the NTL–4A framework can be applied in a manner that addresses any inappropriate levels of flaring, and whether market-based incentives (
This proposed rule would revise the compliance dates in paragraphs (b), (b)(1) through (b)(4), and (c)(2)(i) through (vii) of § 3179.7 to begin January 17, 2019. Paragraphs (c), (c)(1), and the introductory text of (c)(2) would remain the same as in the 2016 final rule and are repeated in the proposed rule text only for context.
Section 3179.9 requires operators to estimate (using estimation protocols) or measure (using a metering device) all flared and vented gas, whether royalty-bearing or royalty-free. This section further provides that specific requirements apply when the operator is flaring 50 Mcf or more of gas per day from a high-pressure flare stack or manifold, based on estimated volumes from the previous 12 months, or based on estimated volumes over the life of the flare, whichever is shorter. Beginning on January 17, 2018, if this volume threshold is met, § 3179.9(b) would require the operator to measure the volume of the flared gas, or calculate the volume of the flared gas based on the results of a regularly performed gas-to-oil ratio test, so as to allow the BLM to independently verify the volume, rate, and heating value of the flared gas.
In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of about $4 million to $7 million per year (2016 RIA at 52).
The BLM is presently reviewing § 3179.9 to determine whether the additional accuracy associated with the measurement and estimation required by § 3179.9(b) justifies the burden it would place on operators. The BLM is considering whether it would make more sense to allow the BLM to require measurement or estimation on a case-by-case basis, rather than imposing a blanket requirement on all operators. In order to avoid unnecessary compliance costs on the part of operators, the BLM is proposing to delay the compliance date in § 3179.9 until January 17, 2019.
This proposed rule would revise the compliance date in § 3179.9(b)(1). The rest of paragraph (b)(1) would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.
Section 3179.10(a) provides that approvals to flare royalty free that were in effect as of January 17, 2017, will continue in effect until January 17, 2018. The purpose of this provision was to provide a transition period for operators who were operating under existing approvals for royalty-free flaring. Because the BLM's review of the 2016 final rule could result in rescission or substantial revision of the rule, the BLM believes that terminating pre-existing flaring approvals in January 2018 would be premature and disruptive and would introduce needless regulatory uncertainty for operators with existing flaring approvals. The BLM is therefore proposing to extend the end of the transition period provided for in § 3179.10(a) to January 17, 2019.
This proposed rule would revise the date in paragraph (a) and replace “as of the effective date of this rule” with “as of January 17, 2017,” which is the effective date of the 2016 final rule, for clarity. This proposed rule would not otherwise revise paragraph (a), but the rest of the paragraph would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.
Section 3179.101(a) requires that gas reaching the surface as a normal part of drilling operations be used or disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or flare stack; (3) Used in the operations on the lease, unit, or communitized area; or (4) Injected. Section 3179.101(a) also specifies that gas may not be vented, except under the circumstances specified in § 3179.6(b) or when it is technically infeasible to use or dispose of the gas in one of the ways specified above. Section 3179.101(b) states that gas lost as a result of a loss of well control will be classified as avoidably lost if the BLM determines that the loss of well control was due to operator negligence.
The BLM is currently reviewing § 3179.101 to determine whether it is
This proposed rule would add a new paragraph (c) making it clear that the operator must comply with § 3179.101 beginning January 17, 2019.
Section 3179.102 addresses gas that reaches the surface during well-completion, post-completion, and fluid-recovery operations after a well has been hydraulically fractured or refractured. It requires the gas to be used or disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or stack, subject to a volumetric limitation in § 3179.103; (3) Used in the lease operations; or (4) Injected. Section 3179.102 specifies that gas may not be vented, except under the narrow circumstances specified in § 3179.6(b) or when it is technically infeasible to use or dispose of the gas in one of the four ways specified above. Section 3179.102(b) provides that an operator will be deemed to be in compliance with its gas capture and disposition requirements if the operator is in compliance with the requirements for control of gas from well completions established under Environmental Protection Agency (EPA) regulations 40 CFR part 60, subparts OOOO or OOOOa regulations, or if the well is not a “well affected facility” under those regulations.
The BLM is currently reviewing § 3179.102 to determine whether it is necessary in light of current operator practices and the analogous EPA regulations in 40 CFR part 60, subparts OOOO and OOOOa. The experience of BLM field office personnel indicates that operators would typically dispose of gas during well completions and related operations consistent with § 3179.102(a). The BLM also suspects that most of the well completions and related operations that would otherwise be covered by § 3179.102 are actually exempted under § 3179.102(b). Considering current industry practice and the overlap with EPA regulations, the primary effect of § 3179.102 may be to generate confusion about regulatory compliance during well-drilling and related operations. The BLM is therefore proposing to suspend the effectiveness of § 3179.102 until January 17, 2019, while the BLM completes its review of § 3179.102 and decides whether to permanently revise or rescind it through notice-and-comment rulemaking.
This proposed rule would add a new paragraph (e) making it clear that operators must comply with § 3179.102 beginning January 17, 2019.
Section 3179.201 addresses pneumatic controllers that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease. Section 3179.201 applies to such controllers if the controllers: (1) Have a continuous bleed rate greater than 6 standard cubic feet per hour (scf/hour) (“high-bleed” controllers); and (2) Are not covered by EPA regulations that prohibit the new use of high-bleed pneumatic controllers (40 CFR part 60, subparts OOOO or OOOOa), but would be subject to those regulations if the controllers were new, modified, or reconstructed sources. Section 3179.201(b) requires the applicable pneumatic controllers to be replaced with controllers (including, but not limited to, continuous or intermittent pneumatic controllers) having a bleed rate of no more than 6 scf/hour, subject to certain exceptions. Section 3179.201(d) requires that this replacement occur no later than January 17, 2018, or within 3 years from the effective date of the rule if the well or facility served by the controller has an estimated remaining productive life of 3 years or less.
In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of about $2 million per year and generate cost savings from product recovery of $3 million to $4 million per year (2016 RIA at 56).
The BLM is currently reviewing § 3179.201 to determine whether it should be revised or rescinded. The BLM is considering whether § 3179.201 is necessary in light of the analogous EPA regulations and the fact that operators are likely to adopt more efficient equipment in cases where it makes economic sense for them to do so. The BLM does not believe that operators should be required to make equipment upgrades to comply with § 3179.201 until the BLM has had an opportunity to review its requirements and revise them through notice-and-comment rulemaking. The BLM is therefore proposing to delay the compliance date stated in § 3179.201 until January 17, 2019.
This proposed rule would revise the first sentence of paragraph (d) by replacing “no later than 1 year after the effective date of this section” with “by January 17, 2019.” This proposed rule would also replace “the effective date of this section” with “January 17, 2017” the two times that it appears in the second sentence of paragraph (d). This proposed rule would not otherwise revise paragraph (d), but the rest of the paragraph would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.
Section 3179.202 establishes requirements for operators with pneumatic diaphragm pumps that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease. It applies to such pumps if they are not covered under EPA regulations at 40 CFR part 60, subpart OOOOa, but would be subject to that subpart if they were a new, modified, or reconstructed source. For covered pneumatic pumps, § 3179.202 requires that the operator either replace the pump with a zero-emissions pump or route the pump exhaust to processing equipment for capture and sale. Alternatively, an operator may route the exhaust to a flare or low-pressure combustion device if the operator makes a determination (and notifies the BLM through a Sundry Notice) that replacing the pneumatic diaphragm pump with a zero-emissions pump or capturing the pump exhaust is not viable because: (1) A pneumatic pump is necessary to perform the function required; and (2) Capturing the exhaust is technically infeasible or unduly costly. If an operator makes this determination and has no flare or low-pressure combustor on-site, or routing to such a device would be technically infeasible, the operator is not required to route the exhaust to a flare or low-pressure combustion device. Under § 3179.202(h), an operator must replace its covered pneumatic diaphragm pump or route the exhaust gas to capture or flare beginning no later than January 17, 2018.
In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of about $4 million per year and generate cost savings from
The BLM is currently reviewing § 3179.202 to determine whether it should be rescinded or revised. Analogous EPA regulations apply to new, modified, and reconstructed sources, therefore limiting the applicability of § 3179.202. In addition, the BLM is concerned that requiring zero-emissions pumps may not conserve gas in some cases. The volume of royalty-free gas used to generate electricity to provide the power necessary to operate a zero-emission pump could exceed the volume of gas necessary to operate the pneumatic pump that the zero-emission pump would replace. The BLM does not believe that operators should be required to make equipment upgrades to comply with § 3179.202 until the BLM has had an opportunity to review its requirements and revise them through notice-and-comment rulemaking. The BLM is therefore proposing to delay the compliance date stated in § 3179.202 until January 17, 2019.
This proposed rule would revise paragraph (h) by replacing “no later than 1 year after the effective date of this section” in the first sentence with “by January 17, 2019” and would also replace “the effective date of this section” with “January 17, 2017” the two times that it appears later in the same sentence. This proposed rule would not otherwise revise paragraph (h); the rest of the paragraph would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.
Section 3179.203 applies to crude oil, condensate, intermediate hydrocarbon liquid, or produced-water storage vessels that contain production from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease, and that are not subject to 40 CFR part 60, subparts OOOO or OOOOa, but would be if they were new, modified, or reconstructed sources. If such storage vessels have the potential for volatile organic compound (VOC) emissions equal to or greater than 6 tons per year (tpy), § 3179.203 requires operators to route all gas vapor from the vessels to a sales line. Alternatively, the operator may route the vapor to a combustion device if it determines that routing the vapor to a sales line is technically infeasible or unduly costly. The operator also may submit a Sundry Notice to the BLM that demonstrates that compliance with the above options would cause the operator to cease production and abandon significant recoverable oil reserves under the lease due to the cost of compliance. Pursuant to § 3179.203(c), operators must meet these requirements for covered storage vessels by January 17, 2018 (unless the operator will replace the storage vessel in order to comply, in which case it has a longer time to comply).
In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of about $7 million to $8 million per year and generate cost savings from product recovery of up to $200,000 per year (2016 RIA at 74).
The BLM is currently reviewing § 3179.203 to determine whether it should be rescinded or revised. The BLM is considering whether § 3179.203 is necessary in light of analogous EPA regulations and whether the costs associated with compliance are justified. The BLM does not believe that operators should be required to make upgrades to their storage vessels in order to comply with § 3179.203 until the BLM has had an opportunity to review its requirements and revise them through notice-and-comment rulemaking. The BLM is therefore proposing to delay the January 17, 2018, compliance date in § 3179.203 until January 17, 2019.
This proposed rule would revise the first sentence of paragraph (b) by replacing “Within 60 days after the effective date of this section” with “Beginning January 17, 2019” and by adding “after January 17, 201” between the words “vessel” and “the operator.” This proposed rule would also revise the introductory text of paragraph (c) by replacing “no later than one year after the effective date of this section” with “by January 17, 2019” and by changing “or three years if” to “or by January 17, 2020, if ” to account for removing the reference to “the effective date of this section.” This proposed rule would not otherwise revise paragraphs (b) and (c), and the rest of these paragraphs would remain the same as in the 2016 final rule and are repeated in the proposed rule text only for context.
Section 3179.204 establishes requirements for venting and flaring during downhole well maintenance and liquids unloading. It requires the operator to use practices for such operations that minimize vented gas and the need for well venting, unless the practices are necessary for safety. Section 3179.204 also requires that for wells equipped with a plunger lift system or an automated well-control system, the operator must optimize the operation of the system to minimize gas losses. Under § 3179.204, before an operator manually purges a well for the first time, the operator must document in a Sundry Notice that other methods for liquids unloading are technically infeasible or unduly costly. In addition, during any liquids unloading by manual well purging, the person conducting the well purging is required to be present on-site to minimize to the maximum extent practicable any venting to the atmosphere. This section also requires the operator to maintain records of the cause, date, time, duration and estimated volume of each venting event associated with manual well purging, and to make those records available to the BLM upon request. Additionally, operators are required to notify the BLM by Sundry Notice within 30 days after the following conditions are met: (1) The cumulative duration of manual well-purging events for a well exceeds 24 hours during any production month; or (2) The estimated volume of gas vented in the process of conducting liquids unloading by manual well purging for a well exceeds 75 Mcf during any production month. In the RIA for the 2016 final rule, the BLM estimated that these requirements would impose costs of about $6 million per year and generate cost savings from product recovery of about $5 million to $9 million per year (2016 RIA at 66). In addition, there would be estimated administrative burdens associated with these requirements of $323,000 per year for the industry and $37,000 per year for the BLM (2016 RIA at 98 and 101).
The BLM is currently reviewing § 3179.204 to determine whether it should be rescinded or revised. The BLM does not believe that operators should be burdened with the operational and reporting requirements imposed by § 3179.204 until the BLM has had an opportunity to review them and, if appropriate, revise them through notice-and-comment rulemaking. In addition, as part of this review, the BLM would want to review how these data could be reported in a consistent manner among operators. The BLM is therefore proposing to suspend the effectiveness of § 3179.204 until January 17, 2019.
This proposed rule would add a new paragraph (i), making it clear that operators must comply with § 3179.204 beginning January 17, 2019.
Sections 3179.301 through 3179.305 establish leak detection, repair, and reporting requirements for: (1) Sites and equipment used to produce, process, treat, store, or measure natural gas from
In the RIA for the 2016 final rule, the BLM estimated that these requirements would impose costs of about $83 million to $84 million per year and generate cost savings from product recovery of about $12 million to $21 million per year (2016 RIA at 91). In addition, there would be estimated administrative burdens associated with these requirements of $3.9 million per year for the industry and over $1 million per year for the BLM (2016 RIA at 98 and 102).
The BLM is currently reviewing § 3179.301 through § 3179.305 to determine whether they should be revised or rescinded. The BLM is considering whether these requirements are necessary in light of comparable EPA and State leak detection and repair regulations. The BLM is considering whether the reporting burdens imposed by these sections are justified and whether the substantial compliance costs could be mitigated by allowing for less frequent and/or non-instrument-based inspections or by exempting wells that have low potential to leak natural gas. The BLM does not believe that operators should be burdened with the significant compliance costs imposed by these sections until the BLM has had an opportunity to review them and, if appropriate, revise them through notice-and-comment rulemaking. The BLM is therefore proposing to delay the effective dates for these sections until January 17, 2019, by revising § 3179.301(f).
This proposed rule would revise paragraph (f)(1) by replacing “Within one year of January 17, 2017 for sites that have begun production prior to January 17, 2017;” with “By January 17, 2019, for all existing sites.” This proposed rule would also revise paragraph (f)(2) by adding “new” between the words “for” and “sites” and by replacing the existing date with “January 17, 2019.” Finally, this proposed rule would revise paragraph (f)(3) by adding “an existing” between the words “when” and “site” and by adding “after January 17, 2019” to the end of the sentence. This proposed rule would not otherwise revise paragraph (f), and the rest of the paragraph would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.
The BLM reviewed the proposed rule and conducted an RIA and Environmental Assessment (EA) that examine the impacts of the proposed requirements. The following discussion is a summary of the proposed rule's economic impacts. The RIA and draft EA that we prepared have been posted in the docket for the proposed rule on the
The suspension or delay in the implementation of certain requirements in the 2016 final rule would postpone the impacts estimated previously to the near-term future. That is to say, impacts that we previously estimated would occur in 2017 are now estimated to occur in 2018, impacts that we previously estimated would occur in 2018 are now estimated to occur in 2019, and so on. In the RIA for this proposed rule, we track this shift in impacts over the 10-year period following the delay. A 10-year period of analysis was also used in the RIA prepared for the 2016 final rule. Except for some notable changes, the 2017 RIA uses the impacts estimated and underlying assumptions used by the BLM for the RIA prepared for the 2016 final rule, published in November 2016. The BLM's proposed rule would temporarily suspend or delay almost all of the requirements in the 2016 final rule that we estimated would pose a compliance burden to operators and generate benefits of gas savings or reductions in methane emissions.
First, we examine the reductions in compliance costs excluding the savings that would have been realized from product recovery. The BLM's proposed rule would temporarily suspend or delay almost all of the requirements in the 2016 final rule that we estimated would pose a compliance burden to operators. We estimate that suspending or delaying the targeted requirements of the 2016 final rule until January 17, 2019, would substantially reduce compliance costs during the period of the suspension or delay (2017 RIA at 29).
Impacts in year 1:
• A reduction in compliance costs of $114 million (using a 7 percent discount rate to annualize capital costs) or $110 million (using a 3 percent discount rate to annualize capital costs).
Impacts from 2017–2027:
• Total reduction in compliance costs ranging from $73 million to $91 million (net present value (NPV) using a 7 percent discount rate) or $40 million to $50 million (NPV using a 3 percent discount rate).
The BLM's proposed rule would temporarily suspend or delay almost all of the requirements in the 2016 final rule that we estimated would generate benefits of gas savings or reductions in methane emissions. We estimate that the proposed rule would result in forgone benefits, since estimated cost savings that would have come from product recovery would be deferred and the emissions reductions would also be deferred (2017 RIA at 32).
Impacts in year 1:
• A reduction in cost savings of $19 million.
Impacts from 2017–2027:
• Total reduction in cost savings of $36 million (NPV using a 7 percent discount rate) or $21 million (NPV using a 3 percent discount rate).
We estimate that the proposed rule would also result in additional methane and VOC emissions of 175,000 and 250,000 tons, respectively, in year 1 (2017 RIA at 32).
These estimated emissions are measured as the change from the baseline environment, which is the 2016 final rule's requirements being implemented per the 2016 final rule schedule. Since the proposed rule would delay the implementation of those requirements, the estimated benefits of the 2016 final rule would be forgone during the temporary suspension or delay.
The BLM used interim domestic values of the carbon dioxide and methane to value the forgone emissions reductions resulting from the delay (see the discussion of social cost of greenhouse gases in the 2017 RIA at Section 3.2 and Appendix).
Impact in Year 1:
• Forgone methane emissions reductions valued at $8 million (using interim domestic SC–CH
Impacts from 2017–2027:
• Forgone methane emissions reductions valued at $1.9 million (NPV and interim domestic SC–CH
• Forgone methane emissions reductions valued at $300,000 (NPV and interim domestic SC–CH
The proposed rule is estimated to result in positive net benefits, meaning that the reduction of compliance costs would exceed the reduction in cost savings and the cost of emissions additions (2017 RIA at 36).
Impact in year 1:
• Net benefits of $83–86 million (using interim domestic SC–CH
Impacts from 2017–2027:
• Total net benefits ranging from $35–52 million (NPV and interim domestic SC–CH
• Total net benefits ranging from $19–29 million (NPV and interim domestic SC–CH
The proposed rule is expected to influence the production of natural gas, natural gas liquids, and crude oil from onshore Federal and Indian oil and gas leases, particularly in the short-term. However, since the relative changes in production are expected to be small, we do not expect that the proposed rule would significantly impact the price, supply, or distribution of energy.
We estimate the following incremental changes in production, noting the representative share of the total U.S. production in 2015 for context (2017 RIA at 41).
Annual Impacts:
• A decrease in natural gas production of 9.0 billion cubic feet (Bcf) in year 1 (0.03 percent of the total U.S. production).
• An increase in crude oil production of 91,000 barrels in year 2 (0.003 percent of the total U.S. production). There is no estimated change in crude oil production in year 1.
In the short-term, the rule is expected to decrease natural gas production from Federal and Indian leases, and likewise, is expected to reduce annual royalties to the Federal Government, tribal governments, States, and private landowners. From 2017–2027, however, we expect a small increase in total royalties, likely due to production slightly shifting into the future where commodity prices are expected to be higher.
Royalty payments are recurring income to Federal or tribal governments and costs to the operator or lessee. As such, they are transfer payments that do not affect the total resources available to society. An important but sometimes difficult problem in cost estimation is to distinguish between real costs and transfer payments. While transfers should not be included in the economic analysis estimates of the benefits and costs of a regulation, they may be important for describing the distributional effects of a regulation.
We estimate a reduction in royalties of $2.6 million in year 1 (2017 RIA at 43). This amount represents about 0.2 percent of the total royalties received from oil and gas production on Federal lands in FY 2016. However, from 2017–2027, we estimate an increase in total royalties of $1.26 million (NPV using a 7 percent discount rate) or $380,000 (NPV using a 3 percent discount rate).
In developing this proposed rule, the BLM considered alternative timeframes for which it could suspend or delay the requirements (
A shorter suspension of delay of the same 2016 final rule requirements would result in a smaller reduction in compliance costs, smaller reduction in cost savings, and a smaller amount of forgone emissions reductions, relative to the proposal (2017 RIA at 49–50). Meanwhile, a longer suspension or delay of the same 2016 final rule requirements would result in a larger reduction in compliance costs, larger reduction in cost savings, and larger amount of forgone emissions reductions, relative to the proposal (2017 RIA at 50).
The proposed rule would temporarily suspend or delay certain requirements of the BLM's 2016 final rule on waste prevention and is a temporary deregulatory action. As such, we estimate that it would result in a reduction of compliance costs for operators of oil and gas leases on Federal and Indian lands. Therefore, it is likely that the impact, if any, on the employment would be positive.
In the RIA for the 2016 final rule, the BLM concluded that the requirements were not expected to impact the employment within the oil and gas extraction, drilling oil and gas wells, and support activities industries, in any material way. This determination was based on several reasons. First, the estimated incremental gas production represented only a small fraction of the U.S. natural gas production volumes. Second, the estimated compliance costs represented only a small fraction of the annual net incomes of companies likely to be impacted. Third, for those operations that would have been impacted to the extent that the compliance costs would force the operator to shut in production, the 2016 final rule had provisions that would exempt these operations from compliance. Based on these factors, the BLM determined that the 2016 final rule would not alter the investment or employment decisions of firms or significantly adversely impact employment. The RIA also noted that the requirements would require the one-time installation or replacement of equipment and the ongoing implementation of a leak detection and repair program, both of which would require labor to comply.
We do not believe that the proposed rule would substantially alter the investment or employment decisions of firms for two reasons. First, the RIA for the 2016 final rule determined that that rule would not substantially alter the investment or employment decisions of firms, and so therefore delaying the 2016 final rule would likewise not be expected to impact those decisions. We also recognize that while there might be a small positive impact on investment and employment due to the reduction in compliance burdens, the magnitude of the reductions are relatively small.
The BLM reviewed the Small Business Administration (SBA) size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau. We conclude that small
To examine the economic impact of the rule on small entities, the BLM performed a screening analysis on a sample of potentially affected small entities, comparing the reduction of compliance costs to entity profit margins.
The BLM identified up to 1,828 entities that operate on Federal and Indian leases and recognizes that the overwhelming majority of these entities are small business, as defined by the SBA. We estimated the potential reduction in compliance costs to be about $60,000 per entity during the initial year when the requirements would be suspended or delayed. This represents the average maximum amount by which the operators would be positively impacted by the proposed rule.
We used existing BLM information and research concerning firms that have recently completed Federal and Indian wells and the financial and employment information on a sample of these firms, as available in company annual report filings with the Securities and Exchange Commission (SEC). From the original list of companies, we identified 55 company filings. Of those companies, 33 were small businesses.
From data in the companies' 10–K filings to the SEC, the BLM was able to calculate the companies' profit margins for the years 2012, 2013, and 2014. We then calculated a profit margin figure for each company when subject to the average annual reduction in compliance costs associated with this proposed rule. For these 26 small companies, the estimated per-entity reduction in compliance costs would result in an average increase in profit margin of 0.17 percentage points (based on the 2014 company data) (2017 RIA at 46).
The proposed rule would apply to oil and gas operations on both Federal and Indian leases. In the RIA, the BLM estimates the impacts associated with operations on Indian leases, as well as royalty implications for tribal governments. We estimate these impacts by scaling down the total impacts by the share of oil wells on Indian lands and the share of gas wells on Indian Lands. Please reference the RIA at section 4.4.5 for a full explanation about the estimate impacts.
Executive Order 12866 provides that the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) will review all significant rules.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas.
This proposed rule would temporarily suspend or delay portions of the BLM's 2016 final rule while the BLM reviews those requirements. We have developed this proposed rule in a manner consistent with the requirements in Executive Order 12866 and Executive Order 13563.
After reviewing the requirements of the proposed rule, the OMB has determined that it is an economically significant action according to the criteria of Executive Order 12866. The BLM reviewed the requirements of the proposed rule and determined that it will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. For more detailed information, see the RIA prepared for this proposed rule. The RIA has been posted in the docket for the proposed rule on the
This proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
The BLM reviewed the SBA size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau in the Economic Census. The BLM concludes that the vast majority of entities operating in the relevant sectors are small businesses as defined by the SBA. As such, the proposed rule would likely affect a substantial number of small entities.
However, the BLM believes that the proposed rule would not have a significant economic impact on a substantial number of small entities. Although the rule would affect a substantial number of small entities, the BLM does not believe that these effects would be economically significant. The proposed rule would temporarily suspend or delay certain requirements placed on operators by the 2016 final rule. Operators would not have to undertake the associated compliance activities, either operational or administrative, that are outlined in the 2016 final rule until January 17, 2019, except to the extent the activities are required by State or tribal law, or by other pre-existing BLM regulations. The screening analysis conducted by the BLM estimates that the average reduction in compliance costs associated with this proposed rule would be a small fraction of a percent of the profit margin for small companies, which is not a large enough impact to be considered significant.
This proposed rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:
(a) Would have an annual effect on the economy of $100 million or more.
(b) Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Would not have a significant adverse effects on competition,
This proposed rule would not impose an unfunded mandate on State, local, or tribal governments, or the private sector of $100 million or more per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. The proposed rule contains no requirements that would apply to State, local, or tribal governments. It would temporarily suspend or delay requirements that would otherwise apply to the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531
This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required. The proposed rule would temporarily suspend or delay many of the requirements placed on operators by the 2016 final rule. Operators would not have to undertake the associated compliance activities, either operational or administrative, that are outlined in the 2016 final rule until January 17, 2019, and therefore would impact some operational and administrative requirements on Federal and Indian lands. All such operations are subject to lease terms which expressly require that subsequent lease activities be conducted in compliance with subsequently adopted Federal laws and regulations. This proposed rule conforms to the terms of those leases and applicable statutes and, as such, the rule is not a government action capable of interfering with constitutionally protected property rights. Therefore, the BLM has determined that the rule would not cause a taking of private property or require further discussion of takings implications under Executive Order 12630.
Under the criteria in section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism impact statement is not required.
The proposed rule would not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the levels of government. It would not apply to States or local governments or State or local governmental entities. The rule would affect the relationship between operators, lessees, and the BLM, but it does not directly impact the States. Therefore, in accordance with Executive Order 13132, the BLM has determined that this proposed rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.
This proposed rule complies with the requirements of Executive Order 12988. More specifically, this proposed rule meets the criteria of section 3(a), which requires agencies to review all regulations to eliminate errors and ambiguity and to write all regulations to minimize litigation. This proposed rule also meets the criteria of section 3(b)(2), which requires agencies to write all regulations in clear language with clear legal standards.
The Department strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have identified substantial direct effects on federally recognized Indian tribes that would result from this proposed rule. Under this proposed rule, oil and gas operations on tribal and allotted lands would not be subject to many of the requirements placed on operators by the 2016 final rule until January 17, 2019.
The BLM believes that temporarily suspending or delaying these requirements would assist in preventing Indian lands from being viewed by oil and gas operators as less attractive than non-Indian lands due to unnecessary and burdensome compliance costs, thereby preventing economic harm to tribes and allottees.
The BLM is conducting tribal outreach which it believes is appropriate given that the proposed rule would extend the compliance dates of the 2016 final rule, but would not change the policies of that rule. The BLM notified tribes of the action and requested feedback and comment through the respective BLM State Office Directors. Future tribal consultation may occur on an ongoing basis.
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501–3521) provides that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid control number. 44 U.S.C. 3512. Collections of information include requests and requirements that an individual, partnership, or corporation obtain information, and report it to a Federal agency. 44 U.S.C. 3502(3); 5 CFR 1320.3(c) and (k).
OMB has approved the 24 information collection activities in the 2016 final rule and has assigned control number 1004–0211 to those activities. In the Notice of Action approving the 24 information collection activities in the 2016 final rule, OMB announced that the control number will expire on January 31, 2018. The Notice of Action also included terms of clearance.
The BLM requests the extension of control number 1004–0021 until January 31, 2019. The BLM requests no other changes to the control number.
In accordance with the PRA, the BLM is inviting public comment on the proposed extension of control no. 1004–0211. Descriptions of the information collection activities in this proposed rule, along with estimates of the annual burdens, are shown below. Included in the burden estimates are the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each component of the proposed information collection requirements.
The BLM has submitted the information collection request for this proposed rule to OMB for review in accordance with the PRA. You may obtain a copy of the request from the BLM by electronic mail request to James Tichenor at
The BLM requests comments on the following subjects:
• Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;
• The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;
• The quality, utility, and clarity of the information to be collected; and
• How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
If you want to comment on the information collection requirements of this proposed rule, please send your comments directly to OMB, with a copy to the BLM, as directed in the
The BLM requests extension of OMB control number 1004–0211 until January 31, 2019. This extension would continue OMB's approval of the following information collection activities.
The 2016 final rule added a new provision to 43 CFR 3162.3–1 that requires a plan to minimize waste of natural gas when submitting an Application for Permit to Drill or Re-enter (APD) for a development oil well. This information is in addition to the APD information that the BLM already collects under OMB Control Number 1004–0137. The required elements of the waste minimization plan are listed at paragraphs (j)(1) through (j)(7).
Section 3178.5 requires submission of a Sundry Notice (Form 3160–5) to request prior written BLM approval for use of gas royalty-free for the following operations and production purposes on the lease, unit or communitized area:
• Using oil or gas that an operator removes from the pipeline at a location downstream of the facility measurement point (FMP);
• Removal of gas initially from a lease, unit PA, or communitized area for treatment or processing because of particular physical characteristics of the gas, prior to use on the lease, unit PA or communitized area; and
• Any other type of use of produced oil or gas for operations and production purposes pursuant to § 3178.3 that is not identified in § 3178.4.
Section 3178.7 requires submission of a Sundry Notice (Form 3160–5) to request prior written BLM approval for off-lease royalty-free uses in the following circumstances:
• The equipment or facility in which the operation is conducted is located off the lease, unit, or communitized area for engineering, economic, resource-protection, or physical-accessibility reasons; and
• The operations are conducted upstream of the FMP.
Section 3178.8 requires that an operator measure or estimate the volume of royalty-free gas used in operations upstream of the FMP. In general, the operator is free to choose whether to measure or estimate, with the exception that the operator must in all cases measure the following volumes:
• Royalty-free gas removed downstream of the FMP and used pursuant to §§ 3178.4 through 3178.7; and
• Royalty-free oil used pursuant to §§ 3178.4 through 3178.7.
If oil is used on the lease, unit or communitized area, it is most likely to be removed from a storage tank on the lease, unit or communitized area. Thus, this regulation also requires the operator to document the removal of the oil from the tank or pipeline.
Section 3178.8(e) requires that operators use best available information to estimate gas volumes, where estimation is allowed. For both oil and gas, the operator must report the volumes measured or estimated, as applicable, under ONRR reporting requirements. As revisions to Onshore Oil and Gas Orders No. 4 and 5 have now been finalized as 43 CFR subparts 3174 and 3175, respectively, the final rule text now references § 3173.12, as well as § 3178.4 through § 3178.7 to clarify that royalty-free use must adhere to the provisions in those sections.
Section 3178.9 requires the following additional information in a request for prior approval of royalty-free use under § 3178.5, or for prior approval of off-lease royalty-free use under § 3178.7:
• A complete description of the operation to be conducted, including the location of all facilities and equipment involved in the operation and the location of the FMP;
• The volume of oil or gas that the operator expects will be used in the operation and the method of measuring or estimating that volume;
• If the volume expected to be used will be estimated, the basis for the estimate (
• The proposed disposition of the oil or gas used (
Section 3179.8 applies only to leases issued before the effective date of the 2016 final rule and to operators choosing to comply with the capture requirement in § 3179.7 on a lease-by-lease, unit-by-unit, or communitized area-by-communitized area basis. The regulation provides that operators who
• The name, number, and location of each of the operator's wells, and the number of the lease, unit, or communitized area with which it is associated; and
• The oil and gas production levels of each of the operator's wells on the lease, unit, or communitized area for the most recent production month for which information is available and the volumes being vented and flared from each well.
In addition, the request must include map(s) showing:
• The entire lease, unit, or communitized area, and the surrounding lands to a distance and on a scale that shows the field in which the well is or will be located (if applicable), and all pipelines that could transport the gas from the well;
• All of the operator's producing oil and gas wells, which are producing from Federal or Indian leases, (both on Federal or Indian leases and on other properties) within the map area;
• Identification of all of the operator's wells within the lease from which gas is flared or vented, and the location and distance of the nearest gas pipeline(s) to each such well, with an identification of those pipelines that are or could be available for connection and use; and
• Identification of all of the operator's wells within the lease from which gas is captured;
The following information is also required:
• Data that show pipeline capacity and the operator's projections of the cost associated with installation and operation of gas capture infrastructure, to the extent that the operator is able to obtain this information, as well as cost projections for alternative methods of transportation that do not require pipelines; and
• Projected costs of and the combined stream of revenues from both gas and oil production, including: (1) The operator's projections of gas prices, gas production volumes, gas quality (
Section 3179.7 requires operators flaring gas from development oil wells to capture a specified percentage of the operator's adjusted volume of gas produced over the relevant area. The “relevant area” is each of the operator's leases, units, or communitized areas, unless the operator chooses to comply on a county- or State-wide basis and the operator notifies the BLM of its choice by Sundry Notice (Form 3160–5) by January 1 of the relevant year.
Section 3179.102 lists several requirements pertaining to gas that reaches the surface during well completion and related operations. An operator may seek an exemption from these requirements by submitting a Sundry Notice (Form 3160–5) that includes the following information:
(1) The name, number, and location of each of the operator's wells, and the number of the lease, unit, or communitized area with which it is associated;
(2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(3) Data that show the costs of compliance; and
(4) Projected costs of and the combined stream of revenues from both gas and oil production, including: the operator's projections of oil and gas prices, production volumes, quality (
The rule also provides that an operator that is in compliance with the EPA regulations for well completions under 40 CFR part 60, subpart OOOO or subpart OOOOa is deemed in compliance with the requirements of this section. As a practical matter, all new, reconstructed, and modified hydraulically fracturing or refracturing events are now subject to the EPA requirements, so the BLM does not believe that the requirements of this section would have any independent effect, or that any operator would request an exemption from the requirements of this section, as long as the EPA requirements remain in effect. For this reason, the BLM is not estimating any PRA burdens for § 3179.102.
Section 3179.103 allows gas to be flared royalty-free during initial production testing. The regulation lists specific volume and time limits for such testing. An operator may seek an extension of those limits on royalty-free flaring by submitting a Sundry Notice (Form 3160–5) to the BLM.
Section 3179.104 allows gas to be flared royalty-free for no more than 24 hours during well tests subsequent to the initial production test. The operator may seek authorization to flare royalty-free for a longer period by submitting a Sundry Notice (Form 3160–5) to the BLM.
Section 3179.105 allows an operator to flare gas royalty-free during a temporary, short-term, infrequent, and unavoidable emergency. Venting gas is permissible if flaring is not feasible during an emergency. The regulation defines limited circumstances that constitute an emergency, and other circumstances that do not constitute an emergency.
The operator must estimate and report to the BLM on a Sundry Notice (Form 3160–5) volumes flared or vented in circumstances that, as provided by 43 CFR 3179.105, do not constitute emergencies for the purposes of royalty assessment:
(1) More than 3 failures of the same component within a single piece of equipment within any 365-day period;
(2) The operator's failure to install appropriate equipment of a sufficient capacity to accommodate the production conditions;
(3) Failure to limit production when the production rate exceeds the capacity of the related equipment, pipeline, or gas plant, or exceeds sales contract volumes of oil or gas;
(4) Scheduled maintenance;
(5) A situation caused by operator negligence; or
(6) A situation on a lease, unit, or communitized area that has already experienced 3 or more emergencies within the past 30 days, unless the BLM determines that the occurrence of more than 3 emergencies within the 30 day period could not have been anticipated and was beyond the operator's control.
Section 3179.201 pertains to any pneumatic controller that: (1) Is not subject to EPA regulations at 40 CFR 60.5360a through 60.5390a, but would be subject to those regulations if it were a new or modified source; and (2) has a continuous bleed rate greater than 6 standard cubic feet (scf) per hour. Section 3179.201(b) requires operators to replace each high-bleed pneumatic controller with a controller with a bleed rate lower than 6 scf per hour, with the following exceptions: (1) The pneumatic controller exhaust is routed to processing equipment; (2) the pneumatic controller exhaust was and continues to be routed to a flare device or low pressure combustor; (3) The pneumatic controller exhaust is routed to processing equipment; or (4) The operator notifies the BLM through a Sundry Notice and demonstrates, and the BLM agrees, that such would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease.
An operator may invoke one of the first three exceptions described above by notifying the BLM through a Sundry Notice (Form 3160–5) that use of the pneumatic controller is required based on functional needs that may include, but are not limited to, response time, safety, and positive actuation, and the Sundry Notice (Form 3160–5) describes those functional needs.
An operator may invoke the fourth exception described above by demonstrating to the BLM through a Sundry Notice (Form 3160–5), and by obtaining the BLM's agreement, that replacement of a pneumatic controller would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease. The Sundry Notice (Form 3160–5) must include the following information:
(1) The name, number, and location of each of the operator's wells, and the number of the lease, unit, or communitized area with which it is associated;
(2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(3) Data that show the costs of compliance;
(4) Projected costs of and the combined stream of revenues from both gas and oil production, including: the operator's projections of gas prices, gas production volumes, gas quality (
The operator may replace a high-bleed pneumatic controller if the operator notifies the BLM through a Sundry Notice (Form 3160–5) that the well or facility that the pneumatic controller serves has an estimated remaining productive life of 3 years or less.
With some exceptions, § 3179.202 pertains to any pneumatic diaphragm pump that: (1) Uses natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease; and (2) Is not subject to EPA regulations at 40 CFR 60.5360a through 60.5390a, but would be subject to those regulations if it were a new, reconstructed, or modified source as defined in 40 CFR part 60 subpart OOOOa. This regulation generally requires replacement of such a pump with a zero-emissions pump or routing of the pump's exhaust gas to processing equipment for capture and sale.
This requirement does not apply to pneumatic diaphragm pumps that do not vent exhaust gas to the atmosphere. In addition, this requirement does not apply if the operator submits a Sundry Notice to the BLM documenting that the pump(s) operated on less than 90 individual days in the prior calendar year.
A pneumatic diaphragm pump is not subject to § 3179.202 if the operator documents in a Sundry Notice (Form 3160–5) that the pump was operated fewer than 90 days in the prior calendar year.
In lieu of replacing a pneumatic diaphragm pump or routing the pump exhaust gas to processing equipment, an operator may submit a Sundry Notice (Form 3160–5) to the BLM showing that replacing the pump with a zero emissions pump is not viable because a pneumatic pump is necessary to perform the function required, and that routing the pump exhaust gas to processing equipment for capture and sale is technically infeasible or unduly costly.
An operator may seek an exemption from the replacement requirement by submitting a Sundry Notice (Form 3160–5) to the BLM that provides an economic analysis that demonstrates that compliance with these requirements would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease. The Sundry Notice (Form 3160–5) must include the following information:
(1) Well information that must include: (i) The name, number, and location of each well, and the number of the lease, unit, or communitized area with which it is associated; and (ii) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(2) Data that show the costs of compliance with § 3179.202(c) through (e); and
(3) The operator's estimate of the costs and revenues of the combined stream of revenues from both the gas and oil components, including: (i) The operator's projections of gas prices, gas production volumes, gas quality (
The operator may replace a pneumatic diaphragm pump if the operator notifies the BLM through a Sundry Notice (Form 3160–5) that the well or facility that the pneumatic controller serves has an estimated remaining productive life of 3 years or less.
A storage vessel is subject to 43 CFR 3179.203(c) if the vessel: (1) Contains production from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease; and (2) Is not subject to any of the requirements of EPA regulations at 40 CFR part 60, subpart OOOO, but would be subject to that subpart if it were a new, reconstructed, or modified source.
The operator must determine, record, and make available to the BLM upon request, whether the storage vessel has the potential for VOC emissions equal to or greater than 6 tpy based on the maximum average daily throughput for a 30-day period of production. The determination may take into account requirements under a legally and practically enforceable limit in an operating permit or other requirement established under a Federal, State, local or tribal authority that limit the VOC emissions to less than 6 tpy.
If a storage vessel has the potential for VOC emissions equal to or greater than 6 tpy, the operator must replace the storage vessel at issue in order to comply with the requirements of this section, and the operator must
(1) Route all tank vapor gas from the storage vessel to a sales line;
(2) If the operator determines that compliance with the requirement to route all tank vapor gas from the storage vessel to a sales line is technically infeasible or unduly costly, route all tank vapor gas from the storage vessel to a device or method that ensures continuous combustion of the tank vapor gas; or
(3) Submit an economic analysis to the BLM through a Sundry Notice (Form 3160–5) that demonstrates, and the BLM agrees, that compliance with § 3179.203(c)(2) would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease.
To support the demonstration described above, the operator must submit a Sundry Notice (Form 3160–5) that includes the following information:
(1) The name, number, and location of each well, and the number of the lease, unit, or communitized area with which it is associated;
(2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(3) Data that show the costs of compliance with § 3179.203(c)(1) or (2) on the lease; and
(4) The operator must consider the costs and revenues of the combined stream of revenues from both the gas and oil components, including: The operator's projections of oil and gas prices, production volumes, quality (
The operator must minimize vented gas and the need for well venting associated with downhole well maintenance and liquids unloading, consistent with safe operations. Before the operator manually purges a well for liquids unloading for the first time after the effective date of this section, the operator must consider other methods for liquids unloading and determine that they are technically infeasible or unduly costly. The operator must provide information supporting that determination as part of a Sundry Notice (Form 3160–5). This requirement applies to each well the operator operates.
For any liquids unloading by manual well purging, the operator must:
(1) Ensure that the person conducting the well purging remains present on-site throughout the event to minimize to the maximum extent practicable any venting to the atmosphere;
(2) Record the cause, date, time, duration, and estimated volume of each venting event; and
(3) Maintain the records for the period required under § 3162.4–1 and make them available to the BLM, upon request.
The operator must notify the BLM by Sundry Notice (Form 3160–5), within 30 calendar days, if:
(1) The cumulative duration of manual well purging events for a well exceeds 24 hours during any production month; or
(2) The estimated volume of gas vented in liquids unloading by manual well purging operations for a well exceeds 75 Mcf during any production month.
Sections 3179.301 through 3179.305 include information collection activities pertaining to the detection and repair of gas leaks during production operations. These regulations require operators to inspect all equipment covered under § 3179.301(a) for gas leaks.
Section 3179.301(j) allows an operator to satisfy the requirements of §§ 3179.301 through 3179.305 for some or all of the equipment or facilities on a given lease by notifying the BLM in a Sundry Notice (Form 3160–5) that the operator is complying with EPA requirements established pursuant to 40 CFR part 60 with respect to such equipment or facilities.
Section 3175.302 specifies the instruments and methods that an operator may use to detect leaks. Section 3175.302(d) allows the BLM to approve an alternative monitoring device and associated inspection protocol if the BLM finds that the alternative would achieve equal or greater reduction of gas lost through leaks compared with the approach specified in § 3179.302(a)(1) when used according to § 3179.303(a).
Any person may request approval of an alternative monitoring device and protocol by submitting a Sundry Notice (Form 3160–5) to BLM that includes the following information: (1) Specifications of the proposed monitoring device, including a detection limit capable of supporting the desired function; (2) The proposed monitoring protocol using the proposed monitoring device, including how results will be recorded; (3) Records and data from laboratory and field testing, including but not limited to performance testing; (4) A demonstration that the proposed monitoring device and protocol will
Section 3179.303(b) allows an operator to submit a Sundry Notice (Form 3160–5) requesting authorization to detect gas leaks using an alternative instrument-based leak detection program, different from the specified requirement to inspect each site semi-annually using an approved monitoring device.
To obtain approval for an alternative leak detection program, the operator must submit a Sundry Notice (Form 3160–5) that includes the following information:
(1) A detailed description of the alternative leak detection program, including how it will use one or more of the instruments specified in or approved under § 3179.302(a) and an identification of the specific instruments, methods and/or practices that would substitute for specific elements of the approach specified in §§ 3179.302(a) and 3179.303(a);
(2) The proposed monitoring protocol;
(3) Records and data from laboratory and field testing, including, but not limited to, performance testing, to the extent relevant;
(4) A demonstration that the proposed alternative leak detection program will achieve equal or greater reduction of gas lost through leaks compared to compliance with the requirements specified in §§ 3179.302(a) and 3179.303(a);
(5) A detailed description of how the operator will track and document its procedures, leaks found, and leaks repaired; and
(6) Proposed limitations on types of sites or other conditions on deployment of the alternative leak detection program.
An operator may seek authorization for an alternative leak detection program that does not achieve equal or greater reduction of gas lost through leaks compared to the required approach, if the operator demonstrates that compliance with the leak-detection regulations (including the option for an alternative program under 43 CFR 3179.303(b)) would impose such costs as to cause the operator to cease production and abandon significant recoverable oil or gas reserves under the lease. The BLM may approve an alternative leak detection program that does not achieve equal or greater reduction of gas lost through leaks, but is as effective as possible consistent with not causing the operator to cease production and abandon significant recoverable oil or gas reserves under the lease.
To obtain approval for an alternative program under this provision, the operator must submit a Sundry Notice (Form 3160–5) that includes the following information:
(1) The name, number, and location of each well, and the number of the lease, unit, or communitized area with which it is associated;
(2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;
(3) Data that show the costs of compliance on the lease with the requirements of §§ 3179.301–305 and with an alternative leak detection program that meets the requirements of § 3179.303(b);
(4) The operator must consider the costs and revenues of the combined stream of revenues from both the gas and oil components and provide the operator's projections of oil and gas prices, production volumes, quality (
(5) The information required to obtain approval of an alternative program under § 3179.303(b), except that the estimated volume of gas that will be lost through leaks under the alternative program must be compared to the volume of gas lost under the required program, but does not have to be shown to be at least equivalent.
Section 3179.304(a) requires an operator to repair any leak no later than 30 calendar days after discovery of the leak, unless there is good cause for delay in repair. If there is good cause for a delay beyond 30 calendar days, § 3179.304(b) requires the operator to submit a Sundry Notice (Form 3160–5) notifying the BLM of the cause.
Section 3179.305 requires operators to maintain the following records and make them available to the BLM upon request: (1) For each inspection required under § 3179.303, documentation of the date of the inspection and the site where the inspection was conducted; (2) The monitoring method(s) used to determine the presence of leaks; (3) A list of leak components on which leaks were found; (4) The date each leak was repaired; and (5) The date and result of the follow-up inspection(s) required under § 3179.304. By March 31 each calendar year, the operator must provide to the BLM an annual summary report on the previous year's inspection activities that includes: (1) The number of sites inspected; (2) The total number of leaks identified, categorized by the type of component; (3) The total number of leaks repaired; (4) The total number of leaks that were not repaired as of December 31 of the previous calendar year due to good cause and an estimated date of repair for each leak; and (5) A certification by a responsible officer that the information in the report is true and accurate.
By March 31 of each calendar year, the operator must provide to the BLM an annual summary report on the previous year's inspection activities that includes:
(1) The number of sites inspected;
(2) The total number of leaks identified, categorized by the type of component;
(3) The total number of leaks repaired;
(4) The total number leaks that were not repaired as of December 31 of the previous calendar year due to good cause and an estimated date of repair for each leak.
(5) A certification by a responsible officer that the information in the report is true and accurate to the best of the officer's knowledge.
The following table details the annual estimated hour burdens for the information activities described above.
The BLM has prepared a draft environmental assessment (EA) to determine whether this proposed rule would have a significant impact on the quality of the human environment under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
The draft EA and FONSI have been placed in the file for the BLM's Administrative Record for the rule at the address specified in the
This proposed rule is not a significant energy action under the definition in Executive Order 13211. A statement of Energy Effects is not required.
Section 4(b) of Executive Order 13211 defines a “significant energy action” as “any action by an agency (normally published in the
The rule temporarily suspends or delays certain requirements in the 2016 final rule and would reduce compliance costs in the short-term. The BLM determined that the 2016 final rule would not have impacted the supply, distribution, or use of energy and so the suspension or delay of many of the 2016 final rule's requirements until January
We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1988, to write all rules in plain language. This means that each rule must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
The principal authors of this proposed rule are: James Tichenor and Michael Riches of the BLM Washington Office; Sheila Mallory of the BLM New Mexico State Office, Eric Jones of the BLM Moab, Utah Field Office; David Mankiewicz of the BLM Farmington, New Mexico Field Office; and Beth Poindexter of the BLM Dickinson, North Dakota Field Office; assisted by Faith Bremner of the BLM's Division of Regulatory Affairs and by the Department of the Interior's Office of the Solicitor.
Administrative practice and procedure; Government contracts; Indians—lands; Mineral royalties; Oil and gas exploration; Penalties; Public lands—mineral resources; Reporting and recordkeeping requirements.
Administrative practice and procedure; Flaring; Government contracts; Incorporation by reference; Indians—lands; Mineral royalties; Immediate assessments; Oil and gas exploration; Oil and gas measurement; Public lands—mineral resources; Reporting and record keeping requirements; Royalty-free use; Venting.
For the reasons set out in the preamble, the Bureau of Land Management proposes to amend 43 CFR parts 3160 and 3170 as follows:
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.
(j) Beginning January 17, 2019, when submitting an Application for Permit to Drill an oil well, the operator must also submit a plan to minimize waste of natural gas from that well. The waste minimization plan must accompany, but would not be part of, the Application for Permit to Drill. The waste minimization plan must set forth a strategy for how the operator will comply with the requirements of 43 CFR subpart 3179 regarding control of waste from venting and flaring, and must explain how the operator plans to capture associated gas upon the start of oil production, or as soon thereafter as reasonably possible, including an explanation of why any delay in capture of the associated gas would be required. Failure to submit a complete and adequate waste minimization plan is grounds for denying or disapproving an Application for Permit to Drill. The waste minimization plan must include the following information:
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.
(b) Beginning January 17, 2019, the operator's capture percentage must equal:
(1) For each month during the period from January 17, 2019, to December 31, 2020: 85 percent;
(2) For each month during the period from January 1, 2021, to December 31, 2023: 90 percent;
(3) For each month during the period from January 1, 2024, to December 31, 2026: 95 percent; and
(4) For each month beginning January 1, 2027: 98 percent.
(c) The term “capture percentage” in this section means the “total volume of gas captured” over the “relevant area” divided by the “adjusted total volume of gas produced” over the “relevant area.”
(1) The term “total volume of gas captured” in this section means: For each month, the volume of gas sold from all of the operator's development oil wells in the relevant area plus the volume of gas from such wells used on lease, unit, or communitized area in the relevant area.
(2) The term “adjusted total volume of gas produced” in this section means: The total volume of gas captured over the month
(i) For each month from January 17, 2019, to December 31, 2019: 5,400 Mcf times the total number of development oil wells “in production” in the relevant area;
(ii) For each month from January 1, 2020, to December 31, 2020: 3,600 Mcf times the total number of development oil wells in production in the relevant area;
(iii) For each month from January 1, 2021, to December 31, 2021: 1,800 Mcf times the total number of development oil wells in production in the relevant area; and
(iv) For each month from January 1, 2022, to December 31, 2022: 1,500 Mcf times the total number of development oil wells in production in the relevant area;
(v) For each month from January 1, 2023, to December 31, 2024: 1,200 Mcf times the total number of development oil wells in production in the relevant area;
(vi) For each month from January 1, 2025, to December 31, 2025: 900 Mcf times the total number of development oil wells in production in the relevant area; and
(vii) For each month after January 1, 2026: 750 Mcf times the total number of development.
(b) * * *
(1) If the operator estimates that the volume of gas flared from a high pressure flare stack or manifold equals or exceeds an average of 50 Mcf per day for the life of the flare, or the previous 12 months, whichever is shorter, then, beginning January 17, 2019, the operator must either:
(a) Approvals to flare royalty free, which are in effect as of January 17, 2017, will continue in effect until January 17, 2019.
(c) The operator must comply with this section beginning January 17, 2019.
(e) The operator must comply with this section beginning January 17, 2019.
(d) The operator must replace the pneumatic controller(s) by January 17, 2019, as required under paragraph (b) of this section. If, however, the well or facility that the pneumatic controller serves has an estimated remaining productive life of 3 years or less from January 17, 2017, then the operator may notify the BLM through a Sundry Notice and replace the pneumatic controller no later than 3 years from January 17, 2017.
(h) The operator must replace the pneumatic diaphragm pump(s) or route the exhaust gas to capture or to a flare or combustion device by January 17, 2019, except that if the operator will comply with paragraph (c) of this section by replacing the pneumatic diaphragm pump with a zero-emission pump and the well or facility that the pneumatic diaphragm pump serves has an estimated remaining productive life of 3 years or less from January 17, 2017, the operator must notify the BLM through a Sundry Notice and replace the pneumatic diaphragm pump no later than 3 years from January 17, 2017.
(b) Beginning January 17, 2019, and within 30 days after any new source of production is added to the storage vessel after January 17, 2019, the operator must determine, record, and make available to the BLM upon request, whether the storage vessel has the potential for VOC emissions equal to or greater than 6 tpy based on the maximum average daily throughput for a 30-day period of production. The determination may take into account requirements under a legally and practically enforceable limit in an operating permit or other requirement established under a Federal, State, local or tribal authority that limit the VOC emissions to less than 6 tpy.
(c) If a storage vessel has the potential for VOC emissions equal to or greater than 6 tpy under paragraph (b) of this section, by January 17, 2019, or by January 17, 2020, if the operator must and will replace the storage vessel at issue in order to comply with the requirements of this section, the operator must:
(i) The operator must comply with this section beginning January 17, 2019.
(f) The operator must make the first inspection of each site:
(1) By January 17, 2019, for all existing sites;
(2) Within 60 days of beginning production for new sites that begin production after January 17, 2019; and
(3) Within 60 days of the date when an existing site that was out of service is brought back into service and re-pressurized after January 17, 2019.
Commission on Civil Rights.
Announcement of meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that an orientation and planning meeting of the South Dakota Advisory Committee to the Commission will convene at 2:00 p.m. (MDT) on Friday, October 6, 2017, via teleconference. The purpose of the meeting is to discuss next steps after the subtle racism briefing in March 2017.
Friday, October 6, 2017, at 2:00 p.m. (MDT)
To be held via teleconference:
David Mussatt, DFO,
Members of the public may listen to the discussion by dialing the following Conference Call Toll-Free Number: 1–800–289–0548; Conference ID: 9222878. Please be advised that before being placed into the conference call, the operator will ask callers to provide their names, their organizational affiliations (if any), and an email address (if available) prior to placing callers into the conference room. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free phone number.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service (FRS) at 1–800–977–8339 and provide the FRS operator with the Conference Call Toll-Free Number: 1–800–289–0548, Conference ID: 9222878. Members of the public are invited to submit written comments; the comments must be received in the regional office by Monday, November 6, 2017. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13–201, Denver, CO 80294, faxed to (303) 866–1050, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
On June 1, 2017, MTD Consumer Group Inc. submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 283A, in Martin, Tennessee.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
In the Matter of: Shantia Hassanshahi, a/k/a Shantia Hassan Shahi, a/k/a Shahi, a/k/a Shantia Haas, a/k/a Sean Haas, Inmate Number: 65586–112, USP Lompoc, U.S. Penitentiary, 3901 Klein Blvd., Lompoc, CA 93436.
On December 12, 2016, in the U.S. District Court for the District of Columbia, Shantia Hassanshahi, a/k/a Shantia Hassan Shahi, a/k/a Shahi, a/k/a Shantia Haas, a/k/a Sean Haas (“Hassanshahi”) was convicted of
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Hassanshahi's conviction for violating the IEEPA, and has provided notice and an opportunity for Hassanshahi to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Hassanshahi.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Hassanshahi's export privileges under the Regulations for a period of five (5) years from the date of Hassanshahi's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Hassanshahi had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On August 1, 2016, in the U.S. District Court for the Southern District of New York, Shehzad John was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. 1701,
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Shehzad John's conviction for violating IEEPA and has provided notice and an opportunity for Shehzad John to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Shehzad John.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Shehzad John's export privileges under the Regulations for a period of 10 years from the date of Shehzad John's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Shehzad John had an interest at the time of his conviction.
Accordingly, it is hereby ordered:
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On October 3, 2016, in the U.S. District Court for the Northern District of Illinois, Tayabi Fazal Hussain (“Hussain”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. 1701,
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Hussain's conviction for violating the IEEPA, and has provided notice and an opportunity for Hussain to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Hussain.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Hussain's export privileges under the Regulations for a period of 10 years from the date of Hussain's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Hussain had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On November 19, 2015, in the U.S. District Court for the Eastern District of New York, Mark Henry, a/k/a Weida Zheng, a/k/a Scott Russel, a/k/a Bob Wilson, a/k/a Joanna Zhong (“Henry”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Henry was convicted of willfully and knowingly exporting, causing to be exported, and attempting to export from the United States to Taiwan defense articles listed on the United States Munitions List, specifically, ablative materials for use, among other things, as a protective coating for rocket nozzles, without the required State Department license. Henry was sentenced to 78 months in prison for violating Sections 38(b)(2) and (c) of the AECA, along with three years of supervised release and a $200 assessment.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS received notice of Henry's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Henry to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Henry. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Henry's export privileges under the Regulations for a period of ten (10) years from the date of Henry's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Henry had an interest at the time of his conviction.
Section 766.25(h) of the Regulations provides that the Director of BIS's Office of Exporter Services, in consultation with the Director of BIS's Office of Export Enforcement, may take action in accordance with Section 766.23 of the Regulations to make applicable to related persons a denial order that is being sought or has issued under Section 766.25. Section 766.23 provides, in turn, that in order to prevent evasion of a denial order issued pursuant to Part 766 of the Regulations, including pursuant to Section 766.25, the denial order made be made applicable not only to the respondent, but also to other persons related to the respondent by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business.
As provided in Section 766.23, BIS gave notice to Dahua Electronics Corporation a/k/a Bao An Corporation (“Dahua”) that it intended to deny Mark Henry's export privileges pursuant to Section 766.25 for a period of up to ten (10) years from the date of his conviction and intended to make that denial order applicable to Dahua pursuant to Sections 766.25 and 766.23.
Having received no submission from or on behalf of Dahua, I have decided, following consultations with BIS's Office of Export Enforcement, including its Director, to name Dahua as a Related Person and make this Denial Order applicable to Dahua, thereby denying its export privileges for ten (10) years from the date of Henry's conviction, that is, until November 19, 2025. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Dahua had an interest at the time of Henry's conviction.
Dahua was incorporated in New York State, and remains listed there as an active corporation. Henry, a naturalized U.S. citizen born in China, operated Dahua out of his residence in Flushing, New York, and is believed to own Dahua. He used Dahua to purchase various items from companies located in the United States, including tools, machine parts, materials used in machinery, and industrial chemicals, for export to end users or customers located in Asia, including China and Taiwan. Operating through Dahua, Henry received requests for products from customers located overseas and solicited orders for those products from suppliers and manufacturers located in the United States, including in connection with the violation of the AECA for which he was convicted. Thus, I find that Dahua is related to Henry within the meaning of Section 766.23, and that Dahua should be added as a related person to prevent evasion of this order.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of a Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from a Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person, if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On October 15, 2014, in the U.S. District Court, Middle District of Georgia, Robert J. Shubert, Sr. (“Shubert”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Shubert was convicted of knowingly and willfully exporting, from the United States to Japan, Dual Sensor Night Vision Goggles designated as defense articles on the United States Munitions List, without the required U.S. Department of State licenses. Shubert was sentenced to 78 months in prison, 36 months of supervised release, a $15,000 fine, and a $300 assessment.
Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”)
BIS has received notice of Shubert's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Shubert to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Shubert.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Shubert's export privileges under the Regulations for a period of ten (10) years from the date of Shubert's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Shubert had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On July 6, 2016, in the U.S. District Court, Eastern District of Virginia, John Francis Stribling (“Stribling”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Stribling was convicted of knowingly and willfully exporting from the United States to Indonesia, two pistols and two rifles designated as defense articles on the United States Munitions List, without the required U.S. Department of State licenses. Stribling was sentenced to two years in prison, three years of supervised release, and a $100 assessment.
Section 766.25 of the Export Administration Regulations (“EAR” or
BIS has received notice of Stribling's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Stribling to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Stribling.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Stribling's export privileges under the Regulations for a period of five (5) years from the date of Stribling's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Stribling had an interest at the time of his conviction.
Accordingly, it is hereby
A. Applying for, obtaining, or using any license, license exception, or export control document;
B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On May 30, 2017, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed the Department of Commerce's (the Department) remand redetermination concerning the countervailing duty (CVD) investigation of oil country tubular goods (OCTG) from the Republic of Turkey (Turkey). This judgment was not appealed within the 90-day deadline, and became final and conclusive on August 28, 2017. The Department previously notified the public that the final judgment in this case by the U.S. Court of International
Applicable March 3, 2016.
Aimee Phelan or Jennifer Shore, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone (202) 482–0697 or (202) 482–2778, respectively.
On July 18, 2014, the Department published its final affirmative CVD determination and final affirmative critical circumstances determination in this proceeding.
On August 31, 2015, the Department issued its
Borusan appealed, and Maverick cross-appealed, the CIT's decision to the CAFC, which affirmed the Department's
The period to appeal the CAFC's decision has passed, and a final and conclusive court decision has been reached in this case. Therefore, the Department is amending the CVD order on OCTG from Turkey
The net countervailable subsidy rates are as follows:
In accordance with section 705(c)(1)(B) of the Tariff Act of 1930, as amended (the Act), the Department has instructed CBP to continue to suspend liquidation on all relevant entries of OCTG from Turkey.
Because the net countervailable subsidy rate determined for Tosçelik is
This notice constitutes the amended CVD order with respect OCTG from Turkey. This notice is issued and published in accordance with sections 516A(e) and 706(a) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of this sunset review, the Department of Commerce (the Department) finds that revocation of the antidumping duty (AD) orders on certain welded carbon steel pipes and tubes (pipes and tubes) from India, Thailand, and Turkey would likely lead to a continuation or recurrence of dumping. Further, the magnitude of the margins of dumping that are likely to prevail are identified in the “Final Results of Review” section of this notice.
Applicable October 5, 2017.
Catherine Cartsos or Minoo Hatten, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1757 and (202) 482–1690, respectively.
In 1986, the Department published the AD orders on pipes and tubes from India, Thailand, and Turkey.
For each of these sunset reviews the Department received notice of intent to participate on behalf of Bull Moose Tube, TMK IPSCO Tubulars, Zekelman Industries, and EXLTUBE (collectively, the domestic interested parties) within the 15-day period specified in 19 CFR 351.218(d)(1)(i). The domestic interested parties claimed interested party status under section 771(9)(C) of the Act as producers in the United States of the domestic like product.
On June 30, 2017, the Department received complete substantive responses to the
All issues raised in these sunset reviews, including the likelihood of
Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, the Department determines that revocation of the AD orders on pipes and tubes from India, Thailand, and Turkey would likely lead to the continuation or recurrence of dumping, and that the magnitude of the margins of dumping likely to prevail if the AD orders are revoked would be up to the following:
This notice serves as the only reminder to the parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of propriety information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.
We are issuing and publishing the final results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act and 19 CFR 351.221(c)(5)(ii).
The products covered by the order include certain welded carbon steel standard pipes and tubes with an outside diameter of 0.375 inch or more but not over 16 inches. These products are commonly referred to in the industry as standard pipes and tubes produced to various American Society for Testing Materials (ASTM) specifications, most notably A–53, A–120, or A–135.
The antidumping duty order on certain welded carbon steel standard pipes and tubes from India, published on May 12, 1986, included standard scope language which used the import classification system as defined by Tariff Schedules of the United States, Annotated (TSUSA). The United States developed a system of tariff classification based on the international harmonized system of customs nomenclature. On January 1, 1989, the U.S. tariff schedules were fully converted from the TSUSA to the Harmonized Tariff Schedule (HTS).
Until January 1, 1989, such merchandise was classifiable under item numbers 610.3231, 610.3234, 610.3241, 610.3242, 610.3243, 610.3252, 610.3254, 610.3256, 610.3258, and 610.4925 of the TSUSA. This merchandise is currently classifiable under HTS item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090. As with the TSUSA numbers, the HTS numbers are provided for convenience and customs purposes. The written product description remains dispositive.
The products covered by the order include certain welded carbon steel standard pipes and tubes with an outside diameter of 0.375 inch or more but not over 16 inches. These products are commonly referred to in the industry as standard pipes and tubes produced to various American Society for Testing Materials (ASTM) specifications, most notably A–53, A–120, or A–135.
The antidumping duty order on certain welded carbon steel standard pipes and tubes from India, published on May 12, 1986, included standard scope language which used the import classification system as defined by Tariff Schedules of the United States, Annotated (TSUSA). The United States developed a system of tariff classification based on the international harmonized system of customs nomenclature. On January 1, 1989, the U.S. tariff schedules were fully converted from the TSUSA to the Harmonized Tariff Schedule (HTS).
Until January 1, 1989, such merchandise was classifiable under item numbers 610.3231, 610.3234, 610.3241, 610.3242, 610.3243, 610.3252, 610.3254, 610.3256, 610.3258, and 610.4925 of the TSUSA. This merchandise is currently classifiable under HTS item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090. As with the TSUSA numbers, the HTS numbers are provided for convenience and customs purposes. The written product description remains dispositive.
The products covered by this order include circular welded non-alloy steel pipes and tubes, of circular cross-section, not more than 406.4 millimeters (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, or galvanized, painted), or end finish (plain end, beveled end, threaded and coupled). Those pipes and tubes are generally known as standard pipe, though they may also be called structural or mechanical tubing in certain applications. Standard pipes and tubes are intended for the low pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air conditioner units, automatic sprinkler systems, and other related uses. Standard pipe may also be used for light load-bearing and mechanical applications, such as for fence tubing, and for protection of electrical wiring, such as conduit shells.
The scope is not limited to standard pipe and fence tubing, or those types of mechanical and structural pipe that are used in standard pipe applications. All carbon steel pipes and tubes within the physical description outlined above are included in the scope of this order, except for line pipe, oil country tubular goods, boiler tubing, cold-drawn or cold-rolled mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished rigid conduit.
Imports of these products are currently classifiable under the following Harmonized
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration, is amending the Notice published at Vol. 82, No. 187 (82 FR 45264, September 28, 2017), the Secretary-Led International Trade Administration Multi-Sector Trade Mission to China, to modify the maximum number of delegation participants, set at 25 U.S. participants, to allow for additional participants on the mission.
Amendments to revise the number of delegation participants.
Based on the high interest in the mission and the significant number of applications received to date, it has been determined that the Department of Commerce may accept more than 25 U.S. firms or trade associations as delegation participants for the Trade Mission to China. The final number of participants will be determined based on the review of applications and the capacity of the Department of Commerce to accommodate additional participants on the delegation. The application deadline remains October 6, 2017. All applications will be assessed according the conditions and criteria that are included in the original
Notice of this change was posted on the Mission Web site (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The New England Fishery Management Council (Council) is scheduling a two-day public meeting of its Scientific & Statistical Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Monday, October 23, 2017, beginning at 10 a.m. and Tuesday, October 24, 2017. beginning at 9 a.m.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465–0492.
The Committee will review recent stock assessment information from the 2017 Groundfish Operational Assessment updates and information provided by the Council's Groundfish Plan Development Team and recommend the overfishing levels and acceptable biological catch for all groundfish stocks (except for Georges Bank yellowtail flounder and Atlantic halibut) managed under the Northeast Multispecies Fishery Management Plan for fishing years 2016–2018. Other business will be discussed as needed.
Although non-emergency issues not contained on this agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council 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. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465–0492, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of its Scientific and Statistical Committee (SSC). See
The SSC will meet Tuesday, October 24, 2017, from 1:30 p.m. until 5:30 p.m.; Wednesday, October 25, 2017, from 8:30 a.m. until 5:30 p.m. and Thursday, October 26, 2017, from 8:30 a.m. until 3 p.m.
Kim Iverson, Public Information Officer, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571–4366 or toll free (866) SAFMC–10; fax: (843) 769–4520; email:
The following items will be discussed by the SSC during the meeting:
1. Updates on 2016–17 landings, Annual Catch Limits (ACLs), Acceptable Biological Catches (ABCs), and Accountability Measures (AMs).
2. Updates on recent Southeast Data Assessment and Review (SEDAR) stock assessment program activities, the long-term assessment scheduling approach, and Council future assessment priorities; approve Terms of Reference, schedule, and identify participants for the Cobia Stock Identification Workshop, Greater Amberjack, and Red Porgy assessments; approve the revised Terms of Reference for SEDAR 55 assessment for Vermilion Snapper.
3. Discuss a NOAA Fisheries' Southeast Fisheries Science Center (SEFSC) report on the feasibility of a Gray Triggerfish assessment.
4. Review updated Red Grouper projections and provide fishing level recommendations.
5. Review the SEDAR 50 Blueline Tilefish assessment and provide fishing level recommendations.
6. Review the revised Golden Tilefish assessment and provide fishing level recommendations.
7. Discuss ABC Control Rule modifications.
8. Review Amendment 46 to the Snapper Grouper Fishery Management Plan addressing red snapper and evaluate SEFSC Index Projection methodology progress.
9. Review and comment on the Commercial and Recreational Snapper Grouper Visioning Amendments.
10. Review the South Atlantic Ecosystem Model and provide recommendations for future direction and utility of this tool.
11. Discuss the Wreckfish Individual Transferable Quota (ITQ) Program Review.
12. Receive updates and progress reports on ongoing Council amendments and activities including the Citizen Science Program.
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 identified in this notice 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 intent to take final action to address the emergency.
Written comment on SSC agenda topics is to be distributed to the Committee through the Council office, similar to all other briefing materials. Written comment to be considered by the SSC shall be provided to the Council office no later than one week prior to an SSC meeting. For this meeting, the deadline for submission of written comment is 12 p.m. Tuesday, October 17, 2017.
Multiple opportunities for comment on agenda items will be provided during SSC meetings. Open comment periods will be provided at the start of the meeting and near the conclusion. Those interested in providing comment should indicate such in the manner requested by the Chair, who will then recognize individuals to provide comment. Additional opportunities for comment on specific agenda items will be provided, as each item is discussed, between initial presentations and SSC discussion. Those interested in providing comment should indicate such in the manner requested by the Chair, who will then recognize individuals to provide comment. All comments are part of the record of the meeting.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Gulf of Mexico Fishery Management Council will hold a meeting of its Law Enforcement Technical Committee (LETC), in conjunction with the Gulf States Marine Fisheries Commission's Law Enforcement Committee (LEC).
The meeting will convene on Wednesday, October 18, 2017, starting at 8:30 a.m. and will adjourn at 5 p.m.
The meeting will be held at the Battle House Renaissance hotel, located at 26 North Royal Street, Mobile, AL 36602; telephone: (251) 338–2000.
Mr. Steven Atran, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council;
The items of discussion on the agenda are as follows:
The Agenda is subject to change. The latest version of the agenda along with other meeting materials will be posted on the Council's file server, which can be accessed by going to the Council Web site at
The Law Enforcement Technical Committee consists of principal law enforcement officers in each of the Gulf States, as well as the NOAA Law Enforcement, U.S. Fish and Wildlife Service, the U.S. Coast Guard, and the NOAA General Counsel for Law Enforcement.
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 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 aids should be directed to Kathy Pereira at the Gulf Council Office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 55 Assessment Scoping webinar for South Atlantic Vermilion Snapper.
The SEDAR 55 assessment of the South Atlantic stock of Vermilion Snapper will consist of a series of webinars. See
A SEDAR 55 Assessment Scoping webinar will be held on Friday, October 20, 2017, from 9 a.m. until 1 p.m.
Julia Byrd, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571–4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. The product of the SEDAR webinar series will be a report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses, and describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion in the Assessment Scoping webinar are as follows:
Participants will review data and discuss data issues, as necessary, and initial model issues.
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 identified in this notice 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 intent to take final action to address the emergency.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
Environmental Protection Agency (EPA).
Notice of availability, request for public comments.
The U.S. Environmental Protection Agency (EPA) is announcing the availability of the
Comments must be received on or before October 31, 2017.
Submit your comments, identified by Docket ID No. [EPA–HQ–OA–2017–0533] to the Federal eRulemaking Portal:
Vivian Daub, Director, Planning Division, Office of Planning, Analysis, and Accountability, Office of the Chief Financial Officer,
The GPRA Modernization Act of 2010 (Pub. L. 111–352), holds federal agencies accountable for using resources wisely and achieving program results. Specifically, the GPRA Modernization Act requires agencies to develop:
The
• Core Mission: Deliver real results to provide Americans with clean air, land, and water.
• Cooperative Federalism: Rebalance the power between Washington and the states to create tangible environmental results for the American people.
• Rule of Law and Process: Administer the law, as Congress intended, to refocus the Agency on its statutory obligations under the law.
This
Environmental Protection Agency (EPA).
Notice of availability; extension of the comment period.
The U.S. Environmental Protection Agency (EPA) is announcing an extension of the public comment period by 30 days for the Notice of Intent to Establish Voluntary Criteria for Radon Credentialing Organizations.
The comment period for the Notice of Intent to Establish Voluntary Criteria for Radon Credentialing Organizations (82 FR 39993), is extended. Written comments must be received on or before November 23, 2017.
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2017–0430, to the Federal eRulemaking Portal:
Katrin Kral, EPA Office of Radiation and Indoor Air, (202) 343–9454;
The EPA published the Notice of Intent to Establish Voluntary Criteria for Radon Credentialing Organizations on August 23, 2017, in the
1.
• Identify the notice by docket number, subject heading,
• Follow directions—EPA may ask you to respond to specific questions or organize comments by including a specific reference.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow it to be reproduced.
• Illustrate your concerns with specific examples and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2017–0430. Please refer to the original
In response to requests for an extension, we are extending the public comment period through November 23, 2017. This action will provide the public additional time to provide comments.
Environmental Protection Agency (EPA).
Notice; extension of comment period.
EPA issued a notice in the
The comment period for the document published on September 6, 2017 (82 FR 42094), is extended. Comments, identified by docket identification (ID) number EPA–HQ–OPP–2016–0671, must be received on or before December 5, 2017.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2016–0671, by one of the following methods:
•
•
•
Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address:
This document extends the public comment period established in the
To submit comments, or access the docket, please follow the detailed instructions provided under
7 U.S.C. 136
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
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 November 6, 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 information will be collected by the Public Safety and Homeland Security Bureau, FCC, for review and analysis, to verify that Covered 911 Service Providers are taking reasonable measures to maintain reliable 911 service. In certain cases, based on the information included in the certifications and subsequent coordination with the provider, the Commission may require remedial action to correct vulnerabilities in a service provider's 911 network if it determines that (a) the service provider has not, in fact, adhered to the best practices incorporated in the FCC's rules, or (b) in the case of providers employing alternative measures, that those measures were not reasonably sufficient to mitigate the associated risks of failure in these key areas. The Commission delegated authority to the Bureau to review certification information and follow up with service providers as appropriate to address deficiencies revealed by the certification process.
The purpose of the collection of this information is to verify that Covered 911 Service Providers are taking reasonable measures such that their networks comply with accepted best practices, and that, in the event they are not able to certify adherence to specific best practices, that they are taking reasonable alternative measures. The Commission
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 December 4, 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 or email at
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.
Section 2.955 describes for each equipment device subject to verification, the responsible party, as shown in 47 CFR 2.909 shall maintain the records listed as follows:
(1) A record of the original design drawings and specifications and all changes that have been made that may affect compliance with the requirements of § 2.953.
(2) A record of the procedures used for production inspection and testing (if tests were performed) to insure the conformance required by § 2.953. (Statistical production line emission testing is not required.)
(3) A record of the measurements made on an appropriate test site that demonstrates compliance with the applicable regulations in this chapter. The record shall:
(i) Indicate the actual date all testing was performed;
(ii) State the name of the test laboratory, company, or individual performing the verification testing. The Commission may request additional information regarding the test site, the test equipment or the qualifications of the company or individual performing the verification tests;
(iii) Contain a description of how the device was actually tested, identifying the measurement procedure and test equipment that was used;
(iv) Contain a description of the equipment under test (EUT) and support equipment connected to, or installed within, the EUT;
(v) Identify the EUT and support equipment by trade name and model number and, if appropriate, by FCC Identifier and serial number;
(vi) Indicate the types and lengths of connecting cables used and how they were arranged or moved during testing;
(vii) Contain at least two drawings or photographs showing the test set-up for the highest line conducted emission and showing the test set-up for the highest radiated emission. These drawings or photographs must show enough detail to confirm other information contained in the test report. Any photographs used must be focused originals without glare or dark spots and must clearly show the test configuration used;
(viii) List all modifications, if any, made to the EUT by the testing company or individual to achieve compliance with the regulations in this chapter;
(ix) Include all of the data required to show compliance with the appropriate regulations in this chapter; and
(x) Contain, on the test report, the signature of the individual responsible for testing the product along with the name and signature of an official of the responsible party, as designated in § 2.909.
(4) For equipment subject to the provisions in part 15 of this chapter, the records shall indicate if the equipment was verified pursuant to the transition provisions contained in § 15.37 of this chapter.
(b) The records listed in paragraph (a) of this section shall be retained for two years after the manufacture of said equipment item has been permanently discontinued, or until the conclusion of an investigation or a proceeding if the manufacturer or importer is officially notified that an investigation or any other administrative proceeding involving his equipment has been instituted.
The Commission needs and requires the information under FCC Rules at 47 CFR parts 15 and 18, that RF equipment manufacturers (respondents) “self-determine” their responsibility for adherence to these rules, as guided by the following criteria:
(a) Whether the RF equipment device that is being marketed complies with the applicable Commission Rules; and
(b) If the operation of the equipment is consistent with the initially documented test results, as reported to the Commission.
The information collection is essential to controlling potential interference to radio communications.
(a) Companies that manufacture RF equipment are the anticipated respondents to this information collection.
(b) This respondent “public” generally remains the same, although the types of equipment devices that they manufacture may change in response to changing technologies and to new spectrum allocations made by the Commission.
(c) In addition, the Commission may establish new technical operating standards in response to these changing technologies and in allocation spectrum, which these RF equipment manufacturers must meet to receive their equipment authorization from the FCC.
(d) However, the process that RF equipment manufacturers must follow to verify their compliance, as mandated by 47 CFR 2.955 of FCC Rules, will not change despite new technical standards established for specific equipment.
This information collection, therefore, applies to a variety of equipment, which is currently manufactured in the future, and that operates under varying technical standards.
Federal Communications Commission.
Notice.
The Federal Communications Commission (Commission) has received Office of Management and Budget (OMB) approval, on an emergency basis, for a new, one-time information collection pursuant to the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number, and no person is required to respond to a collection of information unless it displays a currently valid control number. Comments concerning the accuracy of the burden estimates and any suggestions for reducing the burden should be directed to the person listed in the
Cathy Williams,
The total annual reporting burdens and costs for the respondents are as follows:
The Commission received approval from OMB for the information collection requirements contained in OMB 3060–1242 on September 27, 2017.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), announces the following meeting for the Board of Scientific Counselors, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry (BSC, NCEH/ATSDR). This meeting is open to the public, limited in the room by 60 people and 75 lines over the phone. The public is also welcome to listen to the meeting by 1–888–790–2009, passcode: 7865774, with 75 lines. The deadline for notification of attendance is November 10, 2017. The public comment period is scheduled on Wednesday, November 15, 2017 from 2:00 p.m. until 2:15 p.m.; and from 3:25 p.m. until 3:40 p.m. EST, and on Thursday, November 16, 2017 from 10:10 a.m. until 10:25 a.m. EST. Individuals wishing to make a comment during Public Comment period, please email your name, organization, and phone number by November 6, 2017 to William Cibulas at
The meeting will be held on November 15, 2017, 8:30 a.m. to 4:30 p.m., EST and November 16, 2017, 8:30 a.m. to noon, EST.
CDC, 4770 Buford Hwy., Atlanta, Georgia 30341, Building 107, Room 1A or by phone: 1–888–790–2009
Shirley Little, Program Analyst, NCEH/ATSDR, CDC, 4770 Buford Hwy., Mail Stop F–45, Atlanta, Georgia 30341, telephone (770) 488–0577;
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), National Institute for Occupational Safety and Health (NIOSH), announces the following meeting for the Mine Safety and Health Research Advisory Committee (MSHRAC). This meeting is open to the public, limited only by the limited only by the space available. The meeting room accommodates approximately 50 people. If you wish to attend in person or by phone, please contact Marie Chovanec by email at
The meeting will be held on November 15, 2017, 8:00 a.m.–3:00 p.m., Mountain Time.
Sheraton Denver West Hotel, 360 Union Boulevard, Lakewood, CO 80228 or call 412–386–5302.
Jeffrey H. Welsh, Designated Federal Officer, MSHRAC, NIOSH, CDC, 626 Cochrans Mill Road, Pittsburgh, PA 15236, telephone 412–386–4040, fax 412–386–6614.
The Director, Management Analysis and Services Office, has been delegated the authority to sign
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for KOVALTRY and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human biological product.
Anyone with knowledge that any of the dates as published (in the
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before December 4, 2017. The
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 Dockets Management Staff, 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
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301–796–3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100–670) generally provide that a patent may be
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human biological products, the testing phase begins when the exemption to permit the clinical investigations of the biological product becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human biological product and continues until FDA grants permission to market the biological product. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (for example, half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a human biological product will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(1)(B).
FDA has approved for marketing the human biologic product KOVALTRY (antihemophilic factor (recombinant)). KOVALTRY is indicated for use in adults and children with hemophilia A for: (1) On-demand treatment and control of bleeding episodes; (2) perioperative management of bleeding; and (3) routine prophylaxis to reduce the frequency of bleeding episodes. Subsequent to this approval, the USPTO received a patent term restoration application for KOVALTRY (U.S. Patent No. 5,804,420) from Bayer HealthCare LLC, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated October 14, 2016, FDA advised the USPTO that this human biological product had undergone a regulatory review period and that the approval of KOVALTRY represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for KOVALTRY is 2,478 days. Of this time, 2,021 days occurred during the testing phase of the regulatory review period, while 457 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,466 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and, under 21 CFR 60.24, ask for a redetermination (see
Submit petitions electronically to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Science Advisory Board (SAB) to the National Center for Toxicological Research (NCTR). The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. At least one portion of the meeting will be closed to the public.
The meeting will be held on November 6, 2017, from 8 a.m. to 5 p.m., and on November 7, 2017, from 8 a.m. to 11:20 a.m.
Heifer Village, One World Avenue, Little Rock, AR 72202. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
Donna Mendrick, National Center for Toxicological Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 2208, Silver Spring, MD 20993–0002, 301–796–8892, or FDA Advisory Committee Information Line, 1–800–741–8138 (301–443–0572 in the Washington, DC area). A notice in the
On November 7, 2017, the Center for Biologics and Evaluation and Research, Center for Drug Evaluation and Research, Center for Devices and Radiological Health, Center for Tobacco Products, Center for Veterinary Medicine, and the Office of Regulatory Affairs will each briefly discuss their center-specific research strategic needs and potential areas of collaboration.
Following an open discussion of all the information presented, the open session of the meeting will close so the SAB members can discuss personnel issues at NCTR at the end of each day.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Donna Mendrick at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for IMPELLA 2.5 SYSTEM and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of an application to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that medical device.
Anyone with knowledge that any of the dates as published (in the
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before December 4, 2017. The
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 Dockets Management Staff Office, 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
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301–796–3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For medical devices, the testing phase begins with a clinical investigation of the device and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the device and continues until permission to market the device is granted. Although only a portion of a regulatory review period may count toward the actual amount of extension that the Director of USPTO may award (half the testing phase must be subtracted as well as any time that may have occurred before the patent was issued), FDA's determination of the length of a regulatory review period for a medical device will include all of the testing phase and approval phase as specified in 35 U.S.C. 156(g)(3)(B).
FDA has approved for marketing the medical device IMPELLA 2.5 SYSTEM. IMPELLA 2.5 SYSTEM is indicated for temporary (≤6 hours) ventricular support during high risk percutaneous coronary interventions (PCI) performed in elective or urgent, hemodynamically stable patients with severe coronary artery disease and depressed left ventricular ejection fraction, when a heart team, including a cardiac surgeon, has determined high risk PCI is the appropriate therapeutic option. Subsequent to this approval, the USPTO received a patent term restoration application for IMPELLA 2.5 SYSTEM (U.S. Patent No. 5,911,685) from Abiomed Europe GmbH, and the USPTO requested FDA's assistance in determining this patent's eligibility for patent term restoration. In a letter dated July 12, 2016, FDA advised the USPTO that this medical device had undergone a regulatory review period and that the approval of IMPELLA 2.5 SYSTEM represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for IMPELLA 2.5 SYSTEM is 3,227 days. Of this time, 2,858 days occurred during the testing phase of the regulatory review period, while 369 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its application for patent extension, this applicant seeks 1,796 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and, under 21 CFR 60.24, ask for a redetermination (see
Submit petitions electronically to
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a guidance for industry #236 entitled “Clarification of FDA and EPA Jurisdiction Over Mosquito-Related Products.” This guidance provides information regarding regulatory oversight of mosquito-related products, defined as those articles for use in or on mosquitoes. We are clarifying circumstances under which such products are regulated by the Food and Drug Administration (FDA) as new animal drugs under the Federal Food, Drug, and Cosmetic Act (the FD&C Act) and other circumstances under which such products are regulated by the Environmental Protection Agency (EPA) as pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
The announcement of the guidance is published in the
You may submit either electronic or written comments on Agency guidances at any time 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 Dockets Management Staff, 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
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the guidance to the Policy and Regulations Staff (HFV–6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Laura R. Epstein, Center for Veterinary Medicine (HFV–1), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 301–796–8558,
In the
FDA received several comments on the draft guidance and those comments were considered as the guidance was finalized. Some comments on the draft guidance expressed confusion about how the intended use of a product can determine whether a product is a drug or a pesticide. The definition of “drug” in the FD&C Act depends upon the “intended use” of a product. A product is a drug if it is intended to do certain things (
This level 1 guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on “Clarification of FDA and EPA Jurisdiction Over Mosquito-Related Products.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations. This guidance clarifies regulatory jurisdiction and is not a significant regulatory action subject to Executive Order 12866. Because FDA is clarifying that the definition of “drug” in the FD&C Act does not include articles intended to function as pesticides by preventing, destroying, repelling, or mitigating mosquitoes for population control purposes, it is a deregulatory action on the part of FDA in that it clarifies that the manufacturers of such articles will no longer be subject to FDA's regulatory jurisdiction.
Persons with access to the internet may obtain the guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or the Agency) has determined the regulatory review period for TECFIDERA and is publishing this notice of that determination as required by law. FDA has made the determination because of the submission of applications to the Director of the U.S. Patent and Trademark Office (USPTO), Department of Commerce, for the extension of a patent which claims that human drug product.
Anyone with knowledge that any of the dates as published (in the
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before December 4, 2017. The
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 Dockets Management Staff, 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
Beverly Friedman, Office of Regulatory Policy, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6250, Silver Spring, MD 20993, 301–796–3600.
The Drug Price Competition and Patent Term Restoration Act of 1984 (Pub. L. 98–417) and the Generic Animal Drug and Patent Term Restoration Act (Pub. L. 100–670) generally provide that a patent may be extended for a period of up to 5 years so long as the patented item (human drug product, animal drug product, medical device, food additive, or color additive) was subject to regulatory review by FDA before the item was marketed. Under these acts, a product's regulatory review period forms the basis for determining the amount of extension an applicant may receive.
A regulatory review period consists of two periods of time: A testing phase and an approval phase. For human drug products, the testing phase begins when the exemption to permit the clinical investigations of the drug becomes effective and runs until the approval phase begins. The approval phase starts with the initial submission of an application to market the human drug product and continues until FDA grants
FDA has approved for marketing the human drug product TECFIDERA (dimethyl fumarate). TECFIDERA is indicated for treatment of patients with relapsing forms of multiple sclerosis. Subsequent to this approval, the USPTO received patent term restoration applications for TECFIDERA (U.S. Patent Nos. 6,509,376; 7,320,999; 7,619,001; and 7,803,840) from Biogen Idec International GmbH, and the USPTO requested FDA's assistance in determining the patents' eligibility for patent term restoration. In a letter dated November 4, 2015, FDA advised the USPTO that this human drug product had undergone a regulatory review period and that the approval of TECFIDERA represented the first permitted commercial marketing or use of the product. Thereafter, the USPTO requested that FDA determine the product's regulatory review period.
FDA has determined that the applicable regulatory review period for TECFIDERA is 2,480 days. Of this time, 2,085 days occurred during the testing phase and 395 days occurred during the approval phase. These periods of time were derived from the following dates:
1.
2.
3.
This determination of the regulatory review period establishes the maximum potential length of a patent extension. However, the USPTO applies several statutory limitations in its calculations of the actual period for patent extension. In its applications for patent extension, this applicant seeks 1,438 days, 1,144 days, 811 days, or 654 days of patent term extension.
Anyone with knowledge that any of the dates as published are incorrect may submit either electronic or written comments and, under 21 CFR 60.24, ask for a redetermination (see DATES). Furthermore, as specified in § 60.30 (21 CFR 60.30), any interested person may petition FDA for a determination regarding whether the applicant for extension acted with due diligence during the regulatory review period. To meet its burden, the petition must comply with all the requirements of § 60.30, including but not limited to: Must be timely (see DATES), must be filed in accordance with § 10.20, must contain sufficient facts to merit an FDA investigation, and must certify that a true and complete copy of the petition has been served upon the patent applicant. (See H. Rept. 857, part 1, 98th Cong., 2d sess., pp. 41–42, 1984.) Petitions should be in the format specified in 21 CFR 10.30.
Submit petitions electronically to
Food and Drug Administration, HHS.
Notice of public meeting; request for comments.
The Food and Drug Administration (FDA, the Agency, or we) is announcing a forthcoming public meeting entitled “Animal Drug User Fee Act.” The topic to be discussed is proposed recommendations for the reauthorization of the Animal Drug User Fee Act (ADUFA IV). The meeting will be open to the public.
The public meeting will be held on November 2, 2017, from 9 a.m. to 12 noon. Submit either electronic or written comments on this public meeting to the docket by November 17, 2017. See the
The public meeting will be held at 7500 Standish Pl., Room N149 (first floor), Rockville, MD 20855. Free parking is available onsite. Attendees must provide a valid government issued photo ID (driver's license, identification card, or passport) to enter the facility. Entrance for the public meeting participants (non-FDA employees) is through the front of the building where routine security check procedures will be performed.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Comments must be submitted on or before November 17, 2017.
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 Dockets Management Staff, 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
In addition to being publicly viewable at
Cassie Ravo, Center for Veterinary Medicine (HFV–10), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240–402–6866,
FDA is announcing a public meeting to discuss proposed recommendations for the reauthorization of ADUFA, which authorizes FDA to collect user fees and use them for the process of reviewing new animal drug applications and associated submissions. The authority for ADUFA expires September 30, 2018. Without new legislation, FDA will no longer have the authority to collect user fees to fund the new animal drug review process for future fiscal years. Section 740A(d)(4) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 379j–13(d)(4)) requires that, after holding negotiations with regulated industry and periodic consultations with stakeholder, and before transmitting the Agency's final recommendation to Congress for the reauthorized program (ADUFA IV), we do the following: (1) Present the recommendation to the relevant Congressional committees, (2) publish such recommendations in the
FDA considers the timely review of the safety and effectiveness of new animal drug applications (NADAs) to be central to the Agency's mission to protect and promote human and animal health. Prior to 2004, the timeliness and predictability of the new animal drug review program was a concern. The Animal Drug User Fee Act enacted in 2003 (Pub. L. 108–130; hereinafter referred to as “ADUFA I”) authorized FDA to collect user fees dedicated to the timely review of new animal drug applications in accordance with certain performance goals and to expand and modernize the new animal drug review program. The Agency agreed, under ADUFA I, to meet a comprehensive set of performance goals established to show significant improvement in the timeliness and predictability of the new animal drug review process. The implementation of ADUFA I provided a significant funding increase that enabled FDA to increase the number of staff dedicated to the new animal drug application review process by 30 percent in ADUFA I.
In 2008, before ADUFA I expired, Congress passed the Animal Drug User Fee Amendments of 2008 (Pub. L. 110–316; hereinafter referred to as “ADUFA II”) which included an extension of ADUFA for an additional 5 years (fiscal year (FY) 2009 through FY 2013). ADUFA II performance goals were established based on ADUFA I FY 2008 review time frames. In addition, FDA provided program enhancements to reduce review cycles and improve communications during reviews. The ADUFA programs have enabled FDA to meet performance timeframes for application review for new animal drugs without compromising the quality of the Agency's review.
In 2013, Congress passed the Animal Drug and Animal Generic Drug User Fee Reauthorization Act of 2013, reauthorizing ADUFA (Pub. L. 113–14; hereinafter referred to as “ADUFA III”). ADUFA II was set to expire September 30, 2013, and the new reauthorization extends ADUFA until 2018.
ADUFA III reauthorization maintained the FY 2013 review timeframes for key submissions in addition to enhancements to the program. Enhancements included: Replacing the End Review Amendment with a short, second-round review; reducing time for microbial food safety hazard characterization submissions to
Additionally, there were chemistry, manufacturing, and controls (CMC) enhancements, including: Permitting the manufacturing supplements to be resubmitted as “Supplement-Changes Being Effected in 30 Days” if deficiencies are not substantial for manufacturing supplements requiring prior approval according to 21 CFR 514.8(b); permitting comparability protocols as described in 21 CFR 514.8(b)(2)(v) to be submitted as protocols without substantial data in an investigational new animal drug (INAD) file; and developing guidance for a two-phased CMC technical section submission and review process under the INAD file. The Agency agreed to explore the feasibility of pursuing expanded conditional approvals and of modifying the current requirement that the use of multiple new animal drugs in the same medicated feed (combination medicated feed) be subject to an approved application. The reauthorization of ADUFA is targeted to generate $114,000,000 in user fees over 5 years (FY 2014 through FY 2018).
FDA has published a number of reports that provide useful background on ADUFA I, II, and III. ADUFA-related
In preparing the proposed recommendations to Congress for ADUFA reauthorization (ADUFA IV), we have conducted discussions with the regulated industry, and we have consulted with stakeholders as required by the law. We began the ADUFA reauthorization process with a public meeting held on May 16, 2016 (81 FR 23313, April 20, 2016). Following the May 2016 public meeting, FDA conducted negotiations with regulated industry and continued regular consultations with public stakeholders from October 2016 through April 2017. As directed by Congress, FDA posted minutes of these discussions on its Web site at
The proposed enhancements from ADUFA IV address many of the top priorities identified by public stakeholders, the top concerns identified by regulated industry, and the most important challenges identified within FDA. The full descriptions of these proposed recommendations can be found in the proposed ADUFA IV Performance Goals and Procedures Letter. FDA intends to publish in the
FDA will post the agenda approximately 5 days before the meeting at
Registration is free and based on space availability, with priority given to early registrants. Persons interested in attending this public meeting must register by October 26, 2017, midnight Eastern Time. Early registration is recommended because seating is limited; therefore, FDA may limit the number of participants from each organization. Registrants will receive confirmation when they have been accepted. If time and space permit, onsite registration on the day of the public meeting will be provided beginning at 8:30 a.m. We will let registrants know if registration closes before the day of the public meeting. If you need special accommodations due to a disability, please contact Cassie Ravo (see
FDA has verified the Web site addresses in this document, as of the date this document publishes in the
Food and Drug Administration, HHS.
Notice of public meeting; request for comments.
The Food and Drug Administration (FDA, the Agency, or we) is announcing the forthcoming public meeting entitled “Animal Generic Drug User Fee Act.” The topic to be discussed is proposed recommendations for the reauthorization of the Animal Generic Drug User Fee Act (AGDUFA III). The meeting will be open to the public.
The public meeting will be held on November 2, 2017, from 1 p.m. to 4 p.m. Submit either electronic or written comments on this public meeting by November 17, 2017. See the
The public meeting will be held at 7500 Standish Pl., Rm. N149 (first floor), Rockville, MD 20855. Free parking is available onsite. Attendees must provide a valid government issued photo ID (driver's license, identification card, or passport) to enter the facility. Entrance for the public meeting participants (non-FDA employees) is through the front of the building where routine security check procedures will be performed.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Comments must be submitted on or before November 17, 2017.
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 Dockets Management Staff, 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
In addition to being publicly viewable at
Cassie Ravo, Center for Veterinary Medicine (HFV–10), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855, 240–402–6866,
FDA is announcing a public meeting to discuss proposed recommendations for the reauthorization of AGDUFA, which authorizes FDA to collect user fees and use them for the process of reviewing new animal generic drug applications and associated submissions. The authority for AGDUFA expires September 30, 2018. Without new legislation, FDA will no longer have the authority to collect user fees to fund the new animal generic drug review process for future fiscal years. Section 742(d)(4) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 379j–22(d)(4)) requires that, after holding negotiations with regulated industry and periodic consultations with stakeholders, and before transmitting the Agency's final
FDA considers the timely review of abbreviated new animal drug applications (ANADAs) to be central to the Agency's mission to protect and promote human and animal health. Prior to 2009, the timeliness and predictability of the generic new animal drug review program was a concern. The Animal Generic Drug User Fee Act enacted in 2008 (Pub. L. 110–316; hereinafter referred to as “AGDUFA I”) amended the FD&C Act to authorize the FDA's first-ever generic animal drug user fee program. AGDUFA I provided FDA with additional funds to enhance the performance and predictability of the generic new animal drug review process. Furthermore, the authorization of AGDUFA I enabled FDA's continued assurance that generic new animal drug products are safe and effective.
Under AGDUFA I, FDA agreed to meet review performance goals for certain submissions over 5 years from fiscal year (FY) 2009 through FY 2013. The purpose of establishing these review performance goals was to ensure the timely review of ANADAs and reactivations, supplemental ANADAs, and generic investigational new animal drug (JINAD) submissions, and as a result FDA has been able to reduce the time for the application review process for generic new animal drugs without compromising the quality of the Agency's review.
AGDUFA I established increasingly stringent review performance goals over a 5-year period from FY 2009 through FY 2013. Based on those performance goals, in the final year of AGDUFA I (FY 2013) FDA agreed to review and act on 90 percent of the following submission types within the specified time frames:
• Original ANADAs and reactivations within 270 days after the submission date.
• Administrative ANADAs within 100 days after the submission date.
• Manufacturing supplemental ANADAs and reactivations within 270 days after the submission date.
• JINAD study submissions within 270 days after the submission date.
• JINAD protocol submissions within 100 days after submission date.
With the reauthorization of AGDUFA for an additional 5 years under AGDUFA II (FY 2014 to FY 2018), FDA agreed to further enhance and improve the review process.
The AGDUFA II reauthorization enhancements included developing Question Based Review Process for Bioequivalence Submissions and shortening review time for key submission types. Additionally, there were chemistry, manufacturing, and controls (CMC) enhancements, including: Permitting manufacturing supplements to be resubmitted as “Supplement-Changes Being Effected in 30 Days” if deficiencies are not substantial for manufacturing supplements requiring prior approval according to 21 CFR 514.8(b); permitting comparability protocols as described in 21 CFR 514.8(b)(2)(v) to be submitted as protocols without substantial data in a JINAD file; and developing guidance for a two-phased CMC technical section submission and review process under the JINAD file. Finally, the proportion of revenue collected from user fees was redistributed as follows: Application fees from 30 percent to 25 percent; product fees from 35 percent to 37.5 percent; and sponsor fees from 35 percent to 37.5 percent.
FDA has published a number of reports that provide useful background on AGDUFA I and AGDUFA II. AGDUFA-related
In preparing the proposed recommendations to Congress for AGDUFA reauthorization (AGDUFA III), we have conducted discussions with the regulated industry, and we have consulted with stakeholders as required by the law. We began the AGDUFA reauthorization process with a public meeting held on May 16, 2016 (81 FR 23311, April 20, 2016). Following the May 2016 public meeting, FDA conducted negotiations with regulated industry and continued regular consultations with public stakeholders from August 2016 through January 2017. As directed by Congress, FDA posted minutes of these discussions on its Web site at
FDA will post the agenda approximately 5 days before the meeting at
Registration is free and based on space availability, with priority given to early registrants. Persons interested in attending this public meeting must register by October 26, 2017, midnight Eastern Time. Early registration is recommended because seating is limited; therefore, FDA may limit the number of participants from each organization. Registrants will receive confirmation when they have been accepted. If time and space permit, onsite registration on the day of the public meeting will be provided beginning at 12:30 p.m. We will let registrants know if registration closes before the day of the public meeting.
If you need special accommodations due to a disability, please contact Cassie
FDA has verified the Web site addresses in this document, as of the date this document publishes in the
Food and Drug Administration, HHS.
Notice of public meeting and webcast; request for comments.
The Food and Drug Administration (FDA or Agency) is announcing a regional public meeting entitled “Health Canada and U.S. Food and Drug Administration Joint Public Consultation on International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use (ICH).” The purpose of this public meeting is to provide information and solicit public input on the current activities of ICH as well as the upcoming ICH Assembly Meeting and the Expert Working Group Meetings in Geneva, Switzerland, scheduled for November 11 through 16, 2017. The topics to be discussed are the topics for discussion at the forthcoming ICH Assembly Meeting in Geneva.
The public meeting will be held on October 19, 2017, from 9 a.m. to 12 noon Eastern Time. Submit either electronic or written comments on this public meeting by October 26, 2017. See the
The public meeting will be held at the Sir Frederick G. Banting Research Centre, 251 Sir Frederick Banting Dr., Ottawa, ON K1Y 0M1, Canada. It will also be broadcast on the web allowing participants to join in person OR via the Web.
You may submit comments as follows: Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before October 26, 2017. The
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 Dockets Management Staff, 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
Amanda Roache, Food and Drug Administration, Center for Drug Evaluation and Research, Office of Strategic Programs, 10903 New Hampshire Ave., Bldg. 51, Rm. 1176, Silver Spring MD, 20993, 301–796–4548, email:
The ICH, formerly known as the International Conference on Harmonisation, was established in 1990 as a joint regulatory/industry project to improve, through harmonization, the efficiency of the process for developing and registering new medicinal products in Europe, Japan, and the United States without compromising the regulatory obligations of safety and effectiveness. In 2015 the ICH was reformed to make the ICH a true global initiative that expands beyond the previous ICH members. More involvement from regulators around the world is expected, as they will join their counterparts from Europe, Japan, the United States, Canada, and Switzerland as ICH regulatory members. The reforms build on a 25-year track record of successful delivery of harmonized guidelines for global pharmaceutical development, and their regulation. In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote international harmonization of regulatory requirements. FDA has participated in many meetings designed to enhance harmonization and is committed to seeking scientifically based harmonized technical procedures for pharmaceutical development. One of the goals of harmonization is to identify and then reduce differences in technical requirements for medical product development among regulatory Agencies. ICH was organized to provide an opportunity for harmonization initiatives to be developed with input from both regulatory and industry representatives. The ICH process has achieved significant harmonization of the technical requirements for the approval of pharmaceuticals for human use in the ICH regions over the past two decades. The current ICH process and structure can be found at the following Web site:
If you wish to attend the meeting, please register at the following Web site:
Interested persons may present data, information, or views orally or in writing on issues pending at the public webinar. Public oral presentations will be scheduled between approximately 11:30 a.m. and 12 noon. Time allotted for oral presentations may be limited to 5 minutes. Those desiring to make oral presentations should notify Amanda Roache (see
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
In compliance with the Paperwork Reduction Act of 1995, HRSA has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review
Comments on this ICR should be received no later than November 6, 2017.
Submit your comments, including the ICR Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email Lisa Wright-Solomon, the HRSA Information Collection Clearance Officer at
When submitting comments or requesting information, please include the information request collection title for reference, in compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995.
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the Paperwork Reduction Act of 1995, HRSA has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR must be received no later than November 6, 2017.
Submit your comments, including the Information Collection Request Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email Lisa Wright-Solomon, the HRSA Information Collection Clearance Officer at
When submitting comments or requesting information, please include the information request collection title for reference, in compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995.
Office of Disease Prevention and Health Promotion, Office of the Secretary, U.S. Department of Health and Human Services.
Notice.
The Office of Disease Prevention and Health Promotion (ODPHP) is hosting a listening session titled, “Partnering to Prevent Hypoglycemia.” The purpose of this
The public listening session will be held on November 1, 2017, from 9:00 a.m. to 4:00 p.m. EDT.
The meeting will only be accessible by attendance in-person. For in-person participants, the meeting will take place in the Hubert H. Humphrey Building, Room 800, 200 Independence Ave. SW., Washington, DC 20201.
Ndome Essoka, Health Policy Fellow, Office of Disease Prevention and Health Promotion, Office of the Assistant Secretary for Health, U.S. Department of Health and Human Services, 1101 Wootton Parkway, Suite LL100, Rockville, MD 20852, phone: 240–453–8217, email:
In September 2012, in response to heightened awareness of the contribution of adverse drug events (ADEs) to the burden of health care-related harm and costs, the Office of the Assistant Secretary for Health (OASH) marshaled the wide-ranging and diverse resources of federal partners to form an extensive interagency partnership, the Federal Interagency Steering Committee and Workgroups for Adverse Drug Events, whose goals would be to develop the ADE Action Plan, as well as identify measures to track national progress in reducing ADEs and targets to meet based on those measures.
ODPHP, in conjunction with the Federal Interagency Steering Committee and three Federal Interagency Workgroups, developed and released the final ADE Action Plan in 2014. The ADE Action Plan seeks to engage all stakeholders in coordinated efforts to reduce ADEs that are not only clinically significant but largely preventable. Inpatient and outpatient use of anticoagulants, diabetes agents, and opioid analgesics (with specific focus on ADEs from therapeutic use of opioids) contribute to the reason why ADEs account for the greatest number of measurable harms. The ADE Action Plan identifies the federal government's highest priority strategies and opportunities for advancement, which will have the greatest impact on reducing ADEs. Implementation of these strategies is expected to result in safer and higher quality health care services, reduced health care costs, informed and engaged consumers and, ultimately, improved health outcomes. For more information on the ADE Action Plan, visit
Assistant Secretary for Planning and Evaluation, HHS.
Notice of meeting.
This notice announces the public meeting of the Advisory Council on Alzheimer's Research, Care, and Services (Advisory Council). The Advisory Council on Alzheimer's Research, Care, and Services provides advice on how to prevent or reduce the burden of Alzheimer's disease and related dementias on people with the disease and their caregivers. During the October meeting, the Advisory Council will welcome its new members and invite them to share their experiences and where they see the Council going over the length of their terms. The Advisory Council will also spend some time discussing the process of developing recommendations and how those recommendations relate to the National Plan. The Council will then spend much of the meeting discussing the National Research Summit on Care, Services, and Supports for Persons with Dementia and Their Caregivers, held on October 16–17.
The meeting will be held on October 27, 2017 from 9:00 a.m. to 5:00 p.m. EDT.
The meeting will be held in Room 800 in the Hubert H. Humphrey Building, 200 Independence Avenue SW., Washington, DC 20201.
Rohini Khillan (202) 690–5932,
Notice of these meetings is given under the Federal Advisory Committee Act (5 U.S.C. App. 2, section 10(a)(1) and (a)(2)).
Office of Minority Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The Department of Health and Human Services (HHS), Office of Minority Health (OMH), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Minority Health (hereafter referred to as the “Committee or ACMH”). In accordance with Public Law 105–392, the Committee provides advice to the Deputy Assistant Secretary for Minority Health on improving the health of racial and ethnic minority groups, and on the development of goals and specific program activities of OMH designed to improve the health status and outcomes of racial and ethnic minorities. Nominations of qualified candidates are being sought to fill vacancies on the Committee.
Nominations for membership on the Committee must be received no later than 5:00 p.m. EST on January 3, 2018, at the address listed below.
All nominations should be mailed to Dr. Minh Wendt, Designated Federal Officer, Advisory Committee on Minority Health, Office of Minority Health, Department of Health and Human Services, 1101 Wootton Parkway, Suite 600, Rockville, MD 20852.
Dr. Minh Wendt, Designated Federal Officer, Advisory Committee on Minority Health, Office of Minority Health, Department of Health and Human Services, Tower Building, 1101 Wootton Parkway, Suite 600, Rockville, Maryland 20852. Phone: 240–453–8222; fax: 240–453–8223.
A copy of the ACMH charter and list of the current membership can be obtained by contacting Dr. Wendt or by accessing the Web site managed by OMH at
Pursuant to Public Law 105–392, the Secretary of Health and Human Services established the ACMH. The Committee provides advice to the Deputy Assistant Secretary for Minority Health in carrying out the duties stipulated under Public Law 105–392. This includes providing advice on improving the health of racial and ethnic minority populations and in the development of goals and specific program activities of OMH, which are to:
(1) Establish short-range and long-range goals and objectives and coordinate all other activities within the Public Health Service that relate to disease prevention, health promotion, service delivery, and research impacting racial and ethnic minority populations;
(2) Enter into interagency agreements with other agencies of the Public Health Service;
(3) Support research, demonstrations, and evaluations to test new and innovative models;
(4) Increase knowledge and understanding of health risk factors;
(5) Develop mechanisms that support better information dissemination, education, prevention, and service delivery to individuals from disadvantaged backgrounds, including individuals who are members of racial or ethnic minority groups;
(6) Ensure that the National Center for Health Statistics collects data on the health status of each minority group;
(7) Enter into contracts with public and non-profit private providers of primary health services for the purpose of increasing the access of individuals who lack proficiency in speaking the English language by developing and carrying out programs to provide bilingual or interpretive services;
(8) Support a national minority health resource center which provides resources to the public such as information services and assistance in capacity building;
(9) Carry out programs to improve access to health care services for individuals with limited proficiency in speaking the English language; and
(10) Advise in matters related to the development, implementation, and evaluation of health professions education in decreasing disparities in health care outcomes, including cultural competency as a method of eliminating health disparities.
Management and support services for the ACMH are provided by OMH.
There are a total of four impending vacancies on the Committee: Three vacancies on the ACMH that impact the representation for the health interests of Hispanics/Latinos and one vacancy that impacts the representation of Asian Americans, Native Hawaiians, and other Pacific Islanders. OMH is particularly seeking nominations for individuals who can represent the health interests of these racial and ethnic minority groups. Nominations that are received for individuals to represent other racial and ethnic minority groups also will be accepted. These applications will be retained in files that are maintained by OMH on potential candidates to be considered for the ACMH.
(1) Expertise in developing or contributing to the development of science-based or evidence-based health policies and/or programs. This expertise may include experience in the analysis, evaluation, and interpretation of federal/state health or regulatory policy;
(2) Involvement in national, state, regional, tribal, and/or local efforts to improve the health status or outcomes among racial and ethnic minority populations;
(3) Educational achievement, professional certification(s) in health-related fields (
(4) Expertise in population level health data for racial and ethnic minority groups. This expertise may include survey, administrative, and/or clinical data;
(5) Knowledge and experience in health care systems, cultural and linguistic competency, social determinants of health, evidence-based research, data collection (
(6) Nationally recognized via peer-reviewed publications, professional awards, advanced credentials, or involvement in national professional organizations.
Individuals selected for appointment to the Committee shall be invited to serve a four-year term. Committee members will receive a stipend for attending Committee meetings and conducting other business in the interest of the Committee, including per diem and reimbursement for travel expenses incurred.
The Department makes every effort to ensure that the membership of a HHS federal advisory committee 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, gender, racial and ethnic and minority groups, and the disabled are given consideration for membership on HHS federal advisory committees. Appointment to this Committee shall be made without discrimination because of a person's race, color, religion, sex (including pregnancy), national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of ACMH and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee; therefore, individuals selected for nomination will be required to provide detailed information concerning such matters as financial holdings, consultancies, and research grants or contracts to permit evaluation of possible sources of conflict of interest.
Individuals selected to serve on the ACMH through the nomination process will be posted on the OMH Web site once selections have been made.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, 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, 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, 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.
Notice is hereby given of a change in the meeting of the National Cancer Institute Special Emphasis Panel, November 07, 2017, 2:00 p.m. to November 08, 2017, 6:00 p.m., Bethesda North Marriott Hotel & Conference Center, Montgomery County Conference Center Facility, 5701 Marinelli Road, North Bethesda, MD, 20852 which was published in the
This meeting notice is amended to change the meeting location to the DoubleTree Hotel Bethesda, 8120 Wisconsin Avenue, Bethesda, MD 20814. The meeting is closed to the public.
Coast Guard, DHS.
Solicitation for membership.
This notice requests individuals interested in serving on the Area Maritime Security Committee (AMSC), Eastern Great Lakes, and the four regional sub-committees: Northeast Ohio Region, Northwestern Pennsylvania Region, Western New York Region, and Eastern New York Region submit their applications for membership to the Federal Maritime Security Coordinator (FMSC), Buffalo. The Committee assists the FMSC, Buffalo, in developing, reviewing, and updating the Area Maritime Security Plan for their area of responsibility.
Requests for membership should reach the FMSC, Buffalo, on November 6, 2017.
Applications for membership should be submitted to the following address: Federal Maritime Security Coordinator, Buffalo, Attention: CDR Karen Jones, 1 Fuhrmann Boulevard, Buffalo, NY 14203–3189.
For questions about submitting an application, or about the AMSC in general, contact:
For the Northeast Ohio Region Sub-Committee Executive Coordinator: Mr. Peter Killmer at 216–937–0136.
For the Northwestern Pennsylvania Region Sub-Committee Executive Coordinator: Mr. Joseph Fetscher at 216–937–0126.
For the Western New York Region Sub-Committee Executive Coordinator: Mr. Shawn Larrabee at 716–843–9549.
For the Eastern New York Region Sub-Committee Executive Coordinator: Mr. Ralph Kring at 315–343–1217.
Section 102 of the Maritime Transportation Security Act (MTSA) of 2002 (Pub. L. 107–295) added section 70112 to Title 46 of the U.S. Code, and authorized the Secretary of the Department in which the Coast Guard is operating to establish Area Maritime Security Advisory Committees for any port area of the United States. (See 33 U.S.C. 1226; 46 U.S.C.; 33 CFR 1.05–1, 6.01; Department of Homeland Security Delegation No. 0170.1). The MTSA includes a provision exempting these AMSCs from the Federal Advisory Committee Act (FACA), Public Law 92–436, 86 Stat. 470 (5 U.S.C. App.2). The AMSCs shall assist the FMSC in the development, review, update, and exercising of the Area Maritime Security Plan for their area of responsibility. Such matters may include, but are not limited to: Identifying critical port infrastructure and operations; identifying risks (threats, vulnerabilities, and consequences); determining mitigation strategies and implementation methods; developing and describing the process to continually evaluate overall port security by considering consequences and vulnerabilities, how they may change over time, and what additional mitigation strategies can be applied; and providing advice to, and assisting the FMSC in developing and maintaining the Area Maritime Security Plan.
Members of the AMSC should have at least five years of expertise related to maritime or port security operations. We are seeking to fill the following vacancies with this submission:
(A) Northeast Ohio Region Sub-Committee (no new members): No applications are being taken for this Sub-Committee at this time.
(B) Northwestern Pennsylvania Region Sub-Committee (no new members): No applications are being taken for this Sub-Committee at this time.
(C) Western New York Region Sub-Committee (1 member): Executive Board member to serve as Chairperson of the Sub-Committee and concurrently as member of the Eastern Great Lakes AMSC when so convened by the FMSC.
(D) Eastern New York Region Sub-Committee (1 member): Executive Board member to serve as Vice Chairperson of the Sub-Committee and concurrently as member of the Eastern Great Lakes AMSC when so convened by the FMSC.
Applicants may be required to pass an appropriate security background check prior to appointment to the Committee. Applicants must register with and remain active as Coast Guard HOMEPORT users if appointed. Members' terms of office will be for five years; however, a member is eligible to serve additional terms of office. Members will not receive any salary or other compensation for their service on an AMSC. In accordance with 33 CFR 103, members may be selected from the Federal, Territorial, or Tribal governments; the State government and political subdivisions of the State; local public safety, crisis management, and emergency response agencies; law enforcement and security organizations; maritime industry, including labor; other port stakeholders having a special competence in maritime security; and port stakeholders affected by security practices and policies.
The Department of Homeland Security does not discriminate in selection of Committee members on the basis of race, color, religion, sex, national origin, political affiliation, sexual orientation, gender identity, marital status, disability and genetic information, age, membership in an employee organization, or any other non-merit factor. The Department of Homeland Security strives to achieve a widely diverse candidate pool for all of its recruitment actions.
Those seeking membership are not required to submit formal applications
On the basis of the record
The Commission, pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)), instituted this review on April 3, 2017 (82 FR 16229) and determined on July 7, 2017 that it would conduct an expedited review (82 FR 37112, August 8, 2017).
The Commission made this determination pursuant to section 751(c) of the Act (19 U.S.C. 1675(c)). It completed and filed its determination in this review on September 29, 2017. The views of the Commission are contained in USITC Publication 4729 (September 2017), entitled
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to review in part the final initial determination (“final ID”) issued by the presiding administrative law judge (“ALJ”) on June 30, 2017, finding in part a violation of section 337 of the Tariff Act of 1930, in the above-captioned investigation. The Commission has also determined to deny the motion filed on August 1, 2017, to amend the administrative protective order. The Commission requests certain briefing from the parties on the issues under review, as indicated in this notice. The Commission also requests briefing from the parties and interested persons on the issues of remedy, the public interest, and bonding.
Sidney A. Rosenzweig, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–2532. 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 June 24, 2016, based on a complaint filed on behalf of Tessera Technologies, Inc.; Tessera, Inc.; and Invensas Corporation, all of San Jose, California (collectively, “Tessera”). 81 FR 41344 (Jun. 24, 2016). The complaint alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, by reason of infringement of certain claims of U.S. Patent No. 6,856,007 (“the '007 patent”); U.S. Patent No. 6,849,946 (“the '946 patent”); and U.S. Patent No. 6,133,136 (“the '136 patent”). The complaint further alleged that a domestic industry exists. The Commission's notice of investigation named 24 respondents. Those respondents are Broadcom Limited of Singapore and Broadcom Corporation of Irvine, California (collectively, “Broadcom”), and 22 manufacturers and importers of products containing Broadcom's semiconductor devices: Avago Technologies Limited of Singapore, and Avago Technologies U.S. Inc. of San Jose, California (collectively, “Avago”); Arista Networks, Inc. of Santa Clara, California; ARRIS International plc, ARRIS Group, Inc., ARRIS Solutions, Inc., ARRIS Enterprises, and Pace Ltd., all of Suwanee, Georgia, as well as Pace Americas LLC and Pace USA LLC, both of Boca Raton, Florida, and ARRIS Technology, Inc. of Horsham, Pennsylvania (collectively, “ARRIS”); ASUSTek Computer, Inc. of Taipei, Taiwan, and ASUS Computer International of Fremont, California (collectively, “ASUS”); Comcast Cable Communications, LLC, Comcast Cable Communications Management, LLC, and Comcast Business Communications, LLC, each of Philadelphia, Pennsylvania (collectively, “Comcast”); HTC Corporation of Taoyuan, Taiwan and HTC America Inc. of Bellevue, Washington (collectively, “HTC”); NETGEAR, Inc. of San Jose, California; Technicolor S.A. of Issy-Les-Moulineaux, France, as well as Technicolor USA, Inc. and Technicolor Connected Home USA LLC, both of Indianapolis, Indiana (collectively, “Technicolor”). The Office of Unfair Import Investigations is not participating in the investigation.
On June 30, 2017, the presiding administrative law judge issued the final ID. The final ID finds a violation of section 337 as to claims 16, 17, 20, and 22 of the '946 patent. ID at 262. The final ID finds that for claims 1, 2, 11, 12, 16, 24–26, and 34 of the '136 patent, the claims are infringed and not invalid, but that the existence of a domestic industry was not shown.
On July 17, 2017, Tessera and the respondents each filed a petition for Commission review of the ID. On July 25, 2017, each responded to the other's petition. In addition, Tessera, Broadcom, Comcast, Arista, ARRIS, ASUS, HTC, Netgear, and Technicolor each filed statements on the public interest. A number of public interest submissions were submitted by the public. In particular, the Commission received submissions from: Rep. Susan Brooks (R–IN); Rep. Tony Cardenas (D–CA); Rep. Darrell Issa (R–CA); Rep. Doug Lamborn (R–CO); Rep. Edward Royce (R–CA); Rep. Mimi Walters (R–CA); Rep. Rod Woodall (R–GA); Under Armour, Inc.; Sprint Spectrum LLC; Cable Television Laboratories, Inc.; Public Knowledge and the Open Technology Institute at New America; the Multimedia over Coax Alliance; the WiFi Alliance; and the Innovation Alliance.
On August 1, 2017, the respondents moved to modify the administrative protective order (“APO”) issued in this investigation (Order No. 1 as modified by Order Nos. 38 and 42). The Commission has determined to deny that motion, and to deny the respondents' motion to file a reply. As the Commission recently reiterated, a supplier of confidential business information “may consent to the disclosure of their confidential business information to persons other than those qualified under the protective order to receive confidential business information.
Having reviewed the record of the investigation, including the ALJ's orders and the final ID, as well as the parties' petitions and responses thereto, the Commission has determined to review the final ID in part.
As to the '007 patent, the Commission has determined as follows. The Commission has determined to review, and on review, to take no position on the economic prong of the domestic industry requirement, and infringement of claim 18. The Commission has determined not to review the remainder of the ID as to the '007 patent, including the ID's findings concerning anticipation by, or obviousness over, the prior art.
As to the '946 patent and '136 patent, the Commission has determined not to review the ID's findings concerning the level of skill in the art. The Commission has determined to review all other issues for the '946 patent and the '136 patent.
In connection with the Commission's review, the Commission will rely upon the issues and arguments presented in the parties' petitions and responses thereto. The Commission notes that “[a]ny issue not raised in a petition for review will be deemed to have been abandoned by the petitioning party and may be disregarded by the Commission in reviewing the initial determination.” 19 CFR 210.43(b)(2).
The parties are asked to provide additional briefing on the following issues, with reference to the applicable law and the existing evidentiary record. For each argument presented, the parties' submissions should set forth whether and/or how that argument was presented and preserved in the proceedings before the ALJ, in conformity with the ALJ's Ground Rules (Order No. 2), with citations to the record.
a. For the '946 patent, with regard to the construction of “trench(es)”:
i. Please explain the meaning of the claim term “trench(es)” to persons skilled in the art in view of the intrinsic evidence of the `946 patent. In the context of the '946 patent, does the claim term “trench(es)” describe a specific shape-related property, such as elongated? Please discuss the relevance, if any, of
ii. Please explain the relevance, if any, of the definition of “trench” in the Applied Materials Glossary as a “groove etched in a wafer to be used as part of a device structure.” Applied Materials Glossary,
iii. If the Commission were to construe “trench” as “a long, narrow ditch,” or as a “groove etched in a wafer to be used as part of a device structure,” please explain whether any accused products or domestic industry products (and if so, specifically identify which) literally infringe or practice the asserted claims, and why. Under those same constructions, please explain whether any accused products or domestic industry products (and if so, specifically identify which), infringe or practice the asserted claims under the doctrine of equivalents, and why.
b. With regard to the ALJ's decision to allow Tessera to rely upon GDS files to demonstrate infringement of the '946 patent, please explain how, if at all, the respondents were prejudiced by that decision. Please identify the evidence or arguments proffered in proceedings before the ALJ or in their petition for Commission review by the respondents in support of that alleged prejudice.
c. For the '946 patent, in connection with the IBM PowerPC 750, please explain:
i. The relevance, if any, of the die markings on the chips examined in the ICE report (RX–668) and the SI Report (RX–0499C).
ii. Whether the IBM PowerPC 750 anticipates the asserted dependent claims under the ID's construction of “trench.”
d. With regard to the exhaustion issue for the '946 patent:
i. Please explain whether the accused features (including dummy trenches and dummy conductors) were part of a design supplied by Broadcom to [CBI REDACTED] or were added by [CBI REDACTED] itself, and the resulting implications for the Commission's analysis of [CBI REDACTED] in ¶ 14 of JX–501C. If the accused features (including dummy trenches and dummy conductors) were part of a design supplied by Broadcom to [CBI REDACTED], please also explain whether such features were inserted into the design with [CBI REDACTED] in ¶ 14 of JX–501C.
ii. Please discuss the relevant law of exhaustion and first sale as it applies to the relationship between a fabless semiconductor company (Broadcom) and a fabricator [CBI REDACTED] who manufactures the fabless company's own chips. Please address the specific provisions of the pertinent agreement, and the relationship between those provisions and the law of exhaustion
e. With regard to infringement of the '136 patent, please explain whether Broadcom or its fabricators produced documentary evidence that demonstrates the cross-sectional structure of the accused interconnect structures in all of the accused products, including the locations of the layer of copper, barrier layer, layer of AlCu, and pad-limiting layer of claim 1 and the layer of copper, layer of isolation, barrier layer, layer of AlCu, and pad limiting layer of claim 11. To the extent that such evidence does not exist in this field of technology, please explain. To the extent that it does exist and was not produced, please explain. To the extent that it does exist and is part of the record of this investigation, please explain its pertinence, if any, to the ID's findings concerning infringement.
f. For the '136 patent, please explain whether each of the asserted claims is obvious over Crostini claim 1, under the relevant law for double patenting, if the Commission finds that “the claimed structure solder 38 is formed directly atop the AI contact” statement constitutes clear prosecution disavowal.
g. With regard to the exhaustion issue for the '136 patent:
i. Please explain whether, on or before May 23, 2016 (the date the complaint was filed in the instant Commission investigation), the party alleged to be licensed to the '136 patent was an [CBI REDACTED] as defined in section 5 of CX–943C (TSRA1010–00004931).
ii. Please discuss the relevant law of exhaustion and first sale as it applies to the relationship between a fabless semiconductor company (Broadcom) and a company [CBI REDACTED] who provides outsourced semiconductor assembly and testing for the fabless company's own chips. Please also discuss the relevance, if any, the Federal Circuit decision in
In connection with the final disposition of this investigation, the Commission may (1) issue an order that could result in the exclusion of the subject articles from entry into the United States, and/or (2) issue one or more cease and desist orders that could result in the respondent(s) being required to cease and desist from engaging in unfair acts in the importation and sale of such articles. Accordingly, the Commission is interested in receiving written submissions that address the form of remedy, if any, that should be ordered. If a party seeks exclusion of an article from entry into the United States for purposes other than entry for consumption, the party should so indicate and provide information establishing that activities involving other types of entry either are adversely affecting it or likely to do so. For background, see
If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest. The factors the Commission will consider include the effect that an exclusion order and/or cease and desist orders would have on (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation. Public interest submissions should be mindful of the ALJ's statement that the “parties have made no effort in their briefing to classify the 2,800 accused products in a way that would rationalize different treatment for different categories of products.” ID at 258. The Commission wishes to develop the record, as to,
(1) Which specific products of the respondents most directly implicate the Commission's public interest factors?
(2) How are the Commission's public interest factors implicated on a patent-claim-by-patent-claim basis for the asserted claims of the '946 patent and the '136 patent?
(3) How, if at all, may public interest concerns be accommodated by the tailoring of any remedial orders, including delaying the implementation of any Commission remedial orders as to specific products for a specific period of time?
Any person asserting that the public interest should be accommodated by tailoring any Commission remedial order as to a subset of the accused products (
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve or disapprove the Commission's action.
The parties' submissions on the issues under review should not exceed 60 pages per side. Reply submissions on the issues under review should not exceed 40 pages per side. The respondents may allocate the page limits for the issues under review amongst themselves as they see fit. The page limits above are exclusive to exhibits, but parties are not to circumvent the page limits by incorporating material by reference from the exhibits or from the record.
The parties' opening and reply submissions on the issues of remedy, the public interest and bonding are to be
Written submissions by the parties and the public must be filed no later than close of business on Friday, October 13, 2017. Reply submissions by the parties and the public must be filed no later than the close of business on Monday, October 23, 2017. No further submissions will be permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the investigation number (“Inv. No. 337–TA–1010”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of the final phase of antidumping and countervailing duty investigation Nos. 701–TA–576–577 and 731–TA–1362–1367 (Final) pursuant to the Tariff Act of 1930 (“the Act”) to determine whether an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports of cold-drawn mechanical tubing from China, Germany, India, Italy, Korea, and Switzerland, provided for in subheadings 7304.31.30, 7304.31.60, 7304.51.10, 7304.51.50, 7306.30.50, and 7306.50.50 of the Harmonized Tariff Schedule of the United States, preliminarily determined by the Department of Commerce to be subsidized by the Governments of China and India. Determinations with respect to imports of cold-drawn mechanical tubing alleged to be sold at less than fair value are pending.
September 25, 2017.
Keysha Martinez (202–205–2136), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its internet server (
Subject cold-drawn mechanical tubing is typically certified to meet industry specifications for cold-drawn tubing including but not limited to:
(1) American Society for Testing and Materials (ASTM) or American Society of Mechanical Engineers (ASME) specifications ASTM A–512, ASTM A–513 Type 3 (ASME SA513 Type 3), ASTM A–513 Type 4 (ASME SA513 Type 4), ASTM A–513 Type 5 (ASME SA513 Type 5), ASTM A–513 Type 6
(2) SAE International (Society of Automotive Engineers) specifications SAE J524, SAE J525, SAE J2833, SAE J2614, SAE J2467, SAE J2435, SAE J2613;
(3) Aerospace Material Specification (AMS) AMS T–6736 (AMS 6736), AMS 6371, AMS 5050, AMS 5075, AMS 5062, AMS 6360, AMS 6361, AMS 6362, AMS 6371, AMS 6372, AMS 6374, AMS 6381, AMS 6415;
(4) United States Military Standards (MIL) MIL–T–5066 and MIL–T–6736;
(5) foreign standards equivalent to one of the previously listed ASTM, ASME, SAE, AMS or MIL specifications including but not limited to:
(a) German Institute for Standardization (DIN) specifications DIN 2391–2, DIN 2393–2, DIN 2394–2);
(b) European Standards (EN) EN 10305–1, EN 10305–2, EN 10305–4, EN 10305–6 and European national variations on those standards (
(c) Japanese Industrial Standard (JIS) JIS G 3441 and JIS G 3445; and
(6) proprietary standards that are based on one of the above-listed standards.
The subject cold-drawn mechanical tubing may also be dual or multiple certified to more than one standard. Pipe that is multiple certified as cold-drawn mechanical tubing and to other specifications not covered by this scope, is also covered by the scope of this investigation when it meets the physical description set forth above.
Steel products included in the scope of this investigation are products in which:
(1) Iron predominates, by weight, over each of the other contained elements; and
(2) the carbon content is 2 percent or less by weight.
For purposes of this scope, the place of cold-drawing determines the country of origin of the subject merchandise. Subject merchandise that is subject to minor working in a third country that occurs after drawing in one of the subject countries including, but not limited to, heat treatment, cutting to length, straightening, nondestruction testing, deburring or chamfering, remains within the scope of the investigation.
All products that meet the written physical description are within the scope of this investigation unless specifically excluded or covered by the scope of an existing order. Merchandise that meets the physical description of cold-drawn mechanical tubing above is within the scope of the investigation even if it is also dual or multiple certified to an otherwise excluded specification listed below. The following products are outside of, and/or specifically excluded from, the scope of this investigation:
(1) Cold-drawn stainless steel tubing, containing 10.5 percent or more of chromium by weight and not more than 1.2 percent of carbon by weight;
(2) products certified to one or more of the ASTM, ASME or American Petroleum Institute (API) specifications listed below:
• ASTM A–53;
• ASTM A–106;
• ASTM A–179 (ASME SA 179);
• ASTM A–192 (ASME SA 192);
• ASTM A–209 (ASME SA 209);
• ASTM A–210 (ASME SA 210);
• ASTM A–213 (ASME SA 213);
• ASTM A–334 (ASME SA 334);
• ASTM A–423 (ASME SA 423);
• ASTM A–498;
• ASTM A–496 (ASME SA 496);
• ASTM A–199;
• ASTM A–500;
• ASTM A–556;
• ASTM A–565;
• API 5L; and
• API 5CT
The products subject to the investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.31.3000, 7304.31.6050, 7304.51.1000, 7304.51.5005, 7304.51.5060, 7306.30.5015, 7306.30.5020, 7306.50.5030. Subject merchandise may also enter under numbers 7306.30.1000 and 7306.50.1000. The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the investigation is dispositive.
For further information concerning the conduct of this phase of the investigations, hearing procedures, and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of expedited reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty orders on stainless steel butt-weld pipe fittings from Italy, Malaysia, and the Philippines would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
September 5, 2017.
Amanda Lawrence (202–205–3185), Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202–205–1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202–205–2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
On February 7, 2017, the Assistant Administrator, Diversion Control Division, Drug Enforcement Administration (DEA), issued an Order to Show Cause to Warren B. Dailey, M.D. (Registrant), of Houston, Texas. The Show Cause Order proposed the revocation of Registrant's DEA Certificate of Registration, pursuant to 21 U.S.C. 824(a)(3) and (5), on two grounds: (1) That he does not have authority to handle controlled substances in Texas, the State in which he is registered with the Agency; and (2) he has been excluded from participation in a program pursuant to section 1320a–7(a) of Title 42. GX 2 (Order to Show Cause), at 1.
With respect to the Agency's jurisdiction, the Show Cause Order alleged that Registrant is registered as a practitioner in schedules II through V, under Certificate of Registration No. AD9639038, at the registered address of 2305 Southmore, Houston, Texas.
As to the substantive grounds for the proceeding, the Show Cause Order specifically alleged that “[o]n October 12, 2016, the Texas Medical Board issued an Order of Suspension by Operation of Law, suspending [Registrant's] Texas Medical License . . . based on [his] felony conviction on March 30, 2016 . . . for health care fraud.”
The Show Cause Order also alleged that on December 30, 2016, the Office of Inspector General, U.S. Department of Health and Human Services (HHS IG), issued a letter to Registrant “excluding [him] from participation in all Federal health care programs based on [his] felony conviction on March 30, 2016, in the U.S. District Court for the Southern District of Texas for health care fraud.”
The Show Cause Order notified Registrant of his right to request a hearing on the allegations, or to submit a written statement in lieu of a hearing, the procedure for electing either option, and the consequence for failing to elect either option.
On February 7, 2017, the Show Cause Order was mailed to Registrant, via first class mail, addressed to him at his registered address at 2305 Southmore, Houston, Texas. GX 5. Affidavit of Service by DEA Analyst, Office of Chief Counsel. Also, on February 21, 2016, a Diversion Investigator (DI) with the Houston Division Office emailed the Show Cause Order to an attorney, who represented Registrant in the state board proceeding, who accepted service on his behalf. GX 4. In his email, the attorney represented that he was “accepting service upon” Registrant.
On April 6, 2017 the Government forwarded a Request for Final Agency Action (RFAA) and an evidentiary record to my Office. On review, I found the Government's attempts at service insufficient. As for the Government's attempt to serve Registrant by mail addressed to his registered address, I found this inadequate because it clearly knew that Registrant had been convicted of multiple federal felony offenses more than a year earlier and was likely incarcerated in a United States Penitentiary.
I also found the Government's service on the attorney insufficient. In holding so, I explained that the CSA states that “[b]efore taking action pursuant to [21 U.S.C. 824(a)] . . . the Attorney General
I further explained that while an attorney's authority to act as an agent for the acceptance of process “may be implied from surrounding circumstances indicating the intent of” his client,
Thereafter, the Government reissued the Show Cause Order and on July 17, 2017, a Diversion Investigator mailed the Order by certified mail addressed to Respondent, at the United States Penitentiary in Beaumont, Texas.
On September 20, 2017, the Government submitted a new Request for Final Agency Action. (Hereinafter, cited as RFFA). Therein, the Government represents that “Registrant has not requested a hearing and has not otherwise corresponded or communicated with DEA regarding the Reissued Order served on him, including the filing of any written statement in lieu of a hearing.” RFAA, at 2.
Because more than 30 days have now passed since the date of service of the Show Cause Order and that Registrant has not submitted a request for a hearing or a written statement, I find that Registrant has waived his right to a hearing or to submit a written statement in lieu of a hearing. 21 CFR 1301.43(d). I therefore issue this Decision and Final Order based on relevant evidence contained in the record submitted by the Government.
Registrant is the holder of DEA Certificate of Registration No. AD9639038, pursuant to which he is authorized to dispense controlled substances in schedules II through V as a practitioner, at the registered address of 2305 Southmore, Houston, Texas. GX 1 (Certification of Registration History). He is also authorized to dispense Suboxone and Subutex as a Data-Waiver practitioner pursuant to the Drug Addiction Treatment Act of 2000 (DATA), for the purpose of treating up to 100 opiate-addicted patients.
On October 12, 2016, the Texas Medical Board (Board) issued an Order of Suspension by Operation of Law, suspending Registrant's Texas Medical License No. F–8454, based on Registrant's felony conviction on March 30, 2016 for health care fraud in the U.S. District Court for the Southern District of Texas.
The Government provided evidence that the Texas Medical Board Web site shows that Registrant's medical license remained suspended as of September 20, 2017, and according to the Board's Web site, his license remains suspended as of the date of this Decision and Order. GX 9.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of Title 21, “upon a finding that the registrant . . . has had his State license . . . suspended [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, DEA has long held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a registration.
This rule derives from the text of two provisions of the CSA. First, Congress defined “the term `practitioner' [to] mean[] a . . . physician . . . or other person licensed, registered or otherwise permitted, by . . . the jurisdiction in which he practices . . . to distribute, dispense, [or] administer . . . a controlled substance in the course of professional practice.” 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that “[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . . controlled substances under the laws of the State in which he practices.”
Because Registrant is no longer currently authorized to dispense controlled substances in Texas, the State in which he is registered with the Agency, I will order that his registration be revoked.
Pursuant to the authority vested in me by 21 U.S.C. 824(a), as well as 28 CFR 0.100(b), I order that DEA Certificate of Registration AD9639038 and Data-Waiver Identification No. XD9639038, issued to Warren B. Dailey, M.D., be, and they hereby are, revoked. Pursuant to the authority vested in me by 21 U.S.C. 823(f), I further order that any pending application of Warren B. Dailey, M.D., to renew or modify his registration, be, and it hereby is, denied. This Order is effective November 6, 2017.
On March 13, 2017, the Assistant Administrator, Diversion Control Division, issued an Order to Show Cause to William J. O'Brien, III, D.O. (Respondent), formerly of Levittown, Pennsylvania. The Show Cause Order proposed the revocation of Respondent's DEA Certificate of Registration pursuant to 21 U.S.C. 824(a)(2), on the ground that he “ha[s] been convicted of a felony relating to controlled substances.” Show Cause Order, at 1.
As to the Agency's jurisdiction, the Show Cause Order alleged that Respondent is registered as a practitioner in schedules II through V, under Registration No. BO3937781, at the address of 49 Rolling Lane, Levittown, Pa.
As to the substantive grounds for the proceeding, the Show Cause Order alleged that “[o]n June 28, 2016, [Respondent was] convicted by a Federal jury of . . . two counts of conspiracy to distribute controlled substances, in violation of 21 U.S.C. 846; 110 counts of distribution of controlled substances (oxycodone, methadone and amphetamine, all [s]chedule II controlled substances), seven counts of distribution of controlled substances (alprazolam, a [s]chedule IV controlled substances, in violation of 21 U.S.C. 841(a)(1); and one count of distribution of controlled substances resulting in death, in violation of 21 U.S.C. 841(a)(1).
The Show Cause Order notified Respondent of his right to request a hearing on the allegations or to submit a written statement while waiving his right to a hearing, the procedure for electing either option, and the consequence of failing to elect either option.
On March 21, 2017, the Government served the Show Cause Order on Respondent. Notice of Service of Order to Show Cause, at 1. On April 25, 2017, Respondent's hearing request was received by the Office of Administrative Law Judges (OALJ) and assigned to ALJ Charles Wm. Dorman. Hearing Request, at 1.
On May 1, 2017, the ALJ issued an Order for Prehearing Statements. Noting that Respondent's hearing request was received on April 25, 2017 and that DEA's regulation requires that a hearing request be received “within 30 days after the date of receipt of the” Show Cause Order to be deemed timely, the ALJ ordered the Government to “submit evidence showing when it served the” Order and to file any motion seeking to terminate the proceeding “based on the timeliness of the . . . hearing request.” Order for Prehearing Statements, at 1. The ALJ directed the Government to comply with this portion of his order by May 8, 2017.
On May 5, 2017, the Government submitted a pleading addressing the timeliness of Respondent's hearing request. Therein, the Government noted that the envelope used by Respondent to mail the hearing request was stamped by the Agency's mailroom as having been received on April 13, 2017. Notice of Service of Order to Show Cause, at 1. The Government therefore did not move to terminate the proceeding based on the timeliness of Respondent's hearing request.
Also, on May 5, 2017, the Government moved for summary disposition on two grounds. Mot. for Summ. Disp., at 1. First, the Government noted that subsequent to the issuance of the Show Cause Order, the State of Pennsylvania suspended Respondent's license to practice osteopathic medicine and surgery, and therefore, he has no authority to handle controlled substances in the State in which he is registered.
The Government also sought summary disposition on the ground that it is undisputed that Respondent has been convicted of a controlled substance felony. The Government argued that Respondent has been convicted of two counts of conspiracy to distribute controlled substances, 110 counts of unlawful distribution of schedule II controlled substances, seven counts of unlawful distribution of other controlled substances, and one count of distribution of controlled substances resulting in death.
Following receipt of the Government's motion, on May 8, 2017, the ALJ issued an Order for Respondent's Reply; the Order directed that Respondent submit his reply by May 19, 2017. Order for Respondent's Reply, at 1. On May 18, 2017, Respondent filed a reply.
In his Reply, Respondent stated that “[t]he Commonwealth of Pennsylvania granted a continuance of my case until Sept. 18, 2017.” Reply to Govt.'s Mot. for Summ. Disp., at 1. Respondent further argued that “[p]ersuant [sic] to 21 U.S.C. 824(a)(2)[,] the judgement [sic] of my conviction IS NOT FINAL UNTIL AFTER THE DIRECT APPEAL HAS BEEN HEARD.”
Upon review, the ALJ granted the Government's motion on both grounds. As for the loss of state authority ground, the ALJ correctly applied the Agency's settled rule that “in order to maintain a DEA registration, a registrant must be currently authorized to handle controlled substances in the jurisdiction in which [he] is registered.” Order Denying Resp.'s Continuance Request [and] Granting Summary Disposition, at 4. Finding that “the Board's Order establishes that the Respondent does not currently have a medical license” and that “it is undisputed that the Respondent lacks state authorization to handle controlled substances in Pennsylvania, where [he] is registered,” the ALJ concluded that “[t]his issue alone is sufficient to warrant revocation of” his registration.
As for Respondent's numerous convictions, the ALJ rejected Respondent's contention that “the judgment of any conviction is not final until after the direct appeal has been heard,” finding his arguments “unpersuasive and contrary to DEA precedent.”
Neither party filed exceptions to the ALJ's Summary Disposition Order. On July 11, 2017, the ALJ forwarded the record to my Office for Final Agency Action. Having considered the record in its entirety, I adopt the ALJ's factual findings and legal conclusions with respect to both grounds, as well as his recommended order. I make the following findings.
Respondent is an Osteopathic Physician licensed by the Commonwealth of Pennsylvania State Board of Osteopathic Medicine. GX 2, at 1 (Final Order of Automatic Suspension). Respondent is also the holder of DEA Certificate of Registration No. BO3937781, pursuant to which he is authorized to dispense controlled substances in schedules II through V as a practitioner, at the registered address of 49 Rolling Lane, Levittown, Pa. GX 1 (Registration Certificate). Respondent also holds DATA-Waiver Identification No. XO3937781, pursuant to which he is authorized to dispense narcotic controlled substances in schedules III through V, to up to 30 patients, for the purpose of providing maintenance or detoxification treatment.
On October 12, 2016, the United States District Court issued an amended judgment finding Respondent guilty of two counts of conspiracy to distribute controlled substances, in violation of 21 U.S.C. 846; 110 counts of distribution of controlled substances, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C); seven counts of distribution of controlled substances, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(E); and one count of distribution of controlled substances resulting in death, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). GX 3, at 1–2 (Amended Judgment In a Criminal Case,
Based on Respondent's convictions, on March 3, 2017, the Board issued him a Notice and Order of Automatic Suspension which was to become effective on March 23, 2017 unless Respondent requested a hearing. GX 2, at 1 (Final Order of Automatic Suspension). On April 12, 2017, the Board issued a Final Order of Automatic Suspension of his osteopathic license.
Pursuant to 21 U.S.C. 824(a)(3), the Attorney General is authorized to suspend or revoke a registration issued under section 823 of Title 21, “upon a finding that the registrant . . . has had his State license . . . suspended [or] revoked . . . by competent State authority and is no longer authorized by State law to engage in the . . . dispensing of controlled substances.” With respect to a practitioner, DEA has long held that the possession of authority to dispense controlled substances under the laws of the State in which a practitioner engages in professional practice is a fundamental condition for obtaining and maintaining a registration.
This rule derives from the text of two provisions of the CSA. First, Congress defined “the term `practitioner' [to] mean[ ] a . . . physician . . . or other person licensed, registered or otherwise permitted, by . . . the jurisdiction in which he practices . . . to distribute, dispense, [or] administer . . . a controlled substance in the course of professional practice.” 21 U.S.C. 802(21). Second, in setting the requirements for obtaining a practitioner's registration, Congress directed that “[t]he Attorney General shall register practitioners . . . if the applicant is authorized to dispense . . .
Based on the Board's Final Order of Automatic Suspension, it is undisputed that Respondent is no longer currently authorized to dispense controlled substances in Pennsylvania, the State in which he is registered with the Agency. Respondent is therefore not entitled to maintain his registration. This provides reason alone to revoke his registration and to deny any pending application for registration in Pennsylvania.
Pursuant to 21 U.S.C. 824(a)(2), the Attorney General may also suspend or revoke a registration issued under section 823 of Title 21, “upon a finding that the registrant . . . has been convicted of a felony under this subchapter” (the Controlled Substances Act). Here too, it is undisputed that Respondent has been convicted of more than 100 different felony violations of the CSA, including two of counts of conspiracy to distribute controlled substances, 21 U.S.C. 846; 117 counts of distribution of controlled substances, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C) and (b)(1)(E); and one count of distribution of controlled substances resulting in death, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). While Respondent asserts that his convictions are not final because his case is on direct appeal, the District Court has entered the judgment and Respondent, who is currently incarcerated in a United States Penitentiary, points to no order by the Court vacating the judgment.
In contrast to a practitioner's loss of his state authority, this finding does not mandate the revocation of his registration on this ground and the Agency has held that a conviction is not a
While ordinarily a respondent who has been convicted of a felony subject to section 824(a)(2) is entitled to present a case as to why his registration should not be revoked (or his application denied), I nonetheless conclude that the ALJ properly granted summary disposition in this matter because there is no issue of any disputed material fact. Here, even ignoring the manifest egregiousness of Respondent's criminal conduct, he has put forward no evidence to show why he can be entrusted with a registration nor raised any contention that he acknowledges his misconduct and has undertaken remedial measures.
Pursuant to the authority vested in me by 21 U.S.C. 824(a) and 28 CFR 0.100(b), I order that DEA Certificate of Registration No. BO3937781 and DATA-Waiver Identification No. XO3937781 issued to William J. O'Brien, III, D.O., be, and they hereby are, revoked. I further order that any application of William J. O'Brien, III, D.O. to renew or modify this registration, or for any other DEA registration, be, and it hereby is, denied. This Order is effective immediately.
The Foreign Claims Settlement Commission, pursuant to its regulations
10:00 a.m.—Issuance of Proposed Decisions in claims against Iraq.
Open.
All meetings are held at the Foreign Claims Settlement Commission, 600 E Street NW., Washington, DC. Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Patricia M. Hall, Foreign Claims Settlement Commission, 600 E Street NW., Suite 6002, Washington, DC 20579. Telephone: (202) 616–6975.
On September 28, 2017, the Department of Justice lodged a Consent Decree with defendant Aramark Uniform & Career Apparel, LLC (“Aramark”) in the United States District Court for the Southern District of West Virginia, Civil Action No. 3:17–cv–04062. The Consent Decree resolves a claim under Section 107(a)(2) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. 9607(a)(2), for past response costs incurred in connection with the release of PCE at the Coyne Textile Services Superfund Site, located in Huntington, West Virginia. The Complaint filed concurrently with the Consent Decree alleges that Aramark, through a predecessor company, owned and operated an industrial laundry business at the Site from 1972 to 1982 that included a dry cleaning process that utilized perchloroethylene (“PERC” or “PCE”). The proposed consent decree obligates Aramark to reimburse $1.595 million of the United States' past response costs and provides Aramark a covenant not to sue for past response costs incurred through May 10, 2017. Aramark is performing the work at the Site pursuant to an administrative order and agreement with EPA, which addresses claims under Section 106(a) of CERCLA, 42 U.S.C. 9606(a), at the Site.
The publication of this notice opens a period for public comment on the Consent Decree. Comments should be addressed to the Acting Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $6.00 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $5.25.
Employment and Training Administration, Labor.
Notice of meeting.
Pursuant to the Workforce Innovation and Opportunity Act of 2014 (WIOA), which amends the Wagner-Peyser Act of 1933, notice is hereby given that the WIAC will meet on November 1 and 2, 2017. The meeting will take place at the Bureau of Labor Statistics (BLS) Janet Norwood Training and Conference Center in Washington, DC. The WIAC was established in accordance with provisions of the Federal Advisory Committee Act (FACA), as amended and will act in accordance with the applicable provisions of FACA and its implementing regulation. The meeting will be open to the public.
The meeting will take place on Wednesday, November 1, and Thursday, November 2, 2017 from 8:30 a.m. to 4:30 p.m. Public statements and requests for special accommodations or to address the Advisory Council must be received by October 23, 2017.
The meeting will be held at the BLS Janet Norwood Training and Conference Center, Rooms 7 and 8, in the Postal Square Building at 2 Massachusetts Ave. NE., Washington, DC 20212.
Steven Rietzke, Chief, Division of National Programs, Tools, and Technical Assistance, Employment and Training Administration, U.S. Department of Labor, Room C–4510, 200 Constitution Ave. NW., Washington, DC 20210; Telephone: 202–693–3912. Mr. Rietzke is the Designated Federal Officer for the WIAC.
The Department of Labor anticipates the WIAC will accomplish its objectives by: (1) Studying workforce and labor market information issues; (2) seeking and sharing information on innovative approaches, new technologies, and data to inform employment, skills training,
The meeting will resume at 8:30 a.m. on November 2, 2017. The second day will continue the previous day's discussions. The WIAC chair will open the floor for public comment at 1:00 p.m. on November 2, 2017. However, the precise schedule of events is subject to change and an up-to-date agenda will be available on WIAC's Web page (see URL below) prior to the meeting. The second day will conclude with a discussion of next steps, including action items and planning for the next meeting of the Advisory Council. The meeting will adjourn at 4:30 p.m.
The full agenda for the meeting, and changes or updates to the agenda, will be posted on the WIAC's Web page,
Notice.
The Department of Labor (DOL), Employment and Training Administration (ETA) is soliciting comments concerning the following, proposed changes to the information collection request (ICR) titled, “Guam Military Base Realignment Contractor Recruitment Standards.” This comment request is part of continuing Departmental efforts to reduce paperwork and respondent burden in accordance with the Paperwork Reduction Act of 1995 (PRA).
Consideration will be given to all written comments received by December 4, 2017.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden is included at the end of this notice and may be obtained free by contacting Michael DeMale by telephone at 202–693–3948 TTY 877–889–5627, (these are not toll-free numbers) or by email at
Submit written comments about, or requests for a copy of, this ICR by mail or courier to the U.S. Department of Labor, Office of Workforce Investment, Employment and Training Administration, U.S. Department of Labor, 200 Constitution Avenue NW., Room C–4516, Washington, DC 20210; by email:
Contact Michael DeMale by telephone at 202–693–3948 (this is not a toll-free number) or by email at
The DOL, as part of continuing efforts to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies an opportunity to comment on proposed and/or continuing collections of information before submitting them to the OMB for final approval. This program helps to ensure requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of
Section 2834(a) of the National Defense Authorization Act (NDAA) for Fiscal Year 2010 (Pub. L. 111–84, enacted October 28, 2009) amended Section 2824(c) of the Military Construction Authorization Act (Pub. L. 110–417, Division B) by adding a new subsection (6). This provision prohibits contractors engaged in construction projects related to the realignment of U.S. military forces from Okinawa to Guam from hiring non-U.S. workers unless the Governor of Guam (Governor), in consultation with the Secretary of Labor (Secretary), certifies that: (1) There is an insufficient number of U.S. workers that are able, willing, and qualified to perform the work; and (2) that the employment of non-U.S. workers will not have an adverse effect on either the wages or the working conditions of U.S. construction workers in Guam.
In order to allow the Governor to make this certification, the NDAA requires contractors to recruit workers in the U.S., including in Guam, the Commonwealth of the Northern Mariana Islands, American Samoa, the U.S. Virgin Islands, and Puerto Rico, according to the terms of a recruitment plan developed and approved by the Secretary. That recruitment plan has been reproduced in full in Section I below (“Contractor Recruitment Standards”).
The Department has developed the Contractor Recruitment Standards in full consultation with, and with the approval of, the Guam Department of Labor (GDOL). Although the Department has developed the recruitment standards, it has assigned oversight of the Contractor Recruitment Standards and the NDAA-required consultation with the Governor to GDOL through a Memorandum of Understanding (MOU) between the Department and GDOL, effective November 22, 2011 (the MOU can be found on the
Under the NDAA, no Guam base realignment construction project work may be performed by a person holding an H–2B visa under the Immigration and Nationality Act until the contractor complies with the Department's Contractor Recruitment Standards, and the Governor of Guam issues the certification noted above.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number. See 5 CFR 1320.5(a) and 1320.6.
Interested parties are encouraged to provide comments to the contact shown in the
Submitted comments will also be a matter of public record for this ICR and posted on the Internet, without redaction. The DOL encourages commenters not to include personally identifiable information, confidential business data, or other sensitive statements/information in any comments.
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
1. At least 60 days before the start date of workers under a base realignment contract, contractors must:
a. Submit a job posting via a completed Job Order (Guam Form GES 514) in person at the Guam Employment Service office, which is open Monday through Friday (except holidays) 8 a.m. to 5 p.m., at 710 Marine Corps Drive, Suite 301, Bell Tower Plaza, Hagatna (for assistance please call (671) 475–7000). The job posting must be posted on the GDOL Job Bank for at least 21 consecutive days;
b. Submit a job posting with the state workforce agency's Internet job boards for the Commonwealth of the Northern Mariana Islands at
c. Post a help wanted ad in the local newspaper for American Samoa and have a notice posted in the American Samoa Human Resources agency office. For assistance with these tasks, please see the American Samoa Human Resource agency contacts listed at
d. Where the occupation or industry is customarily unionized, contact the local union in Guam as well as the national offices of national unions who represent workers in the industry stating:
i. The existence of the job posting on the National Labor Exchange in compliance with these Contractor Recruitment Standards;
ii. Job post opening and closing dates;
iii. Direction to interested applicants on how to apply;
iv. That the job opportunity is with an “Open Shop” as Guam is a ‘Right-to-Work’ jurisdiction.
2. Each job posting must be posted for no less than 21 consecutive days and include, at a minimum, the following information:
a. The contractor's name and appropriate contact information for applicants to inquire about the job opportunity, or to send applications and/or resumes directly to the employer;
b. The geographic area of employment, with enough specificity to apprise applicants of any travel requirements as well as where applicants will likely have to reside to perform the services or labor;
c. A statement indicating whether the employer will pay for the worker's transportation to Guam;
d. A statement indicating whether daily transportation to and from the worksite(s) will be provided by the employer;
e. A description of the job opportunity with sufficient information to apprise U.S. workers of the services or labor to be performed, including the duties, the minimum education and experience requirements, the work hours and days,
f. If the employer makes On-the-Job Training (OJT) available, include a statement that it will be provided to the worker;
g. A statement indicating whether overtime will be available to the worker and the wage offer for working any overtime hours;
h. The wage offer, and the benefits, if any, offered;
i. A statement that the position is temporary;
j. The total number of job openings the employer intends to fill; and
k. If the employer provides the worker with the option of board, lodging, or other facilities, including fringe benefits, or intends to assist workers to securing such lodging, a statement disclosing the provision and cost of the board, lodging, or other facilities, including fringe benefits or assistance offered.
3. During the 28-day recruitment period, which begins on the earliest job posting date, contractors must interview all qualified and available Guam and U.S. construction workers who have applied for the employment opportunity.
4. After the close of the recruitment period, and no later than 30 days before the start date of workers under a contract, the contractor must provide a report including the following information via email to GDOL at
a. Indicate all the recruitment approaches used to recruit workers, including an identification of the Internet job banks where the postings occurred, the occupation or trade, a description of wages and other terms and conditions of employment, the dates of each posting, and the job order or requisition number;
b. A copy of each job posting;
c. How each job posting and response was handled, including:
i. The number of job applications received;
ii. The name of each applicant;
iii. The position applied for;
iv. The final employment determination for each applicant or job candidate; and
v. For each U.S. job applicant not hired, a description of the specific, lawful, job-related reason for rejecting the applicant for employment, which includes a comparison of the job applicant's skills and experience against the terms listed in the original job posting.
Contractors may provide much of this information in the form of a table or spreadsheet, so that instead of a narrative style the contractor need only check an appropriate box or provide a phrase, number or date (
44 U.S.C. 3506(c)(2)(A).
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when agencies no longer need them for current Government business. The records schedules authorize agencies to preserve records of continuing value in the National Archives of the United States and to destroy, after a specified period, records lacking administrative, legal, research, or other value. NARA publishes notice in the
NARA must receive requests for copies in writing by November 6, 2017. Once NARA finishes appraising the records, we will send you a copy of the schedule you requested. We usually prepare appraisal memoranda that contain additional information concerning the records covered by a proposed schedule. You may also request these. If you do, we will also provide them once we have completed the appraisal. You have 30 days after we send to you these requested documents in which to submit comments.
You may request a copy of any records schedule identified in this notice by contacting Records Appraisal and Agency Assistance (ACRA) using one of the following means:
You must cite the control number, which appears in parentheses after the name of the agency that submitted the schedule, and a mailing address. If you would like an appraisal report, please include that in your request.
Margaret Hawkins, Director, by mail at Records Appraisal and Agency Assistance (ACRA); National Archives and Records Administration; 8601 Adelphi Road; College Park, MD 20740–6001, by phone at 301–837–1799, or by email at
NARA publishes notice in the
Each year, Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing records retention periods and submit these schedules for NARA's approval. These schedules provide for timely transfer into the National Archives of historically valuable records and authorize the agency to dispose of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many
The schedules listed in this notice are media neutral unless otherwise specified. An item in a schedule is media neutral when an agency may apply the disposition instructions to records regardless of the medium in which it creates or maintains the records. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is expressly limited to a specific medium. (See 36 CFR 1225.12(e).)
Agencies may not destroy Federal records without Archivist of the United States' approval. The Archivist approves destruction only after thoroughly considering the records' administrative use by the agency of origin, the rights of the Government and of private people directly affected by the Government's activities, and whether or not the records have historical or other value.
In addition to identifying the Federal agencies and any subdivisions requesting disposition authority, this notice lists the organizational unit(s) accumulating the records (or notes that the schedule has agency-wide applicability when schedules cover records that may be accumulated throughout an agency); provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction); and includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it also includes information about the records. You may request additional information about the disposition process at the addresses above.
1. Department of Health and Human Services, National Institutes of Health (DAA–0443–2017–0003, 3 items, 1 temporary item). Working files within the subject files of the Director and Principal Deputy Director, including duplicative drafts and notes, comments, and background information. Proposed for permanent retention are the official subject files of the Director and Principal Deputy Director and their schedules of daily activities, including correspondence, reports, evaluations, decision papers, calendar appointments, and speeches.
2. Department of State, Office of Management Policy, Rightsizing, and Innovation (DAA–0059–2015–0015, 13 items, 6 temporary items). Records including working files, requests for information or coordination, staffing reviews, and greening initiative files. Proposed for permanent retention are project and subject files and records concerning security and staffing incidents and adjustments at posts.
3. Department of Transportation, Pipeline and Hazardous Materials Safety Administration (DAA–0571–2015–0018, 1 item, 1 temporary item). International correspondence files.
4. Department of the Treasury, Internal Revenue Service (DAA–0058–2017–0006, 1 item, 1 temporary item). Report of tax returns under audit review used to manage workload.
5. Department of the Treasury, Internal Revenue Service (DAA–0058–2017–0007, 16 items, 16 temporary items). Records pertaining to requests for tax returns and return information to include Congressional, Federal, state, and local requests; memorandums of understanding; and coordination and implementation agreements.
6. Department of the Treasury, Internal Revenue Service (DAA–0058–2017–0022, 1 item, 1 temporary item). Records relating to requests from foreign governments concerning the collection of taxes per applicable tax treaties.
7. National Indian Gaming Commission, Agency-wide (DAA–0600–2017–0003, 10 items, 10 temporary items). Records include tribal gaming complaints, tribal facility notifications, compliance investigative case files, site visit reports, license issuances, related correspondence, and memoranda.
National Endowment for the Arts, National Foundation on the Arts and Humanities.
Notice of meetings.
Pursuant to the Federal Advisory Committee Act, as amended, notice is hereby given that 17 meetings of the Arts Advisory Panel to the National Council on the Arts will be held by teleconference.
See the
National Endowment for the Arts, Constitution Center, 400 7th St. SW., Washington, DC 20506.
Further information with reference to these meetings can be obtained from Ms. Sherry P. Hale, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506;
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of July 5, 2016, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of title 5, United States Code.
The upcoming meetings are:
Weeks of October 2 and 9, 2017
Thursday, October 5, 2017 at 10:00 a.m.
Wednesday, October 11. 2017, at 10:00 a.m. and at 2:00 p.m.
Board Agenda Room, No. 5065, 1015 Half St. SE., Washington DC.
Closed.
Pursuant to § 102.139(a) of the Board's Rules and Regulations, the Board or a panel thereof will consider “the issuance of a subpoena, the Board's participation in a civil action or proceeding or an arbitration, or the initiation, conduct, or disposition . . . of particular representation or unfair labor practice proceedings under section 8, 9, or 10 of the [National Labor Relations] Act, or any court proceedings collateral or ancillary thereto.” See also 5 U.S.C. 552b(c)(10).
Roxanne Rothschild, Deputy Executive Secretary, 1015 Half Street SE., Washington, DC 20570. Telephone: (202) 273–2917.
National Science Foundation.
Notice of permit applications received.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act in the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by November 6, 2017. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Nature McGinn, ACA Permit Officer, at the above address, 703–292–8030, or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95–541, 45 CFR 670), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas a requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
Harmful Interference; Import Into USA. The applicant proposes to collect samples of feathers molted from gentoo penguins,
West Antarctic Peninsula region including South Orkney Islands, Elephant Island, South Shetland Islands.
October 1, 2017–June 1, 2018.
Take; Harmful Interference. The applicant proposes to film Weddell seals in the McMurdo Sound area. Up to 16 Weddell seals (eight mother and pup pairs) could be targeted and disturbed during filming on the sea ice, underwater, and by air via remotely piloted aircraft. Up to 80 additional Weddell seals may be disturbed as a result of the filming activities. The footage will be used in a BBC documentary series that is expected to be useful for education and outreach about Antarctica and the scientific research conducted there. The applicant has also applied for a commercial or education photography permit from the National Marine Fisheries Service under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
McMurdo Sound, Antarctica.
October 1–December 15, 2017.
Nuclear Regulatory Commission.
Exemption and combined license amendment; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is granting exemption to allow a departure from the certification information of Tier 1 of the generic design control document (DCD) and is issuing License Amendment Nos. 84 and 83 to Combined Licenses (COL), NPF–91 and NPF–92, respectively. The COLs were issued to Southern Nuclear Operating Company, Inc., and Georgia Power Company, Oglethorpe Power Corporation, MEAG Power SPVM, LLC, MEAG Power SPVJ, LLC, MEAG Power SPVP, LLC, Authority of Georgia, and the City of Dalton, Georgia (the licensee); for construction and operation of the Vogtle Electric Generating Plant (VEGP) Units 3 and 4, located in Burke County, Georgia.
The granting of the exemption allows the changes to Tier 1 information that is requested 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 exemptions and amendments were issued on August 23, 2017.
Please refer to Docket ID NRC–2008–0252 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly available, using any of the following methods:
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Paul Kallan, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–2809; email:
The NRC is granting exemptions 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 exemptions was provided by the review of the amendments. Because the exemption is necessary in order to issue the requested license amendment, the NRC granted the exemptions and issued the amendments 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 exemptions 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 amendments were found to be acceptable as well. The combined safety evaluation is available in ADAMS under Accession No. ML17213A224.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for VEGP Units 3 and 4 (COLs NPF–91 and NPF–92). The exemption documents for VEGP Units 3 and 4 can be found in ADAMS under Accession Nos. ML17213A219 and ML17213A221, 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–91 and NPF–92 are available in ADAMS under Accession Nos. ML17213A222 and ML17213A223, respectively. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to Vogtle Units 3 and Unit 4. 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 February 22, 2017, and supplemented by letter dated June 2, 2017, the licensee requested from the Commission an exemption from the provisions of 10 CFR part 52, appendix D, Section III.B, as part of license amendment request 17–003, “Hydrogen Venting from Passive Core Cooling System (PXS) Compartments (LAR–17–003).”
For the reasons set forth in Section 3.1, “Evaluation of Exemption,” of the NRC staff's Safety Evaluation, which can be found in ADAMS under
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 February 22, 2017 and supplemented by letter dated June 2, 2017. This exemption is related to, and necessary for, the granting of License Amendment Nos. 84 and 83, which is being issued concurrently with this exemption.
3. As explained in Section 5.0, “Environmental Consideration,” of the NRC staff's Safety Evaluation (ADAMS Accession No. ML17213A224), these exemptions 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. These exemptions are effective as of the date of its issuance.
By letter dated February 22, 2017, and supplemented by letter dated June 2, 2017, the licensee requested that the NRC amend the COLs for VEGP, Units 3 and 4, COLs NPF–91 and NPF–92. The proposed amendment is described in Section I of this
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 exemptions and issued the amendments that the licensee requested on February 22, 2017 and supplemented June 2, 2017.
The exemptions and amendments were issued on August 23, 2017 as part of a combined package to the licensee (ADAMS Accession No. ML17213A217).
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Planning and Procedures will hold a meeting on October 5, 2017, 11545 Rockville Pike, Room T–2B3, Rockville, Maryland 20852.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss proposed ACRS activities and related matters. 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), Quynh Nguyen (Telephone 301–415–5844 or Email:
Information regarding changes to the agenda, whether the meeting has been canceled or rescheduled, and the time allotted to present oral statements can be obtained by contacting the identified DFO. Moreover, in view of the possibility that the schedule for ACRS meetings may be adjusted by the Chairman as necessary to facilitate the conduct of the meeting, persons planning to attend should check with the DFO if such rescheduling would result in a major inconvenience.
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 at 240–888–9835 to be escorted to the meeting room.
Nuclear Regulatory Commission.
License amendment application; opportunity to comment, request a hearing, and petition for leave to intervene.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of an amendment and exemption to Combined Licenses (NPF–91 and NPF–92), issued to Southern Nuclear Operating Company, Inc. (SNC), and Georgia Power Company, Oglethorpe Power Corporation, MEAG Power SPVM, LLC, MEAG Power SPVJ, LLC, MEAG Power SPVP, LLC, Authority of Georgia, and the City of Dalton, Georgia (together “the licensees”), for construction and operation of the Vogtle Electric Generating Plant (VEGP), Units 3 and 4, located in Burke County, Georgia.
Submit comments by November 6, 2017.
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
Peter C. Hearn, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–000; telephone: 301–415–1189; email:
Please refer to Docket ID NRC–2008–0252 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–2008–0252 in your comment submission. The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.
The NRC is considering issuance of an amendment to Facility Operating License Nos. NPF–91 and NPF–92, issued to the licensees for operation of the VEGP Units 3 and 4, located in Burke County, Georgia.
The proposed changes would revise the Combined Licenses to change the Updated Final Safety Analysis Report (UFSAR) in the form of departures from the incorporated plant-specific Design Control Document (DCD) Tier 2* information and related changes to the VEGP Units 3 and 4 COL Appendix C (and corresponding plant-specific DCD Tier 1) information. Because, this proposed change requires a departure from Tier 1 information in the plant-specific DCD, the licensees also requested an exemption from the elements of Tier 1 information certified in part 50 of title 10 of the
Before any issuance of the proposed license amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and NRC's regulations.
The NRC has made a proposed determination that the license amendment request involves no significant hazards consideration. Under the NRC's regulations in 10 CFR 50.92, this means that operation of the facility in accordance with the proposed amendment would not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. As required by 10 CFR 50.91(a), the licensee has provided its analysis of the issue of no significant hazards consideration, which is presented below:
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The wall thickness and location changes do not affect the operation of any systems or equipment that initiate an analyzed accident or alter any structures, systems, and components (SSC) accident initiator or initiating sequence of events. The changes are consistent with the wall thicknesses and locations previously evaluated and the approved structural design of the auxiliary building, column line I wall between column lines 3 and 4, and labyrinth wall between column lines 3 and 4 and between J–1 and J–2 as shown in the AP1000 DCD Figure 3.7.2–12 Sheets 2, 3, 4, 5, 6, 8, and 10, and do not involve a change to the thicknesses of the auxiliary building, column line I wall between column lines 3 and 4, and labyrinth wall between column line 3 and 4 and between J–1 and J–2 as shown in COL Appendix C (and plant-specific Tier 1) Figures 3.3–1, 3.3–4, 3.3–6, 3.3–7, 3.3–8, and 3.3–9 and associated UFSAR Figures 1.2–5, 1.2–7, 1.2–8, 1.2.9,1.2–10, 1.2–11, 1.2–13, 1.2–14 and 3.7.2–12, Sheets 2, 3, 4, 5, 6, 8,and 10. . Failure of the auxiliary building is not an accident initiator or part of an initiating sequence of events for an accident previously evaluated. Therefore, the probabilities of the accidents evaluated in the UFSAR are not affected.
The changes do not have an adverse impact on the ability of the auxiliary building to perform its design functions. The design of the auxiliary building continues to meet the same regulatory acceptance criteria, codes, and standards as required by the UFSAR. As a result, the changes do not result in any
Therefore, the changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The wall thickness and location changes do not affect the operation of any systems or equipment that may initiate a new or different kind of accident, or alter any SSC such that a new accident initiator or initiating sequence of events is created. The proposed changes are consistent with the previously evaluated and approved structural design of the auxiliary building, column line I wall between column lines 3 and 4 from elevation 100′-0″ to the roof, and labyrinth wall between column lines 3 and 4 and between J–1 and J–2 as shown in the AP1000 DCD Figure 3.7.2–12 Sheets 2, 3, 4, 5, 6, 8, and 10, and do not involve a change to the thicknesses of the auxiliary building, column line I wall between column lines 3 and 4, and labyrinth wall between column line 3 and 4 and between J–1 and J–2 as shown in COL Appendix C (and plant-specific Tier 1) Figures 3.3–1, 3.3–4, 3.3–6, 3.3–7, 3.3–8, and 3.3–9 and associated UFSAR Figures 1.2–5, 1.2–7, 1.2–8, 1.2–9, 1.2–10, 1.2–11, 1.2–13, 1.2–14, and 3.7.2–12, Sheets 2, 3, 4, 5, 6, 8, and 10. These changes do not adversely affect any other auxiliary building or SSC design functions or methods of operation in a manner that results in a new failure mode, malfunction, or sequence of events that affect safety-related or nonsafety-related equipment. Therefore, this activity does not allow for a new fission product release path, result in a new fission product barrier failure mode, or create a new sequence of events that results in significant fuel cladding failures.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The wall thickness and location changes maintain existing safety margins. The proposed changes ensure that auxiliary building design requirements and design functions are met. The proposed changes maintain existing safety margin through continued application of the existing requirements of the UFSAR, while updating the acceptance criteria for verifying the design features necessary to ensure the auxiliary building performs the design functions required to meet the existing safety margins. Therefore, the proposed changes satisfy the same design functions in accordance with the same codes and standards as stated in the UFSAR. These proposed changes do not adversely affect any design code, function, design analysis, safety analysis input or result, or design/safety margin.
Because no safety analysis or design basis acceptance limit/criterion is challenged or exceeded by these proposed changes, no margin of safety is reduced.
Therefore, the proposed amendment does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the license amendment request involves no significant hazards consideration.
The NRC is seeking public comments on this proposed determination that the license amendment request involves no significant hazards consideration. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day notice period if the Commission concludes the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, the Commission will publish a notice of issuance in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's Web site at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission by December 4, 2017. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or federally recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562, August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the Internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC Web site at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public Web site at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to this action, see the application for license amendment dated December 14, 2016, as supplemented August 25, 2017.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is making a finding of no significant impact for a proposed issuance of an amendment to Renewed Facility Operating License No. DPR–49 held by NextEra Energy Duane Arnold, LLC. (NextEra, the licensee) for the operation of Duane Arnold Energy Center (DAEC), located in Linn County, Iowa. The proposed amendment would modify the DAEC Plume Exposure Pathway emergency planning zone (EPZ) boundary and revise the DAEC evacuation time estimate (ETE) study to account for the EPZ boundary changes.
The environmental assessment (EA) referenced in this document is available on October 5, 2017.
Please refer to Docket ID NRC–2017–0200 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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Mahesh L. Chawla, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–8371; email:
The NRC is considering issuance of amendments pursuant to § 50.54 of title 10 of the
In accordance with 10 CFR 51.21, the NRC has prepared an EA that analyzes the environmental effects of the proposed licensing action. Based on the results of the EA, and in accordance with 10 CFR 51.31(a), the NRC has prepared a finding of no significant impact (FONSI) for the proposed amendments.
The proposed action would revise the DAEC Renewed Facility Operating License in order to set the DAEC Plume Exposure Pathway emergency planning zone (EPZ) boundary for an area beyond the 10-mile required EPZ pathway. The proposed action is in accordance with the licensee's application dated March 31, 2017 (ADAMS Accession Nos. ML17102B183 and ML17102B184) and with current NRC's regulations in 10 CFR 50.47, and 10 CFR part 50, appendix E.
Notable proposed changes are (a) modification of Subarea 24 of the DAEC Plume Exposure Pathway EPZ by designating U.S. Highway 30 as its southern boundary, which will slightly decrease the total size of the EPZ, and (b) revision of the DAEC evacuation
Nuclear power plant owners, government agencies, and State and local officials work together to create a system for emergency preparedness and response that will serve the public in the unlikely event of an emergency. An effective emergency preparedness program helps decrease the consequences of an initiating event at a nuclear power reactor that proceeds to a severe accident. Emergency preparedness cannot affect the probability of the initiating event, but a high level of emergency preparedness increases the probability of accident mitigation if the initiating event proceeds beyond the need for initial operator actions.
Each licensee is required to establish emergency plans to be implemented in the event of an accident. These emergency plans cover preparations for evacuation, sheltering, and other actions to protect residents near plants in the event of a serious incident.
The NRC, as well as other Federal and state regulatory agencies review the subject plans to ensure that the condition of emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
Separate from this EA, the NRC staff is evaluating NextEra's proposed changes to the EPZ boundary for DAEC. This review will be documented in the safety evaluation report for the proposed license amendment. The staff's review will determine whether there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency in accordance with 10 CFR 50.47 and the requirements in appendix E to 10 CFR part 50.
The proposed action is needed to make DAEC's EPZ boundary more consistent with the existing roads and easier to implement more effectively. While changing the southern boundary to Highway 30 will decrease the size of the EPZ slightly, it will enhance local law enforcement's ability to evacuate the affected population as well as improve their ability to control access back into the evacuated areas. The licensee states in its application (Adams Accession No. ML171028184) that the changes to the EPZ were approved by both the State of Iowa and the Federal Emergency Management Agency (FEMA).
The NRC has completed its evaluation of environmental effects of the proposed action. The proposed action consists of a modification to the DAEC EPZ boundary and revision to the DAEC ETE study to account for the EPZ boundary changes. Notable proposed changes are: (a) Modification of Subarea 24 of the DAEC Plume Exposure Pathway EPZ by designating U.S. Highway 30 as its southern boundary, which will slightly decrease the total size of the EPZ, and (b) revision of the DAEC ETE study to account for the EPZ boundary changes.
The proposed changes would have no direct impacts on land use or water resources, including terrestrial and aquatic biota as the proposed action involves no new construction or modification of plant operational systems. There would be no changes to the quality or quantity of non-radiological effluents. No changes to the plant's National Pollutant Discharge Elimination System permit are needed. Changes to the Southern boundary of the EPZ to Highway 30, a four-lane highway, could result in minor changes in vehicular traffic and associated air pollutant emissions, but no significant changes in ambient air quality would be expected. In addition, there would be no noticeable effect on socioeconomic conditions in the region, no environment justice impacts, and no impacts to historic and cultural resources. Therefore, there would be no significant non-radiological impacts associated with the proposed action.
The NRC has concluded that the proposed action would not significantly affect plant safety and would not have a significant adverse effect on the probability of an accident occurring. There would be no change to radioactive effluents that affect radiation exposures to plant workers and members of the public. No changes would be made to plant buildings or the site property. Changing the southern boundary of the EPZ to Highway 30 will slightly decrease the size of the EPZ; therefore, some residents that are located within the original EPZ boundary would no longer be subject to actions under the DAEC emergency plan. In the event of an accident, those residents not located in the EPZ could potentially receive a slightly higher radiation dose than those remaining within the modified EPZ, as they would no longer get mandated instructions from local law enforcement or other first responders pertaining to sheltering, evacuation, or other actions DAEC deems necessary to take under its emergency plan. However, as stated above, the NRC would only approve a reduction in the overall size of the DAEC EPZ if there is reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency in accordance with NRC's regulations in 10 CFR part 50. As a result, the potential radiological dose increase to the residents located outside of the EPZ would not be significant, and in any event, residents located outside of the EPZ would be evaluated on an ad-hoc basis based on specific conditions. Therefore, the proposed action would not result in a significant change to the radiation exposures to the public or radiation exposure to plant workers.
Accordingly, the NRC concludes that there would be no significant environmental impacts associated with the proposed action.
As an alternative to the proposed action, the NRC considered denial of the proposed action (
There are no unresolved conflicts concerning alternative uses of available resources under the proposed action.
On September 8, 2017, the NRC staff consulted with the Iowa State official regarding the environmental impact of the proposed action. The state official had no comments.
The licensee has requested a license amendment pursuant to 10 CFR 50.54(q) to modify the DAEC Plume Exposure Pathway Emergency Planning Zone boundary. The NRC is considering issuing the requested amendments. The proposed action would not significantly affect plant safety, would not have a significant adverse effect on the probability of an accident occurring, and would not have any significant radiological and non-radiological impacts. The reason the environment would not be significantly affected is because the proposed changes would only result in minor changes in associated vehicular traffic, along with resulting air pollutant emissions and would not result in a significant change
The related environmental document is the “Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Duane Arnold Energy Center, Final Report,” NUREG–1437, Supplement 42. The NUREG–1437, Supplement 42, provides the latest environmental review of current operations and description of environmental conditions at DAEC.
The finding and other related environmental documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. Publicly-available records will be accessible electronically from ADAMS Public Electronic Reading Room on the Internet at the NRC's Web site:
Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should contact the NRC's PDR Reference staff by telephone at 1–800–397–4209 or 301–415–4737, or send an email to
The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; 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, “Notices, Instructions and Reports to Workers: Inspection and Investigations.”
Submit comments by November 6, 2017.
Submit comments directly to the OMB reviewer at: Aaron Szabo, Desk Officer, Office of Information and Regulatory Affairs 3150–0044, NEOB–10202, Office of Management and Budget, Washington, DC 20503; telephone: 202–395–3621, email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington DC 20555–0001; telephone: 301–415–2084; email:
Please refer to Docket ID NRC–2017–0122 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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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. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, 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
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “Notices, Instructions and Reports to Workers: Inspection and Investigations.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
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 Nos. 87 and 86 to Combined Licenses (COL), NPF–91 and NPF–92, respectively. The COLs were issued to Southern Nuclear Operating Company, Inc., and Georgia Power Company, Oglethorpe Power Corporation, MEAG Power SPVM, LLC, MEAG Power SPVJ, LLC, MEAG Power SPVP, LLC, Authority of Georgia, and the City of Dalton, Georgia (the licensee); for construction and operation of the Vogtle Electric Generating Plant (VEGP) Units 3 and 4, located in Burke County, Georgia.
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 September 22, 2017.
Please refer to Docket ID NRC–2008–0252 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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Chandu Patel, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–3025; 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. ML17233A122.
Identical exemption documents (except for referenced unit numbers and license numbers) were issued to the licensee for VEGP Units 3 and 4 (COLs NPF–91 and NPF–92). The exemption documents for VEGP Units 3 and 4 can be found in ADAMS under Accession Nos. ML17233A110 and ML17233A111, 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–91 and NPF–92 are available in ADAMS under Accession Nos. ML17233A105 and ML17233A106, respectively. A summary of the amendment documents is provided in Section III of this document.
Reproduced below is the exemption document issued to VEGP Units 3 and Unit 4. 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 February 24, 2017, as supplemented by letter dated August 7, 2017, 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 17–004, “Standardization of Instrumentation Setpoint Nomenclature.”
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. ML17233A122, 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 License, as described in the licensee's request dated February 24, 2017, as supplemented by letter dated August 7, 2017. This exemption is related to, and necessary for the granting of License Amendment Nos. 87 (Unit 3) and 86 (Unit 4), which is being issued concurrently with this exemption.
3. As explained in Section 6.0 of the NRC staff's Safety Evaluation (ADAMS Accession No. ML17233A122), 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 February 24, 2017 (ADAMS Accession No. ML17055C352), as supplemented by letter dated August 7, 2017 (ADAMS Accession No. ML17219A185), the licensee requested that the NRC amend the COLs for VEGP, Units 3 and 4, COLs NPF–91 and NPF–92. The proposed amendment is described in Section I of this
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 COL, 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 February 24, 2017, as supplemented by letter dated August 7, 2017.
The exemption and amendment were issued on September 22, 2017, as part of a combined package to the licensee (ADAMS Accession No. ML17233A104).
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's Web site (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
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This notice will be published in the
By letter dated September 29, 2017 (the “Letter”), counsel for VanEck Vectors ETF Trust (the “Trust”), on behalf of the Trust, VanEck Vectors NDR CMG Long/Flat Allocation ETF (the “Fund”), any national securities exchange on or through which shares issued by the Fund (“Shares”) may subsequently trade, Van Eck Securities Corporation (the “Distributor”), and persons or entities engaging in transactions in Shares (collectively, the “Applicants”), requested exemptions, or interpretive or no-action relief, from Rule 10b–17 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rules 101 and 102 of Regulation M, in connection with secondary market transactions in Shares and the creation or redemption of aggregations of Shares of at least 50,000 shares (“Creation Units”).
The Trust is registered with the Securities and Exchange Commission (“Commission”) under the Investment Company Act of 1940, as amended (“1940 Act”), as an open-end management investment company. The Fund is an exchange-traded fund (“ETF”) organized as a series of the Trust. The Fund will seek to provide investment results that closely correspond, before fees and expenses, to the performance of the Ned Davis Research CMG US Large Cap Long/Flat Index (the “Index”).
In order to track the Index, the Fund will invest at least 80% of its total assets (but typically far more) in component securities of the Index (directly or by indirect investments through one or more Underlying ETFs). The Fund may invest the remaining 20% of its total assets in securities not included in the Index, money market instruments, including repurchase agreements or other funds which invest exclusively in money market instruments, convertible securities, structured notes, and certain derivatives, which the Investment Advisor believes will help the Fund track the Index. Depositary receipts not included in the Index may also be used by the Fund in seeking performance that
The Applicants represent, among other things, the following:
• Shares of the Fund will be issued by the Trust, an open-end management investment company that is registered with the Commission;
• Creation Units will be continuously redeemable at the net asset value (the “NAV”) next determined after receipt of a request for redemption by the Fund,
• Shares of the Fund will be listed and traded on NYSE Arca, Inc. or another exchange in accordance with exchange listing standards that are, or will become, effective pursuant to Section 19(b) of the Exchange Act (the “Listing Exchange”);
• All Underlying ETFs in which the Fund invests will either meet all conditions set forth in relevant class relief, will have received individual relief from the Commission, or will be able to rely upon individual relief even though they are not named parties;
• All of the components of the Index will have publicly available last sale trade information;
• The intra-day indicative value of the Fund per share and the intra-day value of the Index will be publicly disseminated every 15 seconds throughout the trading day through the facilities of the Consolidated Tape Association;
• On each business day before the opening of business on the Listing Exchange, the Fund's custodian, through the National Securities Clearing Corporation, will make publicly available the list of the names and the numbers of securities of the Fund's portfolio that will be applicable that day to creation and redemption requests;
• The Listing Exchange will disseminate continuously every 15 seconds throughout the trading day, through the facilities of the Consolidated Tape Association, the market value of a Share, and the Listing Exchange, market data vendors, or other information providers will disseminate, every 15 seconds throughout the trading day, a calculation of the intra-day indicative value of a Share;
• The arbitrage mechanism will be facilitated by the transparency of the Fund's portfolio and the availability of the intra-day indicative value, the liquidity of securities and other assets held by the Fund, the ability to acquire such securities, as well as the arbitrageurs' ability to create workable hedges;
• The Fund will invest solely in liquid securities and financial instruments;
• The Fund will invest in securities that will facilitate an effective and efficient arbitrage mechanism and the ability to create workable hedges;
• The Applicants believe that arbitrageurs are expected to take advantage of price variations between the Fund's market price and its NAV; and
• A close alignment between the market price of Shares and the Fund's NAV is expected.
While redeemable securities issued by an open-end management investment company are excepted from the provisions of Rule 101 and 102 of Regulation M, the Applicants may not rely upon that exception for the Shares.
Generally, Rule 101 of Regulation M is an anti-manipulation rule that, subject to certain exceptions, prohibits any “distribution participant” and its “affiliated purchasers” from bidding for, purchasing, or attempting to induce any person to bid for or purchase any security which is the subject of a distribution until after the applicable restricted period, except as specifically permitted in the rule. Rule 100 of Regulation M defines “distribution” to mean any offering of securities that is distinguished from ordinary trading transactions by the magnitude of the offering and the presence of special selling efforts and selling methods. The provisions of Rule 101 of Regulation M apply to underwriters, prospective underwriters, brokers, dealers, or other persons who have agreed to participate or are participating in a distribution of securities. The-Shares are in a continuous distribution and, as such, the restricted period in which distribution participants and their affiliated purchasers are prohibited from bidding for, purchasing, or attempting to induce others to bid for or purchase extends indefinitely.
Based on the representations and facts presented in the Letter, particularly that the Trust is a registered open-end management investment company, that Creation Unit size aggregations of the Shares of the Fund will be continuously redeemable at the NAV next determined after receipt of a request for redemption by the Fund, and that a close alignment between the market price of Shares and the Fund's NAV is expected, the Commission finds that it is appropriate in the public interest and consistent with the protection of investors to grant the Trust an exemption under paragraph (d) of Rule 101 of Regulation M with respect to the Fund, thus permitting persons participating in a distribution of Shares of the Fund to bid for or purchase such Shares during their participation in such distribution.
Rule 102 of Regulation M prohibits issuers, selling security holders, and any affiliated purchaser of such person from bidding for, purchasing, or attempting to induce any person to bid for or purchase a covered security during the applicable restricted period in connection with a distribution of securities effected by or on behalf of an issuer or selling security holder.
Based on the representations and facts presented in the Letter, particularly that the Trust is a registered open-end management investment company, that Creation Unit size aggregations of the Shares of the Fund will be continuously redeemable at the NAV next determined after receipt of a request for redemption by the Fund, and that a close alignment between the market price of Shares and the Fund's NAV is expected, the Commission finds that it is appropriate in the public interest and consistent with the protection of investors to grant the Trust an exemption under paragraph (e) of Rule 102 of Regulation M with respect to the Fund, thus permitting the
Rule 10b–17, with certain exceptions, requires an issuer of a class of publicly traded securities to give notice of certain specified actions (for example, a dividend distribution) relating to such class of securities in accordance with Rule 10b–17(b). Based on the representations and facts in the Letter, and subject to the conditions below, we find that it is appropriate in the public interest, and consistent with the protection of investors to grant the Trust a conditional exemption from Rule 10b–17 because market participants will receive timely notification of the existence and timing of a pending distribution, and thus the concerns that the Commission raised in adopting Rule 10b–17 will not be implicated.
This exemptive relief is subject to the following conditions:
• The Trust will comply with Rule 10b–17 except for Rule 10b–17(b)(1)(v)(a) and (b); and
• The Trust will provide the information required by Rule 10b–17(b)(1)(v)(a) and (b) to the Exchange as soon as practicable before trading begins on the ex-dividend date, but in no event later than the time when the Exchange last accepts information relating to distributions on the day before the ex-dividend date.
This exemptive relief is subject to modification or revocation at any time the Commission determines that such action is necessary or appropriate in furtherance of the purposes of the Exchange Act. Persons relying upon this exemptive relief shall discontinue transactions involving the Shares of the Fund, pending presentation of the facts for the Commission's consideration, in the event that any material change occurs with respect to any of the facts or representations made by the Applicants and, consistent with all preceding letters, particularly with respect to the close alignment between the market price of Shares and the Fund's NAV. In addition, persons relying on this exemption are directed to the anti-fraud and anti-manipulation provisions of the Exchange Act, particularly Sections 9(a) and 10(b), and Rule 10b–5 thereunder.
Responsibility for compliance with these and any other applicable provisions of the federal securities laws must rest with the persons relying on this exemption. This order should not be considered a view with respect to any other question that the proposed transactions may raise, including, but not limited to the adequacy of the disclosure concerning, and the applicability of other federal or state laws to, the proposed transactions.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to make technical and conforming changes to Section 703.02 (part2) (Stock Split/Stock Rights/Stock Dividend Listing Process) (“Section 703.02 (part2)”) of the NYSE Listed Company Manual (“Listed Company Manual”). The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to make certain technical and conforming changes to Section 703.02 (part2) of the Listed Company Manual.
Currently, Section 703.02(part 2) provides that “a distribution of less than 25% is traded “ex” (without the distribution) on and after the business day prior to the record date.” Section 703.02 (part 2) was recently amended to conform to amendments to Securities and Exchange Act Rule 15c6–1(a), which shortened the settlement cycle from three days to two days (“T+2).
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
In particular, the Exchange believes that the proposed changes removes [sic] impediments to and perfects the mechanism of a free and open market by conforming the tabulation chart in Section 703.02 (part 2) of the Listed Company Manual to reflect a two day settlement, thereby reducing potential confusion, and making the Exchange's rules easier to navigate. The Exchange also believes that updating the illustrative material in the Listed Company Manual also removes impediments to and perfects the mechanism of a free and open market by removing confusion that may result from having outdated or inconsistent material in the Listed Company Manual. The Exchange believes that aligning such material would not be inconsistent with the public interest and the protection of investors because investors will not be harmed and in fact would benefit from increased transparency, thereby reducing potential confusion.
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed change is not designed to address any competitive issue but rather is solely concerned with conforming Section 703.02 (part 2) of the Listed Company Manual to reflect the two day settlement cycle. The Exchange also believes that the proposed rule change will serve to promote clarity and consistency, thereby reducing burdens on the marketplace and facilitating investor protection.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule 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 if consistent with the protection of investors and the public interest, provided that the self-regulatory organization has given the Commission written notice of its intent to file the proposed rule change at least five business days prior to the date of filing of the proposed rule change or such shorter time as designated by the Commission,
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 716(c) to more accurately describe the allocation methodology used in the Block Order Mechanism, and add language regarding how the block execution price is determined.
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 Block Order Mechanism is a process by which a member can obtain liquidity for the execution of block-sized orders,
Currently, Rule 716(c)(2)(ii) provides that Responses, quotes, and Professional Orders
Furthermore, the Exchange proposes add language to Rule 716(c)(2)(i) that explains the price at which orders entered into the Block Order Mechanism are executed. In particular, the Exchange proposes to state that Responses, orders, and quotes will be executed at a single block execution price that is the price for the block-size order at which the maximum number of contracts can be executed consistent with the member's instruction. For example, if a member enters a block-sized order to buy 100 contracts at $1.00 into the Block Order Mechanism, and members enter Response A to sell 50 contracts at $0.90 and Response B to sell 40 contracts at $0.95, the block execution price would be $0.95 as this is the price at which the maximum number of contracts could be executed. The block-sized order and both Responses would then be executed at this single block execution price. Responses A and B would be executed in full since there is sufficient size to execute both Responses against the block-size order. In addition, if two other members also enter Responses C (Priority Customer) and D (non-Priority Customer) to sell at $0.98 for 10 contracts each, the block execution price would be $0.98 as additional contracts could be executed at that price. In that instance, Responses A and B, which are priced better than the block execution price, would be executed in full, while Responses B and C, which are priced at the block execution price, would participate in accordance with the allocation methodology described in this proposed rule change—
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange believes that the proposed changes to the allocation language in Rule 716(c)(2)(i)–(ii) are consistent with the protection of investors and the public interest as the proposed allocation language more accurately reflects the Exchange's process for allocating contracts executed in the Block Order Mechanism. Although the Exchange's allocation rule for the Block Order Mechanism currently references the allocation process for regular trading, the allocation methodology does not include certain parts of the regular allocation procedure. In particular, the Exchange does not grant any special allocation to the PMM for interest executed in the Block Order Mechanism. The Exchange believes that it is appropriate to not provide an enhanced allocation entitlement to the PMM for interest executed in the Block Order Mechanism, as the Block Order Mechanism provides an auction process that does not rely on market maker quoting and other obligations to source liquidity. Furthermore, the Exchange believes that it is helpful to explain in this rule that interest that is priced better than the block execution price would be executed in full. The allocation process used for the Block Order Mechanism is similar to how the Exchange allocates contracts in other auction mechanisms, including, for example, the Facilitation Mechanism, Solicited Order Mechanism, and Price Improvement Mechanism, with the exception that those two-sided auction mechanisms also allocate contracts against the contra order.
The Exchange also believes that the proposed changes to describe how the block execution price is determined is consistent with the protection of investors and the public interest as this change will increase transparency around the price at which interest is executed in the Block Order Mechanism. As explained above, the Block Order Mechanism is designed to provide an opportunity for members to receive liquidity for their block-sized orders and therefore trades at a price that allows the maximum number of contracts of such order to be executed against Responses entered to trade against the block-size order and interest on the Exchange's order book. The Exchange believes that describing how the block execution price is determined in Rule 716(c)(2)(i) will increase transparency around pricing of executions in the Block Order Mechanism.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to extend the date on which certain changes to the NYSE Arca Rule 5 and Rule 8 series are implemented. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
On January 6, 2017, the Exchange filed a proposed rule change, as subsequently amended by Amendments No. 1 and 2 thereto (as amended, the “Proposed Rule Change”), to adopt certain changes to the NYSE Arca Rules 5 and 8 series to add additional continued listing standards for exchange-traded funds (“ETFs”) as well as clarify the procedures that the Exchange will undertake when an ETF is noncompliant with applicable rules. Given the scope of the amendments specified in the Proposed Rule Change, the Exchange proposed that such amendments not be implemented until October 1, 2017. On March 9, 2017, the Commission granted accelerated approval of the Proposed Rule Change, including the October 1, 2017 implementation date.
Since the Proposed Rule Change was approved, the Exchange has engaged in extensive conversations with issuers of listed ETFs, industry advocacy groups and index providers to discuss the new rule requirements and offer guidance on rule interpretation and application. As a result of these conversations, ETF issuers have expressed concern about their ability to have in place systems and procedures to ensure compliance by the current October 1, 2017 implementation date. In particular, listed ETF issuers, and industry advocacy groups on their behalf, have explained that issuers require additional time to engage with listing exchanges to better understand how elements of the Proposed Rule Change will be interpreted and applied as well as to design and test new compliance systems. The Exchange has been engaged with its listed issuers and will continue to engage with them on topics of rule interpretation and application. In addition, issuers require time to engage in discussions with third-party providers to source and track new data elements required for rule compliance.
The Exchange believes it is appropriate to extend the implementation date of the Proposed Rule Change to January 1, 2018 to provide listed ETF issuers with the time needed to finish developing and testing their compliance procedures. In support of its proposal, the Exchange notes that the Proposed Rule Change imposes significant new compliance requirements on issuers that they have not been subject to previously. To meet these new compliance requirements, issuers must develop internal systems as well as coordinate with third-party service providers, such as index providers, to develop procedures by which they can obtain essential data. Listed issuers have informed the Exchange that they are unable to complete this extensive project by the pending October 1, 2017 implementation date. The Exchange believes that it is critical for listed ETF issuers to have the appropriate procedures and systems in place to monitor and evidence ETF compliance with the new continued listing rules before such rules are implemented because failure to comply with Exchange rules could lead to delisting. Therefore, the Exchange proposes to extend the implementation date for the Proposed Rule Change until January 1, 2018. During the proposed extension period, the Exchange will communicate with issuers, as needed, with respect to any questions about interpretation and application of the Proposed Rule Change and in order to better understand the progress being made by issuers in completing the development of their compliance testing and procedures.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, as amended. The Exchange notes that the proposed rule change will facilitate listed issuer ability to monitor and evidence compliance with approved continued listing rules by providing issuers with additional time to finish developing and testing their internal systems and procedures prior to the implementation date.
The Exchange received a copy of a letter from the Investment Company Institute, on behalf of listed ETF issuers, to the Securities and Exchange Commission.
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 the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 6.45 relating to disaster recovery. The text of the proposed rule change is also available on the Exchange's Web site (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for
C2 adopted Rule 6.45 in 2012 for the limited purpose of providing alternative means of operation in the event C2's trading system became inoperable or otherwise unavailable for use due to a disaster or other unusual circumstance. In particular, Rule 6.45, as originally adopted, was intended to allow C2 to operate a “Disaster Recovery Facility” (“DRF”) to continue to trade exclusively listed option classes until C2's main trading system was again available.
In 2015, Rule 6.45 was amended to add greater detail to C2's disaster recovery rules and harmonize the disaster recovery rules with newly implemented disaster recovery-related regulatory imperatives of Regulation Systems Compliance and Integrity (“Regulation SCI”), which superseded and replaced the SEC's voluntary Automation Review Policy.
C2 now proposes to make additional changes to its disaster recovery rules to provide C2 the authority to take additional steps necessary to preserve the C2's ability to conduct business in the event that C2's primary and/or back-up data center(s) become inoperable or otherwise unavailable for use due to a significant systems failure, disaster or other unusual circumstances and make clear in the Rules the intermediary steps that C2 may take to disable certain systems and users' connectivity while continuing to operate its primary data center. C2 believes this authority serves the interests of all investors and the general public, because it helps C2 ensure its continuous operation and ability to maintain fair and orderly markets in the event of a significant systems failure or other unusual circumstance.
C2 proposes to amend Rule 6.45 relating to disaster recovery. Specifically, the Exchange proposes to make changes to Rule 6.45 to: (1) Allow C2 to establish certain additional temporary requirements applicable to particular Designated BCP/DR Participants
C2 proposes to add new Rule 6.45(b)(iv)(B) (Alternative BCP/DR Participant Obligations), which would provide that during the use of the back-up data center, C2 may, if necessary for the maintenance of fair and orderly markets, establish heightened quoting obligations for Designated BCP/DR Participants in a class in which the Designated BCP/DR Participant is already an appointed Market-Maker up to the standards specified for Designated Primary Market-Makers (“DPMs”) in Rule 8.17(a)
C2 also proposes to add Rule 6.45(c) (Deactivation of Certain Systems), which would provide that in the event of a systems disruption or malfunction, security intrusion, systems compliance issue, or other unusual circumstances, C2 may, in accordance with the Rules or if necessary to maintain fair and orderly markets or to protect investors, temporarily deactivate certain systems or systems functionalities that are not essential to conducting business on C2. Many of the systems and systems functionalities described in the Rules are provided optionally by C2 to enhance participants' trading experience, but are not required to be active under the Rules and are not necessary for C2 to conduct business.
In addition, the activation of other functionalities may not be described by the Rule, but could be suspended temporarily (
Finally, C2 proposes Rule 6.45(d) (Connectivity Restriction), which would permit C2 to temporarily restrict a Permit Holder's or associated person's access to the trading system if it is determined by the President (or senior-level designee) of C2, that because of a systems issue, such access threatens C2's ability to operate systems essential to the maintenance of fair and orderly markets.
C2 believes the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to C2 and, in particular, the requirements of Section 6(b) of the Act.
The proposed rule change is designed to promote C2's ability to ensure the continued operation of a fair and orderly market in the event of a systems failure, disaster, or other unusual circumstances that might threaten the ability to conduct business on C2. C2 recognizes that switching operations to the back-up data center may occur in times of uncertainty or great volatility in the markets. It is at these times that the investors may have the greatest need for viable, trustworthy marketplaces. The proposed rule change seeks to ensure that such a marketplace will exist when most needed, and thus, C2 believes that the proposed rule protects investors in the most fundamental sense.
In particular, C2 believes that proposed Rule 6.45(b)(iv)(B) allowing C2, during the use of the back-up data center to (1) establish heightened quoting obligations for Designated BCP/DR Participants in a class in which the Designated BCP/DR Participant is already an appointed Market-Maker up to the standards specified for DPMs specified in Rule 8.17(a) and/or (2) disallow the ability to deselect an appointment intraday in a class in which the Designated BCP/DR Participant is already an appointed Market-Maker would help ensure the maintenance of a fair and orderly market in the event of a disaster, which is in the interests of all market participants, investors, and the general public. C2 believes that adopting rules that help ensure that markets are open and available during times of turmoil and emergency is an important goal consistent with the Act. C2 also believes that deactivation of certain systems in proposed Rule 6.45(c), whether by rule or otherwise, in order to ensure that C2 is able to provide a fair and orderly market in the face of systems disruptions and malfunction is in the best interests of market participants, investors, and the general public.
Similarly, C2 believes that the proposed connectivity restriction in proposed Rule 6.45(d) would help ensure that C2 remains open and available to all market participants. C2 notes that other connectivity restrictions are already in place on the Exchange.
C2 also believes that the proposed rule change promotes just and equitable principles of trade by adding detail and clarity to the Rules. The proposed rule change seeks to provide additional clarity to C2's disaster recovery rules, putting all market participants on notice as to how C2 will function in case of significant systems disruption or other disaster situation. C2 is continuously updating the Rules to provide additional detail, clarity, and transparency regarding its operations and trading systems and regulatory authority. C2 believes that the adoption of detailed, clear, and transparent rules reduces burdens on competition and promotes just and equitable principles of trade. C2 also believes that adding greater detail to the Rules regarding C2's ability to ensure the continuous operation of the market and preserve the ability to conduct business on C2 will increase confidence in the markets and encourage wider participation in the markets and greater investment.
C2 does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. Rather, the proposed rule change will help ensure that competitive markets remain operative in the event of a systems failure or other disaster event. C2 notes that the proposed rule change is designed to provide C2 with authority to require market participants to participate in, and provide necessary liquidity to, the market to ensure that C2 functions in a fair and orderly manner in the event of a significant systems failure, disaster, or other unusual circumstances. Accordingly, C2 believes that the proposed rule change is designed to ensure fair and competitive markets at time when they may be most needed.
C2 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 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 August 11, 2017, National Securities Clearing Corporation (“NSCC”) filed with the Securities and Exchange Commission (“Commission”) proposed rule change SR–NSCC–2017–015, pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
NSCC proposed to change its Rules & Procedures (“Rules”)
NSCC collects Required Deposits from all Members in order to mitigate potential losses to NSCC associated with the liquidation of a Member's portfolio, if NSCC ceases to act for such Member.
NSCC currently calculates and collects the CNS Fails Charge from Members with positions that did not settle on the applicable settlement date (“Settlement Date”)
This proposed rule change would amend the Rules regarding the CNS Fails Charge. Specifically, the proposed rule change would amend the Rules to add transparency and clarify NSCC's current practices with respect to the assessment and collection of this existing daily margin charge.
Currently, for a Member with CNS Fails Positions, the CNS Fails Charge is calculated by multiplying the current market value of such Member's aggregate CNS Fails Positions by a percentage determined by the Member's CRRM rating.
NSCC explains that of the 20 percent charge, 10 percent is imposed pursuant to Procedure XV, Section I.(A)(1)(f) of the Rules, which describes NSCC's current CNS Fail Charge,
To effectuate the proposed change, NSCC proposes to amend Rule 1 of 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 promote the prompt and accurate clearance and settlement of securities transactions.
The proposed rule change would clarify and provide additional transparency to NSCC members regarding NSCC's current practices surrounding the assessment and collection of the CNS Fails Charges associated with each Member. Specifically, the proposed Rule would clearly state that Members with a CRRM rating of 7 are charged 20 percent of the Member's aggregate CNS Fails Positions (instead of the less transparent approach of charging 10 percent pursuant to the CNS Fails Charge and 10 pursuant to a separate Watch List charge). By doing so, this proposed rule change would help the Rules to be more transparent, accurate, and clear, which would better enable Members to understand their respective rights and obligations with respect to their NSCC membership and, in turn, support NSCC's clearance and settlement of securities transactions. Therefore, the Commission believes that the proposed rule change related to the CNS Fails Charge would promote the prompt and accurate clearance and settlement of securities transactions, consistent with Section 17A(b)(3)(F) of the Act.
Rule 17Ad–22(e)(23)(i) under the Act requires NSCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to publicly disclose all relevant rules and material procedures.
As described above, the proposed rule change seeks to clarify in NSCC's Rules the current practices with respect to the assessment and collection of the CNS Fails Charge. Specifically, NSCC proposes to amend the Rules to include a definition for CNS Fails Position and clearly state NSCC's current practices regarding the assessment and collection of the CNS Fails Charge, including the percentages that NSCC charges Members according to their CRRM rating. In doing so, the Commission believes that proposed rule change would help promote disclosure of relevant rules and material procedures relating to the CNS Fails Charge, consistent with Rule 17Ad–22(e)(23)(i) under the Act.
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 August 17, 2017, Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The proposed rule change was published for comment in the
As discussed in the Notice and described below, the proposed rule change seeks to clarify that FINRA's existing pay-to-play rules and related recordkeeping requirements apply to CABs. Under the proposed rules, CABs would be subject to the same restrictions designed to halt pay-to-play practices as non-CAB member firms, which would effectively allow them to engage in distribution and solicitation activities with government entities on behalf of investment advisers.
In July 2010, the SEC adopted Rule 206(4)–5 under the Investment Advisers Act of 1940 addressing pay-to-play practices by investment advisers (the “SEC Pay-to-Play Rule”).
Based on the framework of the SEC Pay-to-Play Rule, FINRA proposed Rules 2030 and 4580, which establish a comprehensive regime to regulate the activities of FINRA member firms that engage in distribution or solicitation activities with government entities on behalf of investment advisers, and to deter member firms from engaging in pay-to-play practices.
On August 18, 2016, the SEC approved a separate set of FINRA rules for firms that meet the definition of a CAB and that elect to be governed under this rule set.
The CAB Rules became effective on April 14, 2017. In order to provide new CAB applicants with lead time to apply for FINRA membership and obtain the necessary qualifications and registrations, CAB Rules 101–125 became effective on January 3, 2017.
The CAB Rules subject CABs to a number of FINRA Rules, but do not expressly provide that FINRA Rules 2030 and 4580 apply to CABs. As explained by FINRA in the Notice, the proposed rule change sought to make clear that CABs are subject to FINRA's pay-to-play rule, which would make CABs, like non-CABs, “regulated persons” that are subject to restrictions designed to halt pay-to-play practices and thus can engage in distribution and solicitation activities with government entities on behalf of investment advisers in accordance with the SEC's Pay-to-Play Rule.
To make this clarification, FINRA proposed the addition of CAB Rules 203 and 458 to the CAB rule book. CAB Rule 203 would provide that all capital acquisition brokers are subject to existing FINRA Rule 2030. CAB Rule 458 would provide that all capital acquisition brokers are subject to existing FINRA Rule 4580.
As noted above, no comment letters were received on the proposed rule change.
After careful review of the proposed rule change, the Commission finds that the proposal is consistent with the requirements of the Exchange Act and the rules and regulations thereunder that are applicable to a national securities association.
The Commission agrees with FINRA that the proposed rule change will clarify that CABs and non-CAB member firms are subject to the same rule regime as they engage in distribution or solicitation activities with government entities on behalf of investment advisers. Without the proposed rule change, under the SEC's Pay-to-Play Rule, CABs could not be retained by investment advisers to engage in distribution and solicitation activities with government entities on their behalf because the rule set for CABs does not expressly provide that FINRA Rule 2030 applies to CABs. The Commission also agrees with FINRA that having such rules in place will deter CABs from engaging in pay-to-play practices, and that clarifying the application of FINRA Rules 2030 and 4580 to CABs is a more effective regulatory response to concerns regarding third-party solicitations than an outright ban on such activity.
Lastly, the Commission agrees with FINRA that the proposed rule change will not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act. In the Notice, FINRA explained that the proposed rule change would subject CABs to the same pay-to-play rules as non-CAB member firms, and therefore, the economic impacts associated with the proposal were contemplated in the Economic Impact Assessment accompanying the filing of FINRA Rules 2030 and 4580. FINRA's Economic Impact Assessment in the Proposing Release for FINRA Rules 2030 and 4580 considered the impact on all FINRA member firms, including firms that at that time engaged solely in activities that were later deemed permissible for CABs.
Taking into consideration the foregoing, the Commission believes that the proposal is consistent with the Exchange Act. The Commission believes that the proposal will help protect investors and the public interest by, among other things, clarifying that CABs and non-CAB member firms are subject to the same rule regime as they engage in distribution or solicitation activities with government entities on behalf of investment advisers, and by deterring pay-to-play practices. Accordingly, the Commission believes that the approach proposed by FINRA is appropriate and designed to protect investors and the public interest, consistent with Section 15A(b)(6) of the Exchange Act and the rules and regulations thereunder.
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”),
CHX proposes to amend the Rules of the Exchange (“CHX Rules”) related to Sponsored Access. The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule changes 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 CHX 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 CHX Rules to effect the following changes:
• Amend Article 1, Rule 1 to adopt the following defined terms: “Sponsoring Participant,” “Sponsored Person” and “Sponsored Access.”
• Amend Article 5, Rule 3 to permit Sponsoring Participants to provide Sponsored Access to the Exchange to Sponsored Persons, subject to enhanced requirements. Current Article 5, Rule 3 only permits Sponsoring Participants to provide authorized access to the Exchange's trading facilities to non-Participant
Current Article 5, Rule 3(a) provides that a Sponsoring Participant may provide authorized access to the Exchange for a non-Participant broker-dealer, through a clearing arrangement or otherwise, only if the Sponsoring Participant, the non-Participant broker-dealer and the Exchange (as appropriate) enter into one or more written agreements, in a form acceptable to the Exchange, prior to any access to the Exchange, that contain all of the following terms: (1) All orders submitted by the non-Participant broker-dealer, and any executions resulting from those orders, are binding in all respects on the Sponsoring Participant; (2) the Sponsoring Participant is responsible for all actions taken and fees incurred in connection with any order submitted or transaction executed by the non-Participant broker-dealer (and any person acting on behalf of the non-Participant broker-dealer); (3) in all matters relating to the non-Participant broker-dealer's access to the Exchange and its use of Exchange facilities, the Exchange shall communicate with the Sponsoring Participant and shall not be required to communicate with the non-Participant broker-dealer at any time; (4) the non-Participant broker-dealer agrees that it will have reasonable procedures to maintain the physical security of the equipment used to access the Exchange to prevent improper use of, or access to, the Exchange; and (5) the Sponsoring Participant agrees that it will indemnify and hold the Exchange harmless from any liability, loss, claim or expense which the Exchange may incur in connection with the agreement. In addition, current Article 5, Rule 3(b) provides that the Sponsoring Participant must provide signed copies of the agreements required by section (a) to the Exchange prior to the non-participant's access to the Exchange through the Sponsoring Participant.
The Exchange now proposes to amend CHX Rules to permit Sponsoring Participants to provide Sponsored Access to the Exchange to any Sponsored Person, subject to the requirements of amended Article 5, Rule 3. Amended Article 5, Rule 3 is based, in part, on Nasdaq Rule 4615. The Exchange believes that the proposed rule change will permit a broader group of market participants, such as institutional investors, to obtain Sponsored Access to the Exchange, which may result in reduced transaction costs to such market participants in furtherance of the protection investors and the public interest.
Proposed CHX Article 1, Rule 1(vv) provides that “Sponsored Person” means a person which has entered into a sponsorship arrangement with a Sponsoring Participant pursuant to amended Article 5, Rule 3.
Proposed CHX Article 1, Rule 1(ww) provides that a “Sponsoring Participant” means a Participant who has been designated by a Sponsored Person to execute, clear and settle transactions resulting from the Trading Facilities. The rule continues by providing that the Sponsoring Participant shall be either (1) a Clearing Participant
Proposed Article 1, Rule 1(xx) provides that “Sponsored Access” means an arrangement whereby a Sponsoring Participant permits its Sponsored Persons to enter orders into the Matching System that bypass the Sponsoring Participant's trading system and are routed directly to the Exchange, including through a service bureau or other third party technology provider. The Exchange is proposing to adopt a definition for “Sponsored Access” to clarify the type of market access arrangement that is subject to amended Article 5, Rule 3. This definition was derived from the Commission's description of Sponsored Access used in the release approving the Market Access Rule.
The Exchange proposes to amend current Article 5, Rule 3 to permit Sponsoring Participants to provide Sponsored Access to Sponsored Persons, subject to the requirements of amended Article 5, Rule 3. Initially, the Exchange proposes to amend the title to Rule 3 to reflect that it applies to “Sponsored Persons.”
Under paragraph (a), the Exchange proposes to (1) replace a reference to “Participant (the `Sponsoring Participant')” with “Sponsoring Participant”; (2) replace reference to “authorized access” with the proposed defined term “Sponsored Access”; (3) define the required written agreements between Sponsoring Participant, Sponsored Person and the Exchange that permit a Sponsored Person to receive Sponsored Access to the Exchange as “Sponsored Access Agreements.” Under both paragraphs (a) and (b), as well as Article 5, Rule 4 (Denial of Access),
The Exchange further proposes to adopt proposed paragraphs (a)(6)–(11) to provide additional terms that must be included in Sponsored Access Agreements. Proposed paragraph (a)(6) provides that the Sponsoring Participant and Sponsored Person must comply with Rule 15c3–5 under the Exchange Act.
Proposed paragraph (a)(7) provides that the Sponsoring Participant shall comply with the Exchange's Certificate of Incorporation, Bylaws, Rules and procedures and the Sponsored Person shall comply with the Exchange's Certificate of Incorporation, Bylaws, Rules and procedures with regard to the
Proposed paragraphs (a)(8)–(11) would impose obligations on Sponsored Persons to ensure appropriate use of, and security of access to, the Exchange's trading facilities, as well as compliance with the applicable Sponsored Access Agreement. Specifically, proposed paragraph (a)(8) provides that the Sponsored Person shall maintain, keep current and provide to the Sponsoring Participant a list of individuals authorized to obtain Sponsored Access to the Exchange on behalf of the Sponsored Person. Proposed paragraph (a)(9) provides that the Sponsored Person shall familiarize its authorized individuals with all of the Sponsored Person's obligations under this Rule and will assure that they receive appropriate training prior to any use or access to the Exchange pursuant to any Sponsored Access Agreement. Proposed paragraph (a)(10) provides that the Sponsored Person may not permit anyone other than authorized individuals to use or obtain access to the Exchange pursuant to any Sponsored Access Agreement. Proposed paragraph (a)(11) provides that the Sponsored Person shall establish, maintain and enforce written supervisory procedures and a supervisory system that is reasonably designed to ensure that the use or access to the Exchange that takes place pursuant to a Sponsored Access Agreement and by any Sponsored Person or authorized individual complies with the terms of the Sponsored Access Agreement and all applicable CHX and SEC rules and regulations.
The Exchange proposes to make the proposed rule change operative on a date after the 30-day preoperative delay and pursuant to at least one week's notice to Participants.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act in general,
Specifically, the Exchange believes that the proposed rule change will remove impediments and perfect the mechanisms of a free and open market by permitting Sponsoring Participants to provide Sponsored Access to customers that are not broker-dealers, such as institutional investors, as well as broker-dealers that are not Participants, which may result in reduced transaction costs to such market participants in furtherance of the protection investors and the public interest.
Also, the Exchange believes that the additional required terms for Sponsored Access Agreements under proposed Article 5, Rule 3(a)(6)–(11) will protect investors and the public interest by enhancing the ability of the Exchange to monitor, enforce and compel compliance with CHX Rules and the Market Access Rule by Sponsoring Participants and Sponsored Persons. In particular, proposed paragraph (a)(6) will clarify that any Sponsored Access arrangement under amended Article 5, Rule 3 must be effected in accordance with the Market Access Rule; proposed paragraph (a)(7) will ensure that both Participant and non-Participant Sponsored Persons will be subject to the CHX Rules; and proposed paragraphs (a)(8)–(11) will impose affirmative obligations on Sponsored Persons that will enhance the security of the Exchange.
Moreover, the Exchange believes that proposed definitions of “Sponsoring Participant,” “Sponsored Person,” “Sponsored Access” and “Sponsored Access Agreements” provide clarity to the meaning and scope of amended Article 5, Rule 3, which furthers the objectives of Section 6(b)(1)
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that other national securities exchanges, such as Nasdaq,
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
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) of the Act
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 716(c) to more accurately describe the allocation methodology used in the Block Order Mechanism, and add language regarding how the block execution price is determined.
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 Block Order Mechanism is a process by which a member can obtain liquidity for the execution of block-sized orders,
Currently, Rule 716(c)(2)(ii) provides that Responses, quotes, and Professional Orders
Furthermore, the Exchange proposes add language to Rule 716(c)(2)(i) that explains the price at which orders entered into the Block Order Mechanism are executed. In particular, the Exchange proposes to state that Responses, orders, and quotes will be executed at a single block execution price that is the price for the block-size order at which the maximum number of contracts can be executed consistent with the member's instruction. For example, if a member enters a block-sized order to buy 100 contracts at $1.00 into the Block Order Mechanism, and members enter Response A to sell 50 contracts at $0.90 and Response B to sell 40 contracts at $0.95, the block execution price would be $0.95 as this is the price at which the maximum number of contracts could be executed. The block-sized order and both Responses would then be executed at this single block execution price. Responses A and B would be executed in full since there is sufficient size to execute both Responses against the block-size order. In addition, if two other members also enter Responses C (Priority Customer) and D (non-Priority Customer) to sell at $0.98 for 10 contracts each, the block execution price would be $0.98 as additional contracts could be executed at that price. In that instance, Responses A and B, which are priced better than the block execution price, would be executed in full, while Responses B and C, which are priced at the block execution price, would participate in accordance with the allocation methodology described in this proposed rule change—
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange believes that the proposed changes to the allocation language in Rule 716(c)(2)(i)–(ii) are consistent with the protection of investors and the public interest as the proposed allocation language more accurately reflects the Exchange's process for allocating contracts executed in the Block Order Mechanism. Although the Exchange's allocation rule for the Block Order Mechanism currently references the allocation process for regular trading, the allocation methodology does not include certain parts of the regular allocation procedure. In particular, the Exchange does not grant any special allocation to the PMM for interest executed in the Block Order Mechanism. The Exchange believes that it is appropriate to not provide an enhanced allocation entitlement to the PMM for interest executed in the Block Order Mechanism, as the Block Order Mechanism provides an auction process that does not rely on market maker quoting and other obligations to source liquidity. Furthermore, the Exchange believes that it is helpful to explain in this rule that interest that is priced better than the block execution price would be executed in full. The allocation process used for the Block Order Mechanism is similar to how the Exchange allocates contracts in other auction mechanisms, including, for example, the Facilitation Mechanism, Solicited Order Mechanism, and Price Improvement Mechanism, with the exception that those two-sided auction mechanisms also allocate contracts against the contra order.
The Exchange also believes that the proposed changes to describe how the block execution price is determined is consistent with the protection of investors and the public interest as this change will increase transparency around the price at which interest is executed in the Block Order Mechanism. As explained above, the Block Order Mechanism is designed to provide an opportunity for members to receive liquidity for their block-sized orders and therefore trades at a price that allows the maximum number of contracts of such order to be executed against Responses entered to trade against the block-size order and interest on the Exchange's order book. The Exchange believes that describing how the block execution price is determined in Rule 716(c)(2)(i) will increase transparency around pricing of executions in the Block Order Mechanism.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 list and trade shares of the following under NYSE Arca Rule 8.600–E (“Managed Fund Shares”): JPMorgan Managed Futures ETF. The proposed change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the following under NYSE Arca Rule 8.600–E, which governs the listing and trading of Managed Fund Shares
The Fund is a series of J.P. Morgan Exchange-Traded Fund Trust (“Trust”), a Delaware statutory trust. J.P. Morgan Investment Management Inc. (“Adviser” or “Administrator”) will be the investment adviser to the Fund and also provide administrative services for and oversee the other service providers for the Fund. The Adviser is a wholly-owned subsidiary of JPMorgan Asset Management Holdings Inc., which is an indirect, wholly-owned subsidiary of JPMorgan Chase & Co. (“JPMorgan Chase”), a bank holding company. JPMorgan Distribution Services, Inc. (“Distributor”) will be the distributor of the Fund's Shares.
Commentary .06 to Rule 8.600–E provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio.
According to the Registration Statement, the Fund will seek to provide long-term total return. Through the Adviser's systematic investment process, the Fund seeks to achieve its investment objective by investing globally to exploit opportunities across a broad range of asset classes including, but not limited to, equities, fixed income, currency and commodities based on the adviser's assessment of their relative attractiveness. Within these strategies, the Adviser believes it has identified (and will continue to identify) a set of investment return sources that have a low correlation to each other and to traditional markets and have distinct risk and return profiles (each a “return factor”).
Under normal market conditions,
The exposure to individual return factors may vary based on the market opportunity of the individual return factors. Additional return factors may be identified over time. For example, the return factors that the Adviser may utilize include, but are not limited to, the following:
• Carry—In the carry strategies, the Fund seeks to take a short position in a low yielding instrument while also taking a long position in another instrument that is higher yielding. The strategies seek to capture the tendency for higher yielding assets to provide higher returns than lower-yielding assets. The Fund implements these
• Momentum—These strategies seek to capture the tendency that an asset's recent performance based on its price will continue in the near future. The Fund will seek to choose investments that have performed relatively well over those that have underperformed over the medium-term.
The Fund will invest its assets globally to gain exposure, either directly or through the use of derivatives, to equity securities (across market capitalizations) in developed markets, debt securities (including below investment grade or high yield debt securities), commodities (through its subsidiary as described below) and currencies (including in emerging markets). The Fund may use both long and short positions (achieved primarily through the use of financial derivative instruments). The Fund may maintain a total net long market exposure, meaning that the Fund's long exposure will be greater than its short exposure, neutral aggregate exposure, where the long and short exposure will be equal, or total net short exposure, meaning that the Fund's short exposure will be greater than its long exposure. In addition, the Fund may have net long or net short exposure to one or more industry sectors, individual markets and/or currencies based on the Adviser's view of whether a particular sector, market or currency is expected to outperform or underperform.
The Adviser will make use of derivatives including swaps, futures, options and forward contracts, in implementing its strategies. Under normal market conditions, the Adviser currently expects that a significant portion of the Fund's exposure will be attained through the use of derivatives in addition to its exposure through direct investments. Derivatives, which are instruments that have a value based on another instrument, exchange rate or index, will primarily be used as an efficient means of implementing a particular strategy in order to gain exposure to a desired return factor.
Derivatives may also be used to increase gain, to effectively gain targeted exposure from its cash positions, to hedge various investments and/or for risk management. As a result of the Fund's use of derivatives and to serve as collateral, the Fund may hold significant amounts of U.S. Treasury obligations, including Treasury bills, bonds and notes and other obligations issued or guaranteed by the U.S. Treasury, obligations of other sovereign governments or supranational entities, other short-term investments, including money market funds and foreign currencies in which certain derivatives are denominated.
The amount that may be invested in any one instrument will vary and generally depend on the return factors employed by the Adviser at that time. However, there are no stated percentage limitations on the amount that can be invested in any one type of instrument, and the Adviser may, at times, focus on a smaller number of instruments.
The Fund will purchase a particular instrument when the Adviser believes that such instrument will allow the Fund to gain the desired exposure to a return factor. Conversely, the Fund will consider selling a particular instrument when it no longer provides the desired exposure to a return factor. In addition, investment decisions will take into account a return factor's contribution to the Fund's overall volatility. In allocating assets, the Adviser seeks to approximately balance risk to the individual return factors over the long term, although the exposure to individual return factors will vary based on, among other things, the opportunity the Adviser sees in each individual return factor.
According to the Registration Statement, under normal market conditions, the Fund will invest principally (
The Fund may purchase and sell U.S. and foreign exchange-traded commodity futures, equity futures, options on equity futures, bond futures, index futures, currency futures, and options on currency futures.
The Fund may invest in over-the-counter (“OTC”) total return swaps on equities, fixed income, commodities, and foreign currencies; currency swaps; interest rate swaps; credit default swaps (“CDS”); CDS index swaps (“CDX”) and loan credit default index swaps (“LCDX”).
The Fund may invest in forward and spot currency transactions. Such investments consist of non-deliverable forwards (“NDFs”), foreign forward currency contracts,
The Fund may invest in cash and cash equivalents which are investments in money market funds (including funds for which the Adviser and/or its affiliates may serve as investment adviser or administrator), bank obligations,
The Fund may invest in U.S. Government obligations, which may include direct obligations of the U.S.
The Fund may invest in U.S. and foreign corporate debt.
While the Fund, under normal market conditions, will invest at least fifty percent (50%) of its assets in the securities and financial instruments described above, the Fund may invest its remaining assets in other assets and financial instruments, as described below.
The Fund may invest in U.S. and foreign exchange-traded call and put options on equities, equity indexes and equity futures.
The Fund will gain exposure to commodity markets by investing directly in commodity related instruments or indirectly by investing up to 20% of its total assets in the Managed Futures Fund CS Ltd., a wholly owned subsidiary of the Fund organized under the laws of the Cayman Islands (the Subsidiary). The Subsidiary is also advised by the Adviser. The Subsidiary will only invest in commodity or cash management related investments described above in the Principal Investments section. However, the Subsidiary (unlike the Fund) may invest without limitation in commodity related investments, including derivative instruments linked to the value of a particular commodity, commodity index or commodity futures contract described above. The Subsidiary will otherwise be subject to the same fundamental, non-fundamental and certain other investment restrictions as the Fund.
The Fund may invest in U.S. exchange-listed preferred stock.
The Fund may invest in exchange-listed-and-traded real estate investment trusts (“REITs”). Exchange-listed REITs will be traded on U.S. national securities exchanges.
The Fund may invest in repurchase agreements and reverse repurchase agreements.
The Fund may invest in sovereign obligations, which are investments in debt obligations issued or guaranteed by a foreign sovereign government or its agencies, authorities or political subdivisions. The Fund may also invest in obligations of supranational entities including securities designated or supported by governmental entities to promote economic reconstruction or development of international banking institutions and related government agencies.
In addition to money market funds referenced above, the Fund may invest in shares of non-exchange-traded investment company securities including investment company securities for which the Adviser and/or its affiliates may serve as investment adviser or administrator, to the extent permitted by Section 12(d)(1)
The Fund's investments, including derivatives, will be consistent with the Fund's investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage). That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund's (and the Subsidiary's) investments will not be used to seek performance that is the multiple or inverse multiple (
The Fund proposes to seek certain exposures through transactions in the specific derivative instruments described above. The derivatives usage may occur in the Fund or the Subsidiary (provided that the Subsidiary will invest only in commodity or cash management related investments, as described above). The derivatives to be used are futures, swaps, forwards, and call and put options. Derivatives, which are instruments that have a value based on another instrument, exchange rate or index, may also be used as substitutes for securities in which the Fund can invest. The Fund may use these derivative instruments to increase gain, to effectively gain targeted exposure from its cash positions, to hedge various investments and/or for risk management.
Investments in derivative instruments will be made in accordance with the 1940 Act and consistent with the Fund's investment objective and policies. To limit the potential risk associated with such transactions, the Fund will segregate or “earmark” assets determined to be liquid by the Adviser in accordance with procedures established by the Trust's Board of Trustees (the “Board”) and in accordance with the 1940 Act (or, as permitted by applicable regulation, enter into certain offsetting positions) to cover its obligations under derivative instruments. These procedures have been adopted consistent with Section 18 of the 1940 Act and related Commission guidance. In addition, the Fund will include appropriate risk disclosure in its offering documents, including leveraging risk. Leveraging risk is the risk that certain transactions of the Fund, including the Fund's use of derivatives, may give rise to leverage, causing the Fund to be more volatile than if it had not been leveraged.
The consideration for a purchase of Creation Units will generally be cash, but may consist of an in-kind deposit of a designated portfolio of equity securities and other investments (the “Deposit Instruments”) and an amount of cash computed as described below (the “Cash Amount”) under some circumstances. The Cash Amount together with the Deposit Instruments, as applicable, are referred to as the “Portfolio Deposit,” which represents the minimum initial and subsequent investment amount for a Creation Unit of the Fund. The size of a Creation Units is 50,000 Shares and is subject to change.
In the event the Fund requires Deposit Instruments and a Cash Amount in consideration for purchasing a Creation Unit, the function of the Cash Amount is to compensate for any differences between the net asset value (“NAV”) per Creation Unit and the Deposit Amount (as defined below). The Cash Amount would be an amount equal to the difference between the NAV of the Shares (per Creation Unit) and the “Deposit Amount,” which is an amount equal to the aggregate market value of the Deposit Instruments. If the Cash
The identity and number of the Deposit Instruments and Cash Amount required for the Portfolio Deposit for the Fund changes as rebalancing adjustments and corporate action events are reflected from time to time by the Adviser with a view to the investment objective of the Fund. In addition, the Trust reserves the right to accept a basket of securities or cash that differs from Deposit Instruments or to permit the substitution of an amount of cash (
To be eligible to place orders with the Distributor to create Creation Units of the Fund, an entity or person either must be (1) a “Participating Party,”
Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Distributor, only on a business day and only through a Participating Party or DTC Participant who has executed a Participant Agreement. The Trust will not redeem Shares in amounts less than Creation Units. All orders to redeem Creation Units must be received by the Distributor no later than the Exchange Closing Time (ordinarily 4:00 p.m. E.T.).
Although the Fund will generally pay redemption proceeds in cash, there may be instances when it will make redemptions in-kind. In these instances, the Administrator, through NSCC, makes available immediately prior to the opening of business on the Exchange (currently 9:30 a.m. E.T.) on each day that the Exchange is open for business, the identity of the Fund's assets and/or an amount of cash that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form on that day. With respect to redemptions in-kind, the redemption proceeds for a Creation Unit generally consist of Redemption Instruments (which are securities received on redemption) as announced by the Administrator on the business day of the request for redemption, plus cash in an amount equal to the difference between the NAV of the Shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the Redemption Instruments, less the redemption transaction fee and variable fees described below.
Should the Redemption Instruments have a value greater than the NAV of the Shares being redeemed, a compensating cash payment to the Trust equal to the differential plus the applicable redemption transaction fee will be required to be arranged for by or on behalf of the redeeming shareholder. The Fund reserves the right to honor a redemption request by delivering a basket of securities or cash that differs from the Redemption Instruments if, among other reasons, not permitted to be re-registered in the name of the customer as a result of an in-kind redemption order pursuant to local law or market convention or which may not be eligible for trading by a Participating Party.
On each business day, before commencement of trading in Fund Shares on NYSE Arca, the Fund will disclose on its Web site the identities and quantities of the portfolio instruments and other assets held by the Fund that will form the basis for the Fund's calculation of NAV at the end of the business day.
In order to provide additional information regarding the intra-day value of Shares of the Fund, one or more major market data vendors will disseminate every 15 seconds during the Exchange's Core Trading Session, through the facilities of the Consolidated Tape Association (“CTA”) or other widely disseminated means, an updated Portfolio Indicative Value (“PIV”) for the Fund as calculated by a third party market data provider.
A third party market data provider will calculate the PIV for the Fund. The third party market data provider may use market quotes if available or may fair value securities against proxies (such as swap or yield curves).
With respect to specific derivatives:
• NDFs and foreign forward currency contracts may be valued intraday using market quotes, or another proxy as determined to be appropriate by the third party market data provider.
• Futures may be valued intraday using the relevant futures exchange data, or another proxy as determined to be appropriate by the third party market data provider.
• Interest rate swaps and currency swaps may be mapped to a swap curve and valued intraday based on changes of the swap curve, or another proxy as determined to be appropriate by the third party market data provider.
• CDS, CDX and LCDX may be valued using intraday data from market vendors, or based on underlying asset price, or another proxy as determined to
• Total return swaps may be valued intraday using the underlying asset price, or another proxy as determined to be appropriate by the third party market data provider.
• Exchange listed options may be valued intraday using the relevant exchange data, or another proxy as determined to be appropriate by the third party market data provider.
The Fund's disclosure of derivative positions in the applicable Disclosed Portfolio includes information that market participants can use to value these positions intraday. On a daily basis, the Fund will disclose the information regarding the Disclosed Portfolio required under NYSE Arca Rule 8.600–E (c)(2) to the extent applicable. The Fund's Web site information will be publicly available at no charge.
The Adviser believes there will be minimal impact to the arbitrage mechanism as a result of the use of derivatives. Market makers and participants should be able to value derivatives as long as the positions are disclosed with relevant information. The Adviser believes that the price at which Shares trade will continue to be disciplined by arbitrage opportunities created by the ability to purchase or redeem creation Shares at their NAV, which should ensure that Shares will not trade at a material discount or premium in relation to their NAV.
The Adviser does not believe there will be any significant impacts to the settlement or operational aspects of the Fund's arbitrage mechanism due to the use of derivatives. Because derivatives generally are not eligible for in-kind transfer, they will typically be substituted with a “cash in lieu” amount when the Fund processes purchases or redemptions of creation units in-kind.
The Exchange is submitting this proposed rule change because the portfolio for the Fund will not meet all of the “generic” listing requirements of Commentary .01 to NYSE Arca Rule 8.600–E applicable to the listing of Managed Fund Shares. The Fund's portfolio would meet all such requirements except for those set forth in Commentary .01(e) of Rule 8.600–E.
The Adviser represents that it intends to engage in strategies that utilize foreign currency forward transactions and swaps (which may be traded OTC), as described above, based on its investment strategies. Depending on market conditions, the exposure due to these strategies may exceed 20% of the Fund's assets. The Adviser represents further that the foreign exchange forward market is OTC and swaps may be traded OTC, and, as such, it is not possible to implement these strategies efficiently using listed derivatives. If the Fund were limited to investing up to 20% of assets in OTC derivatives, the Fund would have to exclude or underweight these strategies and would be less diversified, concentrating risk in the other strategies it will utilize.
The Adviser represents that the Fund will follow an investment strategy utilized within the JP Morgan Diversified Alternative ETF, shares of which have previously been approved by the Commission for Exchange listing and trading.
The Exchange notes that, other than Commentary.01(e) to Rule 8.600–E, the Fund will meet all other requirements of Rule 8.600–E.
The Fund's Web site (
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and its Form N–CSR and Form N–SAR, filed twice a year. The Trust's SAI and Shareholder Reports are available free upon request from the Trust, and those documents and the Form N–CSR and Form N–SAR may be viewed on-screen or downloaded from the Commission's Web site at
Quotation and last sale information for the Shares and for portfolio holdings of the Fund that are U.S. exchange-listed, including U.S. and foreign exchange-traded options, preferred stocks, and REITs will be available via the CTA high speed line. Quotation and last sale information for such U.S. exchange-listed securities, as well as U.S. and foreign exchange-traded futures will be available from the exchange on which they are listed. Quotation and last sale information for exchange-listed options cleared via the Options Clearing Corporation will be available via the Options Price Reporting Authority. Price information for preferred stocks will also be available from one or more major market data vendors or from broker-dealers.
Quotation information for cash equivalents, swaps, obligations of supranational agencies, money market funds, non-exchange-listed investment company securities (other than money market funds), U.S. Government obligations, U.S. Government agency obligations, sovereign obligations, repurchase agreements, reverse repurchase agreements, and U.S. and foreign corporate debt may be obtained from brokers and dealers who make markets in such securities or through nationally recognized pricing services through subscription agreements. The U.S. dollar value of foreign securities, instruments and currencies can be derived by using foreign currency exchange rate quotations obtained from nationally recognized pricing services. Forwards and spot currency price information will be available from major market data vendors.
In addition, the PIV, as defined in NYSE Arca Rule 8.600–E(c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
Trading in the Shares will be subject to NYSE Arca Rule 8.600–E(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m. E.T. in accordance with NYSE Arca Rule 7.34–E (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Rule 7.6–E, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
The Shares of the Fund will conform to the initial and continued listing criteria under NYSE Arca Rule 8.600–E. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A–3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, exchange-listed equity securities, certain futures, and certain exchange-traded options with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading such securities and financial instruments from such markets and other entities. In addition, the Exchange may obtain information regarding trading in such securities and financial instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
All statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange listing rules specified in this rule filing 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. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Rule 5.5–E(m).
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit (“ETP”) Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares of the Fund. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Units (and that Shares are not individually redeemable); (2) NYSE Arca Rule 9.2–E(a), which imposes a duty of due diligence on its ETP Holders to learn the
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares of the Fund will be calculated after 4:00 p.m. E.T. each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Rule 8.600–E. The Adviser is not registered as a broker-dealer but is affiliated with a broker-dealer and has implemented and will maintain a fire wall with respect to such broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio. The Exchange represents that trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, exchange-listed equity securities, certain futures, and certain exchange-traded options with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading such securities and financial instruments from such markets and other entities. In addition, the Exchange may obtain information regarding trading in such securities and financial instruments from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. FINRA, on behalf of the Exchange, is able to access, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's TRACE.
The PIV, as defined in NYSE Arca Rule 8.600–E(c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session. The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets (calculated at the time of investment), deemed illiquid by the Adviser, consistent with Commission guidance.
The Shares of the Fund will conform to the initial and continued listing criteria under NYSE Arca Rule 8.600–E. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A–3 under the Act, as provided by NYSE Arca Rule 5.3–E. A minimum of 100,000 Shares of the Fund will be outstanding at the commencement of trading on the Exchange. The Exchange will obtain a representation from the issuer of the Shares of the Fund that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. The Fund's portfolio holdings (including those of the Subsidiary) will be disclosed on its Web site daily after the close of trading on the Exchange and prior to the opening of trading on the Exchange the following day. On a daily basis, the Fund will disclose the information regarding the Disclosed Portfolio required under NYSE Arca Rule 8.600–E (c)(2) to the extent applicable. The Fund's Web site information will be publicly available at no charge.
The Fund's portfolio would meet all requirements of Rule 8.600–E except for those set forth in Commentary .01(e) of Rule 8.600.
The Exchange believes that it is appropriate and in the public interest to allow the Fund to exceed the 20% limit in Commentary .01(e) to Rule 8.600 of portfolio assets that may be invested in OTC derivatives. Because the Fund, in furtherance of its investment objective, may seek to gain market exposure using OTC traded foreign currency forwards and swaps, the 20% limit in Commentary .01(e) to Rule 8.600 could result in the Fund being unable to fully pursue its investment objective while attempting to sufficiently mitigate investment risks. As noted above, the Fund's investments in derivative instruments will be made in accordance with the 1940 Act and consistent with the Fund's investment objective and policies. To limit the potential risk associated with such transactions, the Fund will segregate or “earmark” assets determined to be liquid by the Adviser in accordance with procedures established by the Trust's Board and in accordance with the 1940 Act (or, as permitted by applicable regulation, enter into certain offsetting positions) to cover its obligations under derivative instruments. These procedures have been adopted consistent with Section 18 of the 1940 Act and related Commission guidance. In addition, the Fund will include appropriate risk disclosure in its offering documents, including leveraging risk. To mitigate leveraging risk, the Adviser will segregate or “earmark” liquid assets or otherwise cover the transactions that may give rise to such risk. Because the markets for certain assets, or the assets themselves, may be unavailable or cost prohibitive as compared to derivative instruments, suitable derivative transactions may be an efficient alternative for the Fund to obtain the desired asset exposure. In addition, OTC derivatives may be tailored more specifically to the assets held by the Fund than available listed derivatives. The Adviser also represents that the Fund will follow an investment strategy utilized within the JP Morgan Diversified Alternatives ETF, shares of which have previously been approved by the Commission for Exchange listing and trading pursuant to Section 19(b)(2)
The Exchange notes that, other than Commentary .01(e) to Rule 8.600–E, the Fund's portfolio will meet all other requirements of Rule 8.600–E.
The Web site for the Fund will include a form of the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. Moreover, prior to the commencement of trading, the Exchange will inform its ETP Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares of the Fund. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Rule 7.12–E have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Rule 8.600–E(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the PIV, the Disclosed Portfolio, and quotation and last sale information for the Shares. The Fund's investments, including derivatives, will be consistent with the Fund's investment objective and will not be used to enhance leverage (although certain derivatives and other investments may result in leverage). That is, while the Fund will be permitted to borrow as permitted under the 1940 Act, the Fund's investments will not be used to seek performance that is the multiple or inverse multiple (
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures relating to trading in the Shares of the Fund and may obtain information via ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the PIV, the Disclosed Portfolio for the Fund, and quotation and last sale information for the Shares of the Fund.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that holds fixed income securities, equity securities, commodities, currencies and derivatives and that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 11, 2017, NYSE American LLC (the “Exchange” or “NYSE American”) filed with the Securities and Exchange Commission (“Commission”) pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange has proposed to amend Section 146 of the Company Guide to provide that companies initially listed on or after October 1, 2017 will not be eligible to receive the corporate governance tools described under the Exchange's current services offering.
As set forth in Section 146 of the Company Guide, the Exchange currently provides Eligible New Listings
The Commission has carefully reviewed the proposed rule change and finds that it is consistent with the requirements of Section 6 of the Act.
The Commission believes that it is consistent with the Act for the Exchange to modify its existing complimentary service offerings to no longer offer corporate governance tools to Eligible New Listings that list on or after October 1, 2017. The Exchange states that Eligible New Listings have generally not been interested in utilizing the corporate governance tools offered by the Exchange.
Under the proposal, Eligible New Listings that list prior to October 1, 2017 will remain eligible to receive all the complimentary products and services currently provided by the Exchange, including the corporate governance tools. The Commission notes that Section 6(b)(5) of the Act does not require that all issuers be treated the same; rather, the Act requires that the rules of an exchange not unfairly discriminate between issuers. The Exchange states that it believes it is not unfairly discriminatory to continue to offer corporate governance tools to companies listed prior to October 1, 2017, as that benefit was part of the services offering that was available at the time of such companies' initial listing and may have had some influence over their listing decisions.
The Commission believes that the Exchange has provided a sufficient basis for its different treatment of Eligible New Listings that list prior to October 1, 2017 and that this portion of the Exchange's proposal meets the requirements of the Act. In making this determination, the Commission notes that the provision of services under Section 146 of the Company Guide is for a limited duration and that the Exchange has provided a reasonable basis for deciding to treat Eligible New Listings that list prior to October 1, 2017 differently from other listed companies going forward. The Commission notes that at the time such companies listed, they had an expectation, if they intended to utilize the corporate governance tools, to be able to do so for the entire 24 month period as set forth in the current rule. To allow such companies listed prior to October 1, 2017 to finish utilizing corporate governance tools for any remainder of their 24 month period appears to be reasonable, equitable, and not unfairly discriminatory. In addition, the Commission notes that the October 1, 2017 date, to curtail the offering of corporate governance tools for Eligible New Listings that list on or after that date, was transparent and published for comment in advance of approval by the Commission in the order discussed herein. As noted above, the Commission received no comments on the proposal. Finally, the Commission has also previously approved proposals providing different services to newly-listed issuers, including those transferring their listing from another exchange, and has found this consistent with Sections 6(b)(4) and 6(b)(5) of the Act.
Accordingly, the Commission finds that the proposed rule change is consistent with the requirements of the Act and, in particular, that the products and services provided under Section 146 of the Company Guide are equitably allocated among issuers consistent with Section 6(b)(4) of the Act, the proposed rule change does not unfairly discriminate among issuers consistent with Section 6(b)(5) of the Act, and the proposed rule change is appropriate and consistent with Section 6(b)(8) of the Act in that it does not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Rule 716(c) to more accurately describe the allocation methodology used in the Block Order Mechanism, add language regarding how the block execution price is determined, and describe the content of the broadcast message disseminated to members upon the entry of an order into the mechanism.
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 Block Order Mechanism is a process by which a member can obtain liquidity for the execution of block-sized orders,
Currently, Rule 716(c)(2)(ii) provides that Responses, quotes, and Professional
Furthermore, the Exchange proposes to add language to Rule 716(c)(2)(i) that explains the price at which orders entered into the Block Order Mechanism are executed. In particular, the Exchange proposes to state that Responses, orders, and quotes will be executed at a single block execution price that is the price for the block-size order at which the maximum number of contracts can be executed consistent with the member's instruction. For example, if a member enters a block-sized order to buy 100 contracts at $1.00 into the Block Order Mechanism, and members enter Response A to sell 50 contracts at $0.90 and Response B to sell 40 contracts at $0.95, the block execution price would be $0.95 as this is the price at which the maximum number of contracts could be executed. The block-sized order and both Responses would then be executed at this single block execution price. Responses A and B would be executed in full since there is sufficient size to execute both Responses against the block-size order. In addition, if two other members also enter Responses C (Priority Customer) and D (non-Priority Customer) to sell at $0.98 for 10 contracts each, the block execution price would be $0.98 as additional contracts could be executed at that price. In that instance, Responses A and B, which are priced better than the block execution price, would be executed in full, while Responses B and C, which are priced at the block execution price, would participate in accordance with the allocation methodology described in this proposed rule change—
Finally, the Exchange proposes to add language to Rule 716(c)(1) to describe the content of the broadcast message sent to members upon the entry of an order into the Block Order Mechanism. In particular, the Exchange proposes to specify that this broadcast message includes the series, and may include price, size and/or side, as specified by the member entering the order. Similar language is included in the Block Order Mechanism Rule on the Exchange's affiliates, Nasdaq GEMX, LLC (“GEMX”) and Nasdaq MRX, LLC (“MRX”), which operate in the same way as ISE's Block Order Mechanism.
The Exchange believes that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder that are applicable to a national securities exchange, and, in particular, with the requirements of Section 6(b) of the Act.
The Exchange believes that the proposed changes to the allocation language in Rule 716(c)(2)(i)–(ii) are consistent with the protection of investors and the public interest as the proposed allocation language more accurately reflects the Exchange's process for allocating contracts executed in the Block Order Mechanism. Although the Exchange's allocation rule for the Block Order Mechanism currently references the allocation process for regular trading, the allocation methodology does not include certain parts of the regular allocation procedure. In particular, the Exchange does not grant any special allocation to the PMM for interest executed in the Block Order Mechanism. The Exchange believes that it is appropriate to not provide an enhanced allocation entitlement to the PMM for interest executed in the Block Order Mechanism, as the Block Order Mechanism provides an auction process that does not rely on market maker quoting and other obligations to source liquidity. Furthermore, the Exchange
The Exchange also believes that the proposed changes to describe how the block execution price is determined is consistent with the protection of investors and the public interest as this change will increase transparency around the price at which interest is executed in the Block Order Mechanism. As explained above, the Block Order Mechanism is designed to provide an opportunity for members to receive liquidity for their block-sized orders and therefore trades at a price that allows the maximum number of contracts of such order to be executed against Responses entered to trade against the block-size order and interest on the Exchange's order book. The Exchange believes that describing how the block execution price is determined in Rule 716(c)(2)(i) will increase transparency around pricing of executions in the Block Order Mechanism.
Finally, the Exchange believes that the proposed change to Rule 716(c)(1) is consistent with the protection of investors and the public interest as it will provide transparency to members about the content of the broadcast message sent to members upon the entry of an order into the Block Order Mechanism. Currently, the broadcast message includes the series, and may include price, size and/or side, as specified by the member entering the order. The Exchange is not proposing any changes to the content of the broadcast message but wants to make this clear in its rules, which, with this change, will be consistent with the rules of its affiliates, GEMX and MRX.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 12(d)(1)(J) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 12(d)(1)(A), (B), and (C) of the Act and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (2) of the Act. The requested order would permit certain registered unit investment trusts (“UITs”) to acquire shares of certain registered open-end investment companies, registered closed-end investment companies and registered UITs (collectively, the “Underlying Funds”) that are within and outside the same group of investment companies as the acquiring UITs, in excess of the limits in section 12(d)(1) of the Act.
Olden Lane Trust (the “Trust”), a UIT that is registered under the Act, and Olden Lane Securities (“Olden Lane”), a Delaware limited liability company registered as a broker-dealer under the Securities Exchange Act of 1934 (the “Exchange Act”).
The application was filed on December 9, 2016 and amended on April 10, 2017, July 25, 2017 and September 15, 2017.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 24, 2017 and should be accompanied by proof of service on the applicants, in the form of an affidavit, or, for lawyers, a certificate of service. Pursuant to Rule 0–5 under the Act, hearing requests should state the nature of the writer's interest, any facts bearing upon the desirability of a hearing on the matter, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090. Applicants: Olden Lane Securities LLC and Olden Lane Trust, 200 Forrestal Road, Suite 3B, Princeton, NJ 08540.
Andrea Ottomanelli Magovern, Acting Branch Chief, at (202) 551–6768 or Nadya Roytblat, Assistant Chief Counsel, at (202) 551–6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. Applicants request an order to permit (a) a Series
2. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions are designed to, among other things, help prevent any potential (i) undue influence over an Underlying Fund that is not in the same “group of investment companies” as the UIT through control or voting power, or in connection with certain services, transactions, and underwritings, (ii) excessive layering of fees, and (iii) overly complex fund structures, which are the concerns underlying the limits in sections 12(d)(1)(A), (B), and (C) of the Act.
3. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities, or transactions, from any provision of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors. Section 17(b) of the Act authorizes the Commission to grant an order permitting a transaction otherwise prohibited by section 17(a) if it finds that (a) the terms of the proposed transaction are fair and reasonable and do not involve overreaching on the part of any person concerned; (b) the proposed transaction is consistent with the policies of each registered investment company involved; and (c) the proposed transaction is consistent with the general purposes of the Act.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fee Schedule (“Fee Schedule”). The Exchange proposes to implement the fee change effective October 1, 2017. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The purpose of this filing is to amend the Fee Schedule effective October 1, 2017. Specifically, the Exchange proposes to place a cap on an incentive for Floor Brokers to execute Qualified Contingent Cross (“QCC”) transactions.
Currently, Floor Brokers earn a rebate for executed QCC orders of $0.035 per contract side.
The Exchange proposes to limit the maximum Floor Broker rebate to $375,000 per month per Floor Broker firm.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
Specifically, the Exchange does not currently impose any monthly cap on the maximum to be paid to Floor Broker firms under the QCC rebate program. The Exchange believes the proposed cap is reasonable, equitable and not unfairly discriminatory because all OTP Holders would be uniformly capped at a potential rebate of $370,000 per month per Floor Broker firm. In addition, the proposal is reasonable, equitable and not unfairly discriminatory because it is consistent with similar caps on rebates pad [sic] for QCC transactions on other exchanges.
In accordance with Section 6(b)(8) of the Act,
The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues. In such an environment, the Exchange must continually review, and consider adjusting, its fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to 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 extend the date on which certain changes concerning the continued listing requirements for exchange-traded products (“ETPs”) in the Nasdaq Rule 5700 Series, as well as a related amendment to Nasdaq Rule 5810 (Notification of Deficiency by the Listing Qualifications Department), are implemented.
The Exchange proposes to delay the implementation date of these changes until January 1, 2018. Given the scope of the proposed rule changes, the Exchange believes that this will ensure that ETP issuers have adequate time to finish developing and put into operation the new processes and systems necessitated by them.
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.
On September 30, 2016, the Exchange filed a proposed rule change, as subsequently amended by Amendments No. 1 and 2 thereto, and as supplemented by two clean-up filings
On May 3, 2017, the Exchange filed to extend the implementation date from August 1, 2017 until October 1, 2017.
Since the Proposed Rule Change was approved, the Exchange has engaged in extensive conversations with issuers of listed ETPs, industry advocacy groups and index providers to discuss the new rule requirements and offer guidance on rule interpretation and application.
In connection with the implementation of the new continued listing standards, Nasdaq has prepared a set of Frequently Asked Questions (“FAQs”) that address questions raised by issuers.
The Exchange believes it is appropriate to extend the implementation date of the Proposed Rule Change to January 1, 2018 to provide listed ETP issuers with the time needed to finish developing and testing their compliance procedures. In support of its proposal, the Exchange notes that the Proposed Rule Change imposes significant new compliance requirements on issuers that they have not been subject to previously. To meet these new requirements, issuers must develop additional internal systems, as well as coordinate with third-party service providers, such as index providers, to renegotiate existing license agreements and to develop procedures by which they can obtain essential data.
Listed issuers have informed the Exchange that they are unable to complete this extensive project by the pending October 1, 2017 implementation date. The Exchange believes that it is critical for listed ETP issuers to have the appropriate procedures and systems in place to monitor and evidence ETP compliance with the new continued listing rules before such rules are implemented because this will help issuers preemptively identify issues and thereby avoid experiencing any disruptions in the trading of their products. Therefore, the Exchange proposes to extend the implementation date for the Proposed Rule Change until January 1, 2018.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change is consistent with the protection of investors because it will enable listed issuers to have the systems and procedures needed to monitor and evidence compliance with the Proposed Rule Change prior to such rule being implemented because this will help issuers preemptively identify issues and thereby avoid experiencing any disruptions in the trading of their products. Issuers are still conducting systems testing and further developing procedures. In addition, there are areas of interpretive guidance still being formulated as discussed previously in this filing.
Additionally, Nasdaq will maintain and continue communications with issuers during the implementation date extension period in order to understand the issuers' progress. Providing listed issuers with additional time to ensure that they have adequate compliance systems in place furthers the protection of investors and the public interest because it will enhance investor confidence that listed issuers are complying with Exchange rules and because it will reassure investors that issuers can properly monitor and preemptively identify issues and thereby avoid experiencing any disruptions in the trading of the issuers' products.
For these reasons, Nasdaq believes the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, as amended. The Exchange believes that the proposed rule change will facilitate listed issuer ability to monitor and evidence compliance with approved continued listing rules by providing
The Exchange received a copy of a letter from the Investment Company Institute, on behalf of listed ETP issuers, to the SEC.
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 the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange filed a proposal to extend the date on which certain changes to Exchange Rules 14.11 and 14.12 would be implemented.
The text of the proposed rule change is available at the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant parts of such statements.
On November 18, 2016 the Exchange filed a proposed rule change, as subsequently amended by Amendments No. 1 and 2 thereto (as amended, the “Proposed Rule Change”), to adopt certain changes to Exchange Rules 14.11 and 14.12 to add additional continued listing standards for exchange-traded products (“ETP”) as well as clarify the procedures that the Exchange will undertake when an ETP is noncompliant with applicable rules. Given the scope of the amendments specified in the Proposed Rule Change, the Exchange proposed that such amendments not be implemented until October 1, 2017. On March 7, 2017, the Commission granted approval of the Proposed Rule Change, including the October 1, 2017 implementation date. On September 20, 2017, the Exchange submitted an interpretive filing (the “Interpretive Filing”)
Since the Proposed Rule Change was approved, the Exchange has engaged in extensive conversations with issuers of listed ETPs, industry advocacy groups and index providers to discuss the new rule requirements and offer guidance on rule interpretation and application, and, as noted above, the Exchange recently submitted the Interpretive Filing and distributed the FAQs. As part of these conversations, the Exchange has learned that many issuers have already engaged in building and testing the necessary compliance systems, but that they have been unable to finalize implementation without this additional guidance. As such, ETP issuers have expressed concern about their ability to have in place well-tested systems and procedures to ensure compliance by the current October 1, 2017 implementation date. ETP issuers, and industry advocacy groups on their behalf, have explained that issuers will require time to design and test new compliance systems as well as engage in discussions with third-party providers to source and track new data elements required for rule compliance.
The Exchange believes it is appropriate to extend the implementation date of the Proposed Rule Change to January 1, 2018 to provide ETP issuers with the time needed to finish developing and test their compliance procedures. In support of its proposal, the Exchange notes that the Proposed Rule Change imposes significant new compliance requirements on issuers that they have not been subject to previously. To meet these new compliance requirements, issuers must develop internal systems as well as coordinate with third-party service providers, such as index providers, to develop procedures by which they can obtain essential data, which includes the form, timing, and means by which such data is conveyed. Listed issuers have informed the Exchange that they are unable to complete and sufficiently test this extensive project by the pending October 1, 2017 implementation date. The Exchange believes that it is critical for ETP issuers to have the appropriate procedures and systems in place to monitor and evidence ETP compliance with the new continued listing rules before such rules are implemented in order to ensure meaningful compliance upon initial implementation, which could help avoid trading disruption in the ETPs. Therefore, the Exchange proposes to extend the implementation date for the Proposed Rule Change until January 1, 2018.
The Exchange believes that the proposal is consistent with Section 6(b) of the Act
The Exchange believes that the proposed amendment is consistent with the protection of investors because it will provide additional time for issuers to finish building, more thoroughly test, and enhance the systems and procedures prior to the initial implementation of the Proposed Rule Change which will help ensure compliance upon initial implementation which will further promote the policy goals underlying the Proposed Rule Change and would help avoid trading disruption in the ETPs. Since the Proposed Rule Change was approved, the Exchange has engaged in extensive
Providing listed issuers with additional time before the implementation of the Proposed Rule Change furthers the protection of investors and the public interest because it will enhance investor confidence that listed issuers are complying with Exchange rules by providing sufficient time to finish building, more thoroughly test, and enhance the systems and procedures prior to the initial implementation, which could help avoid trading disruption in the ETPs.
For the above reasons, the Exchange believes that the proposed rule change is consistent with the requirements of Section 6(b)(5) of the Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change will facilitate ETP issuers' ability to monitor and evidence compliance with approved continued listing rules by providing issuers with additional time to finish developing and testing their internal systems and procedures prior to the implementation date.
The Exchange received a copy of a letter from the Investment Company Institute, on behalf of ETP issuers, to the Securities [sic] Exchange Commission.
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 the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to adopt rules to establish a rule numbering framework in connection with the re-launch of trading on the Exchange. The proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NYSE National, in connection with the re-launch of its trading operations, proposes to adopt rules to establish a rule numbering framework. The Exchange proposes to establish this framework in order to facilitate the amendment and re-publication of its new rule book in advance of the re-launch of trading operations on the Exchange.
On January 31, 2017, Intercontinental Exchange, Inc. (“ICE”), through its wholly-owned subsidiary NYSE Group, acquired all of the outstanding capital stock of the Exchange (the “Acquisition”).
Immediately following the closing of the Acquisition, effective February 1, 2017, NYSE National ceased trading operations.
In connection with the Acquisition, NYSE Group announced its plans to migrate NYSE National to the NYSE Pillar platform, which is an integrated trading technology platform designed to use a single specification for connecting to the equities and options markets operated by the NYSE Exchanges.
To that end, in connection with the re-launch of trading operations following the migration to Pillar, the Exchange proposes to adopt the rule numbering framework of the rules governing the NYSE Arca equities market. The Exchange believes that if it and its affiliates are operating on the same trading platform, using the same rule numbering scheme across all markets using the NYSE Pillar platform will make it easier for members, the public and the Commission to navigate the rules of each market. The Exchange therefore proposes to adopt a framework of rule numbering that is based on the current rules governing the NYSE Arca equities market: NYSE Arca Rules 0 through 3, 4–E through 9–E, and 10 through 14.
As proposed, this framework would use the current rule numbering scheme of the rules governing the NYSE Arca equities market, and would consist of the following proposed rules:
The Exchange proposes to establish this framework in order to facilitate the amendment and re-publication of its new rule book in advance of the re-launch of trading operations on the Exchange. The Exchange intends to file separate proposed rules changes for the substantive areas identified in its new rule book, as well as the related price list.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issue but rather to adopt a new rule numbering framework to support the Exchange's amendment and re-publication of its rule book that in turn will support the re-launch of its trading platform. The Exchange believes that the proposed rule change would promote consistency and transparency on both the Exchange and its affiliate NYSE Arca, thus making the Exchange's rules easier to navigate.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the 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.
The following is a notice of applications for deregistration under section 8(f) of the Investment Company Act of 1940 for the month of September 2017. A copy of each application may be obtained via the Commission's Web site by searching for the file number, or for
The Commission: Secretary, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Jill Ehrlich, Senior Counsel, at (202) 551–6819 or Chief Counsel's Office at (202) 551–6821; SEC, Division of Investment Management, Chief Counsel's Office, 100 F Street NE., Washington, DC 20549–8010.
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for the State of Georgia (FEMA–4338–DR), dated 09/15/2017.
Issued on 09/26/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416, (202) 205–6734.
The notice of the President's major disaster declaration for the State of Georgia, dated 09/15/2017, is hereby amended to establish the incident period for this disaster as beginning 09/07/2017 through 09/20/2017.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the Seminole Tribe of Florida (FEMA–4341–DR), dated 09/27/2017.
Issued on 09/27/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416, (202) 205–6734.
Notice is hereby given that as a result of the President's major disaster declaration on 09/27/2017, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 153308 and for economic injury is 153310.
U.S. Small Business Administration.
Amendment 4.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the Commonwealth of Puerto Rico (FEMA–4336–DR), dated 09/10/2017.
Issued on 09/26/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416, (202) 205–6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the Commonwealth of Puerto Rico, dated 09/10/2017, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for the Commonwealth of Puerto Rico (FEMA–4336–DR), dated 09/10/2017.
Issued on 09/26/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416, (202) 205–6734.
The notice of the President's major disaster declaration for the Commonwealth of Puerto Rico, dated 09/10/2017, is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of Georgia
(FEMA–4338–DR), dated 09/15/2017.
Issued on 09/26/2017.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW., Suite 6050, Washington, DC 20416, (202) 205–6734.
The notice of the President's major disaster declaration for the State of Georgia, dated 09/15/2017, is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
State Justice Institute.
Grant Guideline for FY 2018.
This Guideline sets forth the administrative, programmatic, and financial requirements attendant to Fiscal Year 2018 State Justice Institute grants.
October 5, 2017.
Jonathan Mattiello, Executive Director, State Justice Institute, 11951 Freedom Drive, Suite 1020, Reston, VA 20190, 571–313–8843,
Pursuant to the State Justice Institute Act of 1984 (42 U.S.C. 10701,
The following Grant Guideline is adopted by the State Justice Institute for FY 2018.
SJI was established by State Justice Institute Authorization Act of 1984 (42 U.S.C. 10701
• Direct a national program of financial assistance designed to assure that each citizen of the United States is provided ready access to a fair and effective system of justice;
• Foster coordination and cooperation with the federal judiciary;
• Promote recognition of the importance of the separation of powers doctrine to an independent judiciary; and
• Encourage education for judges and support personnel of state court systems through national and state organizations.
To accomplish these broad objectives, SJI is authorized to provide funding to state courts, national organizations which support and are supported by state courts, national judicial education organizations, and other organizations that can assist in improving the quality of justice in the state courts. SJI is supervised by a Board of Directors appointed by the President, with the advice and consent of the Senate. The Board is statutorily composed of six judges; a state court administrator; and four members of the public, no more than two of the same political party.
Through the award of grants, contracts, and cooperative agreements, SJI is authorized to perform the following activities:
A. Support technical assistance, demonstrations, special projects, research and training to improve the administration of justice in the state courts;
B. Provide for the preparation, publication, and dissemination of information regarding state judicial systems;
C. Participate in joint projects with federal agencies and other private grantors;
D. Evaluate or provide for the evaluation of programs and projects to determine their impact upon the quality of criminal, civil, and juvenile justice and the extent to which they have contributed to improving the quality of justice in the state courts;
E. Encourage and assist in furthering judicial education; and,
F. Encourage, assist, and serve in a consulting capacity to state and local courts in the development, maintenance, and coordination of criminal, civil, and juvenile justice programs and services.
SJI is authorized by Congress to award grants, cooperative agreements, and contracts to the following entities and types of organizations:
A.
B.
C.
1. The principal purpose or activity of the applicant is to provide education and training to state and local judges and court personnel; and
2. The applicant demonstrates a record of substantial experience in the field of judicial education and training.
D.
1. Provided that the objectives of the project can be served better, the Institute is also authorized to make awards to:
a. Nonprofit organizations with expertise in judicial administration;
b. Institutions of higher education;
c. Individuals, partnerships, firms, corporations (for-profit organizations must waive their fees); and
d. Private agencies with expertise in judicial administration.
2. SJI may also make awards to state or local agencies and institutions other than courts for services that cannot be adequately provided through nongovernmental arrangements (42 U.S.C. 10705(b)(3)).
E.
SJI is prohibited from awarding grants to federal, tribal, and international courts.
SJI is offering six types of grants in FY 2018: Project Grants, Technical Assistance (TA) Grants, Curriculum Adaptation and Training (CAT) Grants, Partner Grants, Strategic Initiatives Grants (SIG) Program, and the Education Support Program (ESP).
The SJI Board of Directors has established Priority Investment Areas for grant funding. SJI will allocate significant financial resources through grant-making for these Priority Investment Areas (in no ranking order):
• Opioids and the State Courts Response—SJI is supporting a comprehensive strategy for responding to the challenges facing state courts in addressing the national opioid crisis. Projects that address this Priority Investment Area will inform the work of the Conference of Chief Justices/Conference of State Court Administrators (CCJ/COSCA) National Opioid Task Force.
• Human Trafficking and the State Courts—Through the Human Trafficking and the State Courts Collaborative, addressing the impact of federal and state human trafficking laws on the state courts, and the challenges faced by state courts in dealing with cases involving trafficking victims and their families.
• Guardianship, Conservatorship, and Elder Issues—Assisting the state courts in improving their oversight responsibilities through electronic reporting, visitor programs, and training.
• Juvenile Justice Reform—innovative projects that have no other existing or potential funding sources (federal, state, or private) that will advance best practices in handling dependency and delinquency cases; promote effective court oversight of juveniles in the justice system; address the impact of trauma on juvenile behavior; assist the courts in identification of appropriate provision of services for juveniles; and address juvenile re-entry.
• Reengineering to Improve Court Operations—Assisting courts with the process of reengineering, regionalization or centralization of services, structural changes, and improving performance. This includes the innovative use of remote technology to improve the business operations of the courts, and provide for the transaction of court hearings without an appearance in a physical courtroom.
• Fines, Fees, and Bail Practices—Assisting courts in taking a leadership role in reviewing fines, fees, and bail practices to ensure processes are fair and access to justice is assured; implementing alternative forms of sanction; developing processes for indigency review; and transparency, governance, and structural reforms that promote access to justice, accountability, and oversight. Projects that address this Priority Investment Area will inform the work of the Conference of Chief Justices/Conference of State Court Administrators (CCJ/COSCA) National Task Force on Fines, Fees, and Bail Practices.
• Self-Represented Litigation—promoting court-based solutions to address increase in self-represented litigants; specifically making courts more user-friendly by simplifying court forms, providing one-on-one assistance, developing guides, handbooks, and instructions on how to proceed, developing court-based self-help
• Language Access and the State Courts—improving language access in the state courts through remote interpretation (outside the courtroom), interpreter certification, and courtroom services (plain language forms, Web sites, etc.).
Project Grants are intended to support innovative education and training, research and evaluation, demonstration, and technical assistance projects that can improve the administration of justice in state courts locally or nationwide. Project Grants may ordinarily not exceed $300,000. Examples of expenses not covered by Project Grants include the salaries, benefits, or travel of full-or part-time court employees. Grant periods for Project Grants ordinarily may not exceed 36 months.
Applicants for Project Grants will be required to contribute a cash match of not less than 50 percent of the total cost of the proposed project. In other words, grant awards by SJI must be matched at least dollar for dollar by grant applicants. Applicants may contribute the required cash match directly or in cooperation with third parties. Prospective applicants should carefully review Section VI.8. (matching requirements) and Section VI.16.a. (non-supplantation) of the Guideline prior to beginning the application process. Funding from other federal departments or agencies may not be used for cash match. If questions arise, applicants are strongly encouraged to consult SJI.
As set forth in Section I., SJI is authorized to fund projects addressing a broad range of program areas. Funding will not be made available for the ordinary, routine operations of court systems.
TA Grants are intended to provide state or local courts, or regional court associations, with sufficient support to obtain expert assistance to diagnose a problem, develop a response to that problem, and implement any needed changes. TA Grants may not exceed $50,000. Examples of expenses not covered by TA Grants include the salaries, benefits, or travel of full-or part-time court employees. Grant periods for TA Grants ordinarily may not exceed 12 months. In calculating project duration, applicants are cautioned to fully consider the time required to issue a request for proposals, negotiate a contract with the selected provider, and execute the project.
Applicants for TA Grants will be required to contribute a
CAT Grants are intended to: (1) Enable courts or national court associations to modify and adapt model curricula, course modules, or conference programs to meet states' or local jurisdictions' educational needs; train instructors to present portions or all of the curricula; and pilot-test them to determine their appropriateness, quality, and effectiveness, or (2) conduct judicial branch education and training programs, led by either expert or in-house personnel, designed to prepare judges and court personnel for innovations, reforms, and/or new technologies recently adopted by grantee courts. CAT Grants may not exceed $30,000. Examples of expenses not covered by CAT Grants include the salaries, benefits, or travel of full-or part-time court employees. Grant periods for CAT Grants ordinarily may not exceed 12 months.
Applicants for CAT Grants will be required to contribute a match of not less than 50 percent of the grant amount requested, of which 20 percent must be cash. In other words, an applicant seeking a $30,000 CAT grant must provide a $15,000 match, of which up to $12,000 can be in-kind and not less than $3,000 must be cash. Funding from other federal departments and agencies may not be used for cash match. CAT Grant application procedures can be found in section IV.C.
Partner Grants are intended to allow SJI and federal, state, or local agencies or foundations, trusts, or other private entities to combine financial resources in pursuit of common interests. SJI and its financial partners may set any level for Partner Grants, subject to the entire amount of the grant being available at the time of the award. Grant periods for Partner Grants ordinarily may not exceed 36 months.
Partner Grants are subject to the same cash match requirement as Project Grants. In other words, grant awards by SJI must be matched at least dollar-for-dollar. Partner Grants are initiated and coordinated by SJI and its financial partner. More information on Partner Grants can be found in section IV.D.
The Strategic Initiatives Grants (SIG) program provides SJI with the flexibility to address national court issues as they occur, and develop solutions to those problems. This is an innovative approach where SJI uses its expertise and the expertise and knowledge of its grantees to address key issues facing state courts across the United States.
The funding is used for grants or contractual services, and is handled at the discretion of the SJI Board of Directors and staff outside the normal grant application process (
The Education Support Program (ESP) is intended to enhance the skills, knowledge, and abilities of state court judges and court managers by enabling them to attend out-of-state, or to enroll in online, educational and training programs sponsored by national and state providers that they could not otherwise attend or take online because of limited state, local, and personal budgets. The program only covers the cost of tuition up to a maximum of $1,000 per course. More information on the ESP program can be found in section IV.E.
An application for a Project Grant must include an application form; budget forms (with appropriate documentation); a project abstract and program narrative; a disclosure of lobbying form, when applicable; and certain certifications and assurances (see below). See
The application form requests basic information regarding the proposed project, the applicant, and the total amount of funding requested from SJI. It also requires the signature of an individual authorized to certify on behalf of the applicant that the information contained in the application is true and complete; that submission of the application has been authorized by the applicant; and that if funding for the proposed project is approved, the applicant will comply with the requirements and conditions of
An application from a state or local court must include a copy of Form B signed by the state's chief justice or state court administrator. The signature denotes that the proposed project has been approved by the state's highest court or the agency or council it has designated. It denotes further that, if applicable, a cash match reduction has been requested, and that if SJI approves funding for the project, the court or the specified designee will receive, administer, and be accountable for the awarded funds.
Applicants must submit a Form C. In addition, applicants must provide a detailed budget narrative providing an explanation of the basis for the estimates in each budget category (see subsection A.4. below).
If funds from other sources are required to conduct the project, either as match or to support other aspects of the project, the source, current status of the request, and anticipated decision date must be provided.
This form lists the statutory, regulatory, and policy requirements with which recipients of Institute funds must comply.
Applicants other than units of state or local government are required to disclose whether they, or another entity that is part of the same organization as the applicant, have advocated a position before Congress on any issue, and to identify the specific subjects of their lobbying efforts (see section VI.A.7.).
The abstract should highlight the purposes, goals, methods, and anticipated benefits of the proposed project. It should not exceed 1 single-spaced page.
The program narrative for an application may not exceed 25 double-spaced pages. The pages should be numbered. This page limit does not include the forms, the abstract, the budget narrative, and any appendices containing resumes and letters of cooperation or endorsement. Additional background material should be attached only if it is essential to impart a clear understanding of the proposed project. Numerous and lengthy appendices are strongly discouraged.
The program narrative should address the following topics:
The applicant should include a clear, concise statement of what the proposed project is intended to accomplish. In stating the objectives of the project, applicants should focus on the overall programmatic objective (
The applicant must describe how the proposed project addresses one or more Priority Investment Areas. If the project does not address one or more Priority Investment Areas, the applicant must provide an explanation why not.
If the project is to be conducted in any specific location(s), the applicant should discuss the particular needs of the project site(s) to be addressed by the project and why those needs are not being met through the use of existing programs, procedures, services, or other resources.
If the project is not site-specific, the applicant should discuss the problems that the proposed project would address, and why existing programs, procedures, services, or other resources cannot adequately resolve those problems. In addition, the applicant should describe how, if applicable, the project will be sustained in the future through existing resources.
The discussion should include specific references to the relevant literature and to the experience in the field. SJI continues to make all grant reports and most grant products available online through the National Center for State Courts (NCSC) Library and Digital Archive. Applicants are required to conduct a search of the NCSC Library and Digital Archive on the topic areas they are addressing. This search should include SJI-funded grants, and previous projects not supported by SJI. Searches for SJI grant reports and other state court resources begin with the NCSC Library section. Applicants must discuss the results of their research; how they plan to incorporate the previous work into their proposed project; and if the project will differentiate from prior work.
(1) Tasks and Methods. The applicant should delineate the tasks to be performed in achieving the project objectives and the methods to be used for accomplishing each task. For example:
(a)
(b)
(c)
(d)
(2) Evaluation. Projects should include an evaluation plan to determine whether the project met its objectives. The evaluation should be designed to provide an objective and independent assessment of the effectiveness or usefulness of the training or services provided; the impact of the procedures,
The applicant should present a detailed management plan, including the starting and completion date for each task; the time commitments to the project of key staff and their responsibilities regarding each project task; and the procedures that would ensure that all tasks are performed on time, within budget, and at the highest level of quality. In preparing the project time line, Gantt Chart, or schedule, applicants should make certain that all project activities, including publication or reproduction of project products and their initial dissemination, would occur within the proposed project period. The management plan must also provide for the submission of Quarterly Progress and Financial Reports within 30 days after the close of each calendar quarter (
Applicants should be aware that SJI is unlikely to approve a limited extension of the grant period without strong justification. Therefore, the management plan should be as realistic as possible and fully reflect the time commitments of the proposed project staff and consultants.
The program narrative in the application should contain a description of the product(s) to be developed (
(1) Dissemination Plan. The application must explain how and to whom the products would be disseminated; describe how they would benefit the state courts, including how they could be used by judges and court personnel; identify development, production, and dissemination costs covered by the project budget; and present the basis on which products and services developed or provided under the grant would be offered to the court community and the public at large (
Applicants proposing to develop web-based products should provide for sending a notice and description of the document to the appropriate audiences to alert them to the availability of the Web site or electronic product (
Three (3) copies of all project products should be submitted to SJI, along with an electronic version in HTML or PDF format. Discussions of final product dissemination should be conducted with SJI prior to the end of the grant period.
(2) Types of Products. The type of product to be prepared depends on the nature of the project. For example, in most instances, the products of a research, evaluation, or demonstration project should include an article summarizing the project findings that is publishable in a journal serving the courts community nationally, an executive summary that would be disseminated to the project's primary audience, or both. Applicants proposing to conduct empirical research or evaluation projects with national import should describe how they would make their data available for secondary analysis after the grant period (see section VI.A.14.a.).
The curricula and other products developed through education and training projects should be designed for use by others and again by the original participants in the course of their duties.
(3) SJI Review. Applicants must submit a final draft of all written grant products to SJI for review and approval at least 30 days before the products are submitted for publication or reproduction. For products in Web site or multimedia format, applicants must provide for SJI review of the product at the treatment, script, rough-cut, and final stages of development, or their equivalents. No grant funds may be obligated for publication or reproduction of a final grant product without the written approval of SJI (see section VI.A.11.f.).
(4) Acknowledgment, Disclaimer, and Logo. Applicants must also include in all project products a prominent acknowledgment that support was received from SJI and a disclaimer paragraph based on the example provided in section VI.A.11.a.2. in the Grant Guideline. The “SJI” logo must appear on the front cover of a written product, or in the opening frames of a Web site or other multimedia product, unless SJI approves another placement. The SJI logo can be downloaded from SJI's Web site:
An applicant that is not a state or local court and has not received a grant from SJI within the past three years should indicate whether it is either a national non-profit organization controlled by, operating in conjunction with, and serving the judicial branches of state governments, or a national non-profit organization for the education and training of state court judges and support personnel (see section II). If the applicant is a non-judicial unit of federal, state, or local government, it must explain whether the proposed services could be adequately provided by non-governmental entities.
The applicant should include a summary of the training and experience of the key staff members and consultants that qualify them for conducting and managing the proposed project. Resumes of identified staff should be attached to the application. If one or more key staff members and consultants are not known at the time of the application, a description of the criteria that would be used to select persons for these positions should be included. The applicant also should identify the person who would be responsible for managing and reporting on the financial aspects of the proposed project.
Applicants that have not received a grant from SJI within the past three years should include a statement describing their capacity to administer grant funds, including the financial systems used to monitor project expenditures (and income, if any), and a summary of their past experience in administering grants, as well as any resources or capabilities that they have that would particularly assist in the successful completion of the project.
Unless requested otherwise, an applicant that has received a grant from SJI within the past three years should describe only the changes in its organizational capacity, tax status, or
If the applicant is a non-profit organization (other than a university), it must also provide documentation of its 501(c) tax-exempt status as determined by the Internal Revenue Service and a copy of a current certified audit report. For purposes of this requirement, “current” means no earlier than two years prior to the present calendar year.
If a current audit report is not available, SJI will require the organization to complete a financial capability questionnaire, which must be signed by a certified public accountant. Other applicants may be required to provide a current audit report, a financial capability questionnaire, or both, if specifically requested to do so by the Institute.
Non-governmental applicants must submit SJI's Disclosure of Lobbying Activities Form E, which documents whether they, or another entity that is a part of the same organization as the applicant, have advocated a position before Congress on any issue, and identifies the specific subjects of their lobbying efforts.
If the cooperation of courts, organizations, agencies, or individuals other than the applicant is required to conduct the project, the applicant should attach written assurances of cooperation and availability to the application, or send them under separate cover. Letters of general support for a project are also encouraged.
In addition to Project Grant applications, the following section also applies to Technical Assistance and Curriculum Adaptation and Training grant applications.
The budget narrative should provide the basis for the computation of all project-related costs. When the proposed project would be partially supported by grants from other funding sources, applicants should make clear what costs would be covered by those other grants. Additional background information or schedules may be attached if they are essential to obtaining a clear understanding of the proposed budget. Numerous and lengthy appendices are strongly discouraged.
The budget narrative should cover the costs of all components of the project and clearly identify costs attributable to the project evaluation.
The applicant should set forth the percentages of time to be devoted by the individuals who would staff the proposed project, the annual salary of each of those persons, and the number of work days per year used for calculating the percentages of time or daily rates of those individuals. The applicant should explain any deviations from current rates or established written organizational policies. No grant funds or cash match may be used to pay the salary and related costs for a current or new employee of a court or other unit of government because such funds would constitute a supplantation of state or local funds in violation of 42 U.S.C. 10706(d)(1); this includes new employees hired specifically for the project. The salary and any related costs for a current or new employee of a court or other unit of government may only be accepted as in-kind match.
For non-governmental entities, the applicant should provide a description of the fringe benefits provided to employees. If percentages are used, the authority for such use should be presented, as well as a description of the elements included in the determination of the percentage rate.
The applicant should describe the tasks each consultant would perform, the estimated total amount to be paid to each consultant, the basis for compensation rates (
Transportation costs and per diem rates must comply with the policies of the applicant organization. If the applicant does not have an established travel policy, then travel rates must be consistent with those established by the federal government. The budget narrative should include an explanation of the rate used, including the components of the per diem rate and the basis for the estimated transportation expenses. The purpose of the travel should also be included in the narrative.
Grant funds may be used to purchase only the equipment necessary to demonstrate a new technological application in a court or that is otherwise essential to accomplishing the objectives of the project. In other words, grant funds cannot be used strictly for the purpose of purchasing equipment. Equipment purchases to support basic court operations will not be approved. The applicant should describe the equipment to be purchased or leased and explain why the acquisition of that equipment is essential to accomplish the project's goals and objectives. The narrative should clearly identify which equipment is to be leased and which is to be purchased. The method of procurement should also be described.
The applicant should provide a general description of the supplies necessary to accomplish the goals and objectives of the grant. In addition, the applicant should provide the basis for the amount requested for this expenditure category.
Construction expenses are prohibited.
Anticipated postage costs for project-related mailings, including distribution of the final product(s), should be described in the budget narrative. The cost of special mailings, such as for a survey or for announcing a workshop, should be distinguished from routine mailing costs. The bases for all postage estimates should be included in the budget narrative.
Anticipated costs for printing or photocopying project documents, reports, and publications should be included in the budget narrative, along with the bases used to calculate these estimates.
Indirect costs are only applicable to organizations that are not state courts or government agencies. Recoverable indirect costs are limited to no more than 75 percent of a grantee's direct personnel costs,
Applicants should describe the indirect cost rates applicable to the grant in detail. If costs often included within an indirect cost rate are charged directly (
a. Every applicant must submit an original and one copy, by mail, of the application package consisting of Form A; Form B, if the application is from a state or local court, or a Disclosure of Lobbying Form (Form E), if the applicant is not a unit of state or local government; Form C; the Application Abstract; the Program Narrative; the Budget Narrative; and any necessary appendices.
Letters of application may be submitted at any time. However, applicants are encouraged to review the grant deadlines available on the SJI Web site. Receipt of each application will be acknowledged by letter or email.
b. Applicants submitting more than one application may include material that would be identical in each application in a cover letter. This material will be incorporated by reference into each application and counted against the 25-page limit for the program narrative. A copy of the cover letter should be attached to each copy of the application.
Applicants for TA Grants may submit an original and one copy, by mail, of a detailed letter describing the proposed project, as well as a Form A—State Justice Institute Application; Form B—Certificate of State Approval from the State Supreme Court, or its designated agency; and Form C—Project Budget in Tabular Format (see
Although there is no prescribed form for the letter, or a minimum or maximum page limit, letters of application should include the following information:
a. Need for Funding. The applicant must explain the critical need facing the applicant, and the proposed technical assistance that will enable the applicant meet this critical need. The applicant must also explain why state or local resources are not sufficient to fully support the costs of the project. In addition, the applicant should describe how, if applicable, the project will be sustained in the future through existing resources.
The discussion should include specific references to the relevant literature and to the experience in the field. SJI continues to make all grant reports and most grant products available online through the National Center for State Courts (NCSC) Library and Digital Archive. Applicants are required to conduct a search of the NCSC Library and Digital Archive on the topic areas they are addressing. This search should include SJI-funded grants, and previous projects not supported by SJI. Searches for SJI grant reports and other state court resources begin with the NCSC Library section. Applicants must discuss the results of their research; how they plan to incorporate the previous work into their proposed project; and if the project will differentiate from prior work.
b. Project Description. The applicant must describe how the proposed project addressed one or more Priority Investment Areas. If the project does not address one or more Priority Investment Areas, the applicant must provide an explanation why not.
The applicant must describe the tasks the consultant will perform, and how would they be accomplished. In addition, the applicant must identify which organization or individual will be hired to provide the assistance, and how the consultant was selected. If a consultant has not yet been identified, what procedures and criteria would be used to select the consultant (applicants are expected to follow their jurisdictions' normal procedures for procuring consultant services)? What specific tasks would the consultant(s) and court staff undertake? What is the schedule for completion of each required task and the entire project? How would the applicant oversee the project and provide guidance to the consultant, and who at the court or regional court association would be responsible for coordinating all project tasks and submitting quarterly progress and financial status reports?
If the consultant has been identified, the applicant should provide a letter from that individual or organization documenting interest in and availability for the project, as well as the consultant's ability to complete the assignment within the proposed time frame and for the proposed cost. The consultant must agree to submit a detailed written report to the court and SJI upon completion of the technical assistance.
c. Likelihood of Implementation. What steps have been or would be taken to facilitate implementation of the consultant's recommendations upon completion of the technical assistance? For example, if the support or cooperation of specific court officials or committees, other agencies, funding bodies, organizations, or a court other than the applicant would be needed to adopt the changes recommended by the consultant and approved by the court, how would they be involved in the review of the recommendations and development of the implementation plan?
Applicants must follow the same guidelines provided under Section IV.A. A completed Form C—Project Budget, Tabular Format and budget narrative must be included with the letter requesting technical assistance.
The budget narrative should provide the basis for all project-related costs, including the basis for determining the estimated consultant costs, if compensation of the consultant is required (
Recipients of TA Grants must maintain appropriate documentation to support expenditures.
Letters of application should be submitted according to the grant deadlines provided on the SJI Web site.
If the support or cooperation of agencies, funding bodies, organizations, or courts other than the applicant would be needed in order for the consultant to perform the required tasks, written assurances of such support or cooperation should accompany the application letter. Letters of general support for the project are also encouraged. Support letters may be submitted under separate cover; however, they should be received by the same date as the application.
Applicants must submit an original and one copy, by mail, of a detailed letter as well as a Form A—State Justice Institute Application; Form B—Certificate of State Approval; and Form C—Project Budget, Tabular Format (see
Although there is no prescribed format for the letter, or a minimum or maximum page limit, letters of application should include the following information.
a. For adaptation of a curriculum:
(1) Project Description. The applicant must describe how the proposed project addresses one or more Priority Investment Areas. If the project does not address one or more Priority Investment Areas, the applicant must provide an explanation why not. Due to the high costs of travel to attend training events, the innovative use of distance learning is highly encouraged.
The applicant must provide the title of the curriculum that will be adapted, and identify the entity that originally developed the curriculum. The applicant must also address the following questions: Why is this education program needed at the present time? What are the project's goals? What are the learning objectives of the adapted curriculum? What program components would be implemented, and what types of modifications, if any, are anticipated in length, format, learning objectives, teaching methods, or content? Who would be responsible for adapting the model curriculum? Who would the participants be, how many would there be, how would they be recruited, and from where would they come (
The discussion should include specific references to the relevant literature and to the experience in the field. SJI continues to make all grant reports and most grant products available online through the National Center for State Courts (NCSC) Library and Digital Archive. Applicants are required to conduct a search of the NCSC Library and Digital Archive on the topic areas they are addressing. This search should include SJI-funded grants, and previous projects not supported by SJI. Searches for SJI grant reports and other state court resources begin with the NCSC Library section. Applicants must discuss the results of their research; how they plan to incorporate the previous work into their proposed project; and if the project will differentiate from prior work.
The applicant should explain why state or local resources are unable to fully support the modification and presentation of the model curriculum. The applicant should also describe the potential for replicating or integrating the adapted curriculum in the future using state or local funds, once it has been successfully adapted and tested. In addition, the applicant should describe how, if applicable, the project will be sustained in the future through existing resources.
(3) Likelihood of Implementation. The applicant should provide the proposed timeline, including the project start and end dates, the date(s) the judicial branch education program will be presented, and the process that will be used to modify and present the program. The applicant should also identify who will serve as faculty, and how they were selected, in addition to the measures taken to facilitate subsequent presentations of the program. Ordinarily, an independent evaluation of a curriculum adaptation project is not required; however, the results of any evaluation should be included in the final report.
(4) Expressions of Interest by Judges and/or Court Personnel. Does the proposed program have the support of the court system or association leadership, and of judges, court managers, and judicial branch education personnel who are expected to attend? Applicants may demonstrate this by attaching letters of support.
b. For training assistance:
(1) Need for Funding. The applicant must describe how the proposed project addresses one or more Priority Investment Areas. If the project does not address one or more Priority Investment Areas, the applicant must provide an explanation why not.
The discussion should include specific references to the relevant literature and to the experience in the field. SJI continues to make all grant reports and most grant products available online through the National Center for State Courts (NCSC) Library and Digital Archive. Applicants are required to conduct a search of the NCSC Library and Digital Archive on the topic areas they are addressing. This search should include SJI-funded grants, and previous projects not supported by SJI. Searches for SJI grant reports and other state court resources begin with the NCSC Library section. Applicants must discuss the results of their research; how they plan to incorporate the previous work into their proposed project; and if the project will differentiate from prior work.
The applicant should describe the court reform or initiative prompting the need for training. The applicant should also discuss how the proposed training will help the applicant implement planned changes at the court, and why state or local resources are not sufficient to fully support the costs of the required training. In addition, the applicant should describe how, if applicable, the project will be sustained in the future through existing resources.
(2) Project Description. The applicant must identify the tasks the trainer(s) will be expected to perform, which organization or individual will be hired, and, if in-house personnel are not the trainers, how the trainer will be selected. If a trainer has not yet been identified, the applicant must describe the procedures and criteria that will be used to select the trainer. In addition, the applicant should address the following questions: What specific tasks would the trainer and court staff or regional court association members undertake? What presentation methods will be used? What is the schedule for completion of each required task and the entire project? How will the applicant oversee the project and provide guidance to the trainer, and who at the court or affiliated with the regional court association would be responsible for coordinating all project tasks and submitting quarterly progress and financial status reports?
If the trainer has been identified, the applicant should provide a letter from that individual or organization documenting interest in and availability for the project, as well as the trainer's ability to complete the assignment within the proposed time frame and for the proposed cost.
(3) Likelihood of Implementation. The applicant should explain what steps have been or will be taken to coordinate the implementation of the training. For example, if the support or cooperation of specific court or regional court association officials or committees, other agencies, funding bodies, organizations, or a court other than the applicant will be needed to adopt the reform and initiate the training proposed, how will the applicant secure their involvement in the development and implementation of the training?
Applicants must also follow the same guidelines provided under Section IV.A. Applicants should attach a copy of budget Form C and a budget narrative that describes the basis for the computation of all project-related costs and the source of the match offered.
For curriculum adaptation requests, applicants should allow at least 90 days between the Board meeting and the date of the proposed program to allow
SJI and its funding partners may meld, pick and choose, or waive their application procedures, grant cycles, or grant requirements to expedite the award of jointly-funded grants targeted at emerging or high priority problems confronting state and local courts. SJI may solicit brief proposals from potential grantees to fellow financial partners as a first step. Should SJI be chosen as the lead grant manager, Project Grant application procedures will apply to the proposed Partner Grant.
The Education Support Program (ESP) supports full-time state court judges and court managers to attend courses that enhance the knowledge, skills, and abilities which they could not otherwise attend because of limited, state, local, or personal budgets. Beginning in FY 2018, the National Judicial College (NJC) and the National Center for State Courts/Institute for Court Management (ICM) will administer the ESP program separately, in partnership and with funding from SJI.
a. Covered Costs. The ESP program only covers the costs of tuition up to a maximum of $1,000 per award. Awards will be made for the exact amount requested for tuition. Funds to play tuition in excess of $1,000, and other costs of participating in a course such as travel, transportation, meals, materials, and transportation to and from airports (including rental cars) at the site of the educational program, must be obtained from other sources or be borne by the ESP award recipient.
b. Eligible Recipients. Because of the limited amount of funding available, only full-time judges of state or local trial and appellate courts; full-time professional, state or local court personnel with management and supervisory responsibilities or on a professional management career track; and supervisory and management probation personnel in judicial branch probation offices are eligible for the program. Senior judges, part-time judges, quasi-judicial hearing officers including referees and commissioners, administrative law judges, staff attorneys, law clerks, line staff, law enforcement officers, and other executive branch personnel are not eligible. Applicants will be limited to one ESP award every other fiscal year (
c. Eligible Courses. Awards are only for courses presented by the NJC and ICM in a U.S. jurisdiction to participants in the U.S. or U.S. Territories. These courses are designed to enhance the skills of new or experienced judges and court managers. Participation during annual or mid-year conferences or meetings of a state or national organization does not qualify for ESP purposes, even though the conference may include workshops or other training sessions.
d. How and When To Apply.
e. Responsibilities of ESP Award Recipients. Recipients are responsible for disseminating the information received from the course, when possible, to their court colleagues locally, and if possible, throughout the state. The NJC and ICM may impose additional requirements on recipients.
SJI staff will answer inquiries concerning application procedures.
a. Project Grant applications will be rated on the basis of the criteria set forth below. SJI will accord the greatest weight to the following criteria:
(1) The soundness of the methodology;
(2) The demonstration of need for the project;
(3) The appropriateness of the proposed evaluation design;
(4) If applicable, the key findings and recommendations of the most recent evaluation and the proposed responses to those findings and recommendations;
(5) The applicant's management plan and organizational capabilities;
(6) The qualifications of the project's staff;
(7) The products and benefits resulting from the project, including the extent to which the project will have long-term benefits for state courts across the nation;
(8) The degree to which the findings, procedures, training, technology, or other results of the project can be transferred to other jurisdictions;
(9) The reasonableness of the proposed budget; and,
(10) The demonstration of cooperation and support of other agencies that may be affected by the project.
b. In determining which projects to support, SJI will also consider whether the applicant is a state court, a national court support or education organization, a non-court unit of government, or other type of entity eligible to receive grants under SJI's enabling legislation (see section II.); the availability of financial assistance from other sources for the project; the amount of the applicant's match; the extent to which the proposed project would also benefit the federal courts or help state courts enforce federal constitutional and legislative requirements; and the level of appropriations available to SJI in the current year and the amount expected to be available in succeeding fiscal years.
TA Grant applications will be rated on the basis of the following criteria:
a. Whether the assistance would address a critical need of the applicant;
b. The soundness of the technical assistance approach to the problem;
c. The qualifications of the consultant(s) to be hired or the specific
d. The commitment of the court or association to act on the consultant's recommendations; and,
e. The reasonableness of the proposed budget.
SJI also will consider factors such as the level and nature of the match that would be provided, diversity of subject matter, geographic diversity, the level of appropriations available to SJI in the current year, and the amount expected to be available in succeeding fiscal years.
CAT Grant applications will be rated on the basis of the following criteria:
a. For curriculum adaptation projects:
(1) The goals and objectives of the proposed project;
(2) The need for outside funding to support the program;
(3) The appropriateness of the approach in achieving the project's educational objectives;
(4) The likelihood of effective implementation and integration of the modified curriculum into ongoing educational programming; and,
(5) Expressions of interest by the judges and/or court personnel who would be directly involved in or affected by the project.
b. For training assistance:
(1) Whether the training would address a critical need of the court or association;
(2) The soundness of the training approach to the problem;
(3) The qualifications of the trainer(s) to be hired or the specific criteria that will be used to select the trainer(s);
(4) The commitment of the court or association to the training program; and
(5) The reasonableness of the proposed budget.
SJI will also consider factors such as the reasonableness of the amount requested; compliance with match requirements; diversity of subject matter, geographic diversity; the level of appropriations available to SJI in the current year; and the amount expected to be available in succeeding fiscal years.
The selection criteria for Partner Grants will be driven by the collective priorities of SJI and other organizations and their collective assessments regarding the needs and capabilities of court and court-related organizations. Having settled on priorities, SJI and its financial partners will likely contact the courts or court-related organizations most acceptable as pilots, laboratories, consultants, or the like.
SJI's Board of Directors will review the applications competitively. The Board will review all applications and decide which projects to fund. The decision to fund a project is solely that of the Board of Directors. The Chairman of the Board will sign approved awards on behalf of SJI.
The Board will review the applications competitively. The Board will review all applications and decide which projects to fund. The decision to fund a project is solely that of the Board of Directors. The Chairman of the Board will sign approved awards on behalf of SJI.
SJI's internal process for the review and approval of Partner Grants will depend on negotiations with fellow financiers. SJI may use its procedures, a partner's procedures, a mix of both, or entirely unique procedures. All Partner Grants will be approved by the Board of Directors.
Unless a specific request is made, unsuccessful applications will not be returned.
SJI will send written notice to applicants concerning all Board decisions to approve, defer, or deny their respective applications. For all applications (except ESP applications), if requested, SJI will convey the key issues and questions that arose during the review process. A decision by the Board to deny an application may not be appealed, but it does not prohibit resubmission of a proposal in a subsequent funding cycle.
With the exception of those approved for ESP awards, applicants have 30 days from the date of the letter notifying them that the Board has approved their application to respond to any revisions requested by the Board. If the requested revisions (or a reasonable schedule for submitting such revisions) have not been submitted to SJI within 30 days after notification, the approval may be rescinded and the application presented to the Board for reconsideration. In the event an issue will only be resolved after award, such as the selection of a consultant, the final award document will include a Special Condition that will require additional grantee reporting and SJI review and approval. Special Conditions, in the form of incentives or sanctions, may also be used in other situations.
The State Justice Institute Act contains limitations and conditions on grants, contracts, and cooperative agreements awarded by SJI. The Board of Directors has approved additional policies governing the use of SJI grant funds. These statutory and policy requirements are set forth below.
No funds made available by SJI may be used to support or conduct training programs for the purpose of advocating particular non-judicial public policies or encouraging non-judicial political activities (42 U.S.C. 10706(b)).
If the qualifications of an employee or consultant assigned to a key project staff position are not described in the application or if there is a change of a person assigned to such a position, the recipient must submit a description of the qualifications of the newly assigned person to SJI. Prior written approval of the qualifications of the new person assigned to a key staff position must be received from the Institute before the salary or consulting fee of that person and associated costs may be paid or reimbursed from grant funds.
Recipients of SJI grants must provide for an annual fiscal audit which includes an opinion on whether the financial statements of the grantee present fairly its financial position and its financial operations are in accordance with generally accepted accounting principles (see section VII.I. for the requirements of such audits).
Budget revisions among direct cost categories that: (a) Transfer grant funds to an unbudgeted cost category, or (b) individually or cumulatively exceed five percent of the approved original budget or the most recently approved revised budget require prior SJI approval (see section VIII.A.1.).
Personnel and other officials connected with SJI-funded programs
a. No official or employee of a recipient court or organization shall participate personally through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise in any proceeding, application, request for a ruling or other determination, contract, grant, cooperative agreement, claim, controversy, or other particular matter in which SJI funds are used, where, to his or her knowledge, he or she or his or her immediate family, partners, organization other than a public agency in which he or she is serving as officer, director, trustee, partner, or employee or any person or organization with whom he or she is negotiating or has any arrangement concerning prospective employment, has a financial interest.
b. In the use of SJI project funds, an official or employee of a recipient court or organization shall avoid any action which might result in or create the appearance of:
(1) Using an official position for private gain; or
(2) Affecting adversely the confidence of the public in the integrity of the Institute program.
c. Requests for proposals or invitations for bids issued by a recipient of Institute funds or a subgrantee or subcontractor will provide notice to prospective bidders that the contractors who develop or draft specifications, requirements, statements of work, and/or requests for proposals for a proposed procurement will be excluded from bidding on or submitting a proposal to compete for the award of such procurement.
If any patentable items, patent rights, processes, or inventions are produced in the course of SJI-sponsored work, such fact shall be promptly and fully reported to SJI. Unless there is a prior agreement between the grantee and SJI on disposition of such items, SJI shall determine whether protection of the invention or discovery shall be sought.
a. Funds awarded to recipients by SJI shall not be used, indirectly or directly, to influence Executive Orders or similar promulgations by federal, state or local agencies, or to influence the passage or defeat of any legislation by federal, state or local legislative bodies (42 U.S.C. 10706(a)).
b. It is the policy of the Board of Directors to award funds only to support applications submitted by organizations that would carry out the objectives of their applications in an unbiased manner. Consistent with this policy and the provisions of 42 U.S.C. 10706, SJI will not knowingly award a grant to an applicant that has, directly or through an entity that is part of the same organization as the applicant, advocated a position before Congress on the specific subject matter of the application.
All grantees other than ESP award recipients are required to provide a match. A match is the portion of project costs not borne by the Institute. Match includes both cash and in-kind contributions. Cash match is the direct outlay of funds by the grantee or a third party to support the project. In-kind match consists of contributions of time and/or services of current staff members, new employees, space, supplies, etc., made to the project by the grantee or others (
Under normal circumstances, allowable match may be incurred only during the project period. When appropriate, and with the prior written permission of SJI, match may be incurred from the date of the Board of Directors' approval of an award. The amount and nature of required match depends on the type of grant (see section III.).
The grantee is responsible for ensuring that the total amount of match proposed is actually contributed. If a proposed contribution is not fully met, SJI may reduce the award amount accordingly, in order to maintain the ratio originally provided for in the award agreement (see section VII.D.1.). Match should be expended at the same rate as SJI funding.
The Board of Directors looks favorably upon any unrequired match contributed by applicants when making grant decisions. The match requirement may be waived in exceptionally rare circumstances upon the request of the chief justice of the highest court in the state or the highest ranking official in the requesting organization and approval by the Board of Directors (42 U.S.C. 10705(d)). The Board of Directors encourages all applicants to provide the maximum amount of cash and in-kind match possible, even if a waiver is approved. The amount and nature of match are criteria in the grant selection process (see section V.B.1.b.).
Other federal department and agency funding may not be used for cash match.
No person may, on the basis of race, sex, national origin, disability, color, or creed be excluded from participation in, denied the benefits of, or otherwise subjected to discrimination under any program or activity supported by SJI funds. Recipients of SJI funds must immediately take any measures necessary to effectuate this provision.
No recipient may contribute or make available SJI funds, program personnel, or equipment to any political party or association, or the campaign of any candidate for public or party office. Recipients are also prohibited from using funds in advocating or opposing any ballot measure, initiative, or referendum. Officers and employees of recipients shall not intentionally identify SJI or recipients with any partisan or nonpartisan political activity associated with a political party or association, or the campaign of any candidate for public or party office (42 U.S.C. 10706(a)).
(1) Recipients of SJI funds must acknowledge prominently on all products developed with grant funds that support was received from the SJI. The “SJI” logo must appear on the front cover of a written product, or in the opening frames of a multimedia product, unless another placement is approved in writing by SJI. This includes final products printed or otherwise reproduced during the grant period, as well as re-printings or reproductions of those materials following the end of the grant period. A camera-ready logo sheet is available on SJI's Web site:
(2) Recipients also must display the following disclaimer on all grant products: “This [document, film, videotape, etc.] was developed under [grant/cooperative agreement] number SJI–[insert number] from the State Justice Institute. The points of view expressed are those of the [author(s), filmmaker(s), etc.] and do not necessarily represent the official position or policies of the State Justice Institute.”
(3) In addition to other required grant products and reports, recipients must provide a one page executive summary of the project. The summary should include a background on the project, the tasks undertaken, and the outcome. In
(1) SJI's mission is to support improvements in the quality of justice and foster innovative, efficient solutions to common issues faced by all courts. SJI has recognized and established procedures for supporting research and development of grant products (
(2) Applicants should disclose their intent to sell grant-related products in the application. Grantees must obtain SJI's prior written approval of their plans to recover project costs through the sale of grant products. Written requests to recover costs ordinarily should be received during the grant period and should specify the nature and extent of the costs to be recouped, the reason that such costs were not budgeted (if the rationale was not disclosed in the approved application), the number of copies to be sold, the intended audience for the products to be sold, and the proposed sale price. If the product is to be sold for more than $25, the written request also should include a detailed itemization of costs that will be recovered and a certification that the costs were not supported by either SJI grant funds or grantee matching contributions.
(3) In the event that the sale of grant products results in revenues that exceed the costs to develop, produce, and disseminate the product, the revenue must continue to be used for the authorized purposes of SJI-funded project or other purposes consistent with the State Justice Institute Act that have been approved by SJI (see section VII.F.).
Except as otherwise provided in the terms and conditions of a SJI award, a recipient is free to copyright any books, publications, or other copyrightable materials developed in the course of a SJI-supported project, but SJI shall reserve a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use, and to authorize others to use, the materials for purposes consistent with the State Justice Institute Act.
All products and, for TA and CAT grants, consultant and/or trainer reports (see section VI.B.1 & 2) are to be completed and distributed (see below) not later than the end of the award period, not the 90-day close out period. The latter is only intended for grantee final reporting and to liquidate obligations (see section VII.J.).
In addition to the distribution specified in the grant application, grantees shall send:
(1) Three (3) copies of each final product developed with grant funds to SJI, unless the product was developed under either a Technical Assistance or a Curriculum Adaptation and Training Grant, in which case submission of 2 copies is required; and
(2) An electronic version of the product in HTML or PDF format to SJI.
No grant funds may be obligated for publication or reproduction of a final product developed with grant funds without the written approval of SJI. Grantees shall submit a final draft of each written product to SJI for review and approval. The draft must be submitted at least 30 days before the product is scheduled to be sent for publication or reproduction to permit SJI review and incorporation of any appropriate changes required by SJI. Grantees must provide for timely reviews by the SJI of Web site or other multimedia products at the treatment, script, rough cut, and final stages of development or their equivalents.
All products prepared as the result of SJI-supported projects must be originally-developed material unless otherwise specified in the award documents. Material not originally developed that is included in such products must be properly identified, whether the material is in a verbatim or extensive paraphrase format.
No funds made available by SJI may be used directly or indirectly to support legal assistance to parties in litigation, including cases involving capital punishment.
a. Recipients of SJI funds other than ESP awards must submit Quarterly Progress and Financial Status Reports within 30 days of the close of each calendar quarter (that is, no later than January 30, April 30, July 30, and October 30). The Quarterly Progress Reports shall include a narrative description of project activities during the calendar quarter, the relationship between those activities and the task schedule and objectives set forth in the approved application or an approved adjustment thereto, any significant problem areas that have developed and how they will be resolved, and the activities scheduled during the next reporting period. Failure to comply with the requirements of this provision could result in the termination of a grantee's award.
b. The quarterly Financial Status Report must be submitted in accordance with section VII.G.2. of this Guideline. A final project Progress Report and Financial Status Report shall be submitted within 90 days after the end of the grant period in accordance with section VII.J.1. of this Guideline.
Upon request, grantees must make available for secondary analysis backup files containing research and evaluation data collected under an SJI grant and the accompanying code manual. Grantees may recover the actual cost of duplicating and mailing or otherwise transmitting the data set and manual from the person or organization requesting the data. Grantees may provide the requested data set in the format in which it was created and analyzed.
Except as provided by federal law other than the State Justice Institute Act, no recipient of financial assistance from SJI may use or reveal any research or statistical information furnished under the Act by any person and identifiable to any specific private person for any purpose other than the purpose for which the information was obtained. Such information and copies thereof shall be immune from legal process, and shall not, without the consent of the person furnishing such information, be admitted as evidence or used for any purpose in any action, suit, or other judicial, legislative, or administrative proceedings.
Human subjects are defined as individuals who are participants in an experimental procedure or who are asked to provide information about themselves, their attitudes, feelings, opinions, and/or experiences through an interview, questionnaire, or other data collection technique. All research involving human subjects shall be conducted with the informed consent of those subjects and in a manner that will ensure their privacy and freedom from risk or harm and the protection of persons who are not subjects of the research but would be affected by it, unless such procedures and safeguards would make the research impractical. In such instances, SJI must approve procedures designed by the grantee to provide human subjects with relevant information about the research after their involvement and to minimize or eliminate risk or harm to those subjects due to their participation.
Each application for funding from a state or local court must be approved, consistent with state law, by the state supreme court, or its designated agency or council. The supreme court or its designee shall receive, administer, and be accountable for all funds awarded on the basis of such an application (42 U.S.C. 10705(b)(4)). See section VII.B.2.
To ensure that SJI funds are used to supplement and improve the operation of state courts, rather than to support basic court services, SJI funds shall not be used for the following purposes:
a. To supplant state or local funds supporting a program or activity (such as paying the salary of court employees who would be performing their normal duties as part of the project, or paying rent for space which is part of the court's normal operations);
b. To construct court facilities or structures.
c. Solely to purchase equipment.
After providing a recipient reasonable notice and opportunity to submit written documentation demonstrating why fund termination or suspension should not occur, SJI may terminate or suspend funding of a project that fails to comply substantially with the Act, the Guideline, or the terms and conditions of the award (42 U.S.C. 10708(a)).
At the conclusion of the project, title to all expendable and nonexpendable personal property purchased with SJI funds shall vest in the recipient court, organization, or individual that purchased the property if certification is made to and approved by SJI that the property will continue to be used for the authorized purposes of the SJI-funded project or other purposes consistent with the State Justice Institute Act. If such certification is not made or SJI disapproves such certification, title to all such property with an aggregate or individual value of $1,000 or more shall vest in SJI, which will direct the disposition of the property.
Recipients of TA and CAT Grants must comply with the requirements listed in section VI.A. and the reporting requirements below:
Recipients of TA Grants must submit to SJI one copy of a final report that explains how it intends to act on the consultant's recommendations, as well as two copies of the consultant's written report.
Recipients of CAT Grants must submit one copy of the agenda or schedule, outline of presentations and/or relevant instructor's notes, copies of overhead transparencies, power point presentations, or other visual aids, exercises, case studies and other background materials, hypotheticals, quizzes, and other materials involving the participants, manuals, handbooks, conference packets, evaluation forms, and suggestions for replicating the program, including possible faculty or the preferred qualifications or experience of those selected as faculty, developed under the grant at the conclusion of the grant period, along with a final report that includes any evaluation results and explains how the grantee intends to present the educational program in the future, as well as two copies of the consultant's or trainer's report.
The compliance requirements for Partner Grant recipients will depend upon the agreements struck between the grant financiers and between lead financiers and grantees. Should SJI be the lead, the compliance requirements for Project Grants will apply, unless specific arrangements are determined by the Partners.
The purpose of this section is to establish accounting system requirements and offer guidance on procedures to assist all grantees, sub-grantees, contractors, and other organizations in:
1. Complying with the statutory requirements for the award, disbursement, and accounting of funds;
2. Complying with regulatory requirements of SJI for the financial management and disposition of funds;
3. Generating financial data to be used in planning, managing, and controlling projects; and
4. Facilitating an effective audit of funded programs and projects.
All grantees receiving awards from SJI are responsible for the management and fiscal control of all funds. Responsibilities include accounting for receipts and expenditures, maintaining adequate financial records, and refunding expenditures disallowed by audits.
a. Each application for funding from a state or local court must be approved, consistent with state law, by the state supreme court, or its designated agency or council.
b. The state supreme court or its designee shall receive all SJI funds awarded to such courts; be responsible for assuring proper administration of SJI funds; and be responsible for all aspects of the project, including proper accounting and financial record-keeping by the subgrantee. These responsibilities include:
(1) Reviewing Financial Operations. The state supreme court or its designee should be familiar with, and periodically monitor, its sub-grantee's financial operations, records system, and procedures. Particular attention should be directed to the maintenance of current financial data.
(2) Recording Financial Activities. The sub-grantee's grant award or contract obligation, as well as cash advances and other financial activities, should be recorded in the financial records of the state supreme court or its designee in summary form. Sub-grantee expenditures should be recorded on the
(3) Budgeting and Budget Review. The state supreme court or its designee should ensure that each sub-grantee prepares an adequate budget as the basis for its award commitment. The state supreme court should maintain the details of each project budget on file.
(4) Accounting for Match. The state supreme court or its designee will ensure that sub-grantees comply with the match requirements specified in this Grant Guideline (see section VI.A.8.).
(5) Audit Requirement. The state supreme court or its designee is required to ensure that sub-grantees meet the necessary audit requirements set forth by SJI (see sections I. and VI.A.3. below).
(6) Reporting Irregularities. The state supreme court, its designees, and its sub-grantees are responsible for promptly reporting to SJI the nature and circumstances surrounding any financial irregularities discovered.
The grantee is responsible for establishing and maintaining an adequate system of accounting and internal controls and for ensuring that an adequate system exists for each of its sub-grantees and contractors. An acceptable and adequate accounting system:
1. Properly accounts for receipt of funds under each grant awarded and the expenditure of funds for each grant by category of expenditure (including matching contributions and project income);
2. Assures that expended funds are applied to the appropriate budget category included within the approved grant;
3. Presents and classifies historical costs of the grant as required for budgetary and evaluation purposes;
4. Provides cost and property controls to assure optimal use of grant funds;
5. Is integrated with a system of internal controls adequate to safeguard the funds and assets covered, check the accuracy and reliability of the accounting data, promote operational efficiency, and assure conformance with any general or special conditions of the grant;
6. Meets the prescribed requirements for periodic financial reporting of operations; and
7. Provides financial data for planning, control, measurement, and evaluation of direct and indirect costs.
Accounting for all funds awarded by SJI must be structured and executed on a “Total Project Cost” basis. That is, total project costs, including SJI funds, state and local matching shares, and any other fund sources included in the approved project budget serve as the foundation for fiscal administration and accounting. Grant applications and financial reports require budget and cost estimates on the basis of total costs.
Matching contributions should be applied at the same time as the obligation of SJI funds. Ordinarily, the full matching share must be obligated during the award period; however, with the written permission of SJI, contributions made following approval of the grant by the Board of Directors, but before the beginning of the grant, may be counted as match. If a proposed cash or in-kind match is not fully met, SJI may reduce the award amount accordingly to maintain the ratio of grant funds to matching funds stated in the award agreement.
All grantees must maintain records that clearly show the source, amount, and timing of all matching contributions. In addition, if a project has included, within its approved budget, contributions which exceed the required matching portion, the grantee must maintain records of those contributions in the same manner as it does SJI funds and required matching shares. For all grants made to state and local courts, the state supreme court has primary responsibility for grantee/sub-grantee compliance with the requirements of this section (see subsection B.2. above).
All financial records, including supporting documents, statistical records, and all other information pertinent to grants, sub-grants, cooperative agreements, or contracts under grants, must be retained by each organization participating in a project for at least three years for purposes of examination and audit. State supreme courts may impose record retention and maintenance requirements in addition to those prescribed in this section.
The retention requirement extends to books of original entry, source documents supporting accounting transactions, the general ledger, subsidiary ledgers, personnel and payroll records, canceled checks, and related documents and records. Source documents include copies of all grant and sub-grant awards, applications, and required grantee/sub-grantee financial and narrative reports. Personnel and payroll records shall include the time and attendance reports for all individuals reimbursed under a grant, sub-grant or contract, whether they are employed full-time or part-time. Time and effort reports are required for consultants.
The three-year retention period starts from the date of the submission of the final expenditure report.
Grantees and sub-grantees are expected to see that records of different fiscal years are separately identified and maintained so that requested information can be readily located. Grantees and sub-grantees are also obligated to protect records adequately against fire or other damage. When records are stored away from the grantee's/sub-grantee's principal office, a written index of the location of stored records should be on hand, and ready access should be assured.
Grantees and sub-grantees must give any authorized representative of SJI access to and the right to examine all records, books, papers, and documents related to an SJI grant.
Records of the receipt and disposition of project-related income must be maintained by the grantee in the same manner as required for the project funds that gave rise to the income and must be reported to SJI (see subsection G.2. below). The policies governing the disposition of the various types of project-related income are listed below.
A state and any agency or instrumentality of a state, including institutions of higher education and hospitals, shall not be held accountable for interest earned on advances of project funds. When funds are awarded to sub-grantees through a state, the sub-grantees are not held accountable for interest earned on advances of project funds. Local units of government and
The grantee/sub-grantee may retain all royalties received from copyrights or other works developed under projects or from patents and inventions, unless the terms and conditions of the grant provide otherwise.
Registration and tuition fees may be considered as cash match with prior written approval from SJI. Estimates of registration and tuition fees, and any expenses to be offset by the fees, should be included in the application budget forms and narrative.
If the sale of products occurs during the project period, the income may be treated as cash match with the prior written approval of SJI. The costs and income generated by the sales must be reported on the Quarterly Financial Status Reports (Form F) and documented in an auditable manner. Whenever possible, the intent to sell a product should be disclosed in the application or reported to SJI in writing once a decision to sell products has been made. The grantee must request approval to recover its product development, reproduction, and dissemination costs as specified in section VI.A.11.b.
Other project income shall be treated in accordance with disposition instructions set forth in the grant's terms and conditions.
The procedures and regulations set forth below are applicable to all SJI grant funds and grantees.
Request for Reimbursement of Funds. Grantees will receive funds on a reimbursable, U.S. Treasury “check-issued” or electronic funds transfer (EFT) basis. Upon receipt, review, and approval of a Request for Reimbursement (Form R) by SJI, payment will be issued directly to the grantee or its designated fiscal agent. The Form R, along with the instructions for its preparation, and the SF 3881 Automated Clearing House (ACH/Miscellaneous Payment Enrollment Form for EFT) are available on the Institute's Web site:
a. General Requirements. To obtain financial information concerning the use of funds, SJI requires that grantees/sub-grantees submit timely reports for review.
b. Due Dates and Contents. A Financial Status Report is required from all grantees for each active quarter on a calendar-quarter basis. This report is due within 30 days after the close of the calendar quarter. It is designed to provide financial information relating to SJI funds, state and local matching shares, project income, and any other sources of funds for the project, as well as information on obligations and outlays. A copy of the Financial Status Report (Form F), along with instructions, are provided at
Failure of the grantee to submit required financial and progress reports may result in suspension or termination of grant reimbursement.
a. Pre-agreement Costs. The written prior approval of SJI is required for costs considered necessary but which occur prior to the start date of the project period.
b. Equipment. Grant funds may be used to purchase or lease only that equipment essential to accomplishing the goals and objectives of the project. The written prior approval of SJI is required when the amount of automated data processing (ADP) equipment to be purchased or leased exceeds $10,000 or software to be purchased exceeds $3,000.
c. Consultants. The written prior approval of SJI is required when the rate of compensation to be paid a consultant exceeds $800 a day. SJI funds may not be used to pay a consultant more than $1,100 per day.
d. Budget Revisions. Budget revisions among direct cost categories that (i) transfer grant funds to an unbudgeted cost category or (ii) individually or cumulatively exceed five percent (5%) of the approved original budget or the most recently approved revised budget require prior SJI approval (see section VIII.A.1.).
Transportation and per diem rates must comply with the policies of the grantee. If the grantee does not have an established written travel policy, then travel rates must be consistent with those established by the federal government. SJI funds may not be used to cover the transportation or per diem costs of a member of a national organization to attend an annual or other regular meeting, or conference of that organization.
Indirect costs are only applicable to organizations that are not state courts or government agencies. These are costs of an organization that are not readily assignable to a particular project but are necessary to the operation of the organization and the performance of the project. The cost of operating and maintaining facilities, depreciation, and administrative salaries are examples of the types of costs that are usually treated as indirect costs. Although SJI's policy requires all costs to be budgeted directly, it will accept indirect costs if a grantee has an indirect cost rate approved by a federal agency. However, recoverable indirect costs are limited to no more than 75 percent of a grantee's direct personnel costs (salaries plus fringe benefits).
a. Approved Plan Available.
(1) A copy of an indirect cost rate agreement or allocation plan approved for a grantee during the preceding two years by any federal granting agency on the basis of allocation methods substantially in accord with those set forth in the applicable cost circulars must be submitted to SJI.
(2) Where flat rates are accepted in lieu of actual indirect costs, grantees may not also charge expenses normally included in overhead pools,
Each recipient of a Project Grant must provide for an annual fiscal audit. This requirement also applies to a state or local court receiving a sub-grant from the state supreme court. The audit may be of the entire grantee or sub-grantee organization or of the specific project funded by the Institute. Audits conducted using generally accepted auditing standards in the United States will satisfy the requirement for an annual fiscal audit. The audit must be conducted by an independent Certified Public Accountant, or a state or local
Timely action on recommendations by responsible management officials is an integral part of the effectiveness of an audit. Each grantee must have policies and procedures for acting on audit recommendations by designating officials responsible for: (1) Follow-up, (2) maintaining a record of the actions taken on recommendations and time schedules, (3) responding to and acting on audit recommendations, and (4) submitting periodic reports to SJI on recommendations and actions taken.
Ordinarily, SJI will not make a subsequent grant award to an applicant that has an unresolved audit report involving SJI awards. Failure of the grantee to resolve audit questions may also result in the suspension or termination of payments for active SJI grants to that organization.
Within 90 days after the end date of the grant or any approved extension thereof (see subsection J.2. below), the following documents must be submitted to SJI by grantees:
a. Financial Status Report. The final report of expenditures must have no unliquidated obligations and must indicate the exact balance of unobligated funds. Any unobligated/unexpended funds will be deobligated from the award by SJI. Final payment requests for obligations incurred during the award period must be submitted to SJI prior to the end of the 90-day close-out period.
b. Final Progress Report. This report should describe the project activities during the final calendar quarter of the project and the close-out period, including to whom project products have been disseminated; provide a summary of activities during the entire project; specify whether all the objectives set forth in the approved application or an approved adjustment have been met and, if any of the objectives have not been met, explain why not; and discuss what, if anything, could have been done differently that might have enhanced the impact of the project or improved its operation. These reporting requirements apply at the conclusion of every grant.
Upon the written request of the grantee, SJI may extend the close-out period to assure completion of the grantee's close-out requirements. Requests for an extension must be submitted at least 14 days before the end of the close-out period and must explain why the extension is necessary and what steps will be taken to assure that all the grantee's responsibilities will be met by the end of the extension period.
All requests for programmatic or budgetary adjustments requiring Institute approval must be submitted by the project director in a timely manner (ordinarily 30 days prior to the implementation of the adjustment being requested). All requests for changes from the approved application will be carefully reviewed for both consistency with this Grant Guideline and the enhancement of grant goals and objectives. Failure to submit adjustments in a timely manner may result in the termination of a grantee's award.
The following grant adjustments require the prior written approval of SJI:
1. Budget revisions among direct cost categories that (a) transfer grant funds to an unbudgeted cost category or (b) individually or cumulatively exceed five percent (5%) of the approved original budget or the most recently approved revised budget (see section VII.H.1.d.).
2. A change in the scope of work to be performed or the objectives of the project (see subsection D. below).
3. A change in the project site.
4. A change in the project period, such as an extension of the grant period and/or extension of the final financial or progress report deadline (see subsection E. below).
5. Satisfaction of special conditions, if required.
6. A change in or temporary absence of the project director (see subsections F. and G. below).
7. The assignment of an employee or consultant to a key staff position whose qualifications were not described in the application, or a change of a person assigned to a key project staff position (see section VI.A.2.).
8. A change in or temporary absence of the person responsible for managing and reporting on the grant's finances.
9. A change in the name of the grantee organization.
10. A transfer or contracting out of grant-supported activities (see subsection H. below).
11. A transfer of the grant to another recipient.
12. Pre-agreement costs (see section VII.I.2.a.).
13. The purchase of automated data processing equipment and software (see section VII.H.1.b.).
14. Consultant rates (see section VII.I.2.c.).
15. A change in the nature or number of the products to be prepared or the manner in which a product would be distributed.
All grantees must promptly notify SJI, in writing, of events or proposed changes that may require adjustments to the approved project design. In requesting an adjustment, the grantee must set forth the reasons and basis for the proposed adjustment and any other information the program manager determines would help SJI's review.
If the request is approved, the grantee will be sent a Grant Adjustment signed by the SJI Executive Director. If the request is denied, the grantee will be sent a written explanation of the reasons for the denial.
Major changes in scope, duration, training methodology, or other significant areas must be approved in advance by SJI. A grantee may make minor changes in methodology, approach, or other aspects of the grant to expedite achievement of the grant's objectives with subsequent notification to SJI.
A request to change or extend the grant period must be made at least 30 days in advance of the end date of the grant. A revised task plan should accompany a request for an extension of the grant period, along with a revised budget if shifts among budget categories will be needed. A request to change or extend the deadline for the final financial report or final progress report must be made at least 14 days in advance of the report deadline (see section VII.J.2.).
Whenever an absence of the project director is expected to exceed a continuous period of one month, the plans for the conduct of the project director's duties during such absence
If the project director relinquishes or expects to relinquish active direction of the project, SJI must be notified immediately. In such cases, if the grantee/sub-grantee wishes to terminate the project, SJI will forward procedural instructions upon notification of such intent. If the grantee wishes to continue the project under the direction of another individual, a statement of the candidate's qualifications should be sent to SJI for review and approval. The grant may be terminated if the qualifications of the proposed individual are not approved in advance by SJI.
No principal activity of a grant-supported project may be transferred or contracted out to another organization without specific prior approval by SJI. All such arrangements must be formalized in a contract or other written agreement between the parties involved. Copies of the proposed contract or agreement must be submitted for prior approval of SJI at the earliest possible time. The contract or agreement must state, at a minimum, the activities to be performed, the time schedule, the policies and procedures to be followed, the dollar limitation of the agreement, and the cost principles to be followed in determining what costs, both direct and indirect, will be allowed. The contract or other written agreement must not affect the grantee's overall responsibility for the direction of the project and accountability to SJI.
Federal Aviation Administration (FAA), DOT.
Notice.
Notice is being given that the Federal Aviation Administration (FAA) is considering a request from the City and County of Greenville to waive the requirement that one parcel (350.285 acres) of surplus property, located at the Greenville SCTAC Airport be used for aeronautical purposes. Currently, ownership of the property provides for protection of FAR Part 77 surfaces and compatible land use.
Comments must be received on or before November 6, 2017.
Documents are available for review by prior appointment at the following location: Atlanta Airports District Office, Attn: Anna Lynch, Program Manager, 1701 Columbia Ave., Room 220, College Park, Georgia 30337–2747, Telephone: (404) 305–6746.
Comments on this notice may be mailed or delivered in triplicate to the FAA at the following address: Atlanta Airports District Office, Attn: Anna Lynch, Program Manager, 1701 Columbia Ave., Room 220, College Park, Georgia 30337–2747.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Danny Moyd, Director of Properties, SCTAC at the following address: South Carolina Technology & Aviation Center SCTAC, 2 Exchange Street, Greenville, South Carolina 29605.
Anna Lynch, Program Manager, Atlanta Airports District Office, 1701 Columbia Ave., Room 220, College Park, Georgia 30337–2747, (404) 305–6746. The application may be reviewed in person at this same location.
The FAA is reviewing a request by the City and County of Greenville to release one parcel of surplus property (350.285 acres) at the Greenville SCTAC Airport. The parcel was originally conveyed to the City and County of Greenville on January 1964 under the powers and authority contained in the provisions of the Surplus Property Act of 1944. The City and County of Greenville will retain ownership of this parcel while establishing a land lease for any non aeronautical development.
Any person may inspect the request in person at the FAA office listed above under
In addition, any person may, upon request, inspect the request, notice and other documents germane to the request in person at the Greenville SCTAC Airport.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments; correction.
This document makes a correction to a notice published in the
Monique Riddick, Commercial Enforcement and Investigations
For FMCSA's notice published on August 16, 2017, (82 FR 38989), the following corrections are made:
In column three of page 38988, in the Summary paragraph, the last sentence should read “The reinstatement of this ICR is necessary to support FMCSA's responsibility to ensure consumer protection in the transportation of household goods (HHG).”
In column one of page 38989, add the following sentence to be the first sentence in the BACKGROUND section: “The reinstatement of this ICR is necessary to support the requirements of subpart B of 49 CFR part 371 and FMCSA's responsibility to ensure consumer protection in the transportation of household goods (HHG).”
In column two of page 38989, the paragraph that begins “With this renewal” should read: With this renewal, FMCSA makes a change to the annual burden hours associated with this ICR. There is a reduction of 19,522 annual burden hours due to the removal of 1,000 burden-hours associated with new entrant household goods brokers setting up a separate accounting system to comply with 49 CFR 371.13. FMCSA no longer believes the inclusion of such burden hours is necessary as such usual and customary actions to comply with regulatory requirements do not need to be included in burden calculations. Further, the number of burden hours is reduced due to a reduced estimate of the number of HHG brokers that are impacted by this information collection.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to renew exemptions for three individuals from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these hard of hearing and deaf individuals to continue to operate CMVs in interstate commerce.
The exemptions were applicable on April 8, 2017. The exemptions expire on April 8, 2019.
Ms. Christine A. Hydock, Chief, Medical Programs Division, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at:
On April 5, 2017, FMCSA published a notice announcing its decision to renew exemptions for three individuals from the hearing standard in 49 CFR 391.41(b)(11) to operate a CMV in interstate commerce and requested comments from the public (82 FR 16661). The public comment period ended on May 5, 2017 and one comment was received.
As stated in the previous notice, FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would achieve a level of safety equivalent to or greater than the level that would be achieved by complying with the current regulation 49 CFR 391.41(b)(11).
The physical qualification standard for drivers regarding hearing found in 49 CFR 391.41(b)(11) states that a person is physically qualified to driver a CMV if that person:
First perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5–1951.
49 CFR 391.41(b)(11) was adopted in 1970, with a revision in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid, 35 FR 6458, 6463 (April 22, 1970) and 36 FR 12857 (July 3, 1971).
FMCSA received one comment in this preceeding. Janet S. Pratcher from the University of Memphis, Department of Social Work, wrote in support of renewing the exemptions for the three individuals in this notice for two years.
Based upon its evaluation of the three renewal exemption applications and comment received, FMCSA announces its' decision to exempt the following drivers from the hearing requirement in 49 CFR 391.41(b)(11).
As of April 8, 2017, and in accordance with 49 U.S.C. 31136(e) and 31315, the following three individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate (CMV) drivers (79 FR 90336; 80 FR 18926; 81 FR 12556): Clark Dobson (CA); Gregory Hill (MS); and Ronald Ruttler (WA).
The drivers were included in docket numbers FMCSA–2012–0123 and FMCSA–2014–0124. Their exemptions were applicable as of April 8, 2017, and will expire on April 8, 2019.
In accordance with 49 U.S.C. 31315, each exemption will be valid for two years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than
Federal Railroad Administration (FRA), United States Department of Transportation (DOT).
Notice of intent to grant Buy America waiver.
FRA is issuing this notice to advise the public it intends to grant the City of Raleigh (City) a waiver from FRA's Buy America requirement to use certain non-domestic components of a fire alarm system Code Electric, Inc. provided for the Raleigh Union Station project, in partnership with the North Carolina Department of Transportation (NCDOT). Code Electric, Inc. is an electrical contractor for the Raleigh Union Station project.
Written comments on FRA's determination to grant a Buy America waiver to the City should be provided to the FRA on or before October 12, 2017.
Please submit your comments by one of the following means, identifying your submissions by docket number FRA–2012–0033. All electronic submissions must be made to the U.S. Government electronic site at
(1)
(2)
(3)
(4)
Mr. John Johnson, Attorney-Advisor, FRA Office of Chief Counsel, 1200 New Jersey Avenue SE., Mail Stop 10, Washington, DC 20590, (202) 493–0078,
FRA provided information on its reasons for granting this waiver in a letter to the City of Raleigh, quoted below:
On September 23, 2016, Code Electric, Inc. requested a waiver from the Federal Railroad Administration's (FRA) Buy America requirement (49 U.S.C. 24405(a)) to use certain components of a fire alarm system, which cannot be sourced in the United States, in the Raleigh Union Station project (Project). The Project is for construction of a passenger train station in downtown Raleigh that will replace the existing Amtrak station. The City of Raleigh (City), through its contractor, awarded Code Electric, Inc. the electrical construction sub-contract for the Project. The $90 million project is funded in part by two Transportation Infrastructure Generating Economic Recovery grants of $26.5 million from Fiscal Year (FY) 2012 and $11.5 million from FY 2013 to the City, and $15 million from a $520 million American Recovery and Reinvestment Act of 2009 grant to the North Carolina Department of Transportation. FRA is providing its decision on the waiver to the City as the FRA grant recipient for this Project.
The Project is subject to 49 U.S.C. 24405(a)(1). Section 24405(a)(1) requires the steel, iron, and manufactured goods used in a project to be produced in the United States. FRA may waive the Buy America requirements if FRA finds that: (1) Applying the requirements would be inconsistent with the public interest; (2) the steel, iron, and goods manufactured in the United States are not produced in sufficient and reasonably available amounts or are not of a satisfactory quality; (3) rolling stock or power train equipment cannot be bought or delivered to the United States within a reasonable time; or (4) including domestic material will increase the cost of the overall project by more than 25 percent.
For the reasons stated in this letter, FRA grants a “non-availability” Buy America waiver. This waiver applies only to this Project.
Code Electric seeks a waiver for the following components (Components) for use in the Project:
The total cost of the fire alarm system is less than $30,000, and the total cost of the non-U.S. manufactured components is less than $10,000.
Code Electric asserts the following facts in support of the waiver request:
• Code Electric received several bids for the fire alarm system from suppliers Honeywell, Tyco Simplex Grinnell, and Edwards (United Technologies). Although these suppliers source many fire alarm system components from U.S. manufacturers, none of the suppliers offered a one hundred percent Buy America-compliant system. All fire alarm system suppliers use a mix of foreign and US-made components; and
• The foreign components used by suppliers vary. However, due to programming, interoperability, and certification issues, the components are not interchangeable among systems. Therefore, suppliers cannot swap out components to meet Buy America.
FRA independently verified these assertions with its Monitoring and Technical Assistance Contractor (MTAC), TranSystems. An electrical engineer from FRA's MTAC explained that large international suppliers source or manufacture pieces of the fire alarm system in different countries. Further, many portions of the system are addressable (individually programmable), which means the software and hardware must be compatible and tested. In addition, fire alarm components and systems are UL® listed. UL® is a third-party, independent company that certifies safety compliance of many systems and their components, including fire alarm systems. Attempting to swap pieces of a fire alarm system would jeopardize its UL® listing and could cause product warranty and liability issues.
FRA concludes a waiver is appropriate under 49 U.S.C. 24405(a)(2)(B) for the Components because domestically-produced Components are not currently “produced in sufficient and reasonably available amounts.” 49 U.S.C. 24405(a)(2)(B). FRA bases this determination on the following:
• For competitively bid, commercial products for buildings, such as fire alarm systems, FRA views receiving no Buy America-compliant bids as presumptive evidence the conditions exist to grant a non-availability waiver;
• On October 28, 2016, FRA provided public notice of this waiver request and a 15-day opportunity for comment on its Web site. FRA also emailed notice to over 6,000 recipients that requested Buy America notices through “GovDelivery.” FRA received one comment. However, the commenter did not provide any information about a domestic source for a fully Buy America-compliant fire alarm system; and
• FRA's MTAC concurred with Code Electric that due to programming, interoperability, and certification issues, components are not interchangeable among systems. Therefore, fire alarm system suppliers cannot swap out components to meet Buy America.
This waiver applies only to this Project for these specific components.
Under 49 U.S.C. 24405(a)(4), FRA will publish this letter granting the Buy America waiver to the City in the
Questions about this letter can be directed to, John Johnson, Attorney-Advisor, at
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of emergency waiver order.
The Pipeline and Hazardous Materials Safety Administration is issuing an emergency waiver order to persons conducting operations under the direction of the Puerto Rico Public Service Commission within the Hurricane Maria emergency and disaster areas of Puerto Rico. This Waiver Order is effective September 28, 2017, and shall remain in effect for 7 days from the date of issuance.
Adam Horsley, Deputy Assistant Chief Counsel for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, telephone: (202) 366–4400.
In accordance with the provisions of 49 U.S.C. 5103(c), the Acting Administrator for the Pipeline and Hazardous Materials Safety Administration (PHMSA), hereby declares that an emergency exists that warrants issuance of a Waiver of the Hazardous Materials Regulations (HMR, 49 CFR parts 171–180) to persons conducting operations under the direction of the Puerto Rico Public Service Commission (Carr. 8838 Km. 8.3, Sector El Cinco, San Juan, PR 00926) within the Hurricane Maria emergency and disaster areas of Puerto Rico. The Waiver is granted to support the government of Puerto Rico in facilitating the transport of essential fuel.
On September 18, 2017, the President issued an Emergency Declaration for Hurricane Maria for the Commonwealth of Puerto Rico (EM–3391). On September 20, 2017, the President issued a Major Disaster Declaration for the Commonwealth of Puerto Rico (DR–4340).
This Waiver Order covers all areas identified in the Declarations. Pursuant to 49 U.S.C. 5103(c), PHMSA has authority delegated by the Secretary (49 CFR 1.97(b)(3)) to waive compliance with any part of the HMR provided that the grant of the waiver is: (1) In the public interest; (2) not inconsistent with the safety of transporting hazardous materials; and (3) necessary to facilitate the safe movement of hazardous materials into, from, and within an area of a major disaster or emergency that has been declared under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121
Given the continuing impacts caused by Hurricane Maria, PHMSA's Acting Administrator has determined that regulatory relief is in the public interest and necessary to ensure the safe transportation in commerce of hazardous materials while the Puerto Rican government executes its recovery and cleanup efforts. Specifically, PHMSA's Acting Administrator finds that issuing this Waiver Order will allow for the safe transportation of fuel. By execution of this Waiver Order, the hazardous materials training, testing, and certification requirements in 49 CFR part 172 subpart H and part 177 are waived except as specified below for persons conducting operations under the direction of the Puerto Rico Public Service Commission within the Hurricane Maria emergency and disaster areas of Puerto Rico. Such persons are authorized to offer and transport fuel provided that the following conditions are met:
(1) The transport of the fuel must be accompanied by a law enforcement or military escort;
(2) The escort vehicle must have a copy of the Emergency Response Guidebook, Response Guide 128;
(3) Drivers must have three years of professional driving experience and otherwise be licensed to operate the vehicle based on its size and weight; and
(4) Unloading procedures must be overseen by a qualified person as defined in 49 CFR 177. 834(i)(4) or a driver who has received training (testing and certification is not required) that includes, at a minimum, these items:
(a) Bonding the cargo tank;
(b) Preventing overfilling of tanks at point of delivery;
(c) Controlling the flow of product;
(d) Using emergency cut-off equipment; and
(e) Securing unloading equipment for transport.
Additionally, during driver unloading, the unloading area must be cleared of all non-essential personnel for a distance of 100 feet. Compliance with all other requirements of the HMR is required.
This Waiver Order is effective September 28, 2017, and shall remain in effect for 7 days from the date of issuance.
Issued in Washington, DC.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Tax Forms and Publications Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, November 14, 2017.
Robert Rosalia at 1–888–912–1227 or (718) 834–2203.
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Tax Forms and Publications Project Committee will be held Tuesday, November 14, 2017, at 12:00 p.m., Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Robert Rosalia. For more information please contact Robert Rosalia at 1–888–912–1227 or (718) 834–2203, or write TAP Office, 2 Metrotech Center, 100 Myrtle Avenue, Brooklyn, NY 11201 or contact us at the Web site:
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Joint Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Wednesday, November 29, 2017.
Gretchen Swayzer at 1–888–912–1227 or 469–801–0769.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Joint Committee will be held Wednesday, November 29, 2017, at 1:00 p.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. For more information please contact: Gretchen Swayzer at 1–888–912–1227 or 469–801–0769, TAP Office, 4050 Alpha Rd, Farmers Branch, TX 75244, or contact us at the Web site:
The agenda will include various committee issues for submission to the IRS and other TAP related topics. Public input is welcomed.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Special Projects Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, November 14, 2017.
Matthew O'Sullivan at 1–888–912–1227 or (510) 907–5274.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Taxpayer Advocacy Panel Special Projects Committee will be held Tuesday, November 14, 2017, at 1:00 p.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Matthew O'Sullivan. For more information please contact Matthew O'Sullivan at 1–888–912–1227 or (510) 907–5274, or write TAP Office, 1301 Clay Street, Oakland, CA 94612–5217 or contact us at the Web site:
The agenda will include a discussion on various special topics with IRS processes.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Toll-Free Phone Line Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Wednesday, November 15, 2017.
Fred Smith at 1–888–912–1227 or 202–317–3087.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Toll-Free Phone Line Project Committee will be held Wednesday, November 15, 2017, at 2:30 p.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Fred Smith. For more information please contact Fred Smith at 1–888–912–1227 or 202–317–3087, or write TAP Office, 1111 Constitution Avenue NW., Room 1509, National Office, Washington, DC 20224, or contact us at the Web site:
The committee will be discussing toll-free issues and public input is welcomed.
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
An open meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Thursday, November 2, 2017.
Antoinette Ross at 1–888–912–1227 or (202) 317–4110.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that an open meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee will be held Thursday, November 2, 2017, at 1:00 p.m. Eastern Time via teleconference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Antoinette Ross. For more information please contact: Antoinette Ross at 1–888–912–1227 or (202) 317–4110, or write TAP Office, 1111 Constitution Avenue NW., Room 1509, National Office, Washington, DC 20224, or contact us at the Web site:
The committee will be discussing various issues related to Taxpayer Communications and public input is welcome.
Internal Revenue Service (IRS) Treasury.
Notice of meeting.
The Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project Committee will conduct an open meeting and will solicit public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, November 21, 2017.
Lisa Billups at 1–888–912–1227 or (214) 413–6523.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project Committee will be held Tuesday, November 21, 2017, at 3:00 p.m. Eastern Time. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Lisa Billups. For more information please contact Lisa Billups at 1–888–912–1227 or 214–413–6523, or write TAP Office 1114 Commerce Street, Dallas, TX 75242–1021, or post comments to the Web site:
The committee will be discussing various issues related to the Taxpayer Assistance Centers and public input is welcomed.
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that the subcommittees of the Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board (JBL/CS SMRB) will meet from 8 a.m. to 5 p.m. on the dates indicated below (unless otherwise listed):
The purpose of the subcommittees is to provide advice on the scientific quality, budget, safety and mission relevance of investigator-initiated research proposals submitted for VA merit review evaluation. Proposals submitted for review include various medical specialties within the general areas of biomedical, behavioral and clinical science research.
These subcommittee meetings will be closed to the public for the review, discussion, and evaluation of initial and renewal research proposals, which involve reference to staff and consultant critiques of research proposals. Discussions will deal with scientific merit of each proposal and qualifications of personnel conducting the studies, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Additionally, premature disclosure of research information could significantly obstruct implementation of proposed agency action regarding the research proposals. As provided by subsection 10(d) of Public Law 92–463, as amended by Public Law 94–409, closing the subcommittee meetings is in accordance with Title 5 U.S.C. 552b(c)(6) and (9)(B).
Those who would like to obtain a copy of the minutes from the closed subcommittee meetings and rosters of the subcommittee members should contact Holly Krull, Ph.D., Manager, Merit Review Program (10P9B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, at (202) 632–8522 or email at
The Office of Management (OM), Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Office of Management (OM), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before November 6, 2017.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461–5870 or email
Public Law 104–13; 44 U.S.C. 3501–3521.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
a. Clause 852.236–72, Performance of Work by the Contractor—60 hours.
b. Clause 852.236–80, Subcontracts and Work Coordination—920 hours.
c. Clause 852.236–84, Schedule of Work Progress—1,828.5 hours.
d. Clause 852.236–88, Contract Changes—729 hours.
e. Clause 852.236–82, Payments under Fixed-Price Construction Contracts (without NAS–CPM), with its Alternate I—1219 hours.
f. Clause 852.236.83, Payments under Fixed-Price Construction Contracts (including NAS–CPM), with its Alternate I—46 hours.
g. Clause 852.236–72, Performance of Work by the Contractor—1 hour.
h. Clause 852.236–80, Subcontracts and Work Coordination—10 hours.
i. Clause 852.236–84, Schedule of Work Progress—1 hour.
j. Clause 852.236–88, Contract Changes—3 hours.
k. Clause 852.236–82, Payments under Fixed-Price Construction Contracts (without NAS–CPM), with its Alternate I—1 hour.
l. Clause 852.236–83, Payments under Fixed-Price Construction Contracts (including NAS–CPM), with its Alternate I—.5 hours.
a. Clause 852.236–72, Performance of Work by the Contractor—60.
b. Clause 852.236–80, Subcontracts and Work Coordination—92.
c. Clause 852.236–84, Schedule of Work Progress—1,219.
d. Clause 852.236–88, Contract Changes—243.
e. Clause 852.236–82, Payments under Fixed-Price Construction Contracts (without NAS–CPM), with its Alternate I—1,219.
f. Clause 852.236–83, Payments under Fixed-Price Construction Contracts (including NAS–CPM), with its Alternate I—92.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before November 6, 2017.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 811 Vermont Avenue NW., Washington, DC 20420, (202) 461–5870 or email
44 U.S.C. 3501–21.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before November 6, 2017.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 811 Vermont Avenue NW., Washington, DC 20420, (202) 461–5870 or email
44 U.S.C. 3501–21.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to
Written comments and recommendations on the proposed collection of information should be received on or before December 4, 2017.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Cynthia Harvey-Pryor at (202) 461–5870.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
Public Law 104–13; 44 U.S.C. 3501–3521.
By direction of the Secretary.
Fish and Wildlife Service, Interior.
Notice of 12-month petition findings.
We, the U.S. Fish and Wildlife Service (Service), announce 12-month findings on petitions to list 25 species as endangered or threatened species under the Endangered Species Act of 1973, as amended (Act). After a thorough review of the best available scientific and commercial information, we find that listing 14 Nevada springsnail species, Barbour's map turtle, Bicknell's thrush, Big Blue Springs cave crayfish, the Oregon Cascades—California population and Black Hills population of the black-backed woodpecker, the eastern population of the boreal toad, the Northern Rocky Mountains population of the fisher, Florida Keys mole skink, Great Sand Dunes tiger beetle, Kirtland's snake, Pacific walrus, and San Felipe gambusia is not warranted at this time. However, we ask the public to submit to us at any time any new information that becomes available concerning the stressors to any of the species listed above or their habitats.
The finding announced in this document was made on October 5, 2017.
Detailed descriptions of the basis for each of these findings are available on the Internet at
Supporting information used to prepare these findings is available for public inspection, by appointment, during normal business hours, by contacting the appropriate person, as specified under
If you use a telecommunications device for the deaf (TDD), please call the Federal Relay Service at 800–877–8339.
Within 12 months after receiving any petition to revise the Federal Lists of Endangered and Threatened Wildlife and Plants, we are required to make a finding whether or not the petitioned action is warranted (“12-month finding”), unless we determined that the petition did not contain substantial scientific or commercial information indicating that the petitioned action may be warranted (section 4(b)(3)(B) of the Act (16 U.S.C. 1531
Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations at part 424 of title 50 of the Code of Federal Regulations (50 CFR part 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines “endangered species” as any species that is in danger of extinction throughout all or a significant portion of its range (16 U.S.C. 1532(6)), and “threatened species” as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range (16 U.S.C. 1532(20)). Under section 4(a)(1) of the Act, a species may be determined to be an endangered species or a threatened species because of any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
We summarize below the information on which we based our evaluation of the five factors provided in section 4(a)(1) of the Act to determine whether the 14 Nevada springsnail species, Barbour's map turtle, Bicknell's thrush, Big Blue Springs cave crayfish, Oregon Cascades-California and Black Hills populations of the black-backed woodpecker, eastern population of the boreal toad, Northern Rocky Mountains population of the fisher, Florida Keys mole skink, Great Sand Dunes tiger beetle, Kirtland's snake, Pacific walrus, and San Felipe gambusia meet the definition of “endangered species” or “threatened species.” More-detailed information about these species is presented in the species-specific assessment forms found on
In considering what stressors under the Act's five factors might indicate that the species may meet the definition of a threatened or endangered species, we must look beyond the mere exposure of the species to the stressor to determine whether the species responds to the stressor in a way that causes actual impacts to the species. If there is exposure to a stressor, but no response, or only a positive response, that stressor does not cause a species to meet the definition of a threatened or endangered species. If there is exposure and the species responds negatively, the stressor may be significant. In that case, we determine whether that stressor drives or contributes to the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of impacts to a species. The combination of exposure and some corroborating evidence of how the species is likely affected could suffice. The mere identification of stressors that could affect a species negatively is not sufficient to compel a finding that listing is appropriate; similarly, the mere identification of stressors that do not affect a listed species negatively is insufficient to compel a finding that delisting is appropriate. For a species to be listed or remain listed, we require evidence that these stressors are operative threats to the species and its habitat, either singly or in combination, to the point that the species meets the definition of an endangered or a threatened species under the Act.
In making these 12-month findings, we considered and thoroughly evaluated the best scientific and commercial information available regarding the past, present, and future stressors and threats. We reviewed the petitions, information available in our files, and other available published and unpublished information. These evaluations may include information from recognized experts; Federal, State, and tribal governments; academic institutions; foreign governments; private entities; and other members of the public.
14 Nevada Springsnails: Spring Mountains Pyrg (
On February 17, 2009, we received a petition from the Center for Biological Diversity (the Center), the Freshwater Mollusk Conservation Society, Dr. James Deacon, and Don Duff requesting that 42 species of Great Basin springsnails from Nevada, Utah, and California be listed as endangered or threatened species under the Act. Three of those springsnail species were addressed in an August 18, 2009, 90-day finding (74 FR 41649). The remaining 39 springsnail species, which includes the 14 springsnails addressed in this 12-month finding, were addressed in a September 13, 2011, “substantial” 90-day finding (76 FR 56608).
On April 25, 2012, we received from the Center a notice of intent to file suit to compel us to issue 12-month findings for four of the 2009-petitioned species (
All 14 of the species that this finding addresses fall within either the genus
The 14 springsnail species occur in a portion of the Great Basin, which is a contiguous watershed area of closed drainage basins that retain water and allow no outflow to other external bodies of water, such as rivers or oceans. The range and distribution of the 14 springsnail species within the Great Basin overlap 11 hydrographic basins (
Springsnails occur in springs, which are relatively small aquatic and riparian systems that flow onto the land surface through natural processes and are maintained by groundwater. They range widely in size, water chemistry, morphology, landscape setting, and persistence. They occur from mountain tops to valley floors, some of which occur in clusters known as spring provinces, and are predominantly isolated from other aquatic and riparian systems. Springs occur where subterranean water under pressure reaches the earth's surface through fault zones, rock cracks, or orifices that occur when water creates a passage by dissolving rock. Most springs are considered unique based on the province influences of aquifer geology, morphology, discharge rates, and regional precipitation (Sada and Pohlmann 2002, pp. 3–5). Details regarding the subject springs' size, water transport or flow system, and environmental characteristics (such as temperature, dissolved oxygen, and other water chemistry conditions) are described in the supporting SSA Report for these species (Service 2017, pp. 40–42).
The genetic diversity of springsnails is not well understood, particularly as it relates to their ability to adapt to short- and long-term environmental changes. Based on their restricted distributions within a springbrook (water outflow from a spring source), they seem to be limited to a range of physical and biological parameters that exist within that occupied area (Sada 2017, p. 13), one known parameter being their dependency on perennial water (Hershler and Liu 2008, p. 92). Overall, the best available information indicates that the 14 Nevada springsnails' physical and ecological needs include sufficient water quality, adequate substrate and vegetation, free-flowing water, and adequate spring discharge (Service 2017, pp. 42–45).
These findings constitute our completion of our review of the petitioned action. However, we intend that any listing determination for the 14 Nevada springsnails be as accurate as possible. Therefore, we will continue to accept additional information and comments from all concerned governmental agencies, the scientific community, industry, or any other interested party concerning these findings.
A species status assessment (SSA) was completed for these species and summarized in an SSA Report (Service 2017). Below are summary discussions for each species, primarily focusing on impacts to species' needs within and among populations both currently and in the future. We focused on the overall condition of the species' needs here as they relate to a species' ability to withstand disturbances and stochastic events (resiliency), the distribution of populations across the landscape to withstand disturbances and stochastic events (redundancy), and the ability for each species to adapt to changing environmental conditions (representation). For detailed scientific information on current and potential future conditions of these species, including full discussions of resiliency, redundancy, and representation for each species, please see the SSA Report. As explained further in the SSA Report, for all of these springsnails we considered the foreseeable future to be 50 years because: (1) It is within the range of the available hydrological and climate change model forecasts; and (2) because of the short generation time of these springsnails (approximately 1 year), 50 years encompassed approximately 30 to 40 generations, which is a relatively high number of generations over which to observe effects to the species.
Spring Mountains Pyrg—The Spring Mountains pyrg has been reported to occur historically at a total of nine springs in the Spring Mountains area of Clark and Nye Counties, Nevada; however, subsequently its presence has been confirmed at only eight of the nine springs. Surveys at six of these locations indicate that the downstream extent and abundance of this species fluctuates during and between years. Populations of Spring Mountains pyrg have typically been abundant or common during surveys in recent years. A variety of stressors have been negatively affecting the springs both historically and currently, and individuals continue to occupy those seven springs at similar abundance levels (
Corn Creek Pyrg—There are three populations of the Corn Creek pyrg that continue to occupy the entirety of its known historical range, including five spring source locations in Clark County, Nevada, which are within the Desert National Wildlife Refuge managed by the Service (Sada 2017, pp. 76–79). The relative abundance of Corn Creek pyrg has varied between sites and surveys. Residual impacts associated with historical spring modification (surface water diversion, channel modification, and impoundment) occur at Corn Creek Springs Province (Factor A). Additionally, there are insignificant residual impacts from beneficial habitat restoration (Factor A) at four of the five springs. Projected future conditions include a possible decrease in spring discharge, which is a result of future changing climate conditions in conjunction with a possible increase in groundwater withdrawal (although, if it occurs, this is not expected to be significant across the species' range). We project that, at a minimum, four
Moapa Pebblesnail and Moapa Valley Pyrg—The Moapa pebblesnail and Moapa Valley pyrg are endemic springsnails that co-occur at 6 locations (springs and spring provinces, totaling 16 springs) in Clark County, Nevada, which is the entirety of their historical ranges. Their abundance and distribution vary temporally and in response to restoration (documented to be scarce to abundant over survey periods), and the best available data indicate that the populations for both species are stable. Moapa Valley pyrg typically appears more abundant than Moapa pebblesnail. The primary impacts are at one spring that is currently low-flow—Cardy Lamb Spring—which represents residual impacts from historical spring modifications (surface diversion, channel modification, and impoundment) (Factor A), as well as presence of invasive species (mosquitofish (
Grated Tryonia—The grated tryonia is an endemic springsnail that occurs in 5 springs and 6 spring provinces, totaling greater than 31 springs in Clark, Lincoln, and Nye Counties, Nevada: 3 springs exhibit common relative abundance, 6 exhibit scarce abundance (which historically is the most-frequent relative abundance value recorded across its range, suggesting the species' abundance is inherently scarce), and for 3 springs the presence of the species must be presumed because there was no access to the springs during the most-recent surveys in 2016. This occupied area is the entirety of its known historical range (multiple springs at multiple locations). The primary stressors are invasive species (Factors C and E) and residual impacts from spring modification and habitat restoration activities (Factor A), which have been negatively affecting the springs historically and currently to varying degrees. Invasive species occur at a greater abundance at Baldwin Spring and Ash Spring Province as compared to Cardy Lamb Spring, Moorman Spring, and Hot Creek Springs Province; however, invasive species do not occur in high numbers or densities such that population- or rangewide-level effects are evident. Residual impacts from historical spring modifications (surface diversions, channel modifications, or impoundments) or from past restoration activities are evident throughout the species' range, although surveys do not indicate that the activities have had significant impacts on the species across its range. Projected future conditions include a possible decrease in spring discharge that, if manifested, could result in the loss of the Cardy Lamb Spring population. However, the best available information indicates that there is a high likelihood that 10 of the 11 populations of grated tryonia will continue to persist in the foreseeable future with an appropriate population size and growth rate. We also looked for significant portions of the grated tryonia's range that might be endangered or threatened, and we determined that there are no geographic concentration of stressors (see our Species Assessment Form, Section 15.1.3 available on the Internet at
Blue Point Pyrg—The Blue Point pyrg's range has always been limited to Blue Point Spring (Hershler 1998, p. 29), which is owned and managed by the National Park Service (Lake Mead National Recreation Area) in Clark County, Nevada. The species' abundance is known to vary over time: Scarce in the early 1990s, potentially extinct prior to 2001, rediscovered in 2006, common or abundant in 2012, scarce in 2014, common or abundant in 2015, and again common in 2017 (Service 2017, p. 137). The primary stressor for this species is aquatic invasive predation (Factor C), although other stressors that may negatively affect the species to a lesser degree are vegetation and substrate damage from ungulate use and roads (Factor A), as well as residual impacts from historical spring modification (Factor A). Although invasive species are the primary stressors for Blue Point pyrg, they do not occur in high numbers or densities such that population- or rangewide-level effects are evident. Overall, although stressors are present at Blue Point Spring, they do not appear to be resulting in significant adverse effects to Blue Point pyrg or its habitat (
Hubbs Pyrg—Hubbs pyrg has been reported from two spring areas on private land in Lincoln County, Nevada: Hiko Spring and Crystal Springs Province (two springs) (Service 2017, Figure 5.5; Hershler 1998, pp. 35–37; Sada 2017, pp. 80–81). The species is likely extirpated from Hiko Spring; in 2000, Sada (2017, p. 80) observed that the spring box was significantly modified, and the pyrg has not been observed since. Hubb's pyrg is presumed extant at Crystal Springs Province where it has been found to be common or abundant from surveys conducted between 1992 and 2015 (see Table 5.35 in the SSA Report (Service 2017, p. 140)). The best available information indicates that the primary stressor for this species is residual impacts associated with historical spring modifications (surface diversion, channel modification, and impoundment) (Factor A). It is reasonable to assume that some residual temporary negative impacts associated with historical spring modifications currently exist. However, there is no evidence to suggest that the Hubbs pyrg is not continuing to occupy Crystal Springs Province at similar abundance levels (
Pahranagat Pebblesnail—This springsnail is consistently found to be common or abundant within four springs and spring provinces (greater than nine springs) in Lincoln and Nye Counties, Nevada. This area is the entirety of its known historical range. Although none of its springs are in natural condition or resemble natural characteristics, physical alteration of these habitats has all been historical, and the springs have naturalized to a stable condition. Relative abundance and springbrook data have varied by spring and year, although the most-recent survey information indicates it is currently abundant to common throughout its range. There are no stressors that are significantly affecting the species, although some presence of invasive species (Factor C) and residual impacts from historical spring modifications (Factor A) are likely resulting in insignificant effects. Although these stressors are present, they do not appear to be resulting in significant adverse effects to Pahranagat pebblesnail or its habitat (
White River Valley pyrg—The White River Valley pyrg occurs in seven populations at nine springs or provinces in Nye and White Pine Counties, Nevada. Although some historical habitat was lost for this species, it currently occupies multiple springs at multiple locations throughout its known historical range. Two additional springs that could possibly contain the species have not been accessed since 1999 and 2007; there is no evidence to suggest that the species no longer occurs at those locations. The White River Valley pyrg in Flag Springs, Camp Spring, Lund Spring, and Preston Big Spring appears to be thriving. The primary stressor affecting the species is residual impacts from historical spring modifications (Factor A), primarily at Cold Spring and Nicholas Spring, although these residual impacts are also evident to a lesser degree at three other springs and one spring province. Although no significant effects were noted, invasive species (Factor C) occur at Preston Big Spring, and vegetation and substrate impacts (Factor A) from roads, ungulate use, and recreation were also evident at four springs.
The best available information indicates that the current stressors (spring modification, vegetation and soil disturbance from ungulates, invasive aquatic species) have existed historically across the species' range, resulting in a likelihood of some continued residual impacts to individuals or populations, but on a limited scale that does not affect the entire range of the species; no current impacts appear to exist at the Flag Springs Province (three springs). Thus, the best available information indicates that White River Valley pyrg continues to occupy multiple springs at abundance levels (common or abundant) similar to historical levels (albeit presumed occupancy for three of the populations). At this time, although stressors are present, they do not appear to be resulting in any significant adverse effects to White River Valley pyrg or its habitat (
Butterfield Pyrg—Butterfield pyrg occurs as two populations (likely five springs) at the Butterfield Springs Province in Nye County, Nevada, which is the likely historical range. Although two of the five springs could not be located during recent survey efforts, there is no evidence to suggest that the springs no longer exist. We determined that the species' needs are being met (or presumed to be met, noting additional surveys are necessary to locate two of the five spring sources). The primary stressors, although insignificant where they occur, are vegetation and soil disturbance from ungulate use (Factor A), invasive species (Factor C), and residual impacts from historical spring modifications (Factor A). The best available data indicate that residual impacts occur at the springs from past surface water diversions and disturbance of substrate and vegetation from ungulate activity, in addition to invasive plants present at two of the springs. Regardless of these historical and current impacts, the species was found to be both scarce and abundant (the latter at the largest spring in the province) at the three springs surveyed in 2016.
We are also unaware of any projects or activities occurring that would result in significant negative effects to the species' needs. Although there are stressors present, they are not resulting in significant adverse effects to Butterfield pyrg or its habitat (
Hardy Pyrg—The Hardy pyrg occurs in White River Valley, Nye County, Nevada. Although some historical habitat was lost for this species, it currently occupies multiple springs at multiple locations (8 populations within 24 springs) throughout its known historical range. The species' abundance in some springs varies, including recent surveys showing the species' abundance to range from none to common or abundant. The most common stressors across the range of the species include vegetation and soil disturbance from ungulate use (Factor A), as well as potential for crushed springsnails (seven populations; Factor E), and residual impacts from historical spring modifications (surface diversions, channel modifications, or impoundments at six populations; Factor A). Additionally, three populations are subject to vegetation and soil disturbance from roads (Factor A), and two also contain invasive species (Factor C). Although these stressors are present, they are not resulting in significant adverse effects to Hardy pyrg or its habitat (
Flag Pyrg—Flag pyrg occurs in two populations (four springs) in Nye County, Nevada: Meloy Spring and Flag Springs Province. Both of these areas represent the entirety of the species' known historical range. They both contain large populations that have historically and currently been classified as common or abundant (with the exception of Flag Spring C where none were found in 2016 (Service 2017, p. 190). Although this pyrg may be present in low numbers or absent at Flag Spring C, all remaining populations appear to be thriving. The overall condition of these four springs is high, with the only stressor known to affect these populations being residual impacts from historical spring modifications (surface diversions at both locations, and an impoundment at Meloy Spring) (Factor A). Although residual effects from this stressor are present, the spring modifications are not resulting in significant adverse effects to the Flag pyrg or its habitat (
Lake Valley Pyrg—Although some historical habitat was lost for this species, Lake Valley pyrg currently occupies multiple springs at multiple locations throughout its known historical range. Specifically, Lake Valley pyrg is known from four springs at Wambolt Springs Province (Lake Valley, Lincoln County, Nevada), where it occurs as two populations. Surveys in 2009 found Lake Valley pyrg in three of the four springs surveyed—Wambolt Springs A, C, and D—which closely align in a meadow, whereas surveys in 2016 found the species in Wambolt Springs B, C, and D where Sada (2017, pp. 112–113) considered them abundant. With regards to stressors, spring modification (surface diversion; Factor A) and cattle disturbance to vegetation and substrate (Factor A) are evident. The Wambolt Springs Province has historically experienced some spring modifications and ungulate use that disturbs substrate and vegetation; ungulate use continues currently, although Lake Valley pyrg's relative abundance numbers do not appear significantly affected. At this time, although these stressors are present, they are not resulting in significant adverse effects to Lake Valley pyrg or its habitat (
With regard to our future conditions analysis, the most probable impacts to the species' needs are associated with reduced aquifer levels if climate change predictions (minimal increase in temperature and decrease in precipitation) come to fruition, as well as with vegetation and soil disturbance from ungulate activity. Additionally, there are no proposed projects that are likely to impact the species or its habitat in the future. The greatest potential future impacts—ground water withdrawal or changes in climate conditions—may result in future reductions in spring discharge and free-flowing water; however, the best available information suggests that any realized negative effects would not result in significant population- or rangewide-level effects. In other words, Lake Valley pyrg's resiliency, redundancy, or representation is not likely to be reduced to a significant degree in the foreseeable future. We also looked for significant portions of the Lake Valley pyrg's range that might be endangered or threatened, and we determined that there are no geographic concentrations of stressors (see our Species Assessment Form, Section 15.1.3 available on the Internet at
Bifid Duct Pyrg—The bifid duct pyrg occurs in White Pine County, Nevada, and Millard County, Utah. Although some historical habitat was lost for this species, it currently occupies a wide distribution within multiple springs at multiple locations throughout its known historical range (11 extant bifid duct pyrg populations in 18 springs), which can help protect the species against potential catastrophic events. Abundance varies across the species' range. During 2016 surveys, it was common or abundant in the majority of springs where it was found. It also appears that it consistently demonstrates relatively high abundance numbers in all but one of the 18 springs, and that the species has been both historically and currently scarce in the remaining spring. The most significant stressors across the species' range include residual impacts associated with historical spring modification (eight populations; Factor A), damaged substrate and vegetation from ungulate use (Factor A), the potential for crushed springsnails from ungulate use (Factor E), and, to a significantly lesser extent, potential vegetation and substrate impacts (Factor A) from roads (three springs) and recreation (three springs). Additionally, one spring (Maple Grove Springs) has invasive species (Factor C) present, although at insignificant abundance levels. The best available data indicate that there are no projects or activities occurring or proposed that would result in significant negative effects to the species' needs.
At this time, although these stressors are present, they are not resulting in significant adverse effects to bifid duct pyrg or its habitat (
Based on our review of the best available scientific and commercial information pertaining to the five factors, as well as the number and distribution of springs and spring provinces for each of the 14 springsnail species, the continued presence of adequate resources to meet the species' needs, and our consideration of the species' continued redundancy, resiliency, and representation, we conclude that the impacts on the 14 species and their habitat are not of such imminence, intensity, or magnitude to indicate that any of the 14 springsnail species are in danger of extinction (an endangered species), or likely to become so within the foreseeable future (a threatened species), throughout all or a significant portion of their ranges. We conclude there is no evidence of any significant impacts to the species such that there is or would be in the foreseeable future a loss of the resources needed to meet the species' physical and ecological needs across all 14 of the species' ranges. Nor is there any evidence that there are any significant portions of the species' ranges where the species could be in danger of extinction or likely to become so in the foreseeable future. Thus, our future analysis reveals a low risk of extirpation in the foreseeable future for all 14 species.
On April 20, 2010, we received a petition from the Center to list 404
The Barbour's map turtle is a freshwater riverine turtle found in the Apalachicola–Chattahoochee–Flint (ACF) Rivers and their major tributaries—Choctawhatchee, Pea, Ochlockonee, and Wacissa Rivers in southeastern Alabama, southwestern Georgia, and the Florida panhandle. Barbour's map turtles are mostly found in riverine habitats, although they may also be found in creeks, streams, and impoundments. These map turtles are historically known from the ACF River drainage (to include Chattahoochee, Flint, and Chipola Rivers) of southeastern Alabama, southwestern Georgia, and the Florida panhandle and some of their tributaries. Stream geomorphology in the ACF River basin is characterized by steep, sandy banks and Ocala limerock outcrops with alternating shallow, rocky shoals and deep, sandy pools. The abundance of Barbour's map turtles in the ACF River basin has led researchers to believe the limestone substrate and water depth are important elements of the species' habitat. Barbour's map turtles have recently been found outside the known historical range in the Wacissa and Ochlockonee Rivers in the Florida panhandle and the Choctawhatchee and Pea Rivers in Alabama and Florida panhandle.
Map turtles are avid baskers, basking up to 6 or more hours a day from March through October. In Florida and southern Alabama, map turtles will bask during every month of the year as long as the ambient temperature is above water temperature. In the northern portion of their range in Georgia and during cold spells throughout the region, turtles become lethargic in the cooler water temperatures but do not hibernate. Basking is required for thermoregulation, prevention and destruction of parasites and fungi that may grow on the carapace or skin, and exposure to ultraviolet radiation for absorption of vitamin D. Map turtles are easily startled and will dive into the water for protection.
River sinuosity, meaning the amount and type of curves and bends, plays an important part in providing habitat, shelter, and food for this species. The more bends and curves a river or creek has, the more riparian area that could be present to provide woody vegetation and snags for basking and sheltering, increased diversity of water depth and flow, more exposed open sandbars to provide advantageous nesting areas, and habitat for food sources consumed by all life stages of Barbour's map turtle.
In completing the status review for the Barbour's map turtle, we considered and evaluated the best scientific and commercial information available, and evaluated the potential stressors that could be affecting the Barbour's map turtle, including the Act's five threat factors. This evaluation includes information from all sources, including Federal, State, tribal, academic, and private entities and the public. The Species Status Assessment Report (Service 2017b, entire) for the Barbour's map turtle summarizes and documents the biological information we assembled, reviewed, and analyzed as the basis for our finding. While the petition stated concerns regarding impacts to the species from stressors within the five factors, we concluded that the species is resilient to the stressors and current impacts to the species do not rise to a level that would warrant listing under the Act.
Our review of the best available science indicates that the Barbour's map turtle continues to occupy most of its historical range in the ACF River basin and additional locations beyond the historical range. Although the Barbour's map turtle faces a variety of impacts from reduced water flow from dams, fluctuating levels of water quality and habitat availability, dredging, and deadhead logging, the species has continued to persist and the magnitude of these threats is not expected to significantly change in the near future. Furthermore, the impacts from any of the stressors—either individually or cumulatively—are not likely to affect the species at a population- or range-wide level in the near term.
To evaluate the current and future viability of the Barbour's map turtle, we assessed a range of future conditions to allow us to consider the species' resiliency, redundancy, and representation. Resiliency describes the ability of a population to withstand stochastic disturbance effects. Redundancy describes the ability of the species to withstand catastrophic disturbance events. Representation characterizes a species' adaptive potential by assessing geographic, genetic, ecological, and niche variability. Together, resiliency, redundancy, and representation comprise the key characteristics that contribute to a species' ability to sustain populations in the wild over time.
A species with multiple resilient populations distributed across its range is more likely to persist into the future and avoid extinction than a species with fewer, less-resilient populations. For the purposes of this assessment, populations were delineated using HUC8 watersheds that Barbour's map turtles have historically occupied or currently occupy. The Barbour's map turtle currently occupies 16 HUC8 watersheds within the ACF River basin and the Choctawhatchee, Ochlockonee, and Wacissa River basins. Overall, estimates of current resiliency, representation, and redundancy for Barbour's map turtle are considered to be moderate to high, with the exception of the Upper Choctawhatchee River, and we did not find any evidence that these conditions may change in the future. Our estimation of the species' moderate to high resiliency, redundancy, and representation throughout the majority of its range suggest that it has the ability to sustain its populations into a 30-year time horizon. This timeframe captures the time period of 2–3 generations of Barbour's map turtles, as well as our best professional judgment of the projected future conditions related to either environmental stressors (
Based on our review of the best available scientific and commercial information pertaining to the five factors, as well as the number and distribution of populations, the continued presence of adequate resources to meet the species' needs, and our consideration of the species' continued redundancy, resiliency, and representation, we conclude that the impacts on the species and its habitat are not of such imminence, intensity, or magnitude to indicate that the Barbour's map turtle is in danger of extinction (an endangered species), or likely to become so within the foreseeable future (a threatened species), throughout all or a significant portion of its range.
We conclude there is no evidence of any significant loss of the resources needed to meet the species' physical and ecological needs across the species' range, nor is there any evidence of declining numbers of turtles at any of the locations. Rather, recent surveys (1990s–2000s) have resulted in a larger species range than that which was previously known.
Therefore, we find that listing the Barbour's map turtle as a threatened or an endangered species or maintaining the species as a candidate is not warranted throughout all or a significant portion of its range. A detailed discussion of the basis for this finding can be found in the Barbour's map turtle species-specific assessment form and other supporting documents available on the Internet at
In 1994, the Bicknell's thrush was determined to be a category 2 species of concern and we announced that finding in the Animal Candidate Review for Listing as Endangered or Threatened Species (59 FR 58982, November 15, 1994). Category 2 was defined as including taxa for which the Service had information indicating that proposing to list as endangered or threatened was possibly appropriate, but for which persuasive data on biological vulnerability and threats were not currently available to support proposed rules. In 1996, the Service discontinued the list of category 2 candidate species, resulting in the removal of the Bicknell's thrush from candidate status (61 FR 64481, December 5, 1996).
On August 26, 2010, we received a petition dated August 24, 2010, from the Center, requesting that the Bicknell's thrush be listed as an endangered or threatened species under the Act and that critical habitat be designated. Included in the petition was supporting information regarding the species' natural history and ecology, population status, and threats to the species, including: Habitat loss and climate change (Factor A); disease and predation (Factor C); the inadequacy of existing regulatory mechanisms (Factor D); and exposure to mercury, acid deposition, interspecific competition, and disturbance by recreationists (Factor E).
On September 9, 2011, the U.S. District Court for the District of Columbia approved two settlement agreements: One agreement between the Service and the Center and a second agreement between the Service and WildEarth Guardians (Guardians). The agreements enabled the Service to systematically, over a period of 6 years, review and address the needs of more than 250 species listed on the 2010 Candidate Notice of Review (75 FR 69222, November 10, 2010). The agreements also included additional scheduling commitments for a small subset of the actions in the 6-year work plan that were consistent with the Service's objectives and biological priorities. For the Bicknell's thrush, the settlement agreement with Guardians specified that we would complete a 90-day petition finding by the end of fiscal year 2012. On August 15, 2012, we published a 90-day finding for the Bicknell's thrush (77 FR 48934) indicating that the petition provided substantial information indicating that listing the species because of Factors A, D, and E may be warranted, and initiated a status review.
In 2013, the Center filed a complaint against the Service for failure to complete a 12-month finding for the Bicknell's thrush within the statutory timeframe. The Service entered into a settlement agreement with the Center to address the complaint; the court-approved settlement agreement specified a 12-month finding for the Bicknell's thrush would be delivered to the
This information is summarized from the Service's Bicknell's Thrush Biological Species Report (Species Report) (Service 2017c, entire); for more detail, please see the Bicknell's Thrush Species Report available on the Internet at
The Bicknell's thrush breeds during the summer (May to August) in areas of the northeastern United States and southeastern Canada. Individuals start migrating in late September or early October by following a coastal route south to Virginia, where most birds depart, flying across the ocean to the Bahamas and Cuba, before finally arriving in the Greater Antilles (
Breeding habitat for the Bicknell's thrush consists of dense tangles of both living and dead “stunted” trees that are predominately balsam fir (
While there is more suitable breeding habitat in Canada than in the United States, the species is not evenly distributed throughout the habitat. Based on breeding density information, the best available data indicate that the current Bicknell's thrush global population is approximately 97,358 to 139,477, with approximately 66 percent of the population breeding in the United States and 33 percent breeding in Canada.
During migration, the Bicknell's thrush appears to be a habitat generalist and can be found in dense woodlots composed of variable tree species, or along well-vegetated beaches, orchards, and gardens (Wallace 1939, p. 259; Wilson and Watts 1997, pp. 520–521). Wintering occurs exclusively in the Greater Antilles, with the majority of Bicknell's thrushes on the island of Hispaniola, in Haiti and the Dominican Republic; however, the species can also be found on the islands of Cuba, Jamaica, and Puerto Rico (Rimmer
This information is summarized from the Species Report (Service 2017c, entire); for more detail, please see the report. Due to the lack of specific data regarding survival rates by life stage or fecundity rates, we evaluated existing stressor-related data and qualitatively assessed the individual and cumulative effects of those stressors on individual Bicknell's thrush, aggregates of Bicknell's thrush in the breeding or wintering grounds, and at the species level. From this assessment, we conclude that habitat loss in the wintering range has most likely been a significant driver of the species' decreased viability, particularly when combined with low productivity in some years due to nest predation from red squirrels (
Activities that contribute to loss of the species' habitat include some forestry practices such as precommercial thinning and clearcutting in the Canadian portion of the species' range, which may result in the loss and fragmentation of important breeding habitat. However, the regeneration of young dense stands of conifers that follows cutting can provide breeding habitat for the species for approximately 5 to 12 years after clearcutting (International Bicknell's Thrush Conservation Group 2010, p. 12; McKinnon et al 2014, pp. 264, 268). The development of ski areas, wind turbines, telecommunication facilities, and their associated infrastructure (
Looking forward, the best available information suggests that, as a result of climate change, the spruce-fir habitat that supports breeding Bicknell's thrushes may be substantially reduced, with the potential to be nearly eliminated, from the species' current range in the northeastern United States and may decline in Canada by the end of this century, depending on the amount of greenhouse gases emitted to the atmosphere, habitat type (
On the wintering grounds, the consequences of climate change will likely include a drying of the Caribbean region and an associated decline in the wet montane and cloud forest habitats where most Bicknell's thrushes are found. It is also likely that socioeconomic and development pressures, especially in the Dominican Republic and Haiti, will result in further losses of the species' preferred habitat, as forests are converted to other land uses.
The stressors we evaluated in detail in our Bicknell's Thrush Report (Service 2017c, entire) that fall under Factors A, C, and E of section 4(a)(1) of the Act are habitat loss and degradation due to incompatible forestry practices (
We have no information indicating that habitat degradation due to atmospheric acid and nitrogen deposition (Factor A), disease (Factor C), or the effects of mercury and acid deposition (Factor E) are currently affecting the Bicknell's thrush or its habitat. In addition, we concluded that recreational and wind energy development (Factor A), as well as collision and disturbance by stationary/moving structures and disturbance by recreationalists (Factor E) may be affecting individual Bicknell's thrush but were not significant stressors to aggregates of individuals or at the species level.
Our review of the best available information indicates that the Bicknell's thrush continues to occupy most of its historical breeding, migration, and wintering range. Although there are some stressors that are expected to result in the loss of suitable breeding and wintering habitat for the Bicknell's thrush, as well as directly affect the species through reduced reproduction and overwintering mortality, we have no evidence to suggest that the species is currently at risk of extinction; in other words, the risk of the Bicknell's thrush significantly declining in the near term is very low given that it has persisted despite historical levels of habitat loss
The stressors likely to have the greatest influence on the Bicknell's thrush's viability over time include: (1) For the breeding range, changes in habitat suitability (
The future timeframe for this analysis is approximately 30 years, which is a reasonably long time to consider as the foreseeable future given the Bicknell's thrush's life history and the temporal scale associated with the patterns of the past and current stressors outlined in the best available information. For example, the foreseeable future is twice as long as the 15-year data set (from 2001 to 2014) showing the extent of decline in tree cover on four Caribbean islands occupied by wintering Bicknell's thrushes (Hansen
Since the analysis of potential effects from climate change was an important consideration in our status assessment and the effects of climate change take place over a period of time, we sought to consider a timeframe that was long enough to evaluate those potential effects adequately. However, in evaluating the status of the species, we did not extend our forecast out as far as all existing climate change models discussed in the Bicknell's Thrush Report. Those models extend to approximately 100 years, and we concluded that such an extended forecast was not sufficiently reliable for the listing determination due to the: (1) Increased uncertainty in the model results (
Based on the species' abundance and distribution in its breeding and wintering locations, the continued presence of adequate habitat quality and quantity to meet the species' breeding and overwintering needs, and our consideration of the species' future distribution, abundance, and diversity, we conclude that the Bicknell's thrush is likely to remain at a sufficiently low risk of extinction that it will not become in danger of extinction in the foreseeable future (
We evaluated the current range of the Bicknell's thrush to determine if there are any apparent geographic concentrations of potential threats to the species. The risk factors that occur throughout the Bicknell's thrush's range include the loss of habitat due to the effects of climate change. The loss of habitat due to illegal logging, conversion to subsistence farming, and slash and burn agriculture, however, is occurring both currently and in the foreseeable future, at a rate of approximately 5 percent reduction in tree cover over 15 years (based on Hansen
Based on our review of the best available scientific and commercial information pertaining to the five factors, we find that the stressors acting on the species and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the Bicknell's thrush is in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species), throughout all of its range. We request that you submit any new information concerning the status of, or threats to, the Bicknell's thrush to our New England Fish and Wildlife Office (see
On April 20, 2010, we received a petition from the Center to list 404 aquatic, riparian, and wetland species from the southeastern United States as threatened or endangered species under the Act, including the Big Blue Springs cave crayfish. The 90-day finding was
The Big Blue Springs cave crayfish is a subterranean species of crayfish endemic to several freshwater springs and sink caves within the panhandle of Florida. It has been collected from aquatic caves and limestone springs associated with the Woodville Karst Plain near and south of a geomorphological feature of karst limestone known as the Cody Scarp, paralleling riverine karst areas of the Wakulla, St. Marks, and Wacissa Rivers in Jefferson, Leon, and Wakulla Counties, Florida. It has been found in the boil area of springs, depths of 21–26 m (70–80 ft), and a sinkhole near the surface. The principal habitat feature supporting this species appears to be a flowing, freshwater, subterranean environment; however, specific water-quality requirements for the species are currently unknown.
The Big Blue Springs cave crayfish was historically found in three locations: A well in Leon County, Big Blue Spring in Jefferson County, and Shepherd Spring on St. Marks National Wildlife Refuge in Wakulla County, Florida. In 2017, the species was found in three aquatic cave sites within 12 mi (19 km) of each other—Big Blue Spring and nearby Garner Spring on the east side of the Wacissa River (Jefferson County) and Horsehead Spring on the west side of the Wacissa River (Jefferson County)—which included locations where the species had not previously been found.
In completing our status review for the Big Blue Springs cave crayfish, we reviewed the best available scientific and commercial information and compiled the information in the Species Status Assessment Report (Service 2017d, entire) for the Big Blue Springs cave crayfish. We evaluated all known potential impacts to the Big Blue Springs cave crayfish, including the Act's five threat factors. As explained further below, we also used a time period of 35–50 years for the foreseeable future. This evaluation included information from all sources, including Federal, State, tribal, academic, and private entities and the public.
The Big Blue Springs cave crayfish were recently (March 2017) observed in two of three historical locations. No population estimates exist for the species; however, at least 90 individuals were observed across three locations during the 2017 surveys. The primary stressors to the Big Blue Springs cave crayfish currently and into the future are loss of freshwater within the karst system and saltwater intrusion.
The petition stated that the species is at risk from present or future destruction, modification, or curtailment of its range by extensive degradation of aquatic and riparian habitats due to land-use activities and the direct alterations of waterways. In addition, populations are prone to potential pollution and detrital change, and there is concern that the aquifer system may be receiving pollutants from the Tallahassee area. We also evaluated the extent to which overutilization and climate change (including saltwater intrusion resulting from sea-level rise) may be affecting the species negatively.
Population projections for Leon County, Florida, are expected to increase, leading to potential ground water impacts associated with greater water demands for the city of Tallahassee. However, the Northwest Florida Water Management District indicated that ground water pumping was not an issue in the watershed; more freshwater is staying in the system due to improvements in storm water and stream flow management. This is based on observed increases in discharge that could be related to the release of water from underground stream openings and sinks connected to the regional karst system (Coates 2017, pers. comm.). With more freshwater staying in the system due to improvements in storm water and stream flow management, we concluded that the best available scientific and commercial information does not indicate that ground water changes are having a negative impact on the species at a population level.
One impact from climate change that may be a factor for the Big Blue Springs cave crayfish is sea-level rise due to its proximity to the Gulf coast of Florida. Annual rates of sea-level rise at Apalachicola, Florida (southwest of areas inhabited by Big Blue Springs cave crayfish) have averaged approximately 1.96 mm (0.08 in) since the 1970s (National Oceanic and Atmospheric Administration 2017). The projected sea-level rise for coastal Wakulla County in 2080 is 0.32 m (1.05 ft) (Harrington and Walton 2008, p. 12). Sea-level rise may result in an increase in saltwater
This increase in seawater intrusion into the karst conduit system may be contributing to the increased freshwater discharge rates periodically observed in some springs (
Finally, habitats occupied by the Big Blue Springs cave crayfish are located 3 to 43 km (2 to 27 mi) from the coast, at elevations of 1.5 to 15 m (5 to 50 ft) above sea level, though occupied habitats within the conduit system are below sea level. Although seawater intrusion and transport in karst aquifers can occur over extremely long distances, increases in conductivity noted at the vent of Wakulla Spring are small in an absolute sense. An increase in conductivity is indicative of saltwater intrusion inland (Xu
Overall, based on historical data along with current and future conditions of the species and habitat, we anticipate that Big Blue Springs cave crayfish populations will remain resilient. The locations where the crayfish have been observed at the surface can be thought of as “windows” into the karst system. The species has the ability to move throughout the system in response to environmental conditions in order to relocate to suitable habitat or areas of refugia. The species is expected to continue to be resilient in response to stochastic events. A survey from March 2017 detected the species in areas where they hadn't previously been detected, and many individuals were found in Garner Springs, indicating that the species is persisting there. Management actions on public lands can provide protection and improvement for springs. Portions of the Aucilla Wildlife Management Area are designated as Outstanding Florida Waters by the Florida Department of Environmental Protection; such a designation restricts degradation of water quality and water withdrawal (Florida Fish and Wildlife Conservation Commission 2016, p. 57). As explained further in the Species Assessment Form, we evaluated ongoing management of the springs within the range of the Big Blue Springs cave crayfish will reduce impacts to the species by maintaining water flow to the springs thus allowing the persistence of suitable habitat.
Foreseeable future for this species was determined to be a 35–50-year timeframe based on the biology of the species, the threats identified, and ongoing water management practices that include actions that are beneficial to the species, with the 50-year outer limit as the conservative amount of time to apply when evaluating its status as threatened. The lifespan of cave crayfish is typically around 20 years, so the range of 35–50 years encompasses 2–3 generations, allowing sufficient time for population response to stressors to be detected, with the major stressor to the species being a decline or loss of freshwater availability. The climate model used included projections beyond 50 years; however, a longer timeframe would lead to too much uncertainty in evaluating the response of the species to habitat changes or the impacts from sea-level rise, drought, or overall water availability.
We evaluated the current range of the Big Blue Springs cave crayfish to determine if there are any apparent geographic concentrations of potential threats to the species. There was no concentration of threats identified across its range. Therefore, we find there could be no significant portion of the species' range where the species is in danger of extinction or likely to become so in the foreseeable future. Therefore, we find that the Big Blue Springs cave crayfish is not endangered or threatened throughout a significant portion of its range.
Based on our review of the best available scientific and commercial information pertaining to the five factors, we evaluated relevant stressors, including land-use activities and direct alterations of waterways (Factor A), water withdrawal (Factor A), sea-level rise (Factor A), and overutilization (Factor B), and concluded that the stressors acting on the species and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the Big Blue Springs cave crayfish is in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species), throughout all or a significant portion of its range.
The most important factor that may affect Big Blue Springs cave crayfish resiliency is ground water decline. We expect that ground water levels may decline over time, but there is significant uncertainty over how that will affect freshwater availability. If freshwater availability is reduced due to lower aquifer levels caused by ground water pumping or prolonged drought, we expect populations would likely be minimally affected, since the species has been found at significant spring and sink depths and can move as ground water levels decrease (Moler 2016, pers. comm.).
A detailed discussion of the basis for this finding can be found in the Big Blue Springs cave crayfish species-specific assessment form and other supporting documents available on the Internet at
On May 8, 2012, we received a petition dated May 2, 2012, from the John Muir Project of the Earth Island Institute, the Center for Biological Diversity, the Blue Mountains Biodiversity Project, and the Biodiversity Conservation Alliance (Earth Island Institute
On September 24, 2014, the United States District Court for the District of Columbia issued a court order for a stipulated settlement agreement in the case of
The black-backed woodpecker is similar in size to the more-common American robin (
The black-backed woodpecker occurs across dense, closed-canopy boreal and montane coniferous forests of North America from Alaska, Canada, Washington, Oregon, California, Northern Rockies, South Dakota, Minnesota and east to New England (Winkler
At the landscape scale, while not tied to any particular tree species, the black-backed woodpecker generally is found in older conifer forests that comprise high densities of larger snags (Bock and Bock 1973, p. 400; Russell
The black-backed woodpecker was first described in 1831 (Swainson and Richardson 1831, p. 313; American Ornithologists' Union (AOU) 1983, p. 392). The scientific community recognizes the black-backed woodpecker as a valid species (AOU 1983, pp. 392–393), and no subspecies of the black-backed woodpecker were included at the time that AOU, the scientific authority responsible for bird classification, last published subspecies classifications in 1957 (AOU 1957, p. 330). In addition, no other taxonomic authority has recognized any subspecies for the black-backed woodpecker (Tremblay
A recent genetic study identified some genetic differences between individuals found in three areas within the black-backed woodpecker's range. The three areas include: (1) The boreal forest of Canada, Washington, Northern Rockies, and northeastern United States, (2) the Oregon-Cascades/California (Sierra Nevada Mountains), and (3) the area around the Black Hills (southwestern South Dakota and northeastern Wyoming) (Pierson
We also reviewed whether the Black Hills population or the Oregon-Cascades/California population were distinct vertebrate population segments (DPSs) under our 1996 DPS policy (61 FR 4721, February 7, 1996). Based on a review of the best available information, we have determined that the Black Hills population and the Oregon-Cascades/California population are not significant in relation to the remainder of the taxon because they do not exist in an ecological setting unique or unusual to
Based on our thorough review of the best available scientific and commercial information as summarized in our Species Assessment (Service 2017f, entire), we find that the petitioned entities identified as the Oregon-Cascades/California population and the Black Hills population of the black-backed woodpecker are not subspecies and neither meets our criteria for being a DPS under our February 7, 1996, DPS policy (61 FR 4722). Therefore the Oregon-Cascades/California and Black Hills populations of the black-backed woodpecker do not meet the definition of listable entities under the Act and, as a result, cannot warrant listing under the Act. Our complete rationale and supporting information for our subspecies and DPS determinations are outlined in our Species Assessment document (Service 2017f, entire; available on the Internet at
On September 30, 1993, the Service received a petition from the Biodiversity Legal Foundation and Dr. Peter Hovingh. The petitioners requested that the Service list the Southern Rocky Mountains population of the “western boreal toad” (an alternate common name sometimes used in the past for
On March 23, 1995, the Service announced a 12-month finding that listing the Southern Rocky Mountains population of the boreal toad as an endangered DPS was warranted but precluded by other higher priority actions (60 FR 15281). At that time, a listing priority number of 3 was assigned. When we find that listing a species is warranted but precluded, we refer to it as a candidate species. Section 4(b)(3)(B) of the Act directs that, when we make a “warranted but precluded” finding on a petition, we are to treat the petition as being one that is resubmitted annually on the date of the finding; thus, the Act requires us to reassess the petitioned actions and to publish a finding on the resubmitted petition on an annual basis. Several resubmitted candidate assessments for the boreal toad were completed. The most recent of these was published in the
On September 29, 2005, we determined that the Southern Rocky Mountains population of the boreal toad did not warrant listing because it was not a listable entity according to the DPS criteria and, therefore, should be withdrawn from the candidate list (70 FR 56880). When the boreal toad was put on the candidate list in 1995, the DPS Policy did not yet exist, so the determination that the toad was a listable entity was not based on the current criteria. The combination of using the DPS criteria developed in 1996 and incorporating genetic and other information available during development of the 2005 finding led to determinations that the Southern Rocky Mountains population of the boreal toad was discrete, but not significant. Therefore, we determined in the 2005 finding that it was not a listable entity.
On May 25, 2011, we received a petition from the Center, the Center for Native Ecosystems, and the Biodiversity Conservation Alliance, requesting that either the Eastern or Southern Rocky Mountains population of the boreal toad be listed as an endangered or threatened DPS, and that critical habitat be designated under the Act. Please note that the Southern Rocky Mountains population is a subset of what we now call the Eastern Population of the boreal toad. We published a notice of a 90-day finding for the petition in the
On June 27, 2013, the Center filed a complaint (1:13–cv–00975–EGS) to compel the Service to issue 12-month findings as to whether listing under the Act was warranted for nine species, including the Eastern Population of the boreal toad. On September 23, 2013, the Service and the Center filed a stipulated settlement agreement, agreeing that the Service would submit to the
The boreal toad is a subspecies of the Western toad (
The boreal toad occurs between 2,000 m (6,550 ft) and 3,670 m (12,232 ft) in areas with suitable breeding habitat within a landscape containing a variety of vegetation types, including pinon-juniper, lodgepole pine, spruce-fir forests, mountain shrubs, and alpine meadows (Service 2017f, p. 13). Breeding takes place in shallow, quiet water in lakes, marshes, bogs, ponds, and wet meadows (Service 2017f, p. 13).
We evaluated the Eastern Population of boreal toads under the Service's Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4722; February 7, 1996). Our complete DPS evaluation can be found in the Species Assessment and Listing Priority Assignment Form for the boreal toad (available on the Internet at
We completed a Species Status Assessment (SSA) Report for the Eastern DPS of the boreal toad (Service 2017f, entire), which reports the results of the comprehensive biological status review by the Service for the Eastern DPS of the boreal toad, and provides a thorough account of the species' overall viability and, therefore, extinction risk. To evaluate the biological status of the boreal toad both currently and into the future, we assessed a range of conditions to allow us to consider the population's resiliency, redundancy, and representation as proxies for evaluating overall viability. The boreal toad needs multiple resilient populations (redundancy) widely distributed (representation) across its range to maintain its persistence into the future and to avoid extinction. A number of factors may increase a boreal toad population's resilience to stochastic events. These factors include (1) sufficient population size (abundance), (2) recruitment of toads into the population, as evidenced by the presence of all life stages at some point during the year, and (3) connectivity between breeding populations. As explained further in the SSA Report (Service 2017f), we used a time period of up to 50 years for the foreseeable future.
We evaluated a number of potential stressors that could influence the health and resilience of boreal toad populations (Service 2017f, p. 22), corresponding to the five factors under section 4(a)(1) of the Act. We found that the main factor influencing the status of populations is the presence of chytrid fungus,
The historical range of the Eastern DPS of boreal toad includes 439 known HUC–12s across the range of this subspecies. Currently, approximately 194 HUC–12s are considered occupied. Of these, approximately 83 HUC–12s are positive for Bd infection (Service 2017f, pp. 31–32). Occupancy within the remaining approximately 245 HUC–12s is currently unknown due primarily to the lack of recent survey effort. However, this number includes approximately 62 HUC–12s within the Southern Rocky Mountains subpopulation area that are considered unoccupied and may have been extirpated by Bd (Service 2017f, pp. 31–32). We recognize that the 439 known HUC–12s within the range of the species likely represents a minimum number of possible breeding sites, since surveys done to date have not included every area that could possibly support boreal toads (Service 2017f, p. 11).
The variability in the toads' response to Bd infection informs our understanding of the future of the boreal toad. As part of the Southern Rocky Mountains Recovery Team's update of its conservation plan, Converse
In summary, boreal toad populations are currently experiencing variability in their response to Bd infection, which we consider to be the primary stressor on boreal toad population resilience. The most-susceptible population to Bd infection experiences high population losses and localized extirpations, but some breeding sites continue to persist despite significant population declines. Some populations within the range show little or no evidence of impacts caused by Bd infection and remain robust despite the presence of Bd. Other areas show some population decline, but at much lower severity than observed in the Southern Rocky Mountains. This analysis is described in greater detail in our SSA Report (Service 2017f, entire). Therefore, we have concluded that the Eastern DPS of boreal toad is not in danger of extinction because it will likely continue to maintain self-sustaining populations distributed across its range over the next 50 years.
Having determined that the Eastern DPS of boreal toad is not currently in danger of extinction or likely to become so in the foreseeable future throughout all of its range, we next considered whether there are any significant portions of the range where the species is in danger of extinction or is likely to become endangered in the foreseeable future. Given the apparent greater vulnerability to Bd of boreal toads in the Southern Rocky Mountains (Service 2017f, p. 24), we evaluated whether the population could be considered endangered or threatened in this portion of its range. We found that in this portion of the range, 51 percent of HUC–12s are in the high or moderate resilience category, and these are spread throughout the Southern Rocky Mountains, providing adaptive capacity (representation) and redundancy in the face of catastrophic events (Service 2017f, p. 30). Looking into the foreseeable future, we considered the best data available—the only existing model of population persistence focused on the Southern Rocky Mountains. That model predicted a 95-percent probability of persistence for toads in this geographic area in 50 years (Service 2017f, p. 35). Despite the possible reductions in breeding sites and occupied mountain ranges in the foreseeable future, the current and projected future conditions indicate a low risk of extinction for boreal toads in the Southern Rocky Mountains. Therefore, Eastern boreal toads are not in danger of extinction or likely to become so in the foreseeable future in the Southern Rocky Mountains portion of its range.
We reviewed the best available scientific and commercial information pertaining to the Eastern DPS of the boreal toad, corresponding to the Act's five threat factors. Because boreal toads in the Eastern DPS are distributed across the majority of their historical range, with a large percentage of populations in a moderate or high resiliency category in the face of Bd, which is the primary stressor influencing the species (Service 2017f, pp. 11–12, 33–34), we find that the species retains adaptive capacity and has a very low risk of extirpation due to stochastic or catastrophic events that could plausibly occur in the future. Therefore, we conclude that the current risk of extinction is low, such that the Eastern DPS of boreal toads is not in danger of extinction throughout all of its range.
In addition, because we project a high probability of persistence in the face of Bd across the majority of the range of the Eastern DPS in 50 years, even under a worst-case scenario (Service 2017f, pp. 35–36), we find that the species has a low future risk of extirpation due to plausible stochastic or catastrophic events in the foreseeable future and that, due to the high probability of persistence and the low risk of extirpation, the species is expected to retain most of its adaptive capacity. Therefore, we conclude that the risk of extinction in the foreseeable future is low, and the Eastern DPS of boreal toad is not likely to become an endangered species within the foreseeable future throughout all of its range.
Finally, we considered whether there are any significant portions of the range where the population is in danger of extinction or is likely to become so in the foreseeable future. We evaluated the Southern Rocky Mountains portion of the range, where the population has evidenced the least ability to resist Bd, the primary stressor, and found a low risk of extirpation of the Eastern boreal toad even in that portion of its range. Based on this analysis, we concluded that there is not a significant portion of the DPS's range where the species is in danger of extinction or likely to become so in the foreseeable future.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Eastern DPS of the boreal toad. Because the species is neither in danger of extinction now nor likely to become so in the foreseeable future throughout all or any significant portion of its range, the species does not meet the definition of an endangered species or threatened species. Therefore, we find that listing the Eastern DPS of boreal toad as an endangered or threatened species under the Act is not warranted at this time. This document constitutes the Service's 12-month finding on the 2011 petition to list the Eastern DPS of boreal toad as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the Eastern DPS of boreal toad's species-specific Species Assessment and Listing Priority Assignment Form, SSA Report, and other supporting documents (available on the Internet at
On December 29, 1994, we received a petition dated December 22, 1994, from the Biodiversity Legal Foundation requesting that two fisher populations in the western United States, including the States of Washington, Oregon, California, Idaho, Montana, and Wyoming, be listed as threatened under the Act. Based on our review, we found that the petition did not present substantial information indicating that listing the two western United States fisher populations as DPSs was warranted (61 FR 8016; March 1, 1996).
On March 6, 2009, we received a petition dated February 24, 2009, from the Defenders of Wildlife, Center, Friends of the Bitterroot, and Friends of the Clearwater requesting that the fisher population in the Northern Rocky Mountains (NRM) of the United States be considered a DPS and listed as endangered or threatened, and critical habitat be designated under the Act. We published a 90-day finding on April 16, 2010, stating that the petition presented substantial information that listing a DPS of fisher in the NRMs may be warranted, and initiated a status review of the species (75 FR 19925). The next annual Candidate Notice of Review (CNOR), published on November 10, 2010, also included a notice of the 90-day finding and commencement of a 12-month status review for the fisher NRM
On September 23, 2013, the Center, Defenders of Wildlife, Friends of the Bitterroot, Friends of the Clearwater, Western Watersheds Project, and Friends of the Wild Swan petitioned the Service to list the NRM fisher as threatened or endangered under the Act. We published a positive 90-day finding on the petition on January 12, 2016 (81 FR 1368). We published a notice of commencement of a status review for the NRM fisher on January 13, 2017 (82 FR 4404). In August 2016, the Service entered into a settlement agreement with the Center, requiring the Service to submit a proposed listing rule or not-warranted 12-month finding for the NRM fisher to the
The fisher is a forest-dwelling, medium-sized mammal, light brown to dark blackish-brown in color, found throughout many forested areas in Canada and the United States. The fisher has a long body with short legs and a long bushy tail. The fisher is classified in the order Carnivora, family Mustelidae, a family that also includes weasels, mink, martens, and otters (Anderson 1994, p. 14). The distribution of NRM fishers includes forested areas of western Montana and north-central to northern Idaho, and potentially northeastern Washington (Service 2017g, p. 15). Genetic analyses confirm the presence of a remnant native population of fishers in the NRM that escaped presumed extirpation early in the 20th century (Vinkey
Fisher habitat includes low- to mid-elevation environments of mesic (moderately moist), coniferous and mixed conifer and hardwood forests (reviewed by Hagmeier 1956, entire; Arthur
NRM fishers select heterogeneous areas with intermediate abundance of habitat edge and high canopy cover within home ranges, not necessarily areas containing more-mature forest (Sauder and Rachlow 2015, pp. 52–53). In general, composition of individual fisher home ranges is usually a mosaic of different forested environments and successional stages (Sauder and Rachlow 2015, pp. 52–53; reviewed by Lofroth
We completed a Species Status Assessment (SSA) Report for the NRM fisher, which reports the results of the comprehensive biological status review and provides a thorough account of the species' overall viability and, therefore, extinction risk. To assess the NRM fisher's current and future statuses, we used the three conservation biology principles of resiliency, redundancy, and representation. Specifically, we identified the species' ecological requirements at the individual, population, and species levels and described the stressors influencing the species' viability. The NRM fisher needs multiple, resilient populations distributed across its range in a variety of ecological settings to persist into the future and to avoid extinction.
The biological information we reviewed and analyzed as the basis for our findings and projections for the future condition of the species is documented in the SSA Report (Service 2017g, entire). The potential stressors we evaluated in detail in the SSA Report (Service 2017g, entire) include climate change (Factor A), development/roads (Factor A), forestry (Factor A), fire (Factor A), trapping (Factor B), poisoning (Factor E), and predation (Factor C) (Service 2017g, chapter 3.5). For the reasons described in the SSA Report, there is no evidence to suggest that climate change, development, forestry, fire, trapping, poisoning, or predation are having population-level impacts to the NRM fisher, either individually or cumulatively with any other potential threats (Service 2017g, chapter 3.5 and chapter 4.9).
The NRM fisher currently exhibits a level of viability (characterized using resiliency, redundancy, and representation) that allows them to occur across their historical range (Service 2017h, chapter 3.6). A species distribution model estimates about 30,000 sq km (78,000 sq mi) of potential habitat for fisher in the NRM (Service 2017g, p. 25). Fisher habitat is inherently resistant to stochastic events (resilient) such as localized fire and drought (Service 2017g, p. 51) because the effects of such events on fisher habitat are mediated by the wetter, maritime climate and diverse topography across much of the NRM, as evidenced by the longer fire-return intervals that characterize most of the modeled fisher habitat (Service 2017g, p. 51). In order to characterize spatial distribution of potential fisher habitat, we divided the area of the NRM into three spatial units. In addition, since population size of the NRM fisher has not been estimated, we rely on describing the amount and distribution of modeled habitat patches at two scales to make inferences about the NRM fisher. The smaller scale habitat patch is 100 km
Within the NRM, there is redundancy of modeled habitat patches at the home-range scale (100 km
We assessed the future condition of the NRM fisher by analyzing the number and distribution of potential habitat patches at the home-range scale (100 sq km) and MCA scale (2500 sq km) among fisher spatial units in the NRM at three future time points (years 2030, 2060, and 2090) and under two future scenarios incorporating stressor trajectories derived from the scientific literature (Service 2017g, chapter 4.8). In both future scenarios, modeled fisher habitat is expected to be widely distributed across its range and, in some cases, increase (Service 2017g, pp. 57–58). Under these modeled future scenarios, we expect resiliency to remain stable or increase in the future (Service 2017g, pp. 65–67). Redundancy of habitat patches capable of supporting multiple fisher (100 sq km) and the number of MCAs (2500 sq km) are expected to increase under Scenario 1 and be widely distributed among all fisher spatial units (Service 2017g, p. 68). Fewer habitat patches capable of supporting multiple fishers (100 sq km) and slightly fewer MCAs (2500 sq km) are expected in the future under Scenario 2 than Scenario 1; however, habitat patches are expected to remain well distributed among fisher spatial units (Service 2017g, p. 68). Regarding representation, the full genetic diversity of fisher in the NRM is unknown; however, four different genetic haplotypes exist in the NRM (Service 2017g, p. 68). The native haplotype, along with three other haplotypes presumed to be from historical fisher reintroductions, indicate some level of genetic variability within the fisher population in the NRM; this variability is expected to persist into the future (Service 2017g, p. 68). Both modeled future scenarios predict that adequate distribution of patches among fisher spatial units will remain into the future (Service 2017g, p. 68). Thus, representation is expected to remain high in the future (Service 2017g, p. 68). This analysis is described in greater detail in our SSA Report (Service 2017g, entire).
We evaluated the NRM fisher under the Service's Policy Regarding the Recognition of Distinct Vertebrate Population Segments (DPS) Under the Endangered Species Act (61 FR 4722; February 7, 1996). Based on the best scientific and commercial information available, we find that the fisher in the NRM is both discrete and significant to the taxon to which it belongs. Fishers in the NRM are markedly separated from other populations of the same taxon as a result of physical factors, further supported by quantitative differences in genetic identity. The loss of the fisher in the NRM would result in the loss of markedly different genetic characteristics relative to the rest of the taxon and a significant gap in the range of the taxon; therefore, we consider the NRM fisher to be significant to the taxon to which it belongs (Service 2017h, pp. 12–14). Because the fisher in the NRM is both discrete and significant, it qualifies as a DPS under the Act.
We reviewed the best available scientific and commercial information pertaining to the status of the NRM fisher, corresponding to the Act's five threat factors. Currently, based on modeled habitat, there is a high-level (in both quantity and distribution) condition of individual home ranges (100 sq km) and a moderate-level condition of MCAs (2,500 sq km) across the NRM (Service 2017g, chapter 3.6). Habitat patches are widespread in distribution and occupy a part of the NRM that has a distinct ash cap in the soil left from the eruption of Mount Mazama, thereby increasing the soils' water retention properties and making NRM fisher habitat relatively resilient to future environmental change stemming from climate change (Service 2017g, p. 4). Modeled habitat patches that are currently present throughout the NRM indicate that they are likely to sustain fisher in the short and long term and to persist throughout the NRM through at least 2090 (Service 2017g, chapter 3.6). Modeled habitat patches are redundant among the three fisher spatial units, and this redundancy is expected to remain into the future (Service 2017g, p. 68). Representation, both currently and in the future, is predicted to remain high among all three fisher spatial units because of connectivity across the NRM, the mobile nature of dispersing fisher, and the continued existence of the native genotype (Service 2017g, p. 68). Although there is inherently some level of uncertainty to any model, we conclude that the potential stressors that the NRM fisher is facing do not place the species in danger of extinction. Therefore, we conclude that the current risk of extinction is low, such that the NRM fisher is not in danger of extinction throughout all of its range,
To evaluate the status of the species in the future, we considered two overall future scenarios out to 2030, 2060, and 2090. We used these timeframes because the best available science (Olsen et al. 2014, p. 92), used these timeframes to synthesize and project the effects of potential stressors on viability of NRM fisher (Service 2017g, chapter 4.8) in the future. We expect fisher habitat to shift north and east, with widely distributed habitat across its range under both future scenarios (Service 2017g, pp. 65–68). Fishers have good overall dispersal capability and, given that canopy cover is expected to be adequate across much of the NRM, are expected to adapt to habitat shifts in the future (Service 2017g, p. 65). NRM fisher resiliency is expected to be maintained or increase in future scenarios (Service 2017g, pp. 65–67). In terms of redundancy, under both modeled future scenarios, we predict that the NRM fisher modeled habitat will remain or increase in distribution and amount across its range and that redundancy will be in a moderate to high condition (Service 2017g, p. 68). We expect fisher in the NRM to retain their ability to withstand catastrophic events (Service 2017g, p. 68). In terms of representation, in both future scenarios, we predict the NRM fisher will continue to occupy the full extent of its range and ecological settings and will maintain its current level (high) of representation (Service 2017g, p. 68) through 2090.
We conclude that, despite the uncertainties inherent in any modeling of future scenarios, the risk of extinction of the NRM fisher in the foreseeable future is low, such that the NRM fisher is not likely to become an endangered species within the foreseeable future throughout all of its range. Overall, resiliency, redundancy, and representation are expected to be stable or increasing into the future at both
Having determined that the NRM fisher does not meet the definition of a threatened or endangered species throughout all of its range, we next considered whether there are any significant portions of the range where the species is in danger of extinction or is likely to become endangered in the foreseeable future. The SSA Report did not identify any areas of the species' range where stressors are currently having any population-level negative impacts to the NRM fisher (Service 2017g, chapter 3.5). There is no evidence to suggest that climate change, development, forestry, fire, trapping, poisoning, or predation are having population-level impacts to the species either individually or cumulatively with any other potential threats (Service 2017g, chapter 3.5). We conclude there are no concentrations of threats in any portion of the range such that the species could be in danger of extinction now or likely to become so in the foreseeable future in a particular portion (Service 2017h, pp. 26–27). Therefore, no portion warrants further consideration to determine whether the species may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range (Service 2017h, pp. 26–27).
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the NRM fisher. Because the species is neither in danger of extinction now nor likely to become so in the foreseeable future throughout all or any significant portion of its range, the species does not meet the definition of an endangered species or threatened species. Therefore, we find that listing the NRM fisher as an endangered or threatened species under the Act is not warranted at this time. This notice constitutes the Service's 12-month finding on the petition to list the NRM fisher as an endangered or threatened species. A detailed discussion of the basis for this finding can be found in the NRM fisher's Species Assessment and Listing Priority Assignment Form, SSA Report, and other supporting documents (available on the Internet at
On April 20, 2010, we received a petition from the Center to list 404 aquatic, riparian, and wetland species from the southeastern United States—including the Florida Keys mole skink—as endangered or threatened species under the Act. On September 27, 2011, we published a 90-day finding, which determined that the petition contained substantial information indicating the Florida Keys mole skink may warrant listing, and initiated a status review for the subspecies (76 FR 59836). As a result of the Service's 2013 settlement agreement with the Center, the Service is required to submit a 12-month finding to the
The Florida Keys mole skink is one of five distinct subspecies of mole skinks, all in the genus
Historically, the Florida Keys mole skink has been found in low numbers across the range from Key Largo to Dry Tortugas (north to south). Current surveys documented the subspecies from Long Key southwest to the Marquesas Keys, but no current records have been documented as far west as the Dry Tortugas or in the Upper Keys in the Key Largo area. The Florida Keys mole skink occurs in the beach berm (50 to 80 cm [20 to 31 in] above sea level) and coastal hammock habitats and relies on dry, unconsolidated soils for movement, cover, and nesting. The dry, unconsolidated soils allow for the Florida Keys mole skink to dig nest cavities. Because of the predominantly limestone, prehistoric coral reef, and rocky composition of the Florida Keys, only a few areas [137 to 191 ha (340 to 472 ac)] provide the suitable soils needed for Florida Keys mole skink nesting. This subspecies needs detritus, leaves, wrack, and other ground cover over loose substrate as cover and to locate the insects that serve as a food source. These ground cover and substrate conditions also provide reproductive and thermoregulatory refugia.
The Florida Keys mole skink subspecies was listed as a threatened species by the State of Florida in 1974 under the Florida Endangered and Threatened Species Act but was changed to a species of concern in 1978. In 2010, after a subspecies status review, the Florida Fish and Wildlife Conservation Commission (FWC) determined the Florida Keys mole skink warranted listing as a State-designated threatened species. Under the Florida Endangered and Threatened Species Act, “threatened species” means “any species of fish and wildlife naturally occurring in Florida which may not be in immediate danger of extinction, but which exists in such small populations as to become endangered if it is subjected to increased stress as a result of further modification of its environment.” The FWC uses a system to rank and evaluate species and subspecies according to biological vulnerability. If the species or subspecies meets at least one of the criteria for listing as a State-designated Threatened species based on International Union for Conservation of Nature (IUCN) guidelines and criteria in Rule 68A–27.001, F.A.C., then the FWC makes a determination whether listing a species or subspecies is warranted. The criteria in the
In completing our status review for the Florida Keys mole skink, we reviewed the best available scientific and commercial information and compiled the information in the Species Status Assessment Report (SSA Report) (Service 2017i) for the Florida Keys mole skink. We evaluated all known potential impacts to the Florida Keys mole skink, including the Act's five threat factors. This evaluation included information from all sources, including Federal, State, academic, and private entities, and the public.
Historical observations documented the Florida Keys mole skink from Key Largo, Plantation Key, Upper Matecumbe Key, Indian Key, Long Key, Grassy Key, Boot Key, Key Vaca, Saddlebunch, West Summerland Key, Sawyer Key, Bahia Honda, Big Pine Key, Boca Chica, Middle Torch Key, East Rockland Key, Stock Island, Key West, Mooney Harbor (Marquesas), and Dry Tortugas (north to south) (Florida Museum of Natural History 2011; Florida Natural Areas Inventory 2011; Mays and Enge 2016, entire; Mount 1965, p. 208). Currently, no population estimates exist for the subspecies; however, recent (2014–present) targeted and opportunistic surveys for the Florida Keys mole skink have documented 127 records from Long Key to Marquesas (north to south) (Emerick and FWC 2017; Mays and Enge 2016, entire). Of these, 104 observations or captures have been documented during targeted surveys at one location, the Long Beach site on Big Pine Key. An approximate 1:1 ratio of male to female was observed although the sex was undeterminable for 40 percent of the Long Beach captures. A second location, Ohio Key, has existing suitable habitat; however, targeted searches by Service staff have yielded zero observations at this location. From November 2016 to January 2017, opportunistic searches at 10 locations yielded 8 skinks from 4 additional locations: Long Key, Content Key, Cook Island, and Big Munson Key.
Preliminary genetic research on the five
The Florida Keys mole skink has limited genetic and environmental variation (subspecies representation) within the Keys, and there is no behavioral or morphological variation within the subspecies. Despite the subspecies' occurrence across many Keys (subspecies redundancy), there are gaps in the data on the subspecies' actual range-wide distribution and abundance. Based on preliminary research, there are four genetically distinct populations and additional individuals (not yet identified into populations) occurring across separate Keys; however, little information exists on the abundance or growth rate of these populations (population resiliency).The largest and most consistently surveyed area, Long Beach on Big Pine Key, indicates that all life stages, including breeding and nesting, are occurring in this area.
The primary stressors affecting the current and future condition of the Florida Keys mole skink are sea-level rise; climate-change-associated shifts in rainfall, temperature, and storm intensities; and human development. These stressors account for indirect and direct effects at some level to all life stages and the habitat and soils across the subspecies' range. The beach berm and coastal hammock habitat upon which the subspecies relies for food, nesting, and shelter are susceptible to flooding, inundation, and saltwater intrusion from sea-level rise and climate-change-associated factors. We geospatially assessed potentially available suitable habitat (beach berm and coastal hammock) for the Florida Keys mole skink, and the current total acreage of available suitable habitat in the Florida Keys from Key Largo to the Dry Tortugas is approximately 3,700 ha (9,100 ac). In addition, we assessed potentially available suitable dry, unconsolidated soils (Bahia fine sand, beach, and unconsolidated soils) from Monroe County Soil maps for this same range with some overlap of the suitable habitat identified, and the current suitable soils total approximately 138 to 191 ha (340 to 472 ac) and mainly occur on six of the Keys in Monroe County: Lower Matecumbe, Long Key, Boot Key, Bahia Honda, Big Pine, and Key West (Monroe County 2016). There are small patches of unconsolidated soils that occur intermixed within other habitats across the islands, primarily in the coastal hammock. The long-term trend in sea-level rise at the National Oceanic and Atmospheric Administration (NOAA) Key West Station shows a 2.4 mm (0.09 in) increase of the mean high water line per year from 1913 to 2015, and the NOAA Vaca Key Station shows a 35 mm (0.14 in) increase per year from 1971 to 2015 (NOAA 2017a).
Our analyses include consideration of ongoing and projected changes in climate within the next 83 years. We analyzed suitable habitats (beach berm and coastal hammock) and soils (beach sand and Bahia fine sand) across the range of the Florida Keys mole skink to predict inundation from three regional climate-change sea-level rise projections at 2040, 2060, and 2100. However, foreseeable future for this subspecies was determined to be a 30–40-year timeframe. This determination considered the biology of the subspecies, the stressors identified, and the consistency in the sea-level rise projections to 2060. This includes the expectation that sea-level rise will increase over time, but there is also uncertainty about how the Florida Keys mole skink will respond and how suitable habitats may transition. The generation time of the Florida Keys mole skink is typically 3 to 4 years, so the foreseeable future range of 30–40 years encompasses 10–13 generations, which allows sufficient time for any population-level response to stressors to be detected. Although our analyses predicted inundation out to 2100, we did not extend our foreseeable future beyond 30–40 years due to too much uncertainty in the projections that far out and the divergence among the Low,
Based on this range-wide geospatial analysis, we projected that by 2040 the subspecies could experience the loss of 2 to 17 percent of its suitable habitat rangewide (a loss of 81 to 631 ha (200 to 1,559 ac)) of the 3,669 ha (9,066 ac) of suitable habitat estimated to be available currently. By 2040, suitable soils are projected to decline by 19 to 37 percent (30 to 58 ha (74 to 143 ac)) of the 155 ha (383 ac) of suitable soils estimated to be available currently. Under 2060 projections, the amount of suitable habitat and soils loss is expected to be 4 to 44 percent and 25 to 50 percent, respectively. The sea-level-rise projections predict inundation only and do not model the complex set of shifts that are anticipated to be triggered over time as the effects of sea-level rise are experienced.
Overall, the Florida Keys mole skink may experience reductions in population resiliency, subspecies redundancy, and subspecies representation due to sea-level rise and climate-change-associated factors. However, although we expect some habitat loss and inundation across the range of the Florida Keys mole skink, the best scientific and commercial data available indicate that 56 to 98 percent of the suitable habitat and 50 to 81 percent of the suitable soils will remain into the foreseeable future.
Based on our review of the best available scientific and commercial information pertaining to the five factors, as well as the continued presence of adequate resources to meet the subspecies' needs, we find that the stressors acting on the subspecies and its habitat, either singly or in combination, are not of sufficient imminence, intensity, or magnitude to indicate that the Florida Keys mole skink is in danger of extinction (an endangered species), or likely to become endangered within the foreseeable future (a threatened species), throughout all of its range.
The main stressors that may affect Florida Keys mole skink resiliency are sea-level rise, climate-change-associated factors, and development (all under Factor A). The Florida Keys has experienced sea-level rise rates equivalent to the global rate (Service 2017i, p. 5), with no indication that these factors are currently acting on the subspecies. The persistence of occupied habitat (as well as potentially occupied suitable habitat) across the subspecies' range demonstrates resiliency, redundancy, and representation to sustain the subspecies beyond the near term. Continued occurrence of the Florida Keys mole skink across most of the historical range indicates a level of resiliency to the stressors that have been acting upon it in the past and are currently acting on it. Strong rainstorms, tropical storms, and hurricanes are all natural parts of the tropical Florida Keys ecosystem and may be a contributing factor to the low historical and current observation data for the subspecies. Since the subspecies has persisted on multiple Keys with human development and activities over time, it is likely that development will not be a driving stressor on the future viability of the Florida Keys mole skink. Over time, the subspecies has persisted on different Keys providing a level of redundancy, which may help the Florida Keys mole skink withstand the increased potential for catastrophic events into the future. Finally, the subspecies should continue to exhibit a level of representation with suitable habitat and soils continuing to occur in multiple Keys across the range of the subspecies.
As mentioned above, the FWC determined the Florida Keys mole skink met the criterion D as a very restricted population and, therefore, listed the Florida Keys mole skink as a State-designated Threatened species in 2010. While the Florida Keys mole skink meets at least one criterion of a State-designated Threatened species under the Florida Endangered and Threatened Species Act, in our analysis under the Federal Endangered Species Act, we find that the continued presence of occupied habitat (as well as potentially occupied suitable habitat) across most of the subspecies' range continues to provide a level of resiliency, redundancy, and representation to the subspecies in the near term and within the foreseeable future. Therefore, we conclude the Florida Keys mole skink is likely to remain at a sufficiently low risk of extinction and will not become in danger of extinction in the foreseeable future and, thus, does not meet the definition of an endangered species or threatened species under the Act.
We evaluated the current range of the Florida Keys mole skink to determine if there are any apparent geographic concentrations of potential threats to the subspecies. The risk factors that occur throughout the Florida Keys mole skink's range include sea-level rise; climate-change-associated shifts in rainfall, temperature, and storm intensities; and human development. We did not find that there was a concentration of threats in a particular area that would cause the subspecies to be in danger of extinction or likely to become so in the foreseeable future throughout any portion of its range. Therefore, we find that listing the Florida Keys mole skink as a threatened or an endangered species is not warranted in a significant portion of its range. A detailed discussion of the basis for this finding can be found in the Florida Keys mole skink species-specific assessment form and other supporting documents (available on the Internet at
As part of a multispecies petition in 2007, Guardians (which at the time was called “Forest Guardians”) petitioned the Service to list the Great Sand Dunes tiger beetle (referred to in the petition as the “Colorado tiger beetle,” an older common name for the species). The petition requested that we evaluate all full species in our Southwest Region (where the Great Sand Dunes tiger beetle was erroneously thought to occur) ranked as G1 or G2 by the organization NatureServe, and list each species under the Act as either endangered or threatened with critical habitat. In 2009, we published a 90-day finding, in which we concluded that the petition presented substantial information that listing the Great Sand Dunes tiger beetle may be warranted (74 FR 66866, December 16, 2009).
The Great Sand Dunes tiger beetle is a medium-sized tiger beetle in the family Cicindelidae. The species occurs only in the Great Sand Dunes geological feature in southern Colorado. The life history of the Great Sand Dunes tiger beetle is closely tied to the sand dunes for all stages of the species' life cycle, including feeding, sheltering, and reproducing (Service 2017j, p. 13). Suitable habitat is considered to include active dunes, which may include sandy blowouts and shifting sands, with a vegetative cover between 0.20 to 15 percent cover (Service 2017j, p. 13).
Three types of dune provinces, or areas, are present within the Great Sand Dunes complex—the main sand dune mass, sand sheet dunes, and playa lakes dunes. All three types provide suitable habitat for the Great Sand Dunes tiger beetle (Service 2017j, p. 8). The current estimated area of suitable habitat is approximately 12,770 ac (5,168 ha), which consists of a combination of areas of verified occupied habitat and areas of likely suitable habitat, based on sand and vegetation conditions (Service
We completed a Species Status Assessment (SSA) Report for the Great Sand Dunes tiger beetle (Service 2017j, entire), which provides the results of the Service's comprehensive biological status review for the Great Sand Dunes tiger beetle, and provides a thorough account of the species' overall viability and, therefore, risk of extinction. To evaluate the biological status of the Great Sand Dunes tiger beetle, the SSA Report assesses a range of conditions, both current and into the future, to allow us to consider the species' resiliency, redundancy, and representation as proxies for evaluating overall viability. The Great Sand Dunes tiger beetle needs multiple self-sustaining subpopulations (redundancy) that are both widely distributed (representation) and connected across its range to maintain its viability into the future and to avoid extinction (Service 2017j, p. 22). A number of factors influence whether the Great Sand Dunes tiger beetle will maintain large and stable subpopulations, which increases the resiliency of a population to stochastic events. These factors include (1) a relatively stable dune system maintained by a complex combination of hydrologic and wind conditions, (2) relatively undisturbed dunes, (3) the presence of suitable vegetation cover on the dunes (0.2 to 15 percent cover), and (4) connectivity between the sub-populations (Service 2017j, p. 19).
The SSA Report evaluates the Great Sand Dunes tiger beetle's subpopulations, and what is negatively and positively affecting those subpopulations, within the three dune provinces present at the Great Sand Dunes complex. The species is currently distributed across most of the known geographic extent of its range, including all three dune areas (Service 2017j, p. 27). The most significant potential stressor to the Great Sand Dunes tiger beetle would be the potential future loss of dune habitats that individuals need to complete their life cycle. Surface disturbances within areas of suitable habitat can result in loss of habitat and injury or mortality of individuals. Historical and current surface disturbances in areas of suitable habitat are estimated to be low, representing less than 5 percent of the suitable habitat (Service 2017j, pp. 29–32). Field observation data from 2000 to 2016 indicate a continued occupancy of the dunes by the Great Sand Dunes tiger beetle (Service 2017j, p. 28).
The SSA found that the Great Sand Dunes tiger beetle population is currently experiencing relatively stable dunes and minimal surface disturbances due to land management under the National Park System, The Nature Conservancy, and the Service's National Wildlife Refuge Program. Relative stability of the dune system is maintained by the existing hydrologic and wind conditions within the San Luis Valley. Hydrologic conditions in this area are further protected by the Great Sand Dunes Act of 2000 that maintains the surface and ground water rights at the Park.
To assess the status of the species in the foreseeable future, the SSA Report forecasted future conditions for the Great Sand Dunes tiger beetle in terms of resiliency, redundancy, and representation under five plausible future scenarios for the years 2050 and 2100. We chose these years because they correspond to time periods that have been evaluated by the National Park Service and are within the range of the available hydrological and climate change model forecasts by the National Park Service (see Service 2017j, Appendix B). Additionally, because of the short generation time (3 years) of the Great Sand Dunes tiger beetle (Pineda 2002, p. 57), the year 2050 (33 years from now) and the year 2100 (83 years from now) encompass approximately 10 and 30 generations, which is a relatively long time in which to observe effects to the species. Climate change models forecast warmer temperatures, but there is uncertainty regarding whether precipitation will increase or decrease within the range of the Great Sand Dunes tiger beetle, although the overall trend is expected to be increased aridity due to warming temperatures. Our scenarios accounted for the uncertainty regarding future precipitation by including both possible precipitation conditions, as well as a range of levels of future surface disturbances of tiger beetle habitat (Service 2017j, pp. 36–49). Under all five scenarios we expect the subpopulations of Great Sand Dunes tiger beetle to continue to occupy at least the two largest, if not all three, of the dune areas. We anticipate that the future persistence of the Great Sand Dunes tiger beetle will be provided by the continued maintenance of the relatively undisturbed and relatively stable dune system at the Great Sand Dunes.
In making this finding, we reviewed the best available scientific and commercial information pertaining to the Great Sand Dunes tiger beetle, as summarized in the SSA Report, corresponding to the Act's five threat factors, and we applied the standards within the Act, its implementing regulations, and Service policies.
Because this species occupies the majority of its historical range, with evidence of continued occupancy and very limited impact from stressors across all three dune provinces, we find that the species has a very low risk of extirpation due to stochastic or catastrophic events that could plausibly occur in the future and that, due to these conditions, the species retains adaptive capacity. Therefore, we conclude that the current risk of extinction is low, such that the Great Sand Dunes tiger beetle is not in danger of extinction throughout all of its range.
In addition, because we project continued occupancy and very limited impact from stressors across nearly all of the species' suitable habitat under all five future scenarios, we find that the species has a low future risk of extinction due to stochastic or catastrophic events that could plausibly occur in the future and that, due to these conditions, the species is expected to retain most of its adaptive capacity. Therefore, we conclude that the risk of extinction in the foreseeable future is low, such that the Great Sand Dunes tiger beetle is not likely to become an endangered species within the foreseeable future throughout all of its range.
Having determined that the Great Sand Dunes tiger beetle does not meet the definition of a threatened species or an endangered species, we next considered whether there are any significant portions of the range where the species is in danger of extinction or is likely to become endangered in the foreseeable future. The best available information indicates that the Great Sand Dunes tiger beetle habitat in the playa lakes dunes may have greater vulnerability to potential future stressors. We therefore evaluated whether the playa lakes dunes could be considered “significant.” The playa lake dunes provide only 0.67 percent of the total Great Sand Dunes tiger beetle habitat. If all of the Great Sand Dunes tiger beetles within the playa lake dunes were to hypothetically be extirpated, the species would lose a very small amount of representation and redundancy. However, the loss of this portion of the species' range would still leave sufficient resiliency, redundancy, and representation in the remainder of the species' range such that it would not be
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Great Sand Dunes tiger beetle. Because the species is neither in danger of extinction now nor likely to become so in the foreseeable future throughout all or any significant portion of its range, the species does not meet the definition of an endangered species or threatened species. Therefore, we find that listing the Great Sand Dunes tiger beetle as an endangered or threatened species under the Act is not warranted at this time. A detailed discussion of the basis for this finding on the 2007 petition to list the Great Sand Dunes tiger beetle as an endangered or threatened species can be found in the Great Sand Dunes tiger beetle's Species Assessment and Listing Priority Assignment Form, SSA Report, and other supporting documents (available on the Internet at
We first identified the Kirtland's snake as a candidate for listing under the Act in 1982 (47 FR 58454; December 30, 1982) as a category 2 species. At that time, a category 2 candidate species was any species for which information in the possession of the Service indicated that proposing to list as endangered or threatened was possibly appropriate, but for which persuasive data on biological vulnerability and threat were not currently available to support a proposed rule to list as an endangered or threatened species. The species remained a category 2 candidate in subsequent Candidate Notices of Review (50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In 1996 (61 FR 7596, February 28, 1996), we discontinued recognition of category 2 candidates in favor of maintaining a list that represented only those species for which we have on file sufficient information on biological vulnerability and threats to support a proposal to list as an endangered or threatened species, but for which preparation and publication of a proposal is precluded by higher priority listing actions.
On April 20, 2010, we received a petition, dated April 20, 2010, from the Center, Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy (the Petitioners), requesting that we list 404 aquatic, riparian, and wetland species as threatened or endangered species under the Act, including Kirtland's snake. On September 27, 2011, we published a 90-day finding in the
On June 17, 2014, the Center filed a complaint against the Service (1:14–CV–01021) for failure to complete a 12-month finding for the Kirtland's snake in accordance with statutory deadlines. On September 22, 2014, the Service and the Center filed stipulated settlements in the District of Columbia, agreeing that the Service would submit to the
The Kirtland's snake is a small, non-venomous snake in the water snake subfamily of the constrictor family. The species occurs close to permanent or seasonal water sources, including wetlands, streams, reservoirs, lakes, and ponds. The Kirtland's snake requires moist-soil environments and spends much of its time underground in or near crayfish burrows. When Kirtland's snake is above ground, it is almost always found under natural or artificial cover objects instead of basking or moving through open areas.
The core of the Kirtland's snake's range includes Illinois, Indiana, Michigan, and Ohio. The species has also been found in three counties in Kentucky, three counties in eastern Missouri, and one county in Tennessee. The status of some Kirtland's snake sites in western Pennsylvania is unknown. The species historically occurred in southern Wisconsin.
We currently consider the species to be extant in 60 counties rangewide, with 43 percent of the historical counties having Kirtland's snake documented within the last 15 years. The species may be experiencing some range contraction in the east and northwest, but recent county records in the north and south have extended the range slightly in those directions.
The Kirtland's snake is notoriously difficult to detect, even with focused survey effort, because they are primarily underground. Negative survey data available for most sites are not rigorous enough to document whether the species is extirpated. Of a total of 415 records of the Kirtland's snake, we determined 194 (47 percent) to be extant and 204 (49 percent) are unknown, primarily due to detection difficulties, lack of survey effort, and uncertainty regarding habitat requirements. We determined 17 records (4 percent) are extirpated.
In making this 12-month finding on the petition, we considered and evaluated the best scientific and commercial information available, and evaluated the potential stressors that could be affecting Kirtland's snake populations. This evaluation includes information from all sources, including Federal, State, tribal, academic, and private entities and the public. The Species Status Assessment (SSA) Report (service 2017k, entire) for the Kirtland's snake summarizes and documents the biological information we assembled, reviewed, and analyzed as the basis for our finding.
We evaluated habitat loss and degradation from urbanization and development (Factor A) as a potential threat to the Kirtland's snake. However, we found that the Kirtland's snake occurs at a number of urban and suburban sites in vacant lots, parks, cemeteries, remnant wetlands, neighborhood yards, railroad rights-of-way, and trash dumps. The Kirtland's snake has persisted in these degraded habitats in seemingly high densities for decades and presumably is capable of reproducing in these otherwise marginal areas.
Collection for the pet trade (Factor B) was also cited by the Petitioners as a potential threat. Six States list the Kirtland's snake as threatened or endangered under State laws, most of which regulate possession of listed species. We do not know to what extent illegal collection may still occur, but there are no data indicating that collection is affecting the species.
We also considered road mortality (Factor E) and snake fungal disease (Factor C) as potential threats. Road-killed Kirtland's snakes have been documented at a number of sites, and three Kirtland's snakes have tested positive for snake fungal disease. However, such incidents are scattered and there are no data indicating that road mortality or snake fungal disease affects the species at a population level.
Additionally, we investigated climate change as a potential threat. One modeling effort found that the Kirtland's snake will see greater changes to the climatic suitability in its range relative to other reptiles in the Great Lakes region. However, this study did not
We acknowledge that data regarding actual impacts of these stressors on the species is limited; however, the best available scientific and commercial information does not indicate that any of these stressors is occurring to a degree or magnitude that would result in population- or species-level impacts. While information regarding population abundance is limited, the species continues to be found over a wide area, suggesting that the species has at least some redundancy to guard against catastrophic events. Additionally, the species appears to tolerate a variety of habitat conditions and has persisted in degraded areas for decades and, thus, presumably is capable of reproducing in otherwise marginal areas, indicating the species is at least somewhat resilient. The information available regarding future trends of the stressors or the species' response does not allow us to reliably predict changes to the species' status; however, the best available scientific and commercial information does not indicate that these stressors are likely to result in population- or species-level impacts in the foreseeable future.
Further, we found no portions of the Kirtland's snake's range where these stressors are concentrated or substantially greater than in other portions of its range. Therefore, there would not be any significant portions of the species' range where the species could have a higher level of risk than its status throughout all of its range (
Based on this information about resiliency and redundancy, as articulated in more detail in the underlying SSA Report, combined with a lack of operative threats now or in the future, we conclude that the Kirtland's snake is not in danger of extinction nor is it likely to become so in the foreseeable future throughout all or a significant portion of its range. Therefore, we find that listing the Kirtland's snake as an endangered or threatened species under the Act is not warranted at this time. The Kirtland's Snake SSA Report and other supporting documents provide a detailed discussion supporting the basis for this finding (available on the Internet at
On February 8, 2008, we received a petition dated February 7, 2008, from the Center, requesting that the Pacific walrus be listed as endangered or threatened under the Act and that critical habitat be designated. The petition included supporting information regarding the species' ecology and habitat use patterns and predicted changes in sea ice habitats and ocean conditions that may impact the Pacific walrus. We acknowledged receipt of the petition in a letter to the Center, dated April 9, 2008. In that letter, we stated that an emergency listing was not warranted and that all remaining available funds in the listing program for Fiscal Year (FY) 2008 had already been allocated to the Service's highest priority listing actions and that no listing funds were available to evaluate the Pacific walrus petition further in FY 2008.
On December 3, 2008, the Center filed a complaint in U.S. District Court for the District of Alaska for declaratory judgment and injunctive relief, challenging the failure of the Service to make a 90-day finding on their petition to list the Pacific walrus, pursuant to section 4(b)(3) of the Endangered Species Act and the Administrative Procedure Act (5 U.S.C. 706(1)). On May 18, 2009, a settlement agreement was approved in the case of
On September 9, 2011, the Service entered into two settlement agreements with Guardians and the Center regarding species on the candidate list at that time (Endangered Species Act Section 4 Deadline Litigation, No. 10–377 (EGS), MDL Docket No. 2165 (D.D.C. May 10, 2011)). The settlement agreement with the Center included a deadline to submit a proposed rule or not-warranted finding to the
The Pacific walrus is one of the largest extant pinnipeds (fin or flipper-footed marine mammals) in the world. The Pacific walrus is identified and managed as a single panmictic population (a population with random mating). The subspecies ranges across the shallow continental shelf waters of the Bering and Chukchi Seas, occasionally moving into the East Siberian Sea and Beaufort Sea. Pacific walruses are highly mobile, and their distribution varies markedly in response to seasonal and interannual variations in sea-ice cover. Pacific walruses undertake seasonal migrations between the Bering and Chukchi Seas and primarily rely on broken pack ice habitat to access offshore breeding and feeding areas.
Most Pacific walruses spend the winter in the Bering Sea. As the Bering Sea ice deteriorates in the spring, adult females, juveniles, and some adult males migrate northward to summer feeding areas over the continental shelf in the Chukchi Sea, where sea ice has historically remained throughout the year. Calves are born each spring during the northward migration. Thousands of adult male Pacific walruses remain in the Bering Sea year round, where they forage from coastal haulouts during ice-free periods. In late September and October, walruses that summered in the Chukchi Sea typically begin moving south in advance of the developing sea ice.
The size of the Pacific walrus population is uncertain. Preliminary
In making this 12-month finding, we considered and evaluated the best scientific and commercial information available, and evaluated the potential stressors that could be affecting the Pacific walrus. This evaluation includes information from all available sources, including Federal and State entities, Alaska natives, academics, private entities, and the public. The Species Status Assessment Report (SSA Report) (Service 2017l) for the Pacific walrus summarizes and documents the biological information we assembled, reviewed, and analyzed to inform our finding.
We reviewed the potential stressors that could be affecting the Pacific walrus and assessed the viability of the Pacific walrus through an assessment of the resiliency, representation, and redundancy of the Pacific walrus population. Owing to the relatively wide geographic range of the subspecies, individual walruses may be impacted by a variety of stressors; however, concerns about the walrus' status as a whole revolve primarily around the following stressors associated with the effects of climate change: (1) Loss of sea ice; (2) ocean warming; and (3) ocean acidification. We reviewed the following additional stressors in the SSA Report (Service 2017l): Harvest; disease and parasites; predation; contaminants and biotoxins; oil and gas exploration, development, and production; commercial fisheries; and ship and air traffic. Although we acknowledge that these additional stressors may be affecting individual Pacific walruses, the best available information does not show that these activities or stressors are having an impact at the population level; further discussion can be found in the SSA Report (Service 2017l, entire).
We found that the Pacific walrus population appears to possess degrees of resiliency, representation, and redundancy that have allowed it to cope with the changing environments of the last decade. Although changes in resiliency, representation, and redundancy of the subspecies during this time would be difficult to detect for a species with a 15-year generational timeframe, few malnourished or diseased animals are observed, and reproduction is higher than in the 1970s–1980s, when the population was thought to have reached carrying capacity and subsequently declined. Consequently, the current prey base of Pacific walruses appears adequate to meet the energetic and physiological demands of the population. Survival rates are higher than in the 1970s–1980s, and harvest levels have also decreased. These observations mirror those of Alaskan Native hunters, who assert that the population is large and stable; that Pacific walruses are intelligent, adaptable, and able to make the necessary adjustments needed to persist; and that Pacific walruses are not being negatively impacted in a significant way at this time.
In considering the future as it relates to the status of the Pacific walrus, we considered the stressors acting on the species and looked to see if reliable predictions about the status of the species in response to those stressors could be drawn. We considered how far into the future we could reliably predict the extent to which threats might affect the status of the species, recognizing that our ability to make reliable predictions into the future is limited by the variable quantity and quality of the available data about impacts to the Pacific walrus and the response of the Pacific walrus to those impacts.
For the Pacific walrus, the most significant risk factor looking into the future is the effects of climate change (sea-ice loss). While we have high certainty that sea-ice availability will decline as a result of climate change, we have less certainty, particularly further into the future, about the magnitude of effect that climate change will have on the full suite of environmental conditions (
Our habitat analysis predicts that shifts in both seasonal distribution and availability of sea-ice habitat will occur across the range of the Pacific walrus. For example, we found that, across seasons and time, ice-accessible habitat will shift northward with the loss of pack ice in the northern areas of the subspecies' range, exposing more land-accessible habitat, especially in the Bering Sea. In winter, we project that ice-accessible habitat will shift from the central Bering Sea in 2015 to the Bering Strait, straddling the southern Chukchi and northern Bering Seas, in 2060. We detected large variations in the trajectories of potential habitat for the Pacific walrus across the Bering Sea and Chukchi Sea area. For example, our results demonstrate increases in potential habitat in spring and winter for both the U.S. and Russia Chukchi Sea areas, yet potential habitat declined dramatically in these areas in summer. Conversely, we predicted notable declines in potential habitat in spring and winter and a stable trajectory in summer. In all seasons, potential habitat in the Russia Bering Sea area varied little.
We relied on monthly projections of sea-ice extent from a 13-model ensemble of the most-recent Global Circulation Models and three Representative Concentration Pathways (RCP) to assess the response of Pacific walruses to changes in the number of ice-free months over time. Pacific walruses currently use sea ice for courtship and breeding from December to March with a core period occurring from January to February. In addition, Pacific walruses currently use sea ice for birthing in the spring from April to June with a core birthing period occurring in May. Furthermore, calves nurse on the sea ice exclusively for 2–4 weeks after birth, and this critical period in post-natal care occurs in May and June. Given our prediction that the areas where the Pacific walruses' occur will, in combination, provide sufficient sea ice to meet the species' breeding, birthing, and denning needs, we found that Pacific walruses habitat needs will be met during the core breeding and birthing portions of the annual cycle under all RCP scenarios out to 2060.
Although Pacific walruses prefer sea ice habitat, they also use land habitat during the summer and fall, but likely not without tradeoffs related to energetic costs and other risks of using coastal haulouts (
In our assessment of the Pacific walrus, we considered the future impacts of stressors such as shipping and oil and gas development, along with changes in potential suitable habitat, on the viability of the Pacific walrus population. As previously discussed, we find that beyond 2060 the conclusions concerning the impacts of the effects of climate change and other stressors on the Pacific walrus population are based on speculation, rather than reliable prediction. Therefore, while we included projections out to 2100 in our analysis, we considered 2060 as the foreseeable future timeframe for this analysis. Due to future changes in suitable habitat, coupled with the impacts of the other stressors, we expect that the Pacific walrus's viability will be characterized by lower levels of resiliency and redundancy in the future, but we do not have reliable information showing that the magnitude of this change could be sufficient to put the subspecies in danger of extinction in the foreseeable future. In addition, we expect that representation will remain relatively unchanged.
We evaluated the current range of the Pacific walrus to determine if there is any apparent geographic concentration of potential threats to the taxon. We examined potential threats from loss of sea ice, ocean warming, ocean acidification, energetics, change in habitat use patterns, harvest, disease and parasites, predation, contaminants and biotoxins, oil and gas exploration, development and production, commercial fisheries, and ship and air traffic. We found no portions of its range where potential threats are significantly concentrated or substantially greater than in other portions of its range, and that there was no higher concentration of threats in the Chukchi or the Bering Seas. We did not identify any portions where the species may be in danger of extinction or likely to become so in the foreseeable future. Therefore, no portions warrant further consideration to determine whether the species may be in danger of extinction or likely to become so in the foreseeable future in a significant portion of its range.
Our review of the best scientific and commercial information available indicates that the threats affecting the Pacific walrus are not, singly or in combination, of sufficient imminence, intensity, or magnitude that the species is in danger of extinction or is likely to become endangered in the foreseeable future throughout all or a significant portion of its range. We conclude that, while the Pacific walrus will experience a future reduction in availability of sea ice, resulting in reduced resiliency and redundancy, we are unable to reliably predict the magnitude of the effect and the behavioral response of the Pacific walrus to this change, and we therefore do not have reliable information showing that the magnitude of this change could be sufficient to put the subspecies in danger of extinction now or in the foreseeable future. At this time, sufficient resources remain to meet the subspecies' physical and ecological needs now and into the future. Therefore, we find that listing the Pacific walrus as an endangered or threatened species under the Act is not warranted at this time. A detailed discussion of the basis for this finding can be found in the Pacific walrus species-specific assessment form and other supporting documents (available on the Internet at
On June 13, 2005, we received a petition, dated June 10, 2005, from Save Our Springs Alliance requesting that the San Felipe gambusia be listed as an endangered species under the Act. The West Texas Springs Alliance was also listed as a petitioner. On February 13, 2007, we published a 90-day finding (72 FR 6703) in the
On June 18, 2007, Guardians (which at the time was called “Forest Guardians”) petitioned the Service to list 475 species in the southwestern United States as endangered or threatened under the Act, including the San Felipe gambusia. On December 16, 2009, the Service published in the
The San Felipe gambusia is a small fish in the family Poeciliidae (order Cyprinodontiformes). It was first discovered in 1997 and described by Dr. Gary Garrett and Dr. Robert Edwards (2003, pp. 783–788) as a species distinct from other gambusia species, including its closest believed relative, the spotfin gambusia (
We have evaluated the best scientific and commercial information available, and based on that information we find that the San Felipe gambusia is not a distinct species, but rather the same species as the spotfin gambusia (
Echelle
Echelle
Based on our review of the best available scientific and commercial information, the taxonomic entity that is known as the San Felipe gambusia is not a distinct species or subspecies, but rather the same species (a junior synonym) as the spotfin gambusia (Echelle
Under the Act, the term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature” (16 U.S.C. 1532(16)). Based on the best scientific and commercial information available, the San Felipe gambusia is not itself a species, subspecies, or distinct population segment, as those terms are defined in the Act. Therefore, the San Felipe gambusia is not a listable entity under the Act. We find the San Felipe gambusia is not a valid taxonomic entity, does not meet the definition of a species or subspecies under the Act, and, as a result, cannot warrant listing under the Act.
We request that you submit any new information concerning the taxonomy, biology, ecology, status of, or stressors to, the 14 Nevada springsnail species, Barbour's map turtle, Bicknell's thrush, Big Blue Springs cave crayfish, Oregon Cascades-California population and Black Hills population of the black-backed woodpecker, eastern DPS of the boreal toad, Northern Rocky Mountains DPS of the fisher, Florida Keys mole skink, Great Sand Dunes tiger beetle, Kirtland's snake, Pacific walrus, and San Felipe gambusia to the appropriate person, as specified under
Lists of the references cited in the petition findings are available on the Internet at
The primary authors of this document are the staff members of the Unified Listing Team, Ecological Services Program.
The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531