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Food and Nutrition Service (FNS), USDA.
Final rule.
This final rule amends the Summer Food Service Program (SFSP) regulations to incorporate statutory changes mandated by Section 738 of the Consolidated Appropriations Act, 2008, which extends simplified cost accounting and reporting procedures to SFSP sponsors in all States, and eliminates the cost comparison requirements for determining payments to sponsors. In addition, this rule makes several discretionary changes to improve administrative efficiency and reduce paperwork in the management of the SFSP. Finally, this rule amends the National School Lunch Program regulations to create consistency among the Child Nutrition Programs with regard to notice procedures. The intended effect of this rule is to simplify and streamline Program administration while ensuring Program integrity.
Andrea Farmer, (703) 305–2470.
The Summer Food Service Program (SFSP) is authorized under Section 13 of the Richard B. Russell National School Lunch Act (NSLA), 42 U.S.C. 1761. The primary purpose of the Program is to provide free, nutritious meals to children in low-income areas during periods when schools are not in session. FNS has made strides to ensure that those in need have food to eat and to streamline Program operations. SFSP serves not only the neediest children, but also functions as an opportunity for local leaders and business owners to serve their community. Summer Meal Programs can be operated in a variety of settings and should focus on the needs of diverse communities. Because of this, the types of participating Program sponsors vary widely—from Federal agencies, to local governments, school districts, and small nonprofit community organizations.
This final rule codifies the nondiscretionary simplified cost accounting and reporting procedures established in the Consolidated Appropriations Act, 2008 (Pub. L. 110–161). These simplified cost accounting procedures were originally authorized in the Consolidated Appropriations Act of 2001 and were piloted in fourteen states from 2001–2004. Section 18(f) of the Child Nutrition and WIC Reauthorization Act of 2004 (Pub. L. 108–265) made the simplified cost accounting procedures permanent for eligible States. Six new States in addition to the original fourteen States were determined eligible. The Consolidated Appropriations Act, 2008 extended the simplified procedures to all sponsors in all States.
This final rule also makes discretionary changes to the SFSP regulations to improve management of the Program and reduce paperwork requirements for program operators. The purpose of the simplified procedures is to facilitate and encourage participation by eligible sponsors, in turn providing access to those in need in the summer months and other times during the year when they do not have access to school meals.
The regulatory changes to the reimbursement procedures will align Program regulations with current policy FNS issued in 2008 to implement statutory changes, SFSP 01–2008,
The intent of this rulemaking is to simplify the SFSP for State agencies, sponsors, and site operators while providing a quality meal service to children and maintaining integrity of the Program. The proposed rule was published in the
• Extend simplified cost accounting and reporting procedures to SFSP sponsors in all States and eliminate the cost comparison requirements for determining payments to sponsors.
• Require sponsors to utilize unused reimbursement to improve the Program, or pay allowable costs of other Child Nutrition Programs operated by the sponsor.
• Provide State agencies the flexibility to exempt school food authority sponsors from submitting a separate budget when applying to operate SFSP, provided that operation of SFSP was included in their annual budget for operation of the National School Lunch Program.
• Require sponsors to maintain documentation confirming the operation of a nonprofit food service.
• Establish the responsibilities of State agencies when reviewing a sponsor's operation under simplified procedures, including suggestions for monitoring of the nonprofit food service.
• Encourage State agencies to provide technical assistance to sponsors to utilize unused reimbursements to improve the meal service, improve Program management, or pay allowable costs of other Child Nutrition Programs
• Allow more alternatives for sponsors to combine claims for reimbursement.
• Allow sponsors to renew contracts for up to four years, to reduce paperwork and increase the sponsors' negotiating power to get higher quality meals at a better price.
• Clarify the administrative oversight role of sponsors at meal service sites.
• Provide consistent notification and simplified acquisition threshold requirements across Child Nutrition Programs.
FNS appreciates the insightful comments provided by stakeholders and the public. Twenty-two comments were received from a cross section of SFSP administrators, SFSP operators, and advocates. Commenters included representatives of State Departments of Education, food banks, and nonprofit organizations supporting anti-hunger efforts, summer learning, and afterschool programs. Seven State administering agencies, four SFSP sponsors, and 11 advocacy organizations submitted comments on the proposed rule. It should be noted that 22 comments represent a very small portion of the vast number of SFSP stakeholders. To view all of the public comments on the proposed rule, go to
Of the 22 comments received, 19 voiced general support for the implementation of the simplified cost accounting amendments, the clarification of the sponsor's responsibility for oversight at meal sites, and the amendment of the threshold for small purchases, and offered thoughtful suggestions for improvements to strengthen the rule and provide more clarity on certain sections.
Some commenters specifically voiced concern regarding the proposed changes to the collection of excess funds, approval of applications, review of nutrition quality, and monitoring of sponsor budgets and nonprofit food service. These commenters expressed concern that the proposed changes could compel State agencies to reinstate administrative practices that had been required for cost accounting, prior to the 2008 law and publication of subsequent implementing guidance. Additionally, a few commenters expressed concern that several of the provisions regarding State agency monitoring would create undue burden on the administering State agencies and sponsors and might discourage participation. Several commenters also requested clarity and guidance on a number of the provisions, particularly State agency monitoring of sponsors and operation of a nonprofit food service.
The following is a summary of the public comments by provision. In some instances, several provisions are grouped together under the same topic area because the provisions and comments received are related:
Regulations at 7 CFR 225.9(c) provide a framework for advancing payments to sponsors, while 7 CFR 225.9(d)(7) and (8) require State agencies to reimburse participating sponsors on a per-meal basis for meals meeting Program requirements. Prior to the implementation of the pilot and the subsequent extension of the simplified cost accounting procedures to all States and sponsors, sponsors received reimbursement separately for both operating costs and administrative costs.
In current regulations, State agencies already have the discretion to require more training for SFAs. Therefore, FNS maintains that the proposed language provides State agencies with the flexibility to require additional training. However, in order to provide clarity, FNS intends to issue additional guidance on administration of advances as deemed necessary.
Accordingly, the changes to 7 CFR 225.9(d)(7) and (8) and (c) as proposed are finalized in this rule. They eliminate the cost comparison requirements, combine operating and administrative reimbursements into a single “meals times rates” reimbursement, and combine operating and administrative advances. In addition, references to operating and administrative costs were removed throughout 7 CFR 225.9.
Prior to publication of the proposed rule, FNS issued policy guidance (SFSP 01–2008,
The proposed changes would have brought the regulations in line with exemptions currently available nationwide.
FNS has received consistent feedback from stakeholders that budget submissions are a useful tool for maintaining Program integrity. The budget review process provides the opportunity to identify unallowable costs and helps ensure that funds are used only for allowable costs. Maintaining a requirement for State agencies to annually review budgets allows SFA sponsors to receive important feedback on the allowability of planned expenditures.
However, FNS recognizes that submitting a separate budget for SFSP would be duplicative for SFAs that have already submitted budget information as part of their operation of another Child Nutrition Program. In an effort to reduce administrative and paperwork burden, State agencies may exempt SFAs applying to operate the SFSP from submitting a separate budget to the State agency, provided that operation of the SFSP is included in the annual budget submitted for the NSLP.
Accordingly, the proposed changes to budget submission requirements are not included in the final rule and the requirement at 7 CFR 225.6(b)(7) that sponsors must submit budgets when they apply for participation in the SFSP is maintained. In addition, the final rule adds at 7 CFR 225.6(b)(7) State agency discretion to exempt SFAs from submitting a separate budget provided that operation of the SFSP is included in the annual budget submitted for the NSLP.
The proposed rule touched on several sections of the regulations relating to maintenance of a nonprofit food service, including sections on claims against sponsors and management responsibilities of sponsors.
Regulations found at 7 CFR 225.6(e)(1) require sponsors to maintain a nonprofit food service. Regulations at 7 CFR 225.12(a) and 225.15(a) and (c) outline the requirements for maintaining a nonprofit food service in the SFSP. Sponsors that operate multiple Child Nutrition Programs on a year-round basis are not required to maintain a separate nonprofit food service account for the SFSP. The Consolidated Appropriations Act of 2008, which expanded the simplified cost accounting procedures, also amended statutory requirements for maintaining a nonprofit food service. FNS provided guidance on what is required to document the maintenance of a nonprofit food service under the legislative changes via policy memorandum (SFSP 01–2008,
The provision went further to require excess funds to be collected from sponsors that do not operate at least one other Child Nutrition Program and do not plan to participate in the SFSP in the following year. At the time the proposed rule was published, the only requirements for collection of excess funds in SFSP regulations were found at 7 CFR 225.9(c)(7) and referred to collection of funds in excess of advanced payments.
Under the simplified cost accounting procedures, FNS issued guidance on how to manage excess funds in the SFSP. However, FNS did not clearly define the term “excess funds.” There is an important distinction between
FNS defines excess funds, for Program purposes, as the difference between any advance funding and reimbursement funding, when advance funds received by a sponsor are greater than the reimbursement amount earned by a sponsor. This distinction is statutorily established in Section 13(e)(1) of the NSLA, 42 U.S.C. 1761(e)(1), which states that “Not later than June 1, July 15, and August 15 of each year, or, in the case of service institutions that operate under a continuous school calendar, the first day of each month of operation, the State shall forward advance program payments to each service institution. . .” Further, in Section 13(e)(2), the NSLA provides that, “[p]rogram payments advanced to service institutions that are not subsequently deducted from a valid claim for reimbursement shall be repaid upon demand by the State. Any prior payment that is under dispute may be subtracted from an advance program payment.” This requirement is also codified in current regulations at 7 CFR 225.9(c)(7).
While there is, similarly, a statutory directive in Section 13(e)(2) of the NSLA requiring the collection of excess funds, as described above, there is no such statutory directive, or intent, to collect unused reimbursements.
So, an example of
In contrast, FNS defines
FNS expects States and sponsors to adequately manage resources, so that a well-run, quality summer meal service does not result in a significant amount of unused reimbursement. It is incumbent on sponsors and State agencies to monitor program operations throughout the summer and for sponsors to make adjustments to ensure that quality meals are being served. However, should a sponsor have unspent reimbursement, this remaining amount must be kept in a nonprofit food service account, as required of all Child Nutrition Programs. These funds must benefit the operation of another Child Nutrition Program operated by the sponsor or SFSP operations operated by the sponsor the following Program year. If a sponsor does not return to participate in SFSP and does not operate any other Child Nutrition Programs, the sponsor is not required to return the unused reimbursement. As noted by commenters, this is in keeping with the intent of the statute which entitles all sponsors to the maximum reimbursement, as long as the sponsor is meeting the program requirements.
Additionally, in order to address the issue of treating sponsors remaining in the Program differently than sponsors not intending to participate in the following year, FNS would like to highlight the regulatory requirements at 7 CFR 225.6(e)(1)(i) that sponsors must enter into a permanent agreement with the State agency, in which they must agree to operate a nonprofit food service during the period specified. Therefore, those sponsors remaining in the Program must continue to operate a nonprofit food service in order to be in compliance with regulations and not be in violation of the Sponsor-State agreement. This means that should a sponsor have unused reimbursement, it must be used to improve the Program or for allowable costs in other Child Nutrition Programs operated by the sponsor. In contrast, a sponsor that chooses not participate in the Program no longer has an agreement with the State agency and is not required to operate a nonprofit food service.
Since 2008, consistent with statutory direction in Section 13 of the NSLA, FNS has made the distinction between excess funds and unused reimbursement in order to protect the integrity of program operations by ensuring that sponsors are only permitted to retain funds that are
FNS encourages this oversight activity, particularly when the State agency has concerns about how the sponsor operated the Program.
If unallowable costs are identified during a closeout review or audit, the State agency should follow appropriate audit resolution procedures, although no funds would be recovered. If a sponsor will not operate SFSP in the future, but currently operates another Child Nutrition Program, the sponsor would be required to restore the misspent SFSP funds to its nonprofit food service account. In cases where the organization does not intend to participate in the SFSP in the future and does not currently participate in any other Child Nutrition Programs, the State agency should notify the sponsor of the findings and retain documentation of the findings on file. If the organization applies for participation in any Child Nutrition Program in the future, the State agency should ensure the organization has proper controls in place to prevent a recurrence of the improper expenditures of nonprofit food service account funds. This is consistent with longstanding Department policy, issued during the implementation of the simplified cost accounting procedures (SFSP 01–2008,
Therefore, the final rule retains the current requirement that
Accordingly, this final rule adds definitions of “Excess funds” and “Unused reimbursement” under 7 CFR 225.2 and clarifies what sponsors should do with unused reimbursement under a new paragraph at 7 CFR 225.9(g). The final rule will retain the requirement for sponsors to utilize unused reimbursement to improve the Program, or for allowable costs in other Child Nutrition Programs and will not codify the proposed requirement to collect unused reimbursement from sponsors.
In order to maintain the integrity of Program operations, it is critical that State agencies and sponsors practice sound Program management. The proposed rule would change several provisions to provide additional requirements that would ensure thorough reviews of program operations. These changes expanded upon requirements for State agencies to establish financial management systems and standards for sponsor recordkeeping found at 7 CFR 225.7(d). In general, one commenter opposed the changes and one offered a recommendation. The commenter who opposed the provision believed that the procedures were too prescriptive and would increase the administrative burden for both sponsors and States. Another commenter offered the recommendation to provide additional funding and training to help States develop additional systems needed to support this requirement. Several commenters offered more detailed comments on the specific provisions, as discussed below.
In summary, accordingly, the final rule removes the requirements at 7 CFR 225.7(d)(2)(iii) that the State agency review the specific aspects of sponsor operations listed in the regulatory text and instead provides a list of Program management issues for potential review by the State agency at 7 CFR 225.7(d)(2)(iii)(A) through (D).
The addition of § 225.7(f), as proposed, would have codified that certain corrective actions may be necessary to improve food service quality under the following conditions:
• The sponsor's net cash resources exceed three months' average expenditures for the sponsor's nonprofit food service or such other amount as may be approved in accordance with the paragraph;
• The ratio of administrative to operational costs (as defined in 7 CFR 225.2) is high as compared to similar sponsors;
• There is significant use of alternative funding for food and/or other costs; or
• A significant portion of the food served is privately donated or purchased at a very low price.
Accordingly, due to the short duration of the Program, the final rule includes a limit of one month's net cash resources for sponsors that operate during the summer months but retains the three month limit for sponsors that operate Child Nutrition Programs year round at 7 CFR 225.7(f). Additionally, the final rule retains the conditions State agencies should review, as proposed, but rather than requiring a review of these conditions, encourages States to use these conditions as indicators of potential Program mismanagement.
Commenters also expressed concern that the bid bond requirements should be left to the discretion of the sponsor, as the new requirements might pass additional costs from Food Service Management Companies (FSMC) to the sponsor.
The proposed rule also offered changes to 7 CFR 225.6(h)(7) to make SFSP requirements consistent with NSLP requirements that pertain to food service management companies. The changes would allow sponsors to enter into annual contracts that may be renewed annually for up to four additional years. The rule also proposed that all contracts in excess of $10,000 contain clauses for termination for both cause and convenience with 60-day notification.
Based on FNS's experience in administering SFSP and in consultation with local, State, and Federal administrators, USDA determined that sponsors find it difficult to comply with the understanding of “direct operational control.” Many sponsors deliver meals to recreational sites that are not directly affiliated with or managed by the sponsors, thus they do not have the authority to hire or terminate staff. Instead, these sponsors have control over only the meal service provided at the site and related activities such as training of staff on meal counting and record keeping procedures.
• Claims for 10 operating days or less in the initial month of operations may be combined with the claim for the subsequent month;
• Claims for 10 operating days or less in the final month of operations may be combined with the claim for the preceding month; and
• Claims for 3 consecutive months may be combined, as long as this combined claim only includes 10 operating days or less from each of the first and last months of Program operations.
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been determined to be not significant by the Office of Management and Budget (OMB) in conformance with Executive Order 12866. Therefore, this rule has not been reviewed by OMB. No Regulatory Impact Analysis is required. Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and provides that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process. FNS considers this rule to be an Executive Order 13771 deregulatory action.
The Regulatory Flexibility Act (5 U.S.C. 601–612) requires agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, it has been certified that this final rule would not have a significant impact on a substantial number of small entities. This rule will streamline cost accounting procedures so that more time and resources may be directed toward increasing access, providing quality meal service to benefit eligible children, and ensuring Program integrity. While this rule will impact school food authorities, non-profit organizations, and local governments that choose to participate, its implementation will not have significant economic impact on any of those entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104–4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments, and the private sector.
Under section 202 of the UMRA, USDA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires USDA to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule. This final rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local and tribal governments or the private sector of $100 million or more in any one year. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.
The Summer Food Service Program is listed in the Catalog of Federal Domestic Assistance Programs under 10.559. The National School Lunch Program is listed in the Catalog of Federal Domestic Assistance Programs under 10.555. Both of these Child Nutrition Programs are subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. Since Child Nutrition Programs are State-administered, FNS has formal and informal discussions with State and local officials, including representatives of Indian Tribal Organizations, on an ongoing basis regarding program requirements and operation. This
Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13121. USDA has considered the impact of this final rule on State and local governments and has determined that this rule does not have federalism implications. Therefore, under section 6(b) of the Executive Order, a federalism summary is not required.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations, or policies which conflict with its provisions or which would otherwise impede its full and timely implementation. This rule is not intended to have retroactive effect. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. Appeal procedures are set forth at 7 CFR 225.13.
FNS has reviewed this final rule in accordance with USDA Regulation 4300–4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After a careful review of the rule's intent and provisions, FNS has determined that this rule is not expected to limit or reduce the ability of protected individuals to participate in the Summer Food Service Program or the National School Lunch Program.
Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. FNS has assessed the impact of this rule on Indian tribes and determined that this final rule does not, to our knowledge, have tribal implications that require tribal consultation under Executive Order 13175. If a Tribe requests consultation, FNS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress. FNS is unaware of any current Tribal laws that could be in conflict with this rule.
The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; 5 CFR part 1320) requires that OMB approve all collections of information by a Federal agency before they can be implemented. Commenters are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule does not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995.
USDA is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
Grant programs—education, Grant programs—health, Infants and children, Nutrition, Penalties, Reporting and recordkeeping requirements, School breakfast and lunch programs, Surplus agricultural commodities.
Food assistance programs, Grant programs—health, Infants and children, Labeling, Reporting and recordkeeping requirements.
Accordingly, 7 CFR parts 210 and 225 are amended as follows:
42 U.S.C. 1751–1760, 1779.
(i) * * *
(3) * * * This notice shall also include a statement indicating that the school food authority may appeal the denial of all or a part of a Claim for Reimbursement or withholding payment and the entity (
Secs. 9, 13 and 14, Richard B. Russell National School Lunch Act, as amended (42 U.S.C. 1758, 1761 and 1762a).
The revision and additions read as follows:
(b) * * *
(7) * * * State agencies may exempt school food authorities applying to operate the SFSP from submitting a separate budget to the State agency, provided that operation of the SFSP is included in the annual budget submitted for the National School Lunch Program.
(h) * * *
(2) * * * Sponsors that are public entities, sponsors with exclusive year-round contracts with a food service management company, and sponsors that have no food service management company contracts exceeding the simplified acquisition threshold in 2 CFR part 200, as applicable, may use their existing or usual form of contract, provided that such form of contract has been submitted to and approved by the State agency. * * *
(7) The contract between a sponsor and food service management company shall be no longer than 1 year; and options for the yearly renewal of a contract may not exceed 4 additional years. All contracts shall include a termination clause whereby either party may cancel for cause or for convenience with up to 60-day notification.
The additions read as follows:
(d) * * *
(2) * * *
(iii)
(A) Expenditures are allowable and consistent with FNS Instructions and guidance and all funds accruing to the food service are properly identified and recorded as food service revenue;
(B) Expenditures are consistent with budgeted costs, and the previous year's expenditures taking into consideration any changes in circumstances;
(C) Reimbursements have not resulted in accumulation of net cash resources as defined in paragraph (f) of this section; and
(D) The level of administrative spending is reasonable and does not affect the sponsor's ability to operate a nonprofit food service and provide a quality meal service.
(f) * * * Additionally, each State agency shall establish a system for monitoring and reviewing sponsors' nonprofit food service to ensure that all Program reimbursement funds are used solely for the conduct of the food service operation. State agencies must review the net cash resources of the nonprofit food service of each sponsor participating in the Program and ensure that the net cash resources do not exceed one months' average expenditures for sponsors operating only during the summer months and three months' average expenditure for sponsors operating Child Nutrition Programs throughout the year. State agency approval shall be required for net cash resources in excess of requirements set forth in this paragraph (f). Based on this monitoring, the State agency may provide technical assistance to the sponsor to improve meal service quality or take other action designed to improve the nonprofit meal service quality under the following conditions, including but not limited to:
(1) The sponsor's net cash resources exceed the limits included in this paragraph (f) for the sponsor's nonprofit food service or such other amount as may be approved in accordance with this paragraph;
(2) The ratio of administrative to operating costs (as defined in § 225.2) is high;
(3) There is significant use of alternative funding for food and/or other costs; or
(4) A significant portion of the food served is privately donated or purchased at a very low price.
The revisions and additions read as follows:
(a) * * * The amount of the start-up payment shall be deducted from the first advance payment or, if the sponsor does not receive advance payments, from the first reimbursement.
(c)
(1)
(ii) To determine the amount of the advance payment to any sponsor, the State agency shall employ whichever of the following methods will result in the larger payment:
(A) The total reimbursement paid to the sponsor for the same calendar month in the preceding year; or
(B) For vended sponsors, 50 percent of the amount determined by the State agency to be needed that month for meals, or, for self-preparation sponsors, 65 percent of the amount determined by the State agency to be needed that month for meals.
(2)
(3)
(4)
(5)
(d)
(1) School food authorities that operate the Program, and operate more than one child nutrition program under a single State agency, must use a common claim form (as provided by the State agency) for claiming reimbursement for meals served under those programs.
(2) No reimbursement may be issued until the sponsor certifies that it operated all sites for which it is approved and that there has been no significant change in its projected expenses since its preceding claim and, for a sponsor receiving an advance payment for only one month, that there has been no significant change in its projected expenses since its initial advance payment.
(3) Sponsors must submit a monthly claim or a combined claim within 60 days of the last day of operation. Sponsors may not submit a combined claim for meal reimbursements that crosses fiscal years. In addition, State agencies must ensure that the correct reimbursement rates are applied for meals claimed for months when different reimbursement rates are in effect. With approval from the State agency, sponsors have the flexibility to combine the claim for reimbursement in the following ways:
(i) For 10 operating days or less in their initial month of operations with the claim for the subsequent month;
(ii) For 10 operating days or less in their final month of operations with the claim for the preceding month; or
(iii) For 3 consecutive months, as long as this combined claim only includes 10 operating days or less from each of the first and last months of program operations.
(4) The State agency shall forward reimbursements within 45 days of receiving valid claims. If a claim is incomplete or invalid, the State agency shall return the claim to the sponsor within 30 days with an explanation of the reason for disapproval. If the sponsor submits a revised claim, final action shall be completed within 45 days of receipt.
(5) Claims for reimbursement shall report information in accordance with the financial management system established by the State agency, and in sufficient detail to justify the reimbursement claimed and to enable the State agency to provide the Reports of Summer Food Service Program Operations required under § 225.8(b). In submitting a claim for reimbursement, each sponsor shall certify that the claim is correct and that records are available to support this claim. Failure to maintain such records may be grounds for denial of reimbursement for meals served claimed during the period covered by the records in question. The costs of meals served to adults performing necessary food service labor may be included in the claim. Under no circumstances may a sponsor claim the cost of any disallowed meals as operating costs.
(6) A final Claim for Reimbursement shall be postmarked or submitted to the State agency not later than 60 days after the last day of the month covered by the claim. State agencies may establish shorter deadlines at their discretion. Claims not filed within the 60 day deadline shall not be paid with Program funds unless FNS determines that an exception should be granted. The State agency shall promptly take corrective action with respect to any Claim for Reimbursement as determined necessary through its claim review process or otherwise. In taking such corrective action, State agencies may make upward adjustments in Program funds claimed on claims filed within the 60 day deadline if such adjustments are completed within 90 days of the last day of the month covered by the claim and are reflected in the final Program Operations Report (FNS–418). Upward adjustments in Program funds claimed which are not reflected in the final FNS–418 for the month covered by the claim cannot be made unless authorized by FNS. Downward adjustments in Program funds claimed shall always be made without FNS authorization, regardless of when it is determined that such adjustments are necessary.
(7) Payments to a sponsor must equal the amount derived by multiplying the number of eligible meals, by type, actually served under the sponsor's program to eligible children by the current applicable reimbursement rate for each meal type. Sponsors must be eligible to receive additional reimbursement for each meal served to participating children at rural or self-preparation sites.
(8) On each January 1, or as soon thereafter or as practicable, FNS will publish a notice in the
(9) Sponsors of camps shall be reimbursed only for meals served to children in camps whose eligibility for Program meals is documented. Sponsors of NYSP sites shall only claim reimbursement for meals served to children enrolled in the NYSP.
(10) If a State agency has reason to believe that a sponsor or food service management company has engaged in unlawful acts in connection with Program operations, evidence found in audits, reviews, or investigations shall be a basis for nonpayment of the applicable sponsor's claims for reimbursement.
(g)
(1) If a sponsor does not return to participate in the Program the following year and does not operate any other Child Nutrition Programs, the sponsor is not required to return the unused reimbursement to the State agency.
(2) [Reserved]
(g)
(a) * * * State agencies shall consider claims for reimbursement not properly payable if a sponsor's records do not support all meals claimed and include all costs associated with the Program sufficient to justify that reimbursements were spent only on allowable Child Nutrition Program costs. * * *
(b) * * *
(1) The sponsor or food service management company be advised in writing of the grounds upon which the State agency based the action. The notice of action shall also state that the sponsor or food service management company has the right to appeal the State's action. The notice is considered to be received by the sponsor or food service management company when it is delivered by certified mail, return receipt (or the equivalent private delivery service), by facsimile, or by email. If the notice is undeliverable, it is considered to be received by the sponsor or food service management company five days after being sent to the addressee's last known mailing address, facsimile number, or email address;
(d) * * *
(3) Sponsors which are units of local, municipal, county, or State government, and sponsors which are private nonprofit organizations, will only be approved to administer the Program at sites where they have administrative oversight. Administrative oversight means that the sponsor shall be responsible for:
(i) Maintaining contact with meal service staff, ensuring that there is adequately trained meal service staff on site, monitoring the meal service throughout the period of Program participation, and terminating meal service at a site if staff fail to comply with Program regulations; and
The addition and revisions read as follows:
(a) * * *
(4) Sponsors must maintain documentation of a nonprofit food service including copies of all revenues received and expenses paid from the nonprofit food service account. Program reimbursements and expenditures may be included in a single nonprofit food service account with funds from any other Child Nutrition Programs authorized under the Richard B. Russell National School Lunch Act or the Child Nutrition Act of 1966, except the Special Supplemental Nutrition Program for Women, Infants, and Children. All Program reimbursement funds must be used solely for the conduct of the nonprofit food service operation. The net cash resources of the nonprofit food service of each sponsor participating in the Program may not exceed one month's average expenditures for sponsors operating only during the summer months and three months' average expenditures for sponsors operating Child Nutrition Programs throughout the year. State agency approval shall be required for net cash resources in excess of the requirements set forth in this paragraph (a)(4). Sponsors shall monitor Program costs and, in the event that net cash resources exceed the requirements outlined, take action to improve the meal service or other aspects of the Program.
(c) * * *
(1) Sponsors shall maintain accurate records justifying all meals claimed and documenting that all Program funds were spent only on allowable Child Nutrition Program costs. * * *
(m) * * *
(4) * * * Sponsors that are schools or school food authorities and have an exclusive contract with a food service management company for year-round service, and sponsors whose total contracts with food service management companies will not exceed the simplified acquisition threshold in 2 CFR part 200, as applicable, shall not be required to comply with these procedures. * * *
(xii) All bids in an amount which exceeds the lowest bid and all bids totaling the amount specified in the small purchase threshold in 2 CFR part 200, as applicable, or more are submitted to the State agency for approval before acceptance. State agencies shall respond to a request for approval of such bids within 5 working days of receipt.
(5) Each food service management company which submits a bid exceeding the simplified acquisition threshold in 2 CFR part 200, as applicable, shall obtain a bid bond in an amount not less than 5 percent nor more than 10 percent, as determined by the sponsor, of the value of the contract for which the bid is made. A copy of the bid bond shall accompany each bid.
(6) Each food service management company which enters into a food service contract exceeding the small purchase threshold in 2 CFR part 200, as applicable, with a sponsor shall obtain a performance bond in an amount not less than 10 percent no more than 25 percent of the value of the contract for which the bid is made, as determined by the State agency. Any food service management company which enters into more than one contract with any one sponsor shall obtain a performance bond covering all contracts if the aggregate amount of the contracts exceeds the simplified acquisition threshold in 2 CFR part 200, as applicable. Sponsors shall require the food service management company to furnish a copy of the performance bond within ten days of the awarding of the contract.
(f) All contracts in excess of $10,000 must contain a clause allowing termination for cause or for convenience by the sponsor including the manner by which it will be effected and the basis for settlement.
Federal Crop Insurance Corporation, USDA.
Correcting amendments.
This document contains necessary amendments to address corrections in the General Administrative Regulations; Administrative Remedies for Non-Compliance regulations which contain outdated references.
Effective June 1, 2018.
David L. Miller, Director, Reinsurance Services Division, Federal Crop Insurance Corporation, United States Department of Agriculture (USDA), 1400 Independence Avenue SW, Stop 0801, Washington, DC 20250, telephone (202) 720–9830.
This correction is being published to correct the General Administrative Regulations; Subpart R—Administrative Remedies for Non-Compliance regulations. The outdated reference to “7 CFR part 3017” will be removed and replaced by the correct reference of “2 CFR parts 180 and 417” in §§ 400.451 and 400.456.
Administrative practice and procedure, Crop insurance, Reporting and recordkeeping requirements.
Accordingly, 7 CFR part 400 is corrected by making the following amendments:
7 U.S.C. 1506(l) and 1506(o).
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Textron Aviation Inc. (Textron) Model 700 series airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. This design feature is the installation of rechargeable lithium batteries.
The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on Textron Aviation Inc. on June 1, 2018. Send comments on or before July 16, 2018.
Send comments identified by Docket No. FAA–2018–0471 using any of the following methods:
•
•
•
•
Nazih Khaouly, Airplane and Flight Crew Interface Section, AIR–671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206–231–3160; email
The substance of these special conditions previously has been published in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On November 20, 2014, Textron applied for a type certificate for their new Model 700 series airplanes. The Textron Model 700 series airplanes are transport-category, twin turbofan-powered airplanes with standard seating provisions for up to 12 passengers and 2 crewmembers, and a maximum takeoff weight of 38,514 lbs.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.17, Textron must show that the Model 700 series airplanes meet the applicable provisions of part 25 as amended by amendments 25–1 through 25–139, 25–141, and 25–143.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Textron Model 700 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
The Textron Model 700 series airplanes will incorporate the following novel or unusual design features:
The installation of rechargeable lithium batteries. Known uses of rechargeable and non-rechargeable lithium batteries on airplanes include:
• Flightdeck and avionics systems such as displays, global positioning systems, cockpit voice recorders, flight data recorders, underwater-locator-beacons, navigation computers, integrated avionics computers, satellite network/communication systems, communication management units, and remote monitor electronic line replaceable units;
• Cabin safety, entertainment and communications equipment including emergency locator transmitters, life rafts, escape slides, seat belt air bags, cabin management systems, Ethernet switches, routers and media servers, wireless systems, internet/in-flight entertainment systems, satellite televisions, remotes and handsets; and
• Systems in cargo areas including door controls, sensors, video surveillance equipment and security systems.
Rechargeable lithium batteries are considered to be a novel or unusual design feature in transport category airplanes, with respect to the requirements in § 25.1353. This type of battery has certain failure, operational, and maintenance characteristics that differ significantly from those of the nickel-cadmium and lead-acid rechargeable batteries currently approved for installation on transport category airplanes. These batteries introduce higher energy levels into airplane systems through new chemical compositions in various battery-cell sizes and construction. Interconnection of these cells in battery packs introduces failure modes that require unique design considerations, such as provisions for thermal management.
Special Condition 1 requires that each individual cell within a battery be designed to maintain safe temperatures and pressures. Special Condition 2 addresses these same issues but for the entire battery. Special Condition 2 requires that the battery be designed to prevent propagation of a thermal event, such as self-sustained, uncontrolled increases in temperature or pressure from one cell to adjacent cells.
Special Conditions 1 and 2 are intended to ensure that the cells and battery are designed to eliminate the potential for uncontrollable failures. However, a certain number of failures will occur due to various factors beyond the control of the designer. Therefore, other special conditions are intended to protect the airplane and its occupants if failure occurs.
Special Conditions 3, 7, and 8 are self-explanatory, and the FAA does not provide further explanation for them at this time.
Special Condition 4 clarifies that the flammable-fluid fire-protection requirements of § 25.863 apply to rechargeable lithium battery installations. Section 25.863 is applicable to areas of the airplane that could be exposed to flammable fluid leakage from airplane systems. Rechargeable lithium batteries contain electrolyte that is a flammable fluid.
Special Condition 5 requires each rechargeable lithium battery installation to not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more severe failure condition. Special Condition 6 requires each rechargeable lithium battery installation to have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells. The means of meeting special conditions 5 and 6 may be the same, but they are independent requirements addressing different hazards. Special Condition 5 addresses corrosive fluids and gases, whereas special condition 6 addresses heat.
Special Condition 9 requires rechargeable lithium batteries to have “automatic” means, for charge rate and disconnect, due to the fast acting nature of lithium battery chemical reactions. Manual intervention would not be timely or effective in mitigating the hazards associated with these batteries.
These special conditions will apply to all rechargeable lithium battery installations in lieu of § 25.1353(b)(1) through (b)(4) at Amendment 25–123. Section 25.1353(b)(1) through (b)(4) at Amendment 25–123 will remain in effect for other battery installations.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Textron Model 700 series airplane. Should
This action affects only a certain novel or unusual design feature on one model series of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Textron Aviation Inc. Model 700 series airplane:
In lieu of § 25.1353(b)(1) through (b)(4) at Amendment 25–123, each rechargeable lithium battery installation must:
1. Be designed to maintain safe cell temperatures and pressures under all foreseeable operating conditions to prevent fire and explosion.
2. Be designed to prevent the occurrence of self-sustaining, uncontrollable increases in temperature or pressure, and automatically control the charge rate of each cell to protect against adverse operating conditions, such as cell imbalance, back charging, overcharging and overheating.
3. Not emit explosive or toxic gases, either in normal operation or as a result of its failure, that may accumulate in hazardous quantities within the airplane.
4. Meet the requirements of § 25.863.
5. Not damage surrounding structure or adjacent systems, equipment, or electrical wiring from corrosive fluids or gases that may escape in such a way as to cause a major or more-severe failure condition.
6. Have provisions to prevent any hazardous effect on airplane structure or systems caused by the maximum amount of heat it can generate due to any failure of it or its individual cells.
7. Have a failure sensing and warning system to alert the flight crew if its failure affects safe operation of the airplane.
8. Have a monitoring and warning feature that alerts the flightcrew when its charge state falls below acceptable levels if its function is required for safe operation of the airplane.
9. Have a means to automatically disconnect from its charging source in the event of an over-temperature condition, cell failure or battery failure.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) Airbus Helicopters Model SA–365C, SA–365C1, and SA–365C2 helicopters. This AD requires establishing a life limit of 2,000 hours time-in-service (TIS) for the Starflex star/mast connecting bolt (bolt) and removing from service each bolt that exceeds its life limit. This AD is prompted by the discovery that the bolt's life limit was not included in helicopter maintenance records. The actions of this AD are intended to prevent an unsafe condition on these products.
This AD becomes effective June 18, 2018.
We must receive comments on this AD by July 31, 2018.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
For service information identified in this final rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
Matt Fuller, Senior Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222–5110; email
This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2016–0115–E, dated June 16, 2016, to correct an unsafe condition for Airbus Helicopters Model SA–365C, SA–365C1, SA–365C2, and SA–365C3 helicopters. EASA advises that the 2,000 flight hour life limit for the bolts was not referenced in the helicopter maintenance documentation. EASA states that some helicopters are therefore likely to continue flying with these bolts past their life limit. This condition, if not detected and corrected, could lead to bolt failure, resulting in main rotor mast, hub or blade damage and reduced helicopter control, EASA advises. As a result, the EASA AD requires replacing the bolts if they have reached or exceeded 2,000 flight hours, if the bolt part number (P/N) cannot be identified, or if the number of flight hours of the bolt is not known. The EASA AD also requires maintaining the continuous airworthiness records for the bolts.
These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.
Airbus Helicopters has issued Emergency Alert Service Bulletin No. SA365 65.51, Revision 0, dated June 2, 2016. This service information establishes a life limit of 2,000 flight hours for certain bolts installed on Airbus Helicopters Model SA–365C, SA–365C1, SA–365C2, and SA–365C3 helicopters and specifies replacing the bolts if necessary.
This AD requires the following before further flight:
• Removing from service any bolt P/N 365A31–1182–20, 365A31–1182–21, 365A31–1183–20, 365A31–1183–21, 365A31–1928–20, or 365A31–1143–20 that has accumulated 2,000 or more hours TIS or any bolt for which the hours TIS is unknown. Thereafter, removing from service each bolt P/N 365A31–1182–20, 365A31–1182–21, 365A31–1183–20, 365A31–1183–21, 365A31–1928–20, or 365A31–1143–20 before it accumulates 2,000 hours TIS.
• Removing from service any bolt with a P/N not listed in the AD or any bolt for which you cannot determine the P/N.
• Creating a component history card or equivalent record for each bolt P/N 365A31–1182–20, 365A31–1182–21, 365A31–1183–20, 365A31–1183–21, 365A31–1928–20, or 365A31–1143–20 and recording a life limit of 2,000 hours TIS.
The EASA AD applies to Airbus Helicopters Model SA–365C3 helicopters. This AD does not because the SA–365C3 helicopter has no FAA type certificate.
There are no costs of compliance with this AD because there are no helicopters with this type certificate on the U.S. Registry.
There are no helicopters with this type certificate on the U.S. Registry. We believe it is therefore unlikely that we will receive any adverse comments or useful information about this AD from U.S. operators.
Therefore, we find good cause that notice and opportunity for prior public comment are unnecessary. In addition, for the reasons stated above, we find that good cause exists for making this amendment effective in less than 30 days.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, 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 applies to Airbus Helicopters Model SA–365C, SA–365C1, and SA–365C2 helicopters, certificated in any category.
This AD defines the unsafe condition as a Starflex star/mast connecting bolt (bolt) remaining in service beyond its fatigue life. This condition could result in failure of a
This AD becomes effective June 18, 2018.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Before further flight:
(1) Remove from service any bolt part number (P/N) 365A31–1182–20, 365A31–1182–21, 365A31–1183–20, 365A31–1183–21, 365A31–1928–20, or 365A31–1143–20 that has accumulated 2,000 or more hours time-in-service (TIS), or any bolt for which the hours TIS is unknown. Thereafter, remove from service each bolt P/N 365A31–1182–20, 365A31–1182–21, 365A31–1183–20, 365A31–1183–21, 365A31–1928–20, or 365A31–1143–20 before accumulating 2,000 hours TIS.
(2) Remove from service any bolt with a P/N not listed in paragraph (e)(1) of this AD or for which the P/N is unknown.
(3) Create a component history card or equivalent record for each bolt P/N 365A31–1182–20, 365A31–1182–21, 365A31–1183–20, 365A31–1183–21, 365A31–1928–20, and 365A31–1143–20 and record a life limit of 2,000 hours TIS.
(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Matt Fuller, Senior Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.
(1) Airbus Helicopters Emergency Alert Service Bulletin No. 65.51, Revision 0, dated June 2, 2016, which is not incorporated by reference, contains additional information about the subject of this AD. For service information identified in this AD, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
(2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2016–0115–E, dated June 16, 2016. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 6220, Main Rotor Head.
Securities and Exchange Commission.
Final rule; technical amendments.
The Securities and Exchange Commission (“SEC” or “Commission”) is making technical amendments to certain rules of organization and rules of practice to indicate that Commission materials will no longer be compiled and published as the “SEC Docket” (“SEC Docket” or “Docket”), but will continue to be available on the SEC public website.
Hannah Riedel, Senior Counsel, (202) 551–5150, Office of the General Counsel, Securities and Exchange Commission or J. Lynn Taylor, Assistant Secretary, (202) 551–5400, Office of the Secretary, 100 F Street NE, Washington, DC 20549–9150.
In 1972, the Commission began compiling and publishing Commission orders and rulemaking releases in an SEC Docket for weekly dissemination to the public. The Commission has determined that publishing the SEC Docket is no longer a cost-efficient way to disseminate information to the public because all materials appearing in the SEC Docket have already been posted upon release on the SEC public website at
In 2013, facing increases in publication costs and dwindling subscription numbers, the Commission began publishing the Docket electronically on the SEC website. Producing and posting the SEC Docket electronically continues to require significant staff resources. The Office of the Secretary estimates that approximately 600 staff hours are expended annually to prepare the Docket. Moreover, with Docket materials already posted elsewhere on the website several weeks before the Docket is completed and published, the Docket generally receives less than 0.01% of all SEC website traffic.
Accordingly, the Commission plans to immediately discontinue publication of the SEC Docket but to continue posting these materials on the SEC website in real time. In light of this change, the Commission is adopting technical amendments to Title 17, Chapter II of the Code of Federal Regulations to eliminate references to the SEC Docket and, where appropriate, replace references to the SEC Docket with references to the SEC website.
The Commission finds, in accordance with the Administrative Procedure Act (“APA”), that these revisions relate solely to agency organization, procedures, or practice and do not constitute a substantive rule. Accordingly, the APA's provisions regarding notice of rulemaking, opportunity for public comment, and advance publication of the amendments are not applicable.
These technical amendments are adopted pursuant to statutory authority granted to the Commission under Section 23(a) of the Exchange Act.
Administrative practice and procedure.
For the reasons set out above, the Commission is amending Title 17, Chapter II of the Code of Federal Regulations as follows:
5 U.S.C. 552, as amended, 15 U.S.C. 77f(d), 77s, 77ggg(a), 77sss, 78m(F)(3), 78w, 80a–37, 80a–44(a), 80a–44(b), 80b–10(a), and 80b–11, unless otherwise noted.
(a) * * *
(2)
(c)(1) * * *
(ii) All regional offices of the Commission have available for public examination the materials set forth in paragraph (a)(2) of this section and the
(e) * * *
(8) * * *
(ii) The Commission publishes daily the
Free mailing list distribution of releases has been discontinued by the Commission because of rising costs and staff limitations. However, the texts of all releases under the various Acts, the corporate reorganization releases, and the litigation releases are available on the SEC website. Statistical series releases are contained in the
15 U.S.C. 77f, 77g, 77h, 77h–1, 77j, 77s, 77u, 77sss, 77ttt, 78c(b), 78d–1, 78d–2, 78
(c)
(d) * * *
(2) If a party or aggrieved person entitled to review fails to file timely a petition for review or a motion to correct a manifest error of fact in the initial decision, and if the Commission does not order review of a decision on its own initiative, the Commission will issue an order that the decision has become final as to that party. The decision becomes final upon issuance of the order. The order of finality shall state the date on which sanctions, if any, take effect. Notice of the order shall be published on the SEC website.
15 U.S.C. 77h–1, 77s, 77u, 78c(b), 78d–1, 78d–2, 78u–2, 78u–3, 78v, 78w, 80a–9, 80a–37, 80a–39, 80a–40, 80b–3, 80b–11, 80b–12, and 7246.
Notice of a proposed plan of disgorgement or a proposed Fair Fund plan shall be published on the SEC website and in such other publications as the Commission or the hearing officer may require. The notice shall specify how copies of the proposed plan may be obtained and shall state that persons desiring to comment on the proposed plan may submit their views, in writing, to the Commission.
By the Commission.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary special local regulation for all navigable waters of the Osage arm of the Lake of the Ozarks from mile marker (MM) 0.0 to MM 0.4 in Bagnell, MO. This special local regulation is necessary to protect the public, participants, spectators, and the marine environment from potential hazards during the Lake Race 2018. Entry of persons or vessels into this regulated area is prohibited unless authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.
This rule is effective from 7 a.m. through 6 p.m. on June 2, 2018.
To view documents mentioned in this preamble as being
If you have questions on this rule, call or email LCDR Sean Peterson, Chief of Prevention, U.S. Coast Guard; telephone 314–269–2568, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. This special local regulation must be established by June 2, 2018 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the special local regulation until after the scheduled date of the power boat race and compromise public safety.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary 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 Upper Mississippi River (COTP) has determined that potential hazards associated with the Lake Race 2018 occurring on June 2, 2018 will be a safety concern for persons and vessels within four tenths of a mile stretch of the Osage arm of the Lake of the Ozarks. The purpose of this rule is to ensure safety of the public, participants, spectators, and the marine environment in the regulated area before, during, and after the Lake Race 2018.
This rule establishes a temporary special local regulation from 7 a.m. through 6 p.m. on June 2, 2018 on all navigable waters of the Osage arm of the Lake of the Ozarks from mile marker (MM) 0.0 to MM 0.4 in Bagnell, MO. The duration of the special local regulation is intended to protect the public from the power boat race before, during, and after the event. No vessel or person is permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM may be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF–FM (156.8 MHz) by the call sign “PATCOM”.
All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the regulated area.
Spectator vessels desiring to enter, transit through or within, or exit the regulated area may do so only with permission from the COTP or a designated representative, and when permitted, must operate at a minimum safe navigation speed in a manner which will not endanger participants in the regulated area or any other vessels. No spectator vessel shall anchor, block, loiter, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by or through an official patrol vessel. Any spectator vessel may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the regulated area in such a way that they shall not interfere with the progress of the event. Such mooring must be complete at least 30 minutes prior to the establishment of the regulated area and remain moored through the duration of the event.
The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.
The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property. The COTP or a designated representative will terminate enforcement of the special local regulations at the conclusion of the event.
The COTP or a designated representative will inform the public of the enforcement times and date for this regulated area through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.
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 for the special local regulation. This special local regulation cover a less than half-mile stretch of the arm of the Osage arm of the Lake of the Ozarks for eleven hours on one day. Moreover, the Coast Guard will issue BNMs via VHF–FM marine channel 16 about the regulation so that waterway
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 regulated area 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 Directive 023–01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting eleven hours on a four-tenths of a mile stretch of the Osage arm of the Lake of the Ozarks. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023–01–001–01, Rev. 01. 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; 33 CFR 1.05–1.
(a)
(b)
(c)
(2) All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the regulated area.
(3) Spectator vessels desiring to transit the regulated area may do so only
(4) No spectator vessel shall anchor, block, loiter, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by or through an official patrol vessel.
(5) Spectator vessels may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the regulated area in such a way that they shall not interfere with the progress of the event. Such mooring must be complete at least 30 minutes prior to the establishment of the regulated area and remain moored through the duration of the event.
(6) The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.
(7) The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property.
(8) The COTP or a designated representative will terminate enforcement of the special local regulations at the conclusion of the event.
(d)
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Broadway Bridge across the Harlem River, mile 6.8, at Bronx, New York. This temporary deviation is necessary to allow the bridge to remain in the closed-to-navigation position to facilitate replacement of the middle track.
This deviation is effective from 6 a.m. on June 9, 2018 to 5 p.m. on August 12, 2018.
The docket for this deviation, USCG–2018–0447 is available at
If you have questions on this temporary deviation, call or email Judy Leung-Yee, Bridge Management Specialist, First District Bridge Branch, U.S. Coast Guard, telephone 212–514–4336, email
New York City Transit, the bridge owner, requested a temporary deviation from the normal operating schedule to facilitate replacement of the middle track. The Broadway Bridge across the Harlem River, mile 6.8, has a vertical clearance in the closed position of 24 feet at mean high water and 29 feet at mean low water. The existing bridge operating regulations are listed at 33 CFR 117.789(b)(1).
Under this temporary deviation, the Broadway Bridge shall remain in the closed position between 6 a.m. and 7 p.m. on June 9, June 16, June 23, June 30, August 4 and August 11, 2018; and between 6 a.m. and 5 p.m. on June 17, July 1, August 5 and August 12, 2018.
The waterway is transited by commercial and recreational traffic. The Coast Guard notified known commercial vessel operators that transit the area, including the Sandy Hook Pilots Association and the local Tug/Tow Committee; there were no objections to this temporary deviation. Vessels able to pass under the bridge in the closed position may do so at any time. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.
The Coast Guard will inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of temporary deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Long Beach Bridge across Reynolds Channel, mile 4.7, and the Loop Parkway Bridge across Long Creek, mile 0.7, at Nassau County, New York. This deviation is necessary to facilitate a fireworks display and allows the bridge to remain in the closed position for two and a half hours.
This deviation is effective from 9:30 p.m. June 30, 2018 to 11:59 p.m. on July 2, 2018.
The docket for this deviation, USCG–2018–0386, is available at
If you have questions on this temporary deviation, call or email Stephanie Lopez, Bridge Management Specialist,
The Town of Hempstead Department of Public Works requested this temporary deviation and both Nassau County, the owner of the Long Beach Bridge, and the New York State Department of Transportation, the owner of the Loop Parkway Bridge, concur with the request to deviate from the normal operating schedules to facilitate the “Annual Salute to Veterans and Fireworks Display.”
The Long Beach Bridge across Reynolds Channel, mile 4.7, has a vertical clearance of 22 feet at mean high water and 24 feet at mean low water in the closed position. The existing drawbridge operating regulation is listed at 33 CFR 117.799(g). The Loop Parkway Bridge across Long Creek, mile 0.7, has a vertical clearance of 21 feet at mean high water and 25 feet at mean low water in the closed position. The existing drawbridge operating regulation is listed at 33 CFR 117.799(f).
The temporary deviation will allow both bridges to remain closed from 9:30 p.m. to 11:59 p.m. on June 30, 2018 with rain date of July 1, 2018. Reynolds Channel and Long Creek are transited by seasonal recreational vessels and commercial vessels. Coordination with Coast Guard Sector Long Island Sound has indicated no mariner objections to the proposed short-term closure of the bridges.
Vessels that can pass under the bridges without an opening may do so at all times. The bridges will be able to open for emergencies. There is no alternate route for vessels to pass.
The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridges so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Harry Kelley Bridge (Route 50), over Isle of Wight (Sinepuxent) Bay, mile 0.5 at Ocean City, MD. The deviation is necessary to accommodate Ocean City Air Show. This deviation allows the bridge to remain in their closed-to-navigation position.
The deviation is effective from 4:30 p.m. on June 16, 2018, until 5 p.m. on June 17, 2018.
The docket for this deviation, [USCG–2018–0341], is available at
If you have questions on this temporary deviation, call or email Ms. Kashanda Booker, Bridge Administration Branch Fifth District, Coast Guard; telephone 757–398–6227, email
The event director, Ocean City, Maryland, Department of Emergency Services, with approval from the Maryland State Highway Administration, who owns and operates the U.S. 50 (Harry Kelly) Bridge, has requested a temporary deviation from the current operating regulations to accommodate the free movement of pedestrians and vehicles during the 2017 Ocean City Air Show. The bridge is a double bascule bridge and has a vertical clearance in the closed position of 13 feet above mean high water.
The current operating schedule is set out in 33 CFR 117.559. Under this temporary deviation, the bridge will be maintained in the closed-to-navigation position from 4:30 p.m. to 5 p.m. on June 16 and 17, 2018. The Isle of Wight (Sinepuxent) Bay is used by a variety of vessels including small commercial vessels and recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.
Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notice to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impacts caused by this temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of enforcement of regulation.
The Coast Guard will enforce the safety zone for the Rice's Landing Riverfest from June 8 through June 9, 2018, to provide for the safety of life on the navigable waterways during this event. Our regulation for marine events within the Eighth Coast Guard District identifies the regulated area for this event in Rice's Landing, PA. During the enforcement periods, entry into this zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative.
The regulations in 33 CFR 165.801, Table 1, Line 7 will be enforced from 9:45 p.m. through 10:45 p.m., each day on June 8, 2018 and June 9, 2018.
If you have questions about this notice of
The Coast Guard will enforce a safety zone for the Rice's Landing Riverfest in 33 CFR 165.801, Table 1, Line 7 from 9:45 p.m. through 10:45 p.m. each day on June 8, 2018 and June 9, 2018. This action is being taken to provide for the safety of life on navigable waterways during this 2-day event. Our regulation for marine events within the Eighth Coast Guard District, § 165.801, specifies the location of the safety zone for the Rice's Landing Riverfest, which covers a less than one-mile stretch of the Monongahela River. Entry into the safety zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative. Persons or vessels desiring to enter into or pass through the area must request permission from the COTP or a designated representative. They can be reached on VHF FM channel 16. If permission is granted, all persons and vessel shall comply with the instructions of the COTP or designated representative.
In addition to this notice of enforcement in the
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of the Upper Mississippi River between mile markers 179 and 180, extending the entire width of the river. This action is necessary to provide for the safety of life and property on these navigable waters near the St. Louis Gateway Arch grounds during an air show practice and an air show/fireworks display. This temporary safety zone is necessary to protect persons and property from potential damage and safety hazards during the air show evolutions. Entry into the safety zone is prohibited unless authorized by the Captain of the Port Sector Upper Mississippi River or a designated representative.
This rule is effective from noon on July 3, 2018 through 10:30 p.m. on July 4, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LCDR Sean Peterson, Chief of Prevention, U.S. Coast Guard; telephone 314–269–2332, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone by July 3, 2018 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. The NPRM process would delay the establishment of the safety zone until after the event and compromise public safety.
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 Fair St. Louis will be holding air shows and a fireworks display in the vicinity of the St. Louis Gateway Arch from mile marker (MM) 179 to MM 180 on the 4th of July. A practice session for the air shows will be held on July 3, 2018 from noon through 2 p.m. The air shows will take place on July 4, 2018 twice: Between the hours of 12:30 p.m. through 2 p.m., and 6:45 p.m. through 8:15 p.m. The fireworks display will take place from 9 p.m. through 10 p.m. on July 4, 2018.
The Coast Guard is issuing this rule under the authority in 33 U.S.C. 1231. The purpose of this rule to provide for the safety of life and property during the air shows and the fireworks display. Over the years, there have been unfortunate instances of aircraft mishaps that involve crashing during performances at various air shows around the world. Occasionally, these incidents result in a wide area of scattered debris in the water that can damage property or cause significant injury or death to the public observing the air shows. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that a safety zone is necessary to protect the general public from hazards associated with the aerobatic and high speed aerial flight demonstrations. In addition, potential hazards associated with firework displays include accidental discharge of fireworks, dangerous projectiles, and falling embers or other debris. The COTP has determined that a safety zone is necessary to protect the general public from hazards associated with the fireworks display. The purpose of this rule is to ensure the safety of life and property on the navigable waters in the safety zone before, during, and after the air show practice, the air shows, and the fireworks display.
This rule establishes a safety zone from noon on July 3, 2018 through 10:30 p.m. on July 4, 2018. It will be enforced
The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.
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, and duration of the safety zone. This safety zone impacts a one-mile stretch of the UMR for a total of seven and a half hours. Moreover, the Coast Guard would issue a BNMs via VHF–FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding these rules. 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 a safety zone lasting a total of seven and a half hours that will prohibit entry on a one-mile stretch of the UMR on July 3rd and 4th, 2018. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023–01–001–01,
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(1) On July 3, 2018, from noon through 2 p.m.; and
(2) On July 4, 2018, from noon through 2 p.m.; from 6:30 p.m. through 8:15 p.m.; and from 8:30 p.m. through 10:30 p.m.
(d)
(2) All persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.
(e)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters within a 2000 yard radius of a portion of Lake Huron, MI. This zone is necessary to protect a Coast Guard Cutter and divers operating from the vessel as part of a test of a maritime oil recovery system.
This temporary final rule is effective without actual notice from June 1, 2018 through 4 p.m. on June 2, 2018. For the purposes of enforcement, actual notice will be used from 7 a.m. May 30, 2018 through June 1, 2018.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, call or email Tracy Girard, Prevention Department, Sector Detroit, Coast Guard; telephone (313) 568–9564, or email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency 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 doing so would be impracticable. The Coast Guard did not receive the final details of this offshore barrier test in time to publish an NPRM. As such, it is impracticable to publish an NPRM because we 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. 1231. The Captain of the Port Detroit (COTP) has determined that potential hazard associated with offshore barrier test from 7 a.m. on May 30, 2018 through 4 p.m. on June 2, 2018 will be a safety concern to anyone within a 2000 yard radius of the site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the offshore barrier test is being conducted.
This rule establishes a safety zone from 7 a.m. on May 30 until 4 p.m. on
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-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of Lake Huron from 7 a.m. on May 30, 2018 through 4 p.m. on June 2, 2018. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNM) via VHF–FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601–612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 Directive 023–01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 4 days that will prohibit entry into a designated area. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023–01–001–01, Rev. 01. 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
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or his on-scene representative.
(3) The “on-scene representative” of COTP is any Coast Guard commissioned, warrant or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port Detroit to act on his behalf.
(4) Vessel operators shall contact the COTP or his on-scene representative to obtain permission to enter or operate within the safety zone. The COTP or his on-scene representative may be contacted via VHF Channel 16 or at (313) 568–9464. Vessel operators given permission to enter or operate in the regulated area must comply with all directions given to them by the COTP or his on-scene representative.
U.S. Copyright Office, Library of Congress.
Final rule.
The U.S. Copyright Office is amending its regulation governing the deposit of published copies or phonorecords for the Library of Congress to correct an inadvertent error.
Effective June 1, 2018.
Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202–707–8040, or by email at
On January 17, 2018, the Office published a final rule regarding the deposit requirements for certain types of literary works and musical compositions. 83 FR 2371 (Jan. 17, 2018) (“Deposit Requirements Final Rule”). Among other things, the Deposit Requirements Final Rule amended 37 CFR 202.19. On January 30, 2018, the Office published a final rule regarding the group registration of newspapers. 83 FR 4144 (Jan. 30, 2018 (“Group Newspaper Registration Final Rule”). The Group Newspaper Registration Final Rule also amended 37 CFR 202.19, but the amendments inadvertently eliminated a provision that had been added by the Deposit Requirements Final Rule. The Deposit Requirements Final Rule went into effect February 16, 2018. The Group Newspaper Registration Final Rule went into effect March 1, 2018.
Thus, the Copyright Office is amending 37 CFR 202.19 to correct this error.
Copyright.
For the reasons set forth in the preamble, the Copyright Office amends 37 CFR part 202, as follows:
17 U.S.C. 408(f), 702.
(d) * * *
(2) * * *
(ix) In the case of published literary monographs, the deposit of one complete copy of the best edition of the work will suffice in lieu of the two copies required by paragraph (d)(1) of this section, unless the Copyright Office issues a demand for a second copy pursuant to 17 U.S.C. 407(d).
Approved by:
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving the regional haze progress report under the Clean Air Act (CAA) as a revision to the Michigan state implementation plan (SIP). Michigan has satisfied the progress report requirements of the Regional Haze Rule. Michigan has also provided a determination of the adequacy of its regional haze plan with the progress report.
This final rule is effective on July 2, 2018.
EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2016–0058. All documents in the docket are listed on the
Gilberto Alvarez, 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) 886–6143,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This
States are required to submit a progress report every five years that evaluates progress towards the Reasonable Progress Goals (RPGs) for each mandatory Class I Federal area within the State and in each mandatory Class I Federal area outside the State which may be affected by emissions from within the State.
Michigan submitted its regional haze plan on November 5, 2010. EPA partially approved Michigan's regional haze plan into its SIP on December 3, 2012 (77 FR 71533).
As part of this action, EPA found that the State's submittal appropriately addressed the best available retrofit technology (BART) requirements for some sources but failed to satisfy BART for two sources, namely St. Marys Cement (SMC) and Escanaba Paper Company. EPA promulgated a Federal Implementation Plan (FIP) that included nitrogen oxide emission (NOx) limits for these two sources and sulfur dioxide emission limits for SMC to satisfy these requirements on December 3, 2012 (77 FR 71533).
In order to satisfy the requirements for BART for certain taconite ore processing facilities in Minnesota and Michigan, EPA promulgated a taconite FIP on February 6, 2013 (78 FR 8706), and revised the taconite FIP on April 9, 2015 (81 FR 21672). In Michigan, the taconite facility impacted by this FIP is the Tilden Mining Company.
Michigan submitted its five-year progress report on January 12, 2016. The State submitted its determination of adequacy with the progress report.
The emission reductions from several Federal programs are contributing to visibility improvement in Michigan. In its regional haze plan, Michigan considered the emission reductions from the Tier 2 Gasoline, Heavy-duty Highway Diesel, Non-road Diesel, and a variety of Maximum Achievable Control Technology programs. Michigan also relied, in part, on the Clean Air Interstate Rule (CAIR) to meet certain regional haze requirements. EPA issued a limited disapproval of Michigan's regional haze SIP based on its reliance on CAIR and issued a FIP on June 11, 2012 replacing reliance on CAIR with reliance on the Cross State Air Pollution Rule (CSAPR) (77 FR 33642).
EPA published a direct final rule (DFR) on October 18, 2017 (82 FR 48435), approving the Michigan regional haze progress report as a revision to the Michigan SIP, along with a proposed rule (82 FR 48473), that provided a 30-day public comment period.
The DFR states that if EPA received adverse comments, EPA would publish a timely withdrawal of the DFR in the
EPA evaluated the Michigan submittal assessing the state's progress in implementing its regional haze plan during the first half of the first implementation period, as well as the statutory and regulatory background for Michigan's regional haze plan. The DFR also provided a description of the regional haze requirements addressed in the Michigan progress report.
EPA received four comments on the DFR (82 FR 48435). In the first comment, New Jersey expressed concern over sources in Michigan impacting Class I areas in the northeast. The second and third comments were anonymous and dealt with Federal Implementation Plans (FIPs) and regional trading programs, respectively. A fourth comment was not relevant to the rulemaking. We will address the comments here.
We do note, however, that the two sources specifically mentioned in NJDEP's comment, Trenton Channel Unit 9A and Saint Clair Unit 7, owned by DTE Energy, are tentatively scheduled to be shut down
EPA concludes that Michigan has adequately addressed the provisions under 40 CFR 51.308(h).
In summary, EPA disagrees that the points raised by the commenters prevent approval of the progress report. EPA finds that Michigan's progress report satisfies 40 CFR 51.308.
EPA is approving the Michigan regional haze progress report under the CAA as a revision to the Michigan SIP. EPA finds that Michigan has satisfied the progress report requirements of the Regional Haze Rule. EPA also finds that Michigan has met the requirements for a determination of the adequacy of its regional haze plan with its negative declaration submitted with the progress report.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 31, 2018. 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, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision formally submitted by the Commonwealth of Virginia (Virginia or the Commonwealth). Under the Clean Air Act (CAA), states' SIPs must require stationary sources in ozone nonattainment areas classified as marginal or above to report annual emissions of nitrogen oxides (NO
This final rule is effective on July 2, 2018.
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2017–0738. All documents in the docket are listed on the
Sara Calcinore, (215) 814 2043, or by email at
Under the CAA, EPA establishes NAAQS for criteria pollutants in order to protect human health and the environment. In response to scientific evidence linking ozone exposure to adverse health effects, EPA promulgated the first ozone NAAQS, the 0.12 part per million (ppm) 1-hour ozone NAAQS, in 1979.
On May 21, 2012 and June 11, 2012, EPA designated nonattainment areas for the 2008 ozone NAAQS. 77 FR 30088 and 77 FR 34221. Effective July 20, 2012, the Washington, DC–MD–VA area was designated as marginal nonattainment for the 2008 ozone NAAQS. The Virginia portion of the Washington, DC–MD–VA nonattainment area is comprised of Arlington County, Fairfax County, Loudoun County, Prince William County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City.
Section 182 of the CAA identifies additional plan submissions and requirements for ozone nonattainment areas. Specifically, section 182(a)(3)(B) of the CAA requires that states develop and submit, as a revision to their SIP, rules which establish annual reporting requirements for certain stationary sources. Sources that are within marginal or above ozone nonattainment areas must annually report the actual emissions of NO
Additionally, portions of Virginia are included in the ozone transport region (OTR) established by Congress in section 184 of the CAA. The OTR is comprised of the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, and the Consolidated Metropolitan Statistical Area that includes the District of Columbia and portions of Virginia. The areas designated as in the Virginia portion of the OTR are as follows: Arlington County, Fairfax County, Loudoun County, Prince William County, Stafford County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City.
Pursuant to section 184(b)(2), any stationary source located in the OTR that emits or has the potential to emit at least 50 tpy of VOC shall be considered a major stationary source
In summary, sources located within the portions of Virginia included in the OTR, including areas designated as attainment for the 2008 ozone NAAQS, that emit more than 50 tpy of VOC or 100 tpy of NO
The EPA published guidance on source emissions statements in a July 1992 memorandum titled, “Guidance on the Implementation of an Emission Statement Program” and in a March 14, 2006 memorandum titled, “Emission Statement Requirements Under 8-hour Ozone NAAQS Implementation” (2006 memorandum). In addition, on March 6, 2015, EPA issued a final rule addressing a range of nonattainment area SIP requirements for the 2008 ozone NAAQS, including the emissions statement requirements of CAA section 182(a)(3)(B) (2015 final rule). 80 FR 12264. The 2006 memorandum clarified that the source emissions statement requirement of CAA section 182(a)(3)(B) was applicable to all areas designated nonattainment for the 1997 ozone NAAQS and classified as marginal or above under subpart 2, part D, title I of the CAA. Per EPA's 2015 final rule, the source emissions statement requirement also applies to all areas designated nonattainment for the 2008 ozone NAAQS.
According to EPA's 2015 final rule, most areas that are required to have an emissions statement program for the 2008 ozone NAAQS already have one in place due to a nonattainment designation for an earlier ozone NAAQS. EPA's 2015 final rule states that, “If an area has a previously approved emissions statement rule in force for the 1997 ozone NAAQS or the 1-hour ozone NAAQS that covers all portions of the nonattainment area for the 2008 ozone NAAQS, such rule should be sufficient for purposes of the emissions statement requirement for the 2008 ozone NAAQS.” In cases where an existing emissions statement rule is still adequate to meet the emissions statement requirement under the 2008 ozone NAAQS, states may provide the rationale for that determination to EPA in a written statement for approval into the SIP to meet the requirements of CAA section 182(a)(3)(B). In this statement, states should identify how the emissions statement requirements of CAA section 182(a)(3)(B) are met by their existing emissions statement rule.
In summary, Virginia is required to submit, as a formal revision to its SIP, a statement certifying that Virginia's existing emissions statement program satisfies the requirements of CAA section 182(a)(3)(B) and covers the Washington, DC–MD–VA nonattainment area for the 2008 ozone NAAQS.
On August 1, 2017, the Commonwealth of Virginia, through the Virginia Department of Environmental Quality (VADEQ), submitted, as a formal revision to its SIP, a statement certifying that Virginia's existing SIP-approved emissions statement program covers the Virginia portion of the Washington, DC–MD–VA nonattainment area for the 2008 ozone NAAQS and is at least as stringent as the requirements of CAA section 182(a)(3)(B). In its submittal, Virginia states that the emissions statement requirements of CAA section 182(a)(3)(B) are contained under 9VAC5–20–160 (Registration) of the Virginia Administrative Code and are SIP-approved under 40 CFR 52.2420(c). According to Virginia, these provisions mandate that facilities emitting more than 25 tpy of NO
The provisions under 9VAC5–20–160 that implement Virginia's emissions statement program were approved into the Virginia SIP on May 2, 1995 (60 FR 21451).
EPA's review of the Commonwealth of Virginia's submittal finds that Virginia's existing, SIP-approved emissions statement program under 9VAC5–20–160 satisfies the requirements of CAA section 182(a)(3)(B) for emission statements for sources located in marginal or above nonattainment areas including such sources in the Virginia portion of the Washington, DC–MD–VA nonattainment area for the 2008 ozone NAAQS. EPA notes 9VAC5–20–160 also requires sources located in portions of Virginia included in the OTR to submit required emission statements in accordance with CAA section 184 (OTR requirements) and 182 (plan submissions and requirements for ozone nonattainment areas). Pursuant to CAA sections 182 and 184, Virginia is required to have an emissions statement program for sources located in marginal or above nonattainment areas and the portions of Virginia included in the OTR. EPA finds the provisions under 9VAC5–20–160 satisfy these requirements of CAA sections 182 and 184 because they apply to the Northern Virginia Emissions Control Area, which includes the Virginia localities within the Virginia portion of the Washington, DC–MD–VA nonattainment area for the 2008 ozone NAAQS (
On March 12, 2018 (83 FR 10652), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. In the NPR, EPA found the Commonwealth's August 1, 2017 emissions statement program certification to be approvable under CAA section 182(a)(3)(B) and proposed to approve it as a revision to the Virginia SIP.
EPA received public comments on our March 12, 2018 proposal to approve Virginia's emissions statement certification for the 2008 ozone NAAQS. All of the submitted comments were either supportive of or not specific to this action and thus are not addressed here.
EPA is approving the Commonwealth's August 1, 2017 emissions statement program certification as a revision to the Virginia SIP.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1–1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1–1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1–1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1–1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.
• 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 as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 31, 2018. 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 approving Virginia's certification that its existing SIP-approved emissions statement program under 9VAC5–20–160 satisfies the requirements of CAA section 182(a)(3)(B) for the 2008 ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(1) * * *
Environmental Protection Agency (EPA).
Delegation of authority.
The States of Iowa, Kansas, Missouri, and Nebraska and the local agencies of Lincoln-Lancaster County, Nebraska, and the city of Omaha, Nebraska, have submitted updated regulations for delegation of EPA authority for implementation and enforcement of NSPS, NESHAP, and MACT standards. The submissions cover new EPA standards and, in some instances, revisions to standards previously delegated. EPA's review of the pertinent regulations shows that they contain adequate and effective procedures for the implementation and enforcement of these Federal standards. This action informs the public of delegations to the above-mentioned agencies. All sources subject to the requirements of EPA regulations are also subject to the equivalent requirements of the above-mentioned state or local agencies. For the current, most up-to-date, status of delegations to the above-mentioned agencies, please refer to the web pages in the “What does this action do?” section of this document.
This document is effective on June 1, 2018. The dates of delegation can be found in the
Copies of documents relative to this action are available for public inspection during normal business hours at the Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Road, Lenexa, Kansas 66219. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.
Effective immediately, all notifications, applications, reports, and other correspondence required pursuant to the newly delegated standards and revisions identified in this document must be submitted with respect to sources located in the jurisdictions identified in this document, to the following addresses:
Iowa Department of Natural Resources, Air Quality Bureau, Wallace State Office Building, 502 E 9th Street, Des Moines, Iowa 50319.
Kansas Department of Health and the Environment, Bureau of Air, 1000 SW Jackson Street, Suite 310, Topeka, Kansas 66612–1367.
Missouri Department of Natural Resources, Air Pollution Control Program, PO Box 176, Jefferson City, Missouri 65102–0176.
Nebraska Department of Environmental Quality, Air Quality Division, 1200 “N” Street, Suite 400, P.O. Box 98922, Lincoln, Nebraska 68509.
Lincoln-Lancaster County Health Department, Division of Environmental Public Health, Air Quality Section, 3140 “N” Street, Lincoln, Nebraska 68510
City of Omaha, Public Works Department, Air Quality Control Division, 5600 South 10th Street, Omaha, Nebraska 68107.
Duplicates of required documents must also continue to be submitted to the EPA Regional Office at the above address.
Ms. Paula Higbee at (913) 551–7028, or by email at
The supplementary information is organized in the following order:
EPA is providing notice of an update to its delegable authority for implementation and enforcement of the Federal standards shown in the tables below to the states of Iowa, Kansas, Missouri, and Nebraska. This action updates the delegation tables previously published at 80 FR 10596 (February 27, 2015). EPA has established procedures by which these agencies are automatically delegated the authority to implement the standards when they adopt regulations which are identical to the Federal standards. We then periodically provide notice of the new and revised standards for which delegation has been given. This document does not affect or alter the status of the listed standards under state or Federal law.
For the current, most up-to-date, status of delegations to the above-mentioned agencies, please refer to the following web pages:
1. Section 111(c)(1) of the Clean Air Act (CAA) authorizes EPA to delegate authority to any state agency which submits adequate regulatory procedures for implementation and enforcement of the NSPS program. The NSPS are codified at 40 CFR part 60.
2. Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorizes EPA to delegate authority to any state or local agency which submits adequate regulatory procedures for implementation and enforcement of emission standards for hazardous air pollutants. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63, respectively.
Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state and local air agencies. However, EPA also retains the concurrent authority to enforce the standards.
Tables I, II, and III below list the delegated standards. Each item listed in the Subpart column has two relevant dates listed in each column for each state. The first date in each block is the reference date to the CFR contained in the state rule. In general, the state or local agency has adopted the applicable standard through the date as noted in the table. The second date is the most recent effective date of the state agency rule for which the EPA has granted the delegation. This document specifically addresses revisions to the columns for Iowa, Kansas, Missouri, and Nebraska and the local agencies of Lincoln-Lancaster County, Nebraska, and the city of Omaha, Nebraska. If there are no dates listed in the delegation table, the state has not accepted delegation of the standard and implementation of those standards reside with EPA.
1. The EPA regulations effective after the first date specified in each block have not been delegated, and authority for implementation of these regulations is retained solely by EPA.
2. In some cases, the standards themselves specify that specific provisions cannot be delegated. In such cases, a specific section of the standard details what authorities can and cannot be delegated. You should review the applicable standard in the CFR for this information.
3. In some cases, the state rules do not adopt the Federal standard in its entirety. Each state rule (available from the respective agency) should be consulted for specific information.
4. In some cases, existing delegation agreements between the EPA and the agencies limit the scope of the delegated standards. Copies of delegation agreements are available from the state agencies, or from this office.
5. With respect to 40 CFR part 63, subpart A, General Provisions (see Table III), EPA has determined that sections 63.6(g), 63.6(h)(9), 63.7(e)(2)(ii) and (f), 63.8(f), and 63.10(f) cannot be delegated. Additional information is contained in 40 CFR 63.91(g)(2).
All sources subject to the requirements of 40 CFR parts 60, 61, and 63 are also subject to the equivalent requirements of the above-mentioned state or local agencies.
This document informs the public of delegations to the above-mentioned agencies of the above-referenced Federal regulations.
This document is issued under the authority of sections 101, 110, 112, and 301 of the CAA, as amended (42 U.S.C. 7401, 7410, 7412, and 7601).
Environmental Protection Agency (EPA).
Final rule.
On January 22, 2018, the State of South Carolina, through the Department of Health and Environmental Control (DHEC), submitted a request for the Environmental Protection Agency (EPA) to redesignate the Greenville-Spartanburg, South Carolina fine particulate matter (PM
This rule will be effective July 2, 2018.
EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR–2018–0017. All documents in the docket are listed on the
Madolyn Sanchez, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303–8960. Ms. Sanchez can be reached by telephone at (404) 562–9644 or via electronic mail at
On July 18, 1997 (62 FR 38652), EPA revised the NAAQS for particulate matter to add new standards for PM
The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the Clean Air Act (CAA). EPA and state air quality agencies initiated the monitoring process for the 1997 PM
Greenville County, South Carolina, had a monitor with less than three years of data because the monitor had not been in operation for the full 2001–2003 period. Based upon the data that was obtained during its operation, the monitor indicated a potential to violate the 1997 annual PM
On January 22, 2018, South Carolina submitted a request for EPA to redesignate the Greenville Area to unclassifiable/attainment for the 1997 annual PM
EPA is approving South Carolina's redesignation request and redesignating the Greenville Area from unclassifiable to unclassifiable/attainment for the 1997 primary and secondary annual PM
Under the CAA, redesignation of an area to unclassifiable/attainment is an action that affects the status of a geographical area and does not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to unclassifiable/attainment does not in and of itself create any new requirements. Accordingly, this action merely redesignates an area to unclassifiable/attainment and does not impose additional requirements. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because redesignations are exempted under Executive Order 12866;
• 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
• will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this action does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation is located within the State of South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27–16–120, “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” However, because no tribal lands are located within the Area and the redesignation does not create new requirements, EPA has determined that this rule does not have substantial direct effects on an Indian Tribe. EPA notes this action will not impose substantial direct costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 31, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.
Environmental protection, Air pollution control, National parks, Wilderness areas.
40 CFR part 81 is amended as follows:
42.U.S.C. 7401
Fish and Wildlife Service, Interior.
Final rule; document availability.
We, the U.S. Fish and Wildlife Service, are removing the plant
This rule becomes effective July 2, 2018.
This final rule and the post-delisting monitoring plan are available on the internet at
G. Mendel Stewart, Field Supervisor, Carlsbad Fish and Wildlife Office, 2177 Salk Avenue, Suite 250, Carlsbad, CA 92008; telephone 760–431–9440; facsimile (fax) 760–431–5901. If you use a telecommunications device for the deaf, call the Federal Relay Service at 800–877–8339.
In carrying out our responsibility to enforce the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531
Please refer to the proposed delisting rule for
A small portion of the population (36 individuals) of
Several studies have examined the breeding system, habitat parameters, and micro-distribution of
The soil seed bank provides a buffering mechanism for this taxon against the variability of its habitat conditions and periodic drought years. For example, there may be a year when Hidden Lake dries atypically fast or is subject to a seasonal inundation (
Surveys have shown that the population size of
Prior to listing, the Service and others were concerned that, without the protections and implementation of proper management actions,
A formal recovery plan for
(1) Continue Work With CDPR as Partners To Monitor Visitor Use at Hidden Lake;
(2) Monitor the Population and Habitat of
(3) Complete Collections for Seed Banking;
(4) Devise Long-Term Protocol for Seed Banking and Use of Seeds in Recovery; and
(5) Finalize the Conservation Strategy and a Long-Term Management Plan for the Subspecies, and a Long-Term Agreement With CDPR That Will Include Established Monitoring and the Implementation of an Adaptive Management Plan.
Existing conservation efforts for each of these actions are discussed below.
Monitoring of visitor use at Hidden Lake was conducted by CDPR from 2007 to 2015 (Kietzer 2011a, pp. 4–5). Although unauthorized access to the area appears to have been minimized (Fraga and Wall 2010, p. 5; Kietzer 2011a, pp. 4–5), CDPR will continue to monitor visitor use as described in the PDM plan. This action has been fully implemented, and we expect implementation to continue as part of the PDM plan and Conservation Strategy.
In coordination with the Service, CDPR and RSABG developed a monitoring protocol for
Collection of
The Conservation Strategy was used as the foundation for the PDM plan. Methods for long-term monitoring of this taxon are discussed further in the PDM plan (see
We have considered all comments and information received during the comment period for the proposed rule to delist
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species on, reclassifying species on, or removing species from the Lists of Endangered and Threatened Wildlife and Plants. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife
A recovered species is one that no longer meets the Act's definition of endangered species or threatened species. Determining whether a species is recovered requires consideration of whether the species is still an endangered species or threatened species because of any of the five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened species, this analysis of threats is an evaluation of both the threats currently facing the species and those that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting (
A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act does not define the term “foreseeable future.” For this final delisting rule, our forecast of future impacts is based on a review of the period of available data for each potential threat and, when possible, a projection of the situation at least for a similar time period into the future. For example:
• The effect of trampling on
Thus, for trampling, we have about a 15-year record of management actions to benefit
• The timeline for examining the effects of small populations is inherently difficult to assess, especially for an annual plant, and the effects are inherently difficult to address. This is especially true for a population that is naturally small, which is the case for
• Although information exists regarding potential impacts from climate change beyond a 50-year timeframe, the projections depend on an increasing number of assumptions, and thus become more uncertain with increasingly large timeframes. Therefore, a timeframe of 50 years is used to provide the best balance of scope of impacts considered, versus certainty of those impacts.
No threats to the habitat of
As described in the proposed rule and reaffirmed here, there are no threats now nor are there likely to be any threats in the future to
No threats to
In our discussions under Factors A, B, C, and E, we evaluate the significance of threats as mitigated by any conservation efforts and existing regulatory mechanisms. Where threats exist, we analyze the extent to which conservation measures and existing regulatory mechanisms address the specific threats to the species. Regulatory mechanisms, if they exist, may reduce or eliminate the impacts from one or more identified threats.
Although inadequacy of existing regulatory mechanisms was not specifically identified as a threat to
Under section 404 of the Federal CWA, the U.S. Army Corps of Engineers (Corps) regulates the discharge of fill material into waters of the United States, which include navigable and isolated waters, headwaters, and adjacent wetlands (33 U.S.C. 1344). Any action with the potential to impact waters of the United States must be reviewed under the Federal CWA, National Environmental Policy Act (42 U.S.C. 4321
As discussed above, the entire known distribution of
As a part of the 2002 general plan for Mount San Jacinto State Park, CDPR designated Hidden Lake and its associated watershed area as the Hidden Divide Natural Preserve (Preserve) (CDPR 2002, pp. 62–63). As a Preserve, the 255-ac (103-ha) area is afforded regulatory protection under California Public Resources Code section 5019.71, which states, “[t]he purpose of natural preserves shall be to preserve such features as rare or endangered plant and animal species and their supporting ecosystems.” This allows CDPR to manage Hidden Lake specifically for the conservation of
With funding from the Service's Showing Success Grant Program (a Service initiative, discontinued in 2012, that provided funding for final actions needed to bring a species to the point it could be downlisted or delisted), CDPR conducted a survey of the Preserve boundary and erected signs along the official trail informing visitors that off-trail hiking is prohibited in the Preserve. Additionally, these funds were used to install an automated weather station, conduct monitoring of unauthorized visitors, and establish monitoring protocols for
Additionally, CDPR has recently constructed the Hidden Divide Trail to minimize impacts to
Based on the regulatory mechanisms now available, CDPR will increase visitor monitoring and begin a zero-tolerance program, issuing citations to off-trail visitors within the Preserve (Fraga and Kietzer 2009, pp. 16–17). Finally, adaptive management techniques will be applied. For example, CDPR will monitor
Additionally, Hidden Lake and the Hidden Divide Natural Preserve are within an area designated as State Wilderness. California Public Resources Code section 5019.68 recognizes such areas “as areas where the earth and its community of life are untrammeled by man and where man himself is a visitor who does not remain.” California Public Resources Code sections 5093.30–5093.40, the California Wilderness Act, also states that wilderness areas, including Mount San Jacinto State Wilderness, “shall be administered for the use and enjoyment of the people in such manner as will leave them unimpaired for future use and enjoyment as wilderness, provide for the protection of such areas, [and] preserve their wilderness character.” As the Conservation Strategy for the subspecies notes, “Being within a Natural Preserve and a State Wilderness Area provides [
These protections enacted by the CDPR associated with the Preserve are expected to remain should this subspecies be delisted, and we conclude that these protections are adequate to reduce or eliminate existing or potential future threats to
We conclude that, in absence of the protections afforded by the Act, the other existing regulatory mechanisms will continue to provide adequate protections to ensure that threats to
In the 1998 final listing rule, we stated that
At the time of listing, we concluded that trampling was a threat to
Since listing, CDPR, in cooperation with RSABG staff, finalized the Conservation Strategy for
We expect that most of these measures to benefit
In the final listing rule (63 FR 49006, September 14, 1998), we described the vulnerabilities associated with low numbers, stating that the limited numbers and extremely localized range of
Based on new information since the time of listing, we now know that it is likely that
As noted in the 2013 5-year review (Service 2013, pp. 12–13), species known from only one or a few populations, or that exist in populations with low numbers of individuals, are more vulnerable to stochastic (random) events. For example, a fire, flood, or drought is likely to be more devastating to a small, localized population than to a large, widespread population. Though increased vulnerability to stochastic events has not been documented for
While it is possible that stochastic events could impact
Here, we consider observed or likely environmental changes resulting from ongoing and projected changes in climate. The 1998 listing rule did not discuss the potential impacts of climate change on
Scientific measurements spanning several decades demonstrate that changes in climate are occurring. In particular, warming of the climate system is unequivocal, and many of the observed changes in the last 60 years are unprecedented over decades to millennia (IPCC 2013b, p. 4). The current rate of climate change may be as fast as any extended warming period over the past 65 million years and is projected to accelerate in the next 30 to 80 years (National Research Council 2013, p. 5). Thus, rapid climate change is adding to other sources of extinction pressures, such as land use and invasive species, which will likely place extinction rates in this era among just a handful of the severe biodiversity crises observed in Earth's geological record (AAAS 2014, p. 17).
Examples of various other observed and projected changes in climate and associated effects and risks, and the bases for them, are provided for global and regional scales in reports issued by the IPCC (2013c, 2014), and similar types of information for the United States and regions within it can be found in the National Climate Assessment (Melillo
Results of scientific analyses presented by the IPCC show that most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate and is “extremely likely” (defined by the IPCC as 95 to 100 percent likelihood) due to the observed increase in greenhouse gas (GHG) concentrations in the atmosphere as a result of human activities, particularly carbon dioxide emissions from fossil fuel use (IPCC 2013b, p. 17 and related citations).
Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of GHG emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions. Model results yield very similar projections of average global warming until about 2030, and thereafter the magnitude and rate of warming vary through the end of the
Global climate projections are informative, and in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (
Various changes in climate may have direct or indirect effects on species. These may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables like habitat fragmentation (for examples, see Franco
Regional temperature observations are often used as an indicator of how climate is changing. The Western Regional Climate Center (WRCC) has defined 11 climate regions for evaluating various climate trends in California (Abatzoglou
Two indicators of temperature, the increase in mean temperature and the increase in maximum temperature, are important for evaluating trends in climate change in California. For the Southern Interior climate region, linear trends (evaluated over a 100-year time period) indicate an increase in mean temperatures (January through December) of approximately 1.71± 0.47 °F per 100 years (0.95 ± 0.26 °C per 100 years) since 1895, and 3.11± 1.16 °F per 100 years (1.73 ± 0.64 °C per 100 years) since 1949 (WRCC 2016). Similarly, the maximum temperature 100-year trend for the Southern Interior Region shows an increase of about 1.48 ± 0.57 °F per 100 years (0.82 ± 0.32 °C per 100 years) since 1895, and 2.54 ± 1.38 °F per 100 years (1.41 ± 0.77 °C per 100 years) since 1949 (WRCC 2016). It is logical to assume the rate of temperature increase for this region is higher for the second time period (
Climate models provide climate projections into the future, which help inform our evaluations of potential future impacts, but these projections become more uncertain with increasingly large timeframes. Pierce
Simulations using these downscaling methods project an increase in yearly temperature for the Southern California Mountains region ranging from 3.78 °F to 5.22 °F (2.1 °C to 2.9 °C) by the 2060s time period, compared to 1985–1994 (Pierce
While we do not have information to suggest warmer temperatures will directly impact
Higher temperatures can also be expected to result in increased evaporation, which suggests that Hidden Lake will likely dry more quickly over a season. However, the effects of increased evaporation to habitat occupied by
Precipitation patterns can also be used as an indicator of how climate is changing. We obtained yearly precipitation data for the Idyllwild region of the San Jacinto Mountains from the National Oceanic and
Management actions implemented at Hidden Lake by CDPR in recent years have reduced the threat of trampling to a minimal level. At the time of listing, we were concerned that low numbers of individuals in some years threatened the existence of
In the proposed rule published on January 5, 2017 (82 FR 1296), we requested that all interested parties submit written comments on the proposal by March 6, 2017. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing. Another comment period was opened on November 1, 2017, for 30 days in order to publish a legal notice and to give all interested parties further opportunity to comment on the proposed rule to delist
During the comment periods for the proposed rule, we received a total of 17 comment letters or statements directly addressing the proposed action. These included 4 comments from peer reviewers and 13 comments during open comment periods (1 from the State and 12 from the general public) that are posted on Federal docket no. FWS–R8–ES–2016–0127. Three of the public comments (including comments from the State) supported the proposed action to delist
In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from seven knowledgeable individuals with scientific expertise that included familiarity with
We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding the delisting of
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is “in danger of extinction throughout all or a significant portion of its range,” and a “threatened species” as a species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following 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. The same factors apply whether we are analyzing the species' status throughout all of its range or throughout a significant portion of its range.
On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). Aspects of that policy were vacated for species that occur in Arizona by the United States District Court for the District of Arizona.
Our final policy addresses the consequences of finding a species is in danger of extinction in an SPR, and what would constitute an SPR. The final policy states that (1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as an endangered species or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service or the National Marine Fisheries Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid distinct population segment (DPS), we will list the DPS rather than the entire taxonomic species or subspecies.
The SPR policy applies to analyses for all status determinations, including listing, delisting, and reclassification determinations. As described in the first element of our policy, once the Service determines that a “species”—which can include a species, subspecies, or DPS—meets the definition of “endangered species” or “threatened species,” the species must be listed in its entirety and the Act's protections applied consistently to all individuals of the species wherever found (subject to modification of protections through special rules under sections 4(d) and 10(j) of the Act).
For the second element, the policy sets out the procedure for analyzing whether any portion is an SPR; the procedure is similar, regardless of the type of status determination we are making. The first step in our assessment of the status of a species is to determine its status throughout all of its range. We subsequently examine whether, in light of the species' status throughout all of its range, it is necessary to determine its status throughout a significant portion of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered (or threatened) species and no SPR analysis is required. The policy explains in detail the bases for this conclusion—including that this process ensures that the SPR language provides an independent basis for listing; maximizes the flexibility of the Service to provide protections for the species; and eliminates the potential confusion if a species could meet the definitions of both “endangered species” and “threatened species” based on its statuses throughout its range and in a significant portion of its range.
No threats attributable to Factors A, B, or C were identified at the time
We now have sufficient data to show that management enacted by CDPR to benefit
Trampling by humans has been minimized, and no visible impacts to
Since listing, we have become aware of the potential for anthropogenic climate change to affect all biota, including
Ongoing management by CDPR and protections provided by designation as a State Wilderness Area as well as designation as the Hidden Lake Divide Natural Preserve work to protect this area from development or other habitat disturbance. Management by State Parks has successfully ameliorated threats to the species and the species' adaptations,
Consistent with our interpretation that there are two independent bases for listing species as described above, after examining the status of Hidden Lake bluecurls throughout all of its range, we now examine whether it is necessary to determine its status throughout a significant portion of its range. Per our final SPR policy, we must give operational effect to both the “throughout all” of its range language and the SPR phrase in the definitions of “endangered species” and “threatened species.” We have concluded that to give operational effect to both the “throughout all” language and the SPR phrase, the Service should conduct an SPR analysis if (and only if) a species does not warrant listing according to the “throughout all” language.
If the species is neither endangered nor threatened throughout all of its range, we determine whether the species is endangered or threatened throughout a significant portion of its range. To undertake this analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose in analyzing portions of the range that have no reasonable potential to be significant or in analyzing portions of the range in which there is no reasonable potential for the species to be endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that there are any portions of the species' range: (1) That may be “significant”
In practice, one key part of identifying portions for further analysis may be whether the threats or effects of threats are geographically concentrated in some way. If a species is not in danger of extinction or likely to become so in the foreseeable future throughout all of its range and the threats to the species are essentially uniform throughout its range, then the species is not likely to be in danger of extinction or likely to become so in the foreseeable future in any portion of its range and no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the species' range that are not “significant,” such portions will not warrant further consideration.
We evaluate the significance of the portion of the range based on its biological contribution to the conservation of the species. For this reason, we describe the threshold for “significant” in terms of an increase in the risk of extinction for the species. We conclude in our policy that such a biologically based definition of “significant” best conforms to the purposes of the Act, is consistent with judicial interpretations, and best ensures species' conservation. We determine if a portion's biological contribution is so important that the portion qualifies as “significant” by asking whether,
If we identify any portions (1) that may be significant and (2) where the species may be in danger of extinction or likely to become so in the foreseeable future, we engage in a more-detailed analysis to determine whether these standards are indeed met. The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species is in danger of extinction or likely to become so in the foreseeable future in that identified SPR. We must go through a separate analysis to determine whether the species is in danger of extinction or likely to become so in the SPR. To make that determination, we will use the same standards and methodology that we use to determine if a species is in danger of extinction or likely to become so in the foreseeable future throughout all of its range.
If we have identified portions of the species' range for further analysis, we conduct a detailed analysis of the significance of the portion and the status of the species in that portion. Depending on the biology of the species, its range, and the threats it faces, it might be more efficient for us to address the significance question first or the status question first. If we address significance first and determine that a portion of the range is not “significant,” we do not need to determine whether the species is in danger of extinction or likely to become so in the foreseeable future there; if we address the status of the species in portions of its range first and determine that the species is not in danger of extinction or likely to become so in a portion of its range, we do not need to determine if that portion is “significant.”
Applying the process described above, to identify whether any portions warrant further consideration for
First, we will consider whether there is substantial information to indicate that
We conclude that there are no portions of the subspecies' range that are likely to be both significant and be in danger of extinction or likely to become so in the foreseeable future. Therefore, no portion warrants further consideration to determine whether the subspecies is in danger of extinction or likely to become so in a significant portion of its range.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to
The Act sets forth a series of general prohibitions and exceptions that apply to all endangered plants. The Act's implementing regulations extend most of the prohibitions provided under section 9(a)(2) of the Act to threatened plants (see 50 CFR 17.61 and 17.71). It is illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or remove and reduce
Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a system to monitor effectively, for not less than 5 years, all species that have been recovered and delisted. The purpose of this post-delisting monitoring is to verify that a species remains secure from risk of extinction after it has been removed from the protections of the Act. The monitoring is designed to detect the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing under section 4(b)(7) of the Act. Section 4(g) of the Act explicitly requires us to cooperate with the States in development and implementation of post-delisting monitoring programs, but we remain responsible for compliance with section 4(g) of the Act and, therefore, must remain actively engaged in all phases of post-delisting monitoring. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation post-delisting.
We prepared a PDM plan for
(1) Summarizes the status of
(2) Describes frequency and duration of monitoring;
(3) Discusses monitoring methods and potential sampling regimes;
(4) Defines what potential triggers will be evaluated for additional monitoring;
(5) Outlines reporting requirements and procedures;
(6) Indicates what additional research is needed to implement the PDM plan; and
(7) Proposes a schedule for implementing the PDM plan and defines responsibilities.
It is our intent to work with our partners towards maintaining the recovered status of
We determined that we do not need to prepare an environmental assessment or an environmental impact statement, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
A complete list of all references cited in this final rule is available on the internet at
The primary author of this final rule is the Carlsbad Fish and Wildlife Office in Carlsbad, California, in coordination with the Pacific Southwest Regional Office in Sacramento, California.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; and 4201–4245, unless otherwise noted.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 777–200 and –300 series airplanes. This proposed AD was prompted by reports of unreliable performance of the water and fuel scavenge system; failure of the fuel scavenge function can cause trapped fuel, resulting in unavailable fuel reserves. This proposed AD would require incorporating operating limitations, or modifying the water and fuel scavenge systems in the fuel tanks and certain electrical panels. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 16, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For Boeing service information identified in this NPRM, 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 view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206–231–3195. Boeing service information is also available on the internet at
You may examine the AD docket on the internet at
Kevin Nguyen, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206–231–3555; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We have received reports of unreliable performance of the water and fuel scavenge system; failure of the fuel scavenge function can cause trapped fuel, resulting in unavailable fuel reserves. During flight, any water in the fuel can sink to the bottom of the fuel tank. This water can enter the fuel scavenge inlets and can then freeze as it travels from the body center fuel tank into the colder fuel scavenge tubes in the left and right cheek center fuel tanks (outboard of the side of body ribs). The flow of scavenge fuel from the center fuel tank to the main fuel tanks can then decrease or stop. When this occurs, as much as 700 pounds of fuel can remain unavailable during flight. If the fuel quantity decreases to the quantity of the unavailable fuel, then fuel exhaustion will occur, which could lead to subsequent power loss of all engines.
We issued AD 2002–16–15, Amendment 39–12854 (67 FR 54333, August 22, 2002), applicable to certain Boeing Model 777 series airplanes, that requires modification of the supports for the wire bundles of the fuel quantity indicator system (FQIS), and follow-on actions if necessary. AD 2002–16–15 was issued to prevent chafing of the FQIS wiring on surrounding structures and system, which could result in exposure of the bare conductor in close proximity to structures or other electrically conductive return paths, and potential electrical arcing and explosion in the fuel tank in the event of an additional wiring failure outside the fuel tank. Paragraph (a)(2) of AD 2002–16–15 requires modifying the supports for the FQIS wire bundles in the center fuel tank (including installing spacers on the FQIS wiring support brackets and standoffs, installing a clamp next to the grommet at each tank unit, and replacing the clamp filler O-rings), in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777–28–0016, dated April 27, 2000.
This proposed AD would require incorporating operating limitations, or modifying the water and fuel scavenge systems in the fuel tanks and certain electrical panels.
Boeing Special Attention Service Bulletin 777–28–0082, Revision 1, dated May 1, 2017, provides instructions to modify the fuel tanks scavenge system. For airplanes identified as Groups 1 through 4 and 7 through 14 in Boeing Special Attention Service Bulletin 777–28–0082, Revision 1, dated May 1, 2017, a minor adjustment to a certain FQIS wire bundle routing to allow the installation of a new fuel scavenge tube would need to be made. Although this minor adjustment is a deviation from the wire routing layout required by paragraph (a)(2) of AD 2002–16–15, the separation of the wire bundles from chafing and rubbing against a new fuel scavenge inlet tube is maintained, which is the safety objective of AD 2002–16–15.
Because of the difference in the FQIS wire bundle routing required in paragraph (a)(2) of AD 2002–16–15 and routing specified in paragraph (h) of this proposed AD, we have determined that operators of airplanes identified as Groups 1 through 4 and 7 through 14 in Boeing Special Attention Service Bulletin 777–28–0082, Revision 1, dated May 1, 2017, would need an alternative method of compliance (AMOC) to paragraph (a)(2) of AD 2002–16–15. Therefore, paragraph (j)(5) of this proposed AD specifies that accomplishment of the engine fuel feed system modification specified in paragraph (h) of this proposed AD is acceptable for compliance with the routing requirements of fuel quantity indicating system wire bundle W8011 in the left side of the body center fuel tank specified in paragraph (a)(2) of AD 2002–16–15.
We reviewed Boeing Special Attention Service Bulletin 777–28–0082, Revision 1, dated May 1, 2017. This service information describes procedures for changing the water and fuel scavenge systems in the fuel tanks on each side of the airplane. The FQIS wire bundle W8011 adjustment is intended to prevent the wire bundle from rubbing with a new fuel scavenge inlet tube. Additionally, this service information describes procedures for making electrical changes in the main equipment center, including installing additional relays on the P301 and P302 panels, and making wiring changes. Also, this service information describes procedures for installing new electrical load management system 1 (ELMS1) software.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in Boeing Special Attention Service Bulletin 777–28–0082, Revision 1, dated May 1, 2017, except for any differences identified as exceptions in the regulatory text of this proposed AD.
For information on the procedures, see this service information at
We estimate that this proposed AD affects 111 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.
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 proposed 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.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 16, 2018.
This AD affects AD 2002–16–15, Amendment 39–12854 (67 FR 54333, August 22, 2002).
This AD applies to The Boeing Company Model 777–200 and –300 series airplanes, certificated in any category, as identified in Boeing Special Attention Service Bulletin 777–28–0082, Revision 1, dated May 1, 2017.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by reports of unreliable performance of the water and fuel scavenge system; failure of the fuel scavenge function can cause trapped fuel, resulting in unavailable fuel reserves. We are issuing this AD to prevent loss of capability to scavenge fuel in the center fuel tank, which could lead to fuel exhaustion and subsequent power loss of all engines.
Comply with this AD within the compliance times specified, unless already done.
Within 36 months after the effective date of this AD: Revise the operating limitations in the documents specified in paragraphs (g)(1) and (g)(2) of this AD to include the text in figure 1 to paragraph (g) of this AD.
(1) “Fuel System—Loading” section of the “Certificate Limitations” section of the FAA-approved Boeing Model 777 Airplane Flight Manual.
(2) “Loading Limitations” section of the “Fuel Loading Procedures” section of the “Fuel Management” section of the FAA-approved Boeing Model 777 Weight and Balance Control and Loading Manual.
Modifying the fuel tank fuel and water scavenge systems, modifying the fuel jettison system, making electrical changes in the main equipment center, modifying the wiring in the ELMS P110 and 210 panels, and installing new electrical load management system 1 (ELMS1) software, by doing all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777–28–0082, Revision 1, dated May 1, 2017, is an optional terminating action to the requirements of paragraph (g) of this AD.
This paragraph provides credit for the actions specified in paragraph (h) of this AD, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 777–28–0082, dated May 26, 2016.
(1) The Manager, Seattle 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 ACO branch, send it to the attention of the person identified in paragraph (k)(1) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, 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, Seattle ACO, 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 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.
(5) For airplanes in Groups 1 through 4, and 7 through 14, as defined in Boeing Special Attention Service Bulletin 777–28–0082, Revision 1, dated May 1, 2017: Accomplishment of the engine fuel feed system modification specified in paragraph (h) of this AD is acceptable for compliance with the routing requirements of fuel quantity indicating system wire bundle W8011 in the left side of the body center fuel tank specified of in paragraph (a)(2) of AD 2002–16–15, provided all provisions of AD 2002–16–15 that are not specifically
(1) For more information about this AD, contact Kevin Nguyen, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206–231–3555; email:
(2) For Boeing 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; telephone 562–797–1717; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for Bell Helicopter Textron Canada (BHTC) Model 427 helicopters. This proposed AD would require inspecting the inboard skin of the vertical fin around the four tailboom attachment points. This proposed AD is prompted by reports of cracked vertical fin skins that resulted from metal fatigue. The actions of this proposed AD are intended to prevent an unsafe condition on these products.
We must receive comments on this proposed AD by July 31, 2018.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
For service information identified in this proposed rule, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437–2862 or (800) 363–8023; fax (450) 433–0272; or at
Matt Fuller, Senior Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222–5110; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
Transport Canada, which is the aviation authority for Canada, has issued Canadian AD No. CF–2017–03, dated January 31, 2017, to correct an unsafe condition for BHTC Model 427 helicopters with vertical fin part number (P/N) 427–035–840–105 or P/N 427–035–840–109 installed. Transport Canada advises of three reports of cracked vertical fin skins that resulted from metal fatigue. If not detected, the crack may grow to a critical length, causing the fin to fail, separate from the helicopter and damage the main or tail rotor blades, leading to their in-flight failure. Loss of the fin may also adversely affect the helicopter's directional stability, leading to loss of directional control, Transport Canada advises.
Transport Canada consequently requires repetitively inspecting the vertical fins for a crack, and if a crack is detected, replacing the fin before further flight.
These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to our bilateral agreement with Canada, Transport Canada, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.
We reviewed Bell Helicopter Alert Service Bulletin 427–15–38, Revision A, dated November 14, 2016, which specifies recurring inspections of the vertical fins every 100 hours time-in-service (TIS) once the vertical fin has accumulated 1,500 hours TIS. This inspection also was incorporated in Chapter 4 of the maintenance manual. This service information also specifies
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
This proposed AD would require within 25 hours TIS or before the helicopter has accumulated 1,500 hours TIS, whichever occurs later and thereafter at intervals not to exceed 100 hours TIS:
• Removing and cleaning the vertical fin attachment area.
• Using a 10X magnifying glass, visually inspecting the inboard skin of the vertical fin around the four tailboom attachment points for a crack and replacing the fin before further flight if there is a crack.
• Assigning a serial number if the vertical fin does not have a serial number.
We estimate that this proposed AD would affect 27 helicopters of U.S. Registry and that labor costs average $85 a work hour. Based on these estimates, we expect the following costs:
• Performing the visual inspection would require 2.25 work-hours and no parts for a cost of about $191 per helicopter and $5,157 for the U.S. fleet per inspection cycle.
• Replacing the fin would require 4 work-hours, and parts would cost $10,000, for a cost of $10,340 per helicopter.
• Assigning a serial number to the fin would require 0.5 work-hour for a cost of $43 per helicopter.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to Bell Helicopter Textron Canada Limited Model 427 helicopters with a vertical fin part number (P/N) 427–035–840–105 or P/N 427–035–840–109 installed, certificated in any category.
This AD defines the unsafe condition as a crack on the vertical fin skin. This condition could lead to structural failure of the fin, separation of the skin from the helicopter, damage to the main or tail rotor blades and loss of helicopter control.
We must receive comments by July 31, 2018.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
Within 25 hours time-in-service (TIS) or before the helicopter has accumulated 1,500 hours TIS, whichever occurs later, and thereafter at intervals not to exceed 100 hours TIS:
(1) Remove the vertical fin and clean the vertical fin attachment area with a soap solution to remove all traces of dirt, stains, exhaust residue, and oil. Rinse the area with water and let dry.
(i) Using a 10X power magnifying glass, visually inspect the inboard skin of the vertical fin for a crack around the four tailboom attachment points as depicted in Figure 1 of Bell Helicopter Alert Service Bulletin 427–15–38, Revision A, dated November 14, 2016. Pay particular attention to the upper aft attachment point.
(ii) If there is a crack, replace the vertical fin before further flight.
(2) If the vertical fin does not have a serial number, assign a serial number using the helicopter serial number, and permanently mark the new serial number on the vertical fin data plate. Create a component history card or equivalent record and annotate the serial number.
(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Matt Fuller, Senior Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
The subject of this AD is addressed in Transport Canada AD No. CF–2017–03, dated January 31, 2017. You may view the Transport Canada AD on the internet at
Joint Aircraft Service Component (JASC) Code: 5300, Fuselage Structure (General).
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Austro Engine GmbH model E4 engines and for all model E4P engines. This proposed AD was prompted by reports of considerable wear on the timing chain on these engines. This proposed AD would require replacement of the timing chain and amending certain airplane flight manuals to limit use of windmill restarts. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 16, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Austro Engine GmbH, Rudolf-Diesel-Strasse 11, A–2700 Weiner Neustadt, Austria; phone: +43 2622 23000; fax: +43 2622 23000–2711; internet:
You may examine the AD docket on the internet at
Barbara Caufield, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781–238–7146; fax: 781–238–7199; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2017–0103, dated June 14, 2017 (referred to after this as the MCAI), to correct an unsafe condition for the specified products. The MCAI states:
Considerable wear of the timing chain has been detected on some engines. This may have been caused by windmilling restarts, which are known to cause high stress to the timing chain.
This condition, if not detected and corrected, could lead to failure of the timing chain and consequent engine power loss, possibly resulting in reduced control of the aeroplane.
To address this potential unsafe condition, Austro Engine included instructions in the engine maintenance manual to periodically inspect the condition of the timing chain and, depending on findings, to replace the timing chain and the chain wheel. The operation manual was updated to allow windmilling restart only as an emergency procedure.
More recently, Austro Engines published Mandatory Service Bulletin (MSB) MSB–E4–017/2, providing instructions to replace the timing chain for engines with known windmilling restarts. For the reason described above, this [EASA] AD requires replacement of the timing chain for engines with known windmilling restarts, and requires amendment of the applicable Aircraft Flight Manual (AFM).
You may obtain further information by examining the MCAI in the AD docket on the internet at
We reviewed Austro Engine GmbH Mandatory Service Bulletin (MSB) No. MSB–E4–017/2, dated December 2, 2016. The MSB describes procedures for replacement of the timing chain. 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
This product has been approved by EASA, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all the relevant information provided by EASA and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require replacement of the timing chain and amending certain airplane flight manuals to limit use of windmill restarts.
We estimate that this proposed AD affects 211 engines installed on airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
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.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 16, 2018.
None.
This AD applies to Austro Engine GmbH model E4 engines with serial numbers that have a “–B” or “–C” configuration and to model E4P engines, all serial numbers.
Joint Aircraft System Component (JASC) Code 8520, Reciprocating Engine Power Section.
This AD was prompted by reports of considerable wear on the timing chain on these engines. We are issuing this AD to prevent failure of the engine timing chain. The unsafe condition, if not addressed, could result in failure of the engine timing chain, loss of engine thrust control, and reduced control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Determine whether the engine is a Group 1 or Group 2 engine as follows.
(i) A Group 1 engine is an engine equipped with a timing chain that was installed on an engine that experienced a windmill restart, or an engine in which it cannot be determined if the engine experienced any windmilling restarts.
(ii) A Group 2 engine is an engine that is equipped with a timing chain that has not experienced any windmilling restarts.
(2) For Group 1 engines: Before the affected timing chain exceeds 945 engine flight hours (EFHs) since installation on an engine, or within 110 EFHs after the effective date of this AD, whichever occurs later, replace the timing chain in accordance with the instructions in Technical Details, Paragraph 2, in Austro Engine Mandatory Service Bulletin (MSB) No. MSB–E4–017/2, dated December 2, 2016.
(3) For Group 1 and Group 2 engines: After the effective date of this AD, following each windmill restart of an engine, before the timing chain of that engine exceeds 945 EFHs since first installation on an engine, or within 110 EFHs after that windmilling restart, whichever occurs later, replace the timing chain in accordance with the instructions in Technical Details, Paragraph 2, in Austro Engine MSB No. MSB–E4–017/2, dated December 2, 2016.
(4) For Group 1 and Group 2 engines: Within 30 days after the effective date of this AD, amend the applicable Airplane Flight Manual under Emergency Procedures by adding the information in figure 1 to paragraph (g)(4) of this AD to limit the use of a windmilling restart to only an emergency procedure.
(1) The Manager, ECO 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 ECO Branch, send it to the attention of the person identified in paragraph (i)(1) of this AD. You may email your request 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.
(1) For more information about this AD, contact Barbara Caufield, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781–238–7146; fax: 781–238–7199; email:
(2) Refer to European Aviation Safety Agency AD 2017–0103, dated June 14, 2017, for more information. You may examine the EASA AD in the AD docket on the internet at
(3) For service information identified in this AD, contact Austro Engine GmbH, Rudolf-Diesel-Strasse 11, A–2700 Weiner Neustadt, Austria; phone: +43 2622 23000; fax: +43 2622 23000–2711; internet:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all Airbus Model A310 series airplanes. This proposed AD was prompted by a determination that new or more restrictive maintenance requirements and airworthiness limitations are necessary. This proposed AD would require revising the maintenance or inspection program, as applicable, to
We must receive comments on this proposed AD by July 16, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
You may examine the AD docket on the internet at
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206–231–3225.
We invite you to send any written relevant data, views, or arguments about this proposal AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017–0206, dated October 12, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A310 series airplanes. The MCAI states:
The airworthiness limitations for the Airbus A310 aeroplanes, which are approved by EASA, are currently defined and published in the Airbus A310 Airworthiness Limitations Section (ALS) documents. The Damage Tolerant Airworthiness Limitation Items are specified in the A310 ALS Part 2. These instructions have been identified as mandatory for continuing airworthiness.
Failure to accomplish these instructions could result in an unsafe condition.
EASA previously issued AD 2016–0217 [which corresponds to FAA AD 2017–21–08, Amendment 39–19079 (82 FR 48904, October 23, 2017) (“AD 2017–21–08”)] to require compliance with the maintenance requirements and associated airworthiness limitations defined in Airbus A310 ALS Part 2 Revision 01, Variation 1.1 and Variation 1.2.
Since that [EASA] AD was issued, new or more restrictive maintenance requirements and associated airworthiness limitations were approved by the EASA. Consequently, Airbus published Revision 02 of the A310 ALS Part 2, compiling all ALS Part 2 changes approved since previous Revision 01.
For the reason described above, this [EASA] AD retains the requirements of EASA AD 2016–0217, which is superseded, and requires accomplishment of the actions specified in Airbus A310 ALS Part 2 Revision 02.
The unsafe condition is fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane. You may examine the MCAI in the AD docket on the internet at
This NPRM would not supersede AD 2017–21–08. Rather, we have determined that a stand-alone AD would be more appropriate to address the changes in the MCAI. This NPRM would require revising the maintenance or inspection program to incorporate the new maintenance requirements and airworthiness limitations. Accomplishment of the proposed actions would then terminate all requirements of AD 2017–21–08.
Airbus has issued A310 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT–ALI),” Revision 02, dated August 28, 2017. This service information describes airworthiness limitations applicable to the DT–ALIs. 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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
We estimate that this proposed AD affects 6 airplanes of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We have determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
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 proposed 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.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 16, 2018.
This AD affects AD 2017–21–08, Amendment 39–19079 (82 FR 48904, October 23, 2017) (“AD 2017–21–08”).
This AD applies to Airbus Model A310–203, –204, –221, –222, –304, –322, –324, and –325 airplanes, certificated in any category, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 05, Time limits/maintenance checks.
This AD was prompted by a determination that new or more restrictive maintenance requirements and airworthiness limitations are necessary. We are issuing this AD to prevent fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 90 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the information specified in Airbus A310 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT–ALI),” Revision 02, dated August 28, 2017. The initial compliance time for doing the tasks is at the time specified in Airbus A310 Airworthiness Limitations Section (ALS), Part 2, “Damage Tolerant Airworthiness Limitation Items (DT–ALI),” Revision 02, dated August 28, 2017, or within 90 days after the effective date of this AD, whichever occurs later.
After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishing the actions required by this AD terminates all requirements of AD 2017–21–08.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206–231–3225.
(3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to revise Airworthiness Directive (AD) 2014–05–06 for Eurocopter Deutschland GmbH Model EC135 and MBB–BK 117C–2 helicopters. AD 2014–05–06 requires repetitive inspections of the flight-control bearings, replacing any loose bearings with airworthy flight-control bearings, and installing bushings and washers. This proposed AD would retain the requirements of AD 2014–05–06 but would remove the repetitive inspections. The actions of this proposed AD are intended to correct an unsafe condition on these products.
We must receive comments on this proposed AD by July 31, 2018.
You may send comments by any of the following methods:
•
•
•
•
You may examine the AD docket on the internet at
For service information identified in this proposed rule, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
Matt Fuller, Senior Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222–5110; email
We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.
EASA, which is the Technical Agent for the Member States of the European Union, issued EASA AD No. 2010–0058, dated March 30, 2010, for Eurocopter Deutschland GmbH (now Airbus Helicopters Deutschland GmbH) Model EC135, EC635, and MBB–BK 117C–2 helicopters. EASA advises that during an inspection of an MBB–BK117 C–2, “bearings were detected which had not been correctly fixed.” EASA advises that this condition, if not detected and corrected, may cause the affected control lever to shift in the axial direction and contact the helicopter structure, possibly resulting in reduced helicopter control. As some bearings on the EC135 and MBB–BK 117C–2 helicopter are installed with the same procedure, they are equally affected by the possibility of the unsafe condition, EASA advises.
As a result, we published AD 2014–05–06 (79 FR 13196, March 10, 2014), which requires repetitively inspecting the flight-control bearings, replacing any loose bearings with an airworthy flight-control bearing, and installing bushings and washers.
Since we published AD 2014–05–06, EASA issued AD No. 2010–0058R1, dated April 7, 2017, to remove the repetitive inspections required by EASA AD No. 2010–0058. EASA advises that a review of data and feedback from in-service helicopters determined the Airbus Helicopters modification removes the need for repetitive inspections. We have made a similar determination and are issuing this proposed AD to remove the repetitive inspections required by AD 2014–05–06.
These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.
Eurocopter issued Alert Service Bulletin (ASB) EC135–67A–019, Revision 3, dated December 16, 2009, for Model EC135-series helicopters, and ASB MBB–BK117 C–2–67A–010, Revision 3, dated February 8, 2010, for Model MBB–BK 117C–2 helicopters. This service information specifies a repetitive inspection of the affected bearings and retrofitting bushings on the levers to prevent movement of the bearings.
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 Airbus Helicopters ASB EC135–67A–019 for Model EC135-series helicopters and ASB MBB–BK117C–2–67A–010 for Model MBB–BK 117C–2 helicopters, both Revision 4 and both dated April 3, 2017. This service information removes the repetitive inspections and retains the procedures for retrofitting the bushings on the levers to prevent movement of the bearings. Revision 3 of this service information is attached as an appendix to Revision 4.
For EC135 helicopters, this proposed AD would require within 100 hours time-in-service (TIS) or at the next annual inspection, whichever occurs first, modifying the left-hand (LH) and right-hand (RH) guidance units and cyclic shaft by installing bushings and washers to prevent shifting in the axial direction.
For MBB–BK 117C–2 helicopters, this proposed AD would require within 100 hours TIS or at the next annual inspection, whichever occurs first, modifying the LH and RH guidance units and the lateral control lever by installing bushings and washers to prevent shifting of the bearings in the axial direction.
Differences between this AD and the EASA AD are:
• The EASA AD is applicable to EC 635-series helicopters, whereas this proposed AD would not because these model helicopters have no U.S. type certificate.
• The EASA AD requires the modification within the next 12 months after April 13, 2010. This proposed AD would require the modification within 100 hours TIS or at the next annual inspection, whichever occurs first.
We estimate that this AD affects 295 Model EC135-series helicopters and 117 Model MBB–BK 117C–2 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect the following costs:
• For EC135 helicopters, completing the required modification would require about 32 work-hours and parts would cost about $312, for a total cost of $3,032 per helicopter and $894,400 for the U.S. fleet.
• For MBB–BK 117C–2 helicopters, completing the required modification would require about 32 work-hours and parts would cost about $396, for a total cost of $3,116 per helicopter and $364,572 for the U.S. fleet.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD applies to the following Airbus Helicopters Deutschland GmbH (previously Eurocopter Deutschland GmbH) helicopters, certificated in any category:
(1) Model EC135 P1, P2, P2+, T1, T2, and T2+ helicopters, serial number (S/N) 0005 through 00829, with a tail rotor control lever, part number (P/N) L672M2802205 or L672M1012212; cyclic control lever, P/N L671M1005250; collective control lever assembly, P/N L671M2020108; or collective control plate, P/N L671M5040207; installed, and
(2) Model MBB–BK 117C–2 helicopters, S/N 9004 through 9310, with a tail rotor control lever assembly, P/N B672M1007101 or B672M1807101; tail rotor control lever, P/N
This AD defines the unsafe condition as incorrectly installed flight control bearings. This condition could cause the affected control lever to shift and contact the helicopter structure, resulting in reduced control of the helicopter.
We must receive comments by July 31, 2018.
You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.
(1) For Model EC135 P1, P2, P2+, T1, T2, and T2+ helicopters: Within the next 100 hours time-in-service (TIS) or at the next annual inspection, whichever occurs first, modify the left-hand (LH) and right-hand (RH) guidance units and the cyclic shaft by installing bushings and washers to prevent shifting of the bearings in the axial direction as follows:
(i) Remove and disassemble the LH guidance unit and install a bushing, P/N L672M1012260, between the bearing block and the lever of the LH guidance unit as depicted in Detail A of Figure 5 of Eurocopter Alert Service Bulletin EC135–67A–019, Revision 3, dated December 16, 2009 (EC135 ASB).
(ii) For helicopters without a yaw brake, remove and disassemble the RH guidance unit and install a bushing, P/N L672M1012260, between the bearing block and the lever as depicted in Detail B of Figure 5 of EC135 ASB.
(iii) Remove and disassemble the cyclic shaft and install a washer, P/N L671M10055260, between the bearing block and the lever as depicted in Detail C of Figure 6 of EC135 ASB.
(iv) Remove the collective control rod from the bellcrank and install a washer, P/N L221M1042208, on each side of the collective control rod and bellcrank as depicted in Detail D of Figure 6 of EC135 ASB.
(2) For Model MBB–BK 117C–2 helicopters: Within the next 100 hours TIS or at the next annual inspection, whichever occurs first, modify the LH and RH guidance units and the lateral control lever by installing bushings and washers to prevent shifting of the bearings in the axial direction as follows:
(i) Remove and disassemble the RH guidance unit and install a bushing, P/N L672M1012260, between the lever and the bracket as depicted in Detail B of Figure 4 of Eurocopter Alert Service Bulletin MBB BK117C–2–67A–010, Revision 3, dated February 8, 2010 (BK117 ASB). Remove and disassemble the LH guidance unit and install a bushing, P/N L672M1012260, between the lever and the bracket as depicted in Detail C of Figure 4 of BK117 ASB.
(ii) Remove the lateral control lever and install new bushings in accordance with the Accomplishment Instructions, paragraphs 3.C(9)(a) through 3.C(9)(g) of BK117 ASB.
(iii) Identify the modified lever assembly by writing “MBB BK117C–2–67A–010” on the lever with permanent marking pen and protect with a single layer of lacquer (CM 421 or equivalent).
(iv) Apply corrosion preventive paste (CM518 or equivalent) on the shank of the screws and install airworthy parts as depicted in Figure 5 of BK117 ASB.
This AD replaces AD 2014–05–06, Amendment 39–17779 (79 FR 13196, March 10, 2014).
(1) The Manager, Safety Management Section, Rotorcraft Standards Branch, FAA, may approve AMOCs for this AD. Send your proposal to: Matt Fuller, Senior Aviation Safety Engineer, Safety Management Section, Rotorcraft Standards Branch, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222–5110; email
(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.
(1) Airbus Helicopters Alert Service Bulletin EC135–67A–019, Revision 4, dated April 3, 2017, and Alert Service Bulletin MBB–BK117C–2–67A–010, Revision 4, dated April 3, 2017, which are not incorporated by reference, contain additional information about this AD. For service information identified in this AD, contact Airbus Helicopters, 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641–0000 or (800) 232–0323; fax (972) 641–3775; or at
(2) The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD No. 2010–0058R1, dated April 7, 2017. You may view the EASA AD on the internet at
Joint Aircraft Service Component (JASC) Code: 6710, Main Rotor Control.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes. This proposed AD was prompted by reports of metallic debris found in the wing slat piccolo tubes; investigation revealed that the debris originated from the flow guide of the ball joint of the wing anti-ice valve. This proposed AD would require repetitive inspections for metallic debris and damage of the flow guide of the ball joint of the wing anti-ice valve, and related investigative and corrective actions if necessary. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 16, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; internet
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206–231–3226.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018–0022, dated January 29, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes. The MCAI states:
Occurrences were reported on Falcon 2000 and Falcon 2000EX aeroplanes, where metallic debris was found in slat piccolo tubes. The technical investigation revealed that debris originated from the flow guide of the ball joint located downstream of the wing anti-ice valve. It was also determined that small debris gathers at the end of the piccolo tube, but larger pieces of debris may stop before, in the distribution piping, restricting the airflow and potentially leading to undetected insufficient wing anti-ice capability.
This condition, if not detected and corrected, could lead to undetected significant ice accretion on the wing, possibly resulting in loss of control of the aeroplane.
To address this potential unsafe condition, Dassault Aviation issued Service Bulletin (SB) F2000EX–413 for Falcon 2000EX and SB F2000–441 for Falcon 2000, providing applicable instructions.
For the reasons described above, this [EASA] AD requires repetitive [detailed] inspections [for discrepancies including cracks and loss of material] of the affected ball joint and, depending on findings, accomplishment of applicable related investigative and corrective actions * * *.
Related investigative actions include, for any loss of material, borescope inspections of anti-ice pipes for debris, nicks, and damage. Corrective actions include replacing any cracked or damaged ball joint, and removing debris from the flow guide. You may examine the MCAI in the AD docket on the internet at
Dassault Aviation has issued Service Bulletins F2000–441, dated June 20, 2017; and F2000EX–413, dated July 10, 2017. This service information describes procedures for repetitive inspections for metallic debris and damage of the flow guide of the anti-ice ball joint of the wing. The service information also describes procedures for replacing the ball joint and pipe, and performing borescope inspections of damaged wing anti-ice pipes and removal of any debris from the flow guide. These documents are distinct since they apply to different airplane models. 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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.
We estimate that this proposed AD affects 348 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed 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
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 16, 2018.
None.
This AD applies to Dassault Aviation Model FALCON 2000 and FALCON 2000EX airplanes, certificated in any category, all serial numbers equipped with any anti-ice pipe having part number (P/N) F2MA724561A1 or P/N F2MA724561A2, except airplanes on which Dassault Modification (mod) M5000 or Dassault mod M5001 has been embodied in production.
Air Transport Association (ATA) of America Code 30, Ice and Rain Protection.
This AD was prompted by reports of metallic debris found in the wing slat piccolo tubes; investigation revealed that the debris originated from the flow guide of the ball joint of the wing anti-ice valve. We are issuing this AD to address restricted airflow of the piccolo tubes, leading to insufficient wing anti-ice capability and significant undetected ice accretion on the wing, which could result in loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 25 months after the effective date of this AD: Perform a detailed inspection for discrepancies of the flow guide of the ball joint located downstream of the wing anti-ice valve, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Dassault Aviation Service Bulletin F2000–441, dated June 20, 2017; or Dassault Aviation Service Bulletin F2000EX–413, dated July 10, 2017; as applicable. Repeat the detailed inspection thereafter at intervals not to exceed 25 months. Do all applicable corrective actions before further flight.
Although the service information identified in paragraph (g) of this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2018–0022, dated January 29, 2018, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206–231–3226.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201–440–6700; internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2006–07–26, which applies to all ATR–GIE Avions de Transport Régional Model ATR42 airplanes. AD 2006–07–26 requires a one-time inspection to detect discrepancies (
We must receive comments on this proposed AD by July 16, 2018.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact ATR–GIE Avions de Transport Régional, 1 Allée Pierre Nadot, 31712 Blagnac Cedex, France; telephone +33 (0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18; email
You may examine the AD docket on the internet at
Shahram Daneshmandi, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206–231–3220.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued AD 2006–07–26, Amendment 39–14553 (71 FR 18205, April 11, 2006) (“AD 2006–07–26”) for all ATR–GIE Avions de Transport Régional Model ATR42 airplanes. AD 2006–07–26 requires a one-time inspection to detect discrepancies (
Since we issued AD 2006–07–26, we have received additional reports of cracking on the upper skin and ribs of the outer wing box on other Model ATR42 airplanes.
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017–0244, dated December 7, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all ATR–GIE Avions de Transport Régional Model ATR42 airplanes. The MCAI states:
Occurrence was reported of detecting cracks on the wing of one in-service ATR 42 aeroplane in 2004. The cracks were found on the upper feet of ribs and on the upper skin of the wing outer boxes.
This condition, if not detected and corrected, could adversely affect the structural integrity of the aeroplane.
To address this potential unsafe condition, ATR issued Service Bulletin (SB) ATR42–57–0064 to provide inspection instructions and DGAC [Direction Générale de l'Aviation Civile] France issued [French] AD F–2004–191 (EASA approval 2004–12117) [which corresponds to FAA AD 2006–07–26] to require, for aeroplanes having accumulated more than 4,000 flight cycles (FC), a one-time Detailed Visual Inspection (DVI) of outer wing box upper skin and upper rib feet, on the right hand (RH) and left hand (LH) sides, from rib 24 to rib 29. After that [French] AD was issued, based on inspection results (all aeroplanes inspected, no similar case found), it was determined that these cracks were an isolated case.
More recently, three other cases were reported, indicating that this may not be an isolated case and that cracks could occur in this area of the wings on other ATR 42 aeroplanes. Consequently, ATR published SB ATR42–57–0074 (hereafter referred as `ATR SB' in this [EASA] AD) to provide inspection instructions.
For the reasons described above, this [EASA] AD supersedes DGAC France AD F–2004–191 and requires repetitive DVI of the same wing areas and, depending on findings, accomplishment of a repair.
This proposed AD would also require, after each inspection, reporting the inspection findings, both positive and negative, to ATR–GIE Avions de Transport Régional.
You may examine the MCAI in the AD docket on the internet at
ATR–GIE Avions de Transport Régional has issued ATR Service Bulletin ATR42–57–0074, dated October 19, 2017. This service information describes procedures for inspecting the upper skin and rib feet of the outer wing boxes for discrepancies. 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
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
We estimate that this proposed AD affects 37 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.
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 proposed 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.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
3. Will not affect intrastate aviation in Alaska, and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 16, 2018.
This AD replaces AD 2006–07–26, Amendment 39–14553 (71 FR 18205, April 11, 2006) (“AD 2006–07–26”).
This AD applies to ATR–GIE Avions de Transport Régional Model ATR42–200, –300, –320, and –500 airplanes, certificated in any category, all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of cracking of the upper skin and rib feet of the outer wing boxes, and more recent reports of such cracking on additional Model ATR42 airplanes. We are issuing this AD to detect and correct discrepancies (
Comply with this AD within the compliance times specified, unless already done.
Within the initial compliance time specified in table 1 to paragraph (g) of this AD, and thereafter at intervals not to exceed 48 months or 6,000 flight cycles, whichever occurs first: Do a detailed visual inspection
If any discrepancy is found during any inspection required by paragraph (g) of this AD: Before further flight, repair using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or ATR–GIE Avions de Transport Régional's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature. Do the repair within the compliance time specified in the approved repair method.
At the applicable time specified in paragraph (i)(1) or (i)(2) of this AD: Report all findings (both positive and negative) of the inspections required by paragraph (g) of this AD to ATR–GIE Avions de Transport Régional, using the information in ATR Service Bulletin ATR42–57–0074, dated October 19, 2017.
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after performing the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
Unless the repair instructions specify otherwise, repair of an airplane as required by paragraph (h) of this AD is not considered terminating action for the repetitive detailed visual inspections required by paragraph (g) of this AD.
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 1 hour 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)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017–0244, dated December 7, 2017, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Shahram Daneshmandi, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206–231–3220.
(3) For service information identified in this AD, contact ATR–GIE Avions de Transport Régional, 1 Allée Pierre Nadot, 31712 Blagnac Cedex, France; telephone +33 (0) 5 62 21 62 21; fax +33 (0) 5 62 21 67 18; email
Environmental Protection Agency (EPA).
Proposed rule.
On March 22, 2018, the State of Alabama, through the Alabama Department of Environmental Management (ADEM), submitted a request for the Environmental Protection Agency (EPA) to redesignate the Etowah County, Alabama fine particulate matter (PM
Comments must be received on or before July 2, 2018.
Submit your comments, identified by Docket ID No. EPA–R04–OAR–2018–0173 at
Madolyn Sanchez, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303–8960. Ms. Sanchez can be reached by telephone at (404) 562–9644 or via electronic mail at
The Clean Air Act (CAA or Act) establishes a process for air quality management through the establishment and implementation of the NAAQS. After the promulgation of a new or revised NAAQS, EPA is required to designate areas, pursuant to section 107(d)(1) of the CAA, as attainment, nonattainment, or unclassifiable. On September 21, 2006, EPA revised the primary and secondary 24-hour NAAQS for PM
The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d)(1) of the CAA. On October 8, 2009, EPA designated areas across the country as nonattainment, unclassifiable, or unclassifiable/attainment
As discussed in section III, below, the monitor in the Etowah County Area now has sufficient data to determine that the Etowah County Area is in attainment of the 2006 primary and secondary 24-hour PM
Section 107(d)(3) of the CAA provides the framework for changing the area designations for any NAAQS pollutants. Section 107(d)(3)(A) provides that the Administrator may notify the Governor of any state that the designation of an area should be revised “on the basis of air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate.” The Act further provides in section 107(d)(3)(D) that even if the Administrator has not notified a state Governor that a designation should be revised, the Governor of any state may, on the Governor's own motion, submit a request to revise the designation of any area, and the Administrator must approve or deny the request.
When approving or denying a request to redesignate an area, EPA bases its decision on the air quality data for the area as well as the considerations provided under section 107(d)(3)(A).
In order to redesignate the Area from unclassifiable to unclassifiable/attainment for the 2006 primary and secondary 24-hour PM
Because the 3-year design value, based on valid, quality-assured data, demonstrates that the Area meets the 2006 primary and secondary 24-hour PM
EPA is proposing to approve Alabama's March 22, 2018, redesignation request and to redesignate the Etowah County Area from unclassifiable to unclassifiable/attainment for the 2006 primary and secondary 24-hour PM
Under the CAA, redesignation of an area to unclassifiable/attainment is an action that affects the status of a geographical area and does not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to unclassifiable/attainment does not create any new requirements. Accordingly, this proposed action merely proposes to redesignate an area to unclassifiable/attainment and does not impose additional requirements. 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);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because redesignations are exempted under Executive Order 12866;
• 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
• Will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).
This action 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 County, the action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control.
42 U.S.C. 7401
Food and Nutrition Service (FNS), USDA.
Notice.
In order to accurately estimate improper payments in the Supplemental Nutrition Assistance Program (SNAP, the Food and Nutrition Service (FNS) has undertaken significant steps to strengthen its measurement process, the SNAP Quality Control system. Improvements include new training, policy clarifications, procedural improvements, and clarification of existing documentation requirements necessary to substantiate case findings. FNS has also implemented new policies to improve accountability and eliminate the potential for bias in the reporting system. FNS is considering proposals for a regulatory reform of its SNAP's Quality Control system in order to align the regulations with new policy and procedural requirements. FNS's intent is to achieve three objectives from reforming the Quality Control system: (1) Strengthen the integrity and accountability of the Quality Control system, (2) increase transparency in the process, and (3) use technology to improve improper payment estimates. Thus, FNS is issuing this Request for Information in order to obtain State government and other stakeholder perspectives as the Agency considers how to best to proceed with reforming the SNAP Quality Control system.
Written comments must be received on or before July 31, 2018.
Comments may be sent to Stephanie Proska, Chief, Quality Control Branch, Program Accountability and Administration Division, Food and Nutrition Service (FNS), U.S. Department of Agriculture, 3101 Park Center Drive, Room 822, Alexandria, VA 22302. Comments may also be emailed to
All comments submitted in response to this notice will be included in the record and will be made available to the public at
Requests for additional information or copies of this request for information should be directed to Stephanie Proska at (703) 305–2437.
The purpose of SNAP's Quality Control system is to measure improper payments consistent with Federal law. In addition to QC requirements in the Food and Nutrition Act of 2008, as amended, SNAP must comply with requirements in The Improper Payments Information Act of 2002 (IPIA), as amended by the Improper Payments Elimination and Recovery Act of 2010 (IPERA) and the Improper Payments Elimination and Recovery Improvement Act of 2012 (IPERIA). This legislation requires federal agencies to estimate the annual amount of improper payments. Federal law further directs the Office of Management and Budget (OMB) to establish guidance requiring federal agencies to classify errors. OMB defines error types as: Documentation and administrative errors—errors caused by the absence of supporting documentation necessary to verify the accuracy of a payment; authentication—errors caused by an inability to authenticate eligibility criteria through third-party databases or other resources because no databases or other resources exist; and verification errors—errors caused by the failure or inability to verify recipient information.
All suggestions received in response to this notice shall be considered in the development of proposed rulemaking, particularly those that articulate how the reform will improve adherence to Federal laws and OMB guidance, as well as contribute to improved accuracy and reduction of bias in the case review or measurement process.
With these general interests in mind, FNS is seeking information from stakeholders on the following particular questions:
1. What regulatory changes should FNS consider to further enhance the integrity of the quality control system necessary to ensure the accuracy of improper payment estimates?
2. In January 2016, FNS published a study evaluating how to enhance SNAP Quality Control completion rates. The study made a number of recommendations regarding how to improve case completion rates. What benefits, implementation challenges, or administrative factors, including cost implications, should FNS consider when evaluating the following recommendations:
a. Require more contact attempts to reach clients?
b. Require a greater variety of contact methods to be used?
c. Revise procedures for scheduling and conducting interviews?
d. Require client education of the QC process and a client's responsibility to cooperate with QC reviews at the point of application and recertification in order to raise awareness for recipients?
3. SNAP currently requires field QC investigations to include a personal interview, almost exclusively performed in person. SNAP allows for a State option to conduct phone interviews for QC cases where households receive $100 or less in monthly benefits. SNAP also allows for a State option to conduct video conferences in lieu of an in person interview. What factors should FNS consider and what are the cost implications of allowing for an expanded use of telephone or video interviews in lieu of in-person interviews? What measures should a SNAP State agency take to ensure the accuracy of the case and thoroughness of verifications if telephone interviews were allowed for all QC case reviews?
4. What electronic databases do State quality control reviewers currently have access to in order to verify information? Do you recommend FNS consider expanding Federal and State reviewer access to electronic databases and, if so, what factors or challenges would you anticipate?
5. Should FNS consider revising staffing standards, per 7 CFR 275.2(b), to
6. Federal regulations at 7 CFR 275.23(b)(iii) require FNS to adjust a State agency's regressed error rate for failing to complete 98 percent of its required sample size. FNS is considering a proposal to increase the adjustment as the current formula may not effectively deter mitigation strategies that encourage error prone cases to be dropped. What factors should FNS consider in adjusting a State agency's regressed error rate for incomplete cases?
7. In both OIG's review of SNAP's QC system and FNS' own QC integrity reviews it was found that one tactic used to minimize the reporting of errors was to drop cases that were subject to QC review. What policies or procedures should FNS consider to ensure that only cases that cannot be verified are dropped while also discouraging the over-use of dropping cases?
8. FNS uses a two-step process in order to determine a case's final payment error amount, referred to as Comparison I and Comparison II. In an audit, USDA's Office of Inspector General expressed concerns that the existing two-step process does not conform to regulatory requirements and that it does not accurately measure errors because Comparison II is not applied to all cases. This inconsistency raises concerns of underreporting payment errors. What recommendations should FNS consider in revising the use of Comparison I and Comparison II to reflect a more accurate account of a sampled case's payment error amount?
9. FNS is interested in recommendations that incentivize quality control reviewers to accurately report case results. Performance requirements that focus exclusively on timeliness of the case reviews without any qualitative measure may inadvertently lead to inaccurate case results. What factors should FNS consider in establishing qualitative metrics for quality control case reviews?
10. What concerns or barriers, if any, would exist if FNS were to mandate the use of the SNAP Quality Control System (SNAPQCS) as a means of reporting case results and documentation to FNS for all QC Worksheets? This is based on an assumption that a State would retain the option to maintain its own internal quality control system, provided that case results were reported to SNAPQCS.
11. Are there any data elements that FNS should consider collecting through the quality control system as part of the FNS form 380–1 in order to better understand SNAP case record information and/or patterns over time or across States? This includes information that would further FNS's knowledge of potential bias in the payment error rates.
12. Are there additional recommendations FNS should consider to encourage a greater use of technology to enhance the accuracy of case reviews in QC?
13. FNS is interested in improving the transparency of the QC process. What factors should FNS consider if FNS were to require all State QC procedures be in writing and submitted to FNS as part of an annual state plan?
14. What factors should FNS consider in revising the current corrective action planning requirement as a result of payment errors, incomplete cases, or negative case actions?
To get a quick overview of the referenced Financial Reporting Requirements set by OMB, visit
U.S. Commission on Civil Rights.
Announcement of meeting.
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 that the Alabama Advisory Committee (Committee) will hold a meeting on Friday, June 1, 2018, at 2:30 p.m. (Central) for the purpose discussing the Memorandum on Access to Voting in Alabama.
The meeting will be held on Friday, June 1, 2018, at 2:30 p.m. (Central).
Public Call Information: Dial: 888–256–1027, Conference ID: 7521876.
David Barreras, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888–256–1027, conference ID: 7521876. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. 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 telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 230 S. Dearborn Street, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353–8324 or emailed to David Barreras at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of meeting.
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 that the Louisiana Advisory Committee (Committee) will hold a meeting on Friday, June 1, 2018, at 10:00:00 a.m. Central for a discussion on the Barriers to Voting in Louisiana report.
The meeting will be held on Friday, June 1, 2018, at 10:00 a.m. Central.
David Barreras, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888–481–2845, Conference ID: 8259781. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. 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 telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 230 S Dearborn Street, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353–8324 or emailed to David Barreras at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
Announcement of meeting.
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 that the Wisconsin Advisory Committee (Committee) will hold a meeting on Wednesday, July 11, 2018, at 12:00 p.m. CST for the purpose of discussing civil rights concerns in the state.
The meeting will be held on Wednesday, July 11, 2018 at 12:00 p.m. CST. Public Call Information: Dial: 888–287–5536, Conference ID: 2600188.
Carolyn Allen at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888–287–5536, conference ID: 2600188. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. 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 telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Program Unit Office, 230 S. Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353–8324, or emailed to Carolyn Allen at
Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Notice of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights and the Federal Advisory Committee Act that the South Carolina Advisory Committee will hold a meeting on Friday, June 15, 2018, for the purpose of beginning work on its project regarding civil rights issues and policing in the state.
The meeting will be held on Friday, June 15, 2018 at 12:00 p.m. EST.
The meeting will be by teleconference. Toll-free call-in number: 1–888–663–2254, conference ID: 8893520.
Jeff Hinton, DFO, at
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number. An open comment period will be provided to allow members of the public to make a statement as time allows. The conference operator will ask callers to identify themselves, the organizations they are affiliated with (if any), and an email address prior to placing callers into the conference call. 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 telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Regional Program Unit Office, U.S. Commission on Civil Rights, 230 S Dearborn, Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at (312) 353–8324, or emailed to Regional Director, Jeffrey Hinton at
Records generated from this meeting may be inspected and reproduced at the Regional Program Unit, as they become available, both before and after the meeting. Records of the meeting will be available via
On April 5, 2018, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the Greater Metropolitan Area Foreign Trade Zone Commission, grantee of FTZ 119, requesting subzone status subject to the existing activation limit of FTZ 119, on behalf of AGCO Corporation, in Jackson and Round Lake, Minnesota.
The application was processed in accordance with the FTZ Act and Regulations, including notice in the
Tesla, Inc. submitted a notification of proposed production activity to the FTZ Board for its facilities in Sparks and McCarran, Nevada. The notification conforming to the requirements of the
Tesla, Inc. already has authority to produce lithium-ion batteries, electric motors, and stationary energy storage systems within Subzone 126D. The current request would add three foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Tesla, Inc. from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, for the foreign-status materials/components noted below, Tesla, Inc. would be able to choose the duty rates during customs entry procedures that apply to lithium-ion batteries, electric motors, and stationary energy storage systems (duty rate ranges from 2.8 to 3.4%). Tesla, Inc. would be able to avoid duty on foreign-status components which become scrap/waste. Customs duties also could possibly be deferred or reduced on foreign-status production equipment.
The materials/components sourced from abroad include lithium carbonate, silicon composite material, and acrylic copolymer (duty rate ranges from 3.7% to 6.3%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary at the address below. The closing period for their receipt is July 11, 2018.
A copy of the notification will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230–0002, and in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Juanita Chen at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482–4735.
Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (the Act), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (Commerce) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.
All deadlines for the submission of comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting date.
In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (APO) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation
In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:
In general, Commerce finds that determinations concerning whether particular companies should be “collapsed” (
Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.
None.
In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.
Note that, for any party Commerce was unable to locate in prior segments, Commerce will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).
As explained in
Commerce no longer considers the non-market economy (NME) entity as an exporter conditionally subject to an antidumping duty administrative reviews.
All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) on Enforcement and Compliance's ACCESS website at
Commerce will publish in the
For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.
This notice is not required by statute but is published as a service to the international trading community.
International Trade Administration, Department of Commerce.
Notice of revised user fees.
The International Trade Administration (ITA) recently implemented new user fees for its export and investment promotion services/events in light of an independent cost study, which concluded that ITA was not fully covering its costs for providing services under the prior fee structure. Federal agencies are directed by Office of Management and Budget (OMB) Circular A–25 to ensure they recoup their costs when providing certain services. ITA is announcing revisions to its export and investment promotion User Fee Schedule, published on July 10, 2017.
This user fee schedule will be effective on July 1, 2018.
Mr. Joe Carter, International Trade Administration, Global Markets, Office of Strategic Planning, 1400 Constitution Avenue NW, Rm. 21022, Washington, DC 20230, Phone: (202) 482–2484.
Section 6 of OMB Circular A–25 directs agencies to asses a user fee “when a service (or privilege) provides special benefits to an identifiable recipient beyond those that accrue to the general public.” A “user fee” is the amount paid by a recipient of a special benefit beyond those benefits accruing to the general public. A “special benefit” may accrue and a user fee should be imposed when a government service: (a) Enables the beneficiary to obtain more immediate or substantial gains or values than those that accrue to the general public; (b) is performed at the request or for the convenience of the recipient, and is beyond the services regularly received by members of the same industry or group or by the general public; or (c) provides business stability or contributes to public confidence in the business activity of the beneficiary.
ITA offers export and investment promotion services/events to U.S. businesses that consist of Standardized Fee Services/Events and Non-Standardized Fee Services/Events. For each of these services/events, fees are collected according to the User Fee Schedule that is made available on the
The following services/events, which were previously considered “Other Customized Services/Events,” have been added to the User Fee Schedule to provide more clarity about ITA service/event offerings (please see the descriptions of these services/events in the section below):
The following services/events have been renamed:
The following services/events have been removed:
In addition, the following clarifications have been made to the fees previously listed in GM's User Fee Schedule:
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The services/events included in the revised User Fee Schedule are described below with the revisions
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The fees for the export and investment promotion services/events listed in the revised User Fee Schedule below were set based on the same methodology as described in the
Notes:
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• Business Service Provider: Individual category fee. To be listed in more than one category, there is an additional fee per category of $30 for small companies, $50 for medium companies and $70 for large companies. The annual renewal fee is $75 for small companies, $125 for medium companies and $175 for large companies.
• Certified Trade Mission: The fee is assessed per Post/city. Applicants will be charged a fee for an Initial Market Check if staff is uncertain about their market potential. The fee paid by the applicant is then applied to their Certified Trade Mission fee if they participate in the mission.
• Featured U.S. Exporter: Listings are typically provided for up to 5 markets.
• Initial Market Check: Is a required precursor for more time intensive services if staff is uncertain about a client's market potential. Fees paid for the Initial Market Check will then be applied to one follow-on service if the results are positive.
• Webinars:
Based on the information provided above, ITA believes its revised fee schedules are more consistent with the mission to promote “exports of goods and services from the United States, particularly by small businesses and medium businesses,” and better achieve the objective of OMB Circular A–25 to “promote efficient allocation of the nation's resources by establishing charges for special benefits provided to the recipient that are at least as great as the cost to the U.S. Government of providing the special benefits.” ITA will reassess this fee schedule after its first year of implementation and, in accordance with OMB Circular A–25, at least every two years thereafter.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Every five years, pursuant to the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) and the International Trade Commission automatically initiate and conduct a review to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury (
Pursuant to section 751(c) of the Act, the following Sunset Review is scheduled for initiation in July 2018 and will appear in that month's
Commerce's procedures for the conduct of Sunset Reviews are set forth in 19 CFR 351.218. The
Pursuant to 19 CFR 351.103(c), Commerce will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact Commerce in writing within 10 days of the publication of the Notice of Initiation.
Please note that if Commerce receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue.
Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.
This notice is not required by statute but is published as a service to the international trading community.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) is automatically initiating the five-year reviews (Sunset Reviews) of the antidumping and countervailing duty (AD/CVD) order(s) listed below. The International Trade Commission (the Commission) is publishing concurrently with this notice its notice of
Applicable (June 1, 2018).
Commerce official identified in the
Commerce's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating the Sunset Reviews of the following antidumping and countervailing duty order(s):
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Commerces's regulations, Commerce's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on Commerce's website at the following address:
Any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, Commerce modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), Commerce will maintain and make available a public service list for these proceedings. Parties wishing to participate in any of these five-year reviews must file letters of appearance as discussed at 19 CFR 351.103(d). To facilitate the timely preparation of the public service list, it is requested that those seeking recognition as interested parties to a proceeding submit an entry of appearance within 10 days of the publication of the Notice of Initiation. Because deadlines in Sunset Reviews can be very short, we urge interested parties who want access to proprietary information under administrative protective order (APO) to file an APO application immediately following publication in the
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, Commerce's regulations provide that
Commerce's information requirements are distinct from the Commission's information requirements. Consult Commerce's regulations for information regarding Commerce's conduct of Sunset Reviews. Consult Commerce's regulations at 19 CFR part 351 for definitions of terms and for other general information concerning antidumping and countervailing duty proceedings at Commerce.
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
International Trade Administration, U.S. Department of Commerce.
Notice of open meetings.
This notice sets forth the schedule and proposed topics of discussion for public meetings of the Advisory Committee on Supply Chain Competitiveness (Committee).
The meetings will be held on June 20, 2018, from 12:00 p.m. to 3:00 p.m., and June 21, 2018, from 9:00 a.m. to 4:00 p.m., Eastern Standard Time (EST).
The meetings on June 20 and 21 will be held at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Research Library (Room 1894), Washington, DC 20230.
Richard Boll, Office of Supply Chain, Professional & Business Services (OSCPBS), International Trade Administration. Phone: (202) 482–1135 or Email:
The meetings will be open to the public and press on a first-come, first-served basis. Space is limited. The public meetings are physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, are asked to notify Mr. Richard Boll, at (202) 482–1135 or
Interested parties are invited to submit written comments to the Committee at any time before and after the meeting. Parties wishing to submit written comments for consideration by the Committee in advance of this meeting must send them to the Office of Supply Chain, Professional & Business Services, 1401 Constitution Ave. NW, Room 11014, Washington, DC 20230, or email to
For consideration during the meetings, and to ensure transmission to the Committee prior to the meetings, comments must be received no later than 5:00 p.m. EST on June 12, 2018. Comments received after June 12, 2018, will be distributed to the Committee, but may not be considered at the meetings. The minutes of the meetings will be posted on the Committee website within 60 days of the meeting.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of incidental harassment authorization (IHA).
NMFS has received a request from the City of San Diego (the City) for an incidental harassment authorization (IHA) to take three species of marine mammals, by Level B harassment only, incidental to Coast Boulevard improvements in La Jolla, California. The project has been delayed, such that none of the work covered in the identical IHA issued in 2017 was initiated and, therefore, the City requested that an identical IHA be issued to cover the same work in 2018. NMFS is, therefore, issuing a second IHA to cover the incidental take analyzed and authorized in the initial IHA. The scope of the activities and anticipated effects remain the same, authorized take numbers would not change, and the required mitigation, monitoring, and reporting would remain the same as authorized in the 2017 IHA referenced above. NMFS is therefore notifying the public about the issuance of an IHA to the City to incidentally take marine mammals, by Level B harassment only, during the City's Coast Boulevard improvements.
Valid June 1, 2018 through May 31, 2019.
An electronic copy of the final 2017 IHA previously issued to the City, the City's application, and the
Amy Fowler, Office of Protected Resources, NMFS, (301) 427–8401.
Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361
An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.
The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review. This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216–6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion.
NMFS received a request from the City for authorization to take marine mammals incidental to Coast Boulevard improvements in La Jolla, California on December 16, 2016. On March 1, 2017, we deemed the City's application for authorization to be adequate and complete. We published a notice of a proposed IHA and request for comments on April 26, 2017 (82 FR 19221), and subsequently issued an IHA to the City on May 31, 2017, and published final notice of our issuance of the IHA on June 29, 2017 (82 FR 29511).
On October 19, 2017, the City informed NMFS that while some structural integrity testing of the existing concrete at the project location had occurred over 4 days in July, none of the work identified in the IHA that was expected to result in the take of marine mammals (
On January 4, 2018, the City submitted a formal request for a new identical IHA that would be effective from June 1, 2018 through December 14, 2018, in order to conduct the construction and demolition work that was analyzed and authorized through the previously issued IHA.
The planned activities are the same as those proposed in the previous IHA application and the potential incidental take the same as that authorized through the previously issued IHA, and include improvements to an existing public parking lot, sidewalk, and landscaping areas located on the bluff tops above Children's Pool, a public beach located in La Jolla, California. Species that are expected to be taken by the planned activity include harbor seal (
The 2017 IHA covered improvements to an existing public parking lot, sidewalk, and landscaping areas located on the bluff tops above Children's Pool to upgrade public access and safety. Planned demolition activities included the removal of existing parking lot paving; concrete curb, gutter, and sidewalk; and the removal of existing irrigation and plant materials. Planned construction activities included subgrade preparation, asphalt paving, and marking of parking stalls; pouring of concrete curb, gutter, and sidewalk; construction of rock walls, installation of fencing, placement of landscape boulders, installation of landscaping and irrigation; and finishing and clean up. The 2017 IHA authorized the Level B harassment of 1,620 harbor seals, 36 California sea lions and 14 northern elephant seals. The City did not conduct any demolition or construction activities, and no takes of marine mammals occurred, and now requests that this second IHA cover all demolition and construction activities as those proposed in the 2017 IHA application and authorized via the 2017 IHA.
We refer to the documents related to the previously issued IHA, which include the
On October 19, 2017, the City submitted a monitoring report for the minimal work that had been completed on the existing concrete under the 2017 IHA (work that was not expected to result in take of marine mammals, but which was part of the overarching activity). The City complied with all mitigation, monitoring, and reporting protocols. No marine mammal takes were expected, authorized, or recorded. The monitoring report can be viewed on NMFS's website:
The City will conduct activities identical to those analyzed in the previous 2017 IHA. As described above, the number of authorized takes of the same species and stocks of marine mammals are identical to the numbers that were found to meet the negligible impact and small numbers standards and authorized under the 2017 IHA. This 2018 IHA includes identical required mitigation, monitoring, and reporting measures as the 2017 IHA, and there is no new information suggesting that our analysis or findings should change.
Based on the information contained here and in the referenced documents, NMFS has determined the following: (1) The required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; and (4) the City's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
However, no incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.
NMFS has issued an IHA to the City of San Diego for Coast Boulevard improvements in La Jolla, CA from June 1, 2018 through May 31, 2019. All previously described mitigation, monitoring, and reporting requirements from the 2017–2018 IHA are incorporated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of open public meeting.
This notice sets forth the proposed schedule and agenda of a forthcoming meeting of the Marine Fisheries Advisory Committee's (MAFAC's) Columbia Basin Partnership Task Force (CBP Task Force). The CBP Task Force will discuss the issues outlined in the
The meeting will be held June 19, 2018, from 8 a.m. to 5 p.m. and on June 20, 2018, from 8 a.m. to 4 p.m.
The meeting will be held at the Columbia Gorge Hotel, 4000 West Cliff Drive, Hood River, OR 97031; 541–386–5566.
Katherine Cheney; NFMS West Coast Region; 503–231–6730; email:
Notice is hereby given of a meeting of MAFAC's CBP Task Force. The MAFAC was established by the Secretary of Commerce (Secretary) and, since 1971, advises the Secretary on all living marine resource matters that are the responsibility of the Department of Commerce. The MAFAC charter and summaries of prior MAFAC meetings are located online at
The meeting time and agenda are subject to change. Meeting topics to be discussed include draft qualitative and quantitative goals for the Columbia Basin species, approaches to integrate
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Katherine Cheney, 503–231–6730, by June 8, 2018.
Department of the Air Force, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by July 31, 2018.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to The Judge Advocate General, Headquarters, United States Air Force, 1420 Air Force Pentagon, Washington, DC 20330–1420 or call 1–800–524–8723.
Public respondents to WebLIONS include retired military personnel and dependents of active duty and retired military personnel. The completed online questionnaires are used during the intake process to determine an individual's eligibility for legal assistance, as well as assisting attorneys in performing their official duties while providing services to their clients. WebLIONS also acts as a database to review and track cases as well as assist in conflicts checks. This information is vital to the sustainability and viability of continued Air Force support to legal assistance activities.
Department of the Army, DoD.
30-day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 2, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571–372–0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
Requests for copies of the information collection proposal should be sent to Mr. Licari at
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the Board of Advisors to the Presidents of the Naval Postgraduate School and the Naval War College (“the Board”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703–692–5952.
This committee's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102–3.50(d). The charter and contact information for the Designated Federal Officer (DFO) can be obtained at
Missile Defense Agency, Department of Defense.
Notice of intent to prepare an environmental impact statement.
The Missile Defense Agency (MDA) announces its intention to prepare an Environmental Impact Statement (EIS) in accordance with the National Environmental Policy Act (NEPA) of 1969 and the Council on Environmental Quality Regulations for implementing the procedural provisions of NEPA. MDA is proposing to construct and operate a Homeland Defense Radar-Hawaii or HDR–H (a radar to identify, track, and classify long-range ballistic missile threats in mid-course flight), an In-Flight Interceptor Communication System Data Terminal or IDT (a facility that provides communication (incorporating data provided byHDR–H) between the Ground-Based Midcourse Defense fire control system and the interceptor that are both stationed elsewhere), and associated support facilities and infrastructure on the island of Oahu, Hawaii. The purpose of the Proposed Action is to support the United States (U.S.) ballistic missile defense system and enhance homeland defense capabilities in the Pacific region including Hawaii. The 2017 National Defense Authorization Act requires the MDA to develop a plan to procure and field a “discrimination radar” to improve the defense of Hawaii from ballistic missile threats. MDA is preparing the EIS to evaluate the potential environmental impacts that could result from the construction and operation of the HDR–H. The Department of Defense has not made a decision concerning the location of
The MDA invites public comments on the scope of the HDR–H EIS during a 45-day public scoping period beginning with publication of this notice in the
Written comments, statements, and/or concerns regarding the scope of the EIS or requests to be added to the EIS distribution list should be addressed to MDA HDR–H EIS and sent by email to
MDA Public Affairs at 256–450–1599 or 571–231–8210, or by email:
In accordance with 40 Code of Federal Regulations (CFR) 1501.6, the U.S. Air Force, U.S. Army, and U.S. Navy will be cooperating agencies in preparing the EIS. Other cooperating agencies may be identified during the scoping process. Deployment of the HDR–H at a candidate location on Oahu would be within an approximate 160-acre notional boundary, as much as topography and environmental conditions allow, that would be cleared of vegetation, grubbed, and graded. The new facility site would include radar equipment, the Homeland Defense Radar Equipment Shelter, Mission Control Facility, IDT, Radar Cooling Shelter, Military Satellite Communications, Power Plant, and Bulk Diesel Fuel Storage. These mission critical facilities would be within a restricted fenced area. Located within or outside of the restricted area would be other mission support facilities that include an Entry Control Facility, Maintenance Facility, Water Supply and Treatment Buildings, Electrical Substation, and a remote Fuel Fill Station. Additional site utilities and roadway improvements, including communications, electrical connections, water supply, sewer, stormwater drainage, fire protection, sidewalks, and parking would be located within and outside the restricted area.
In addition to the No Action Alternative, the EIS will analyze alternative sites for the proposed radar facility at: (1) Kuaokala Ridge on State land adjacent to Kaena Point Satellite Tracking Station and (2) Kahuku Training Area on the island of Oahu, Hawaii. If deployed at Kuaokala Ridge, the use of approximately 160 acres of State land within the Agricultural District (for the facility footprint, buffer, and construction laydown areas), as well as the right of access to the site, would be required. At each alternative location, impacts will be assessed for the following resource topics: Air quality, airspace management, biological resources, coastal zone management, cultural resources, geology and soils, hazardous materials and hazardous waste, health and safety, infrastructure and transportation, land use and recreation, noise, socioeconomics and environmental justice, water resources, and visual resources.
In addition to satisfying compliance requirements under NEPA, the EIS will also comply with the provisions of the Hawaii Environmental Policy Act (HEPA). MDA encourages all interested members of the public, as well as federal, state, and local agencies to participate in the scoping process for the preparation of this EIS. The scoping process assists in determining the scope of issues to be addressed, other alternatives that should be considered, and helps identify significant environmental issues to be analyzed in depth in the EIS.
Public scoping meetings will be held in the communities of Haleiwa, Waianae, and Honolulu on Oahu, Hawaii, within 30 days from the publication of this Notice of Intent. The meetings will be in an open house format, which provides attendees the opportunity to speak with and ask questions of representatives from the MDA, U.S. Air Force, and U.S. Army. The meetings will have the same format and content at all locations. Notification of the public scoping meeting locations, dates, and times will be published and announced in local news media prior to the meetings.
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 31, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571–372–0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
Requests for copies of the information collection proposal should be sent to Mr. Licari at
Thursday, May 31, 2018Under Secretary of Defense for Personnel and Readiness, Department of Defense.
Notice of Federal Advisory Committee meeting.
The Department of Defense (DoD) is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Advisory Committee on Women in the Services (DACOWITS) will take place.
Day 1—Open to the public Tuesday, June 19, 2018 from 8:30 a.m. to 11:45 a.m. Day 2—Open to the public Wednesday, June 20, 2018 from 8:30 a.m. to 11:45 a.m.
The address of the open meeting is the Sheraton Pentagon City, 900 S Orme St., Arlington, VA 22204.
Colonel Toya Davis (703) 697–2122 (Voice), 703–614–6233 (Facsimile),
This meeting is being held under the provisions of the Federal Advisory Committee Act (FACA) (5 U.S.C., Appendix), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102–3.140 and 102–3.150.
Defense Finance and Accounting Service, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 2, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571–372–0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
Requests for copies of the information collection proposal should be sent to Mr. Licari at
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 2, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571–372–0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
Requests for copies of the information collection proposal should be sent to Mr. Licari at
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the Advisory Committee on Arlington National Cemetery (“the Committee”).
Jim Freeman, Advisory Committee
This committee's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) (5 U.S.C., Appendix) and 41 CFR 102–3.50(a). The Committee's charter and contact information for the Committee's Designated Federal Officer (DFO) can be obtained at
Office of the Under Secretary of Defense for Personnel and Readiness, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 2, 2018.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Fred Licari, 571–372–0493, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
Requests for copies of the information collection proposal should be sent to Mr. Licari at
Federal Student Aid, Department of Education.
Notice of a new matching program.
Pursuant to the Privacy Act of 1974, as amended by the Computer Matching and Privacy Protection Act of 1988 and the Computer Matching and Privacy Protections Amendments of 1990 (Privacy Act), and Office of Management and Budget (OMB) guidance on the conduct of computer matching programs, notice is hereby given of the renewal of the computer matching program between the Department of Education (ED) (recipient agency) and the Department of Justice (DOJ) (source agency).
Submit your comments on the proposed matching program on or before July 2, 2018.
The matching program will go into effect at the later of the following two dates: June 20, 2018 or 30 days after the publication of this notice, on June 1, 2018, unless comments have been received from interested members of the public requiring modification and republication of the notice.
The matching program will continue for 18 months after the effective date of the computer matching agreement (CMA) and may be extended for an additional 12 months thereafter, if the conditions specified in 5 U.S.C. 552a(o)(2)(D) have been met.
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
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Marya Dennis, Management and Program Analyst, U.S. Department of Education, Federal Student Aid, Union Center Plaza, 830 First Street NE, Washington, DC 20202–5454. Telephone: (202)377–3385.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service, toll free, at 1–800–877–8339.
Section 421(a)(1) of the Controlled Substances Act (21 U.S.C. 862(a)(1)) includes provisions regarding the judicial denial of Federal benefits. Section 421 of the Controlled Substances Act, which was originally enacted as section 5301 of the Anti-Drug Abuse Act of 1988, and which was amended and redesignated as section 421 of the Controlled Substances Act by section 1002(d) of the Crime Control Act of 1990, Public Law 101–647 (hereinafter referred to as “section 5301”), authorizes Federal and State judges to deny certain Federal benefits (including student financial assistance under title IV of the Higher Education Act of 1965, as amended (HEA)) to individuals convicted of drug trafficking or possession of a controlled substance.
In order to ensure that HEA student financial assistance is not awarded to individuals subject to denial of benefits under court orders issued pursuant to section 5301, DOJ and ED implemented a computer matching program. The 18-month CMA was recertified for an additional 12 months on June 20, 2017. The 12-month recertification of the CMA will automatically expire on June 19, 2018.
For the purpose of ensuring that HEA student financial assistance is not awarded to individuals denied benefits by court orders issued under the Denial of Federal Benefits Program, ED must continue to obtain from DOJ identifying information regarding individuals who are the subject of section 5301 denial of benefits court orders. The purpose of this notice is to announce the continued operation of the computer matching program and to provide certain required information concerning the computer matching program.
The Department of Education (ED) and the Department of Justice (DOJ).
Under section 5301, ED must deny Federal benefits to any individual upon whom a Federal or State court order has imposed a penalty denying eligibility for those benefits. Student financial assistance under the HEA is a Federal benefit and under section 5301, ED must, in order to meet its obligations under the HEA, have access to information about individuals who have been declared ineligible under section 5301.
While DOJ provides information under section 5301 about individuals who are ineligible for Federal benefits to the General Services Administration (GSA) for inclusion in GSA's List of Parties Excluded from Federal Procurement and Nonprocurement Programs, DOJ and ED have determined that matching against the DOJ database is more efficient and effective than matching against the GSA List. The DOJ database has specific information about the HEA programs for which individuals are ineligible, as well as the expiration of the debarment period, making the DOJ database more complete than the GSA List. Both of these elements are essential for a successful match.
The purpose of this matching program is to ensure that the requirements of section 421 of the Controlled Substances Act (originally enacted as section 5301 of the Anti-Drug Abuse Act of 1988, Public Law 100–690, 21 U.S.C. 853a, which was amended and redesignated as section 421 of the Controlled Substances Act by section 1002(d) of the Crime Control Act of 1990, Public Law 101–647) (hereinafter referred to as “section 5301”) are met.
DOJ is the lead contact agency for information related to section 5301 violations and, as such, provides this data to ED. ED seeks access to the information contained in the Denial of Federal Benefits and Defense Procurement Fraud Debarment Clearinghouse program (DFB/DPFD) database (formerly known as DEBARS) that is authorized under section 5301 for the purpose of ensuring that HEA student financial assistance is not awarded to individuals subject to denial
The individuals whose records are included in this matching program are individuals who are the subject of section 5301 denial of benefits court orders, and all students who complete a Free Application for Federal Student Aid. ED receives data from the DOJ DFB/DPFD system that is used to match title IV, HEA applicant data in ED's Central Processing System (Federal Student Aid Application File (18–11–01)).
ED will use the Social Security number (SSN), date of birth, and the first two letters of an applicant's last name for the match. These data elements are contained in ED's Central Processing System. The DOJ DFB/DPFD system contains the names, SSNs, dates of birth, and other identifying information regarding individuals convicted of Federal or State offenses involving drug trafficking or possession of a controlled substance that have been denied Federal benefits by Federal or State courts. This system of records also contains information concerning the specific program or programs for which benefits have been denied, as well as the duration of the period of ineligibility. DOJ will make available for the matching program the records of only those individuals who have been denied Federal benefits under one or more of the title IV, HEA programs.
DOJ system of records: DFB/DPFD (The most recent full DFB/DPFD system of records notice was published in the
You may also access documents of ED published in the
5 U.S.C. 552a; 21 U.S.C. 862(a)(1).
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Notice of decision and order.
This notice announces a Decision and Order granting Huawei Technologies, Co. Ltd. (“Huawei”) a waiver from specified portions of the DOE test procedure for determining the energy efficiency of specified external power supply (“EPS”) basic models. Huawei is required to test and rate the specified basic models of its EPS in accordance with the alternate test procedure described in the Decision and Order.
The Decision and Order is effective on June 1, 2018.
Ms. Lucy deButts, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE–5B, 1000 Independence Avenue SW, Washington, DC 20585–0121. Telephone: (202) 287–1604. E-mail:
Michael Kido, U.S. Department of Energy, Office of the General Counsel, Mail Stop GC–33, Forrestal Building, 1000 Independence Avenue SW, Washington, DC 20585–0103. Telephone: (202) 586–8145. Email:
On December 1, 2017, Huawei filed a petition for waiver and an application for interim waiver from the applicable EPS test procedure set forth in 10 CFR part 430, subpart B, appendix Z. On March 23, 2018, DOE published a notice announcing its receipt of the petition for waiver and its granting Huawei an interim waiver. 83 FR 12737. In that notice, DOE also solicited comments from interested parties on all aspects of the petition and specified an alternate test procedure that must be followed for testing and certifying the specific basic models for which Huawei requested a waiver.
The Energy Policy and Conservation Act of 1975 (“EPCA” or “the Act”),
The Federal testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted pursuant to EPCA (42
Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE is required to follow when prescribing or amending test procedures for covered products. EPCA requires that any test procedures prescribed or amended under this section must be reasonably designed to produce test results which reflect energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and requires that test procedures not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) The test procedure for EPSs is contained in the Code of Federal Regulations (“CFR”) at 10 CFR part 430, subpart B, appendix Z,
Under 10 CFR 430.27, any interested person may submit a petition for waiver from DOE's test procedure requirements. DOE will grant a waiver from the test procedure requirements if DOE determines either that the basic model for which the waiver was requested contains a design characteristic that prevents testing of the basic model according to the prescribed test procedures, or that the prescribed test procedures evaluate the basic model in a manner so unrepresentative of its true energy consumption characteristics as to provide materially inaccurate comparative data. 10 CFR 430.27(f)(2). DOE may grant the waiver subject to conditions, including adherence to alternate test procedures.
By e-mail with attachment dated December 1, 2017, Huawei filed a petition for waiver from the DOE test procedure for EPSs under 10 CFR 430.27 for several basic models of adaptive EPSs
In Huawei's view, applying the DOE test procedure to the adaptive EPSs specified in its petitions would yield results that would be unrepresentative of the active-mode efficiency of those products. The DOE test procedure requires that the average active-mode efficiency for adaptive EPSs be measured by testing the unit twice—once at the highest achievable output voltage (“V”) and once at the lowest. The test procedure requires that active-mode efficiency be measured at four loading conditions relative to the nameplate output current of the EPS. See 10 CFR 430.23(bb) and Appendix Z. The lowest achievable output voltage supported by the IEC 62680–1–2:2017 specification is 5V and the nameplate current at this voltage output is 3 amps (“A”), resulting in a power output of 15 W. Huawei contends that while the IEC 62680–1–2:2017 specification requires the tested EPS to support this power output, the 15W at 5V condition will be rarely used and only for brief periods of time, and that adaptive EPSs operating at 5V do not exceed 10W for almost all usage conditions.
Huawei contended that, when charging a product that is sold or intended to be used with the adaptive EPS, the EPS charges at 5 volts only with a dead battery or fully charged battery (and then at 0.5A or less). At other times when more power is needed, the adaptive EPS will use a higher voltage rail (greater than 5V). (A “voltage rail” refers to a single voltage provided by the relevant power supply unit through a dedicated circuit/wire used for that voltage.) Huawei further stated that when using an adaptive EPS that supports the IEC 62680–1–2:2017 specification to charge an end-use product of a manufacturer different from the one who manufactured the EPS, it is likely that the product would charge at less than 10W at 5V, or may even be capable of exploiting the ability of an adaptive EPS to provide higher voltages for faster charging.
Accordingly, Huawei asserted that the DOE test procedure's measurement of efficiency at the prescribed power level (i.e., 5V, 3A) is unrepresentative of the true energy consumption of these EPSs. Consequently, it sought a waiver from DOE to permit it to use an alternate test procedure to measure the energy efficiency of the specified adaptive EPSs that support the IEC 62680–1–2:2017 specification by testing these devices at the lowest voltage, 5V, and at an output power at 10W instead of 15W.
On March 23, 2018, DOE published a notice announcing its receipt of the petition for waiver, and granting Huawei an interim waiver. 83 FR 12737. In the notice of petition for waiver, DOE reviewed the alternate test procedure suggested by Huawei and granted the interim waiver. DOE found that the alternate test procedure would allow for the accurate measurement of efficiency of these EPSs, while alleviating the testing problems associated with Huawei's implementation of EPS testing for the basic models specified in its petition. DOE also solicited comments from interested parties on all aspects of the petition and specified an alternate test procedure that must be followed for testing and certifying the specific basic models for which Huawei's requested a wavier.
Based on the information provided by Huawei, DOE has determined that the current test procedure at Appendix Z would evaluate the specified EPS basic models in a manner so unrepresentative of their true energy consumption characteristics as to provide materially inaccurate comparative data. Therefore, in the Decision and Order, DOE is requiring that Huawei test and rate the EPS basic models for which it has requested a waiver according to the alternate test procedure specified in the Decision and Order, which is identical to the procedure provided in the interim waiver.
In its petition Huawei sought a test procedure waiver for certain basic models. The Decision and Order is applicable only to the basic models listed within it and does not extend to any other basic models.
Manufacturers not currently distributing such a product in
In accordance with 10 CFR 430.27(f)(2), DOE consulted with the Federal Trade Commission (“FTC”) staff concerning the Huawei petition for waiver. The FTC staff did not have any objections to granting a waiver to Huawei.
After careful consideration of all the material that was submitted by Huawei in this matter, DOE grants a waiver regarding the below specified basic models. Therefore, in accordance with 10 CFR 430.27, it is
(1) Huawei must test and rate Huawei brand EPS basic models HW–200200UPX, HW–200300UPX, HW–200325UPX, HW–200500UPX in accordance with the alternate test procedure as set forth in paragraph (2) of this section.
(2) The alternate test procedure for the Huawei basic models listed in paragraph (1) of this section of this Order is the test procedure for EPSs prescribed by DOE at Appendix Z, except that under section 4(a)(i)(E) and Table 1 of Appendix Z, the adaptive EPSs must be tested such that when testing at the lowest achievable output voltage (
(3)
(4) This waiver shall remain in effect according to the provisions of 10 CFR 430.27. This Decision and Order will terminate on the compliance date of any future updates to the test procedure for EPSs located in Appendix Z that address the issue presented in the waiver. At such time, testing to demonstrate compliance with standards, and any other representations of energy use, will require manufacturers to use the relevant test procedure for these products.
(5) This waiver is issued on the condition that the statements, representations, and documentation provided by Huawei are valid. DOE may revoke or modify this waiver at any time if it determines the factual basis underlying the petition for waiver is incorrect, or the results from the alternate test procedure are unrepresentative of the basic models' true energy consumption characteristics. 10 CFR 430.27(k)(1). Likewise, Huawei may request that DOE rescind or modify the waiver if Huawei discovers an error in the information provided to DOE as part of its petition, determines that the waiver is no longer needed, or for other appropriate reasons. 10 CFR 430.27(k)(2).
(6) Granting of this waiver does not release Huawei from the certification requirements set forth at 10 CFR part 429.
Signed in Washington, DC, on May 23, 2018.
National Nuclear Security Administration, U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE), pursuant to the Paperwork Reduction Act of 1995, intends to extend for three years an information collection request with the Office of Management and Budget (OMB).
Comments regarding this proposed information collection must be received on or before July 31, 2018. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.
Written comments may be sent by email to
Additional information on DOE's regulation of assistance to foreign atomic energy activities pursuant to 10 CFR part 810 is available at
This information collection request contains: (1)
Office of Research and Development; Environmental Protection Agency.
Notice of the designation of a new reference method for monitoring ambient air quality.
Notice is hereby given that the Environmental Protection Agency (EPA) has designated one new reference method for measuring concentrations of nitrogen dioxide (NO
Robert Vanderpool, Exposure Methods and Measurement Division (MD–D205–03), National Exposure Research Laboratory, U.S. EPA, Research Triangle Park, North Carolina 27711. Phone: 919–541–7877. Email:
In accordance with regulations at 40 CFR part 53, the EPA evaluates various methods for monitoring the concentrations of those ambient air pollutants for which EPA has established National Ambient Air Quality Standards (NAAQS) as set forth in 40 CFR part 50. Monitoring methods that are determined to meet specific requirements for adequacy are designated by the EPA as either reference or equivalent methods (as applicable), thereby permitting their use under 40 CFR part 58 by States and other agencies for determining compliance with the NAAQS. A list of all reference or equivalent methods that have been previously designated by EPA may be found at
The EPA hereby announces the designation of one new reference method for measuring concentrations of NO
The new reference method for NO
RFNA–0418–250, “Sabio Model 6040 Ambient NO/NO
This application for a reference method determination for this NO
A representative test analyzer was tested in accordance with the applicable test procedures specified in 40 CFR part 53, as amended on October 26, 2015. After reviewing the results of those tests and other information submitted by the applicant, EPA has determined, in accordance with part 53, that this method should be designated as a reference method.
As a designated reference method, this method is acceptable for use by states and other air monitoring agencies under the requirements of 40 CFR part 58, Ambient Air Quality Surveillance. For such purposes, this method must be used in strict accordance with the operation or instruction manual associated with the method and subject to any specifications and limitations (
Use of the method also should be in general accordance with the guidance and recommendations of applicable sections of the “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume I,” EPA/600/R–94/038a and “Quality Assurance Handbook for Air Pollution Measurement Systems, Volume II, Ambient Air Quality Monitoring Program,” EPA–454/B–13–003, (both available at
Consistent or repeated noncompliance with any of these conditions should be reported to: Director, Exposure Methods and Measurement Division (MD–E205–01), National Exposure Research Laboratory, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711.
Designation of this reference method is intended to assist the States in establishing and operating their air quality surveillance systems under 40 CFR part 58. Questions concerning the commercial availability or technical aspects of the method should be directed to the applicant.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted the following information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act (PRA): “Plant-Incorporated Protectants; CBI Substantiation and Adverse Effects Reporting” (EPA ICR No. 1693.09, OMB Control No. 2070–0142). This is a request to renew the approval of an existing ICR, which is currently approved through May 31, 2018. EPA did not receive any public comments in response to the previously provided public review opportunity issued in the
Additional comments may be submitted on or before July 2, 2018.
Submit your comments, identified by Docket ID number EPA–HQ–OPP–2017–0440, to both EPA and OMB as follows:
• To EPA online using
• To OMB via email to
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Ryne Yarger, Field and External Affairs Division, 7506P, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 703–605–1193; fax number: 703–305–5884; email address:
CBI is protected by FIFRA and generally cannot be released to the public. For most pesticide registration applications, the current CBI regulations at 40 CFR part 2 require that claimants substantiate their CBI claims for their own records when the claim is made, and subsequently provide the substantiation to EPA only if requested. However, under 40 CFR part 174, whenever a registrant claims that information submitted to EPA in support of a PIP registration application contains CBI, the registrant must substantiate such claims to EPA when they are made. In addition, 40 CFR part 174 also requires manufacturers of PIPs that are otherwise exempted from registration requirements to report any adverse effects of the PIP to the Agency within 30 days of when the information is first obtained. Such reporting will allow the Agency to determine whether further action is needed to prevent unreasonable adverse effects to human health or the environment.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's order for the cancellations and amendments to terminate uses, voluntarily requested by the registrants and accepted by the Agency, of the products listed in Table 1 and Table 2 of Unit II, pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This cancellation order follows an October 3, 2017
The cancellations and amendments are applicable June 1, 2018.
Christopher Green, Information Technology and Resources Management Division (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001; telephone number: (703) 347–0367; email address:
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2017–0467, is available at
This notice announces the cancellations and amendments to terminate uses, as requested by registrants, of products registered under FIFRA section 3 (7 U.S.C. 136a).
These registrations are listed in sequence by registration number in Tables 1 and 2 of this unit.
Table 3 of this unit includes the names and addresses of record for all registrants of the products in Table 1 and Table 2 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed in Table 1 and Table 2 of this unit.
During the public comment period provided EPA received 5 anonymous public comments. The Agency does not believe that the comments submitted during the comment period merits further review or the denial of the requests for the voluntary cancellations of products listed in Table 1 of Unit II or the requests for the amendments to terminate uses in Table 2 of Unit II.
Pursuant to FIFRA section 6(f) (7 U.S.C. 136d(f)(1)), EPA hereby approves the requested cancellations and amendments to terminate uses of the registrations identified in Tables 1 and 2 of Unit II. Accordingly, the Agency hereby orders that the product registrations identified in Tables 1 and 2 of Unit II are canceled and amended to terminate the affected uses. The effective date of the cancellations that are subject of this notice is June 1, 2018. Any distribution, sale, or use of existing stocks of the products identified in Tables 1 and 2 of Unit II in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VI will be a violation of FIFRA.
Section 6(f)(1) of FIFRA (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Existing stocks are those stocks of registered pesticide products which are currently in the United States and which were packaged, labeled, and released for shipment prior to the effective date of the action. The existing stocks provision for the products subject to this order is as follows.
The registrant has requested to the Agency via letter to distribute existing stocks for an 18-month period for products 53883–370.
For all other voluntary product cancellations identified in Table 1 of Unit II, registrants will be permitted to sell and distribute existing stocks of voluntarily canceled products for 1 year after the effective date of the cancellation, which will be the date of publication of the cancellation order in the
Now that EPA has approved product labels reflecting the requested amendments to terminate uses for the products listed in Table 2 of Unit II, registrants are permitted to sell or distribute the products listed in Table 2 of Unit II, under the previously approved labeling until December 2, 2019, unless other restrictions have been imposed. Thereafter, registrants will be prohibited from selling or distributing the products whose labels include the terminated uses identified in Table 2 of Unit II, except for export consistent with FIFRA section 17 or for proper disposal.
Persons other than the registrant may sell, distribute, or use existing stocks of canceled products and products whose labels include the terminated uses until supplies are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products and terminated uses.
7 U.S.C. 136
Equal Employment Opportunity Commission.
Notice.
In accordance with the Paperwork Reduction Act of 1995, the Commission announces that it is submitting to the Office of Management and Budget (OMB) a request for a three-year extension without change of the existing recordkeeping requirements under its regulations.
Written comments on this notice must be submitted on or before July 2, 2018.
Comments on this notice must be submitted to Joseph B. Nye, Policy Analyst, Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503, email
Kathleen Oram, Assistant Legal Counsel, Office of Legal Counsel, Equal Employment Opportunity Commission, 131 M Street NE, Washington, DC 20507, (202) 663–4681 (voice) or (202) 663–4494 (TTY), or Erin Norris, Senior Attorney, Office of Legal Counsel, Equal Employment Opportunity Commission, 129 W Trade Street, Charlotte, NC 28202, (704) 954–6491 (voice). Requests for this notice in an alternative format should be made to the Office of Communications and Legislative Affairs at (202) 663–4191 (voice) or (202) 663–4494 (TTY).
The Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964 (Title VII), Title I of the Americans with Disabilities Act (ADA), and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which collectively prohibit discrimination on the basis of race, color, religion, sex, national origin, disability, or genetic information. Section 709(c) of Title VII, section 107(a) of the ADA, and section 207(a) of GINA authorize the EEOC to issue recordkeeping and reporting regulations that are deemed reasonable, necessary or appropriate. EEOC has promulgated recordkeeping regulations under those authorities that are contained in 29 CFR part 1602
A notice that EEOC would be submitting this request was published in the
For the Commission.
June 6, 2018; 10:00 a.m.
800 N Capitol Street NW, First Floor Hearing Room, Washington, DC.
This meeting will be open to the public and will be streamed live at
Rachel Dickon, Secretary, (202) 523–5725.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than June 14, 2018.
1.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement regarding Authorized Negotiators.
Submit comments on or before July 31, 2018.
Submit comments identified by Information Collection 9000–0048, Authorized Negotiators, by any of the following methods:
•
•
Mr. Michael O. Jackson, Procurement Analyst, Office of Governmentwide Acquisition Policy, GSA, 202–208–4949, or via email to
Per FAR 52.215–1(c)(2)(iv), firms offering supplies or services to the Government under negotiated solicitations must provide the names, titles, and telephone numbers of authorized negotiators to assure that discussions are held with authorized individuals. The information collected is referred to before contract negotiations and it becomes part of the official contract file.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the Federal Acquisition Regulations (FAR), and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for public comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning incentive contracts.
Submit comments on or before July 31, 2018.
Submit comments identified by Information Collection 9000–0067, Incentive Contracts, by any of the following methods:
•
•
Mr. Michael O. Jackson, Procurement Analyst, Office of Acquisition Policy, GSA 202–208–4949 or via email
In accordance with FAR 16.4, incentive contracts are normally used when a firm fixed-price contract is not appropriate and the required supplies or services can be acquired at lower costs, and sometimes with improved delivery or technical performance, by relating the amount of profit or fee payable under the contract to the contractor's performance.
The information required periodically from the contractor, such as cost of work already performed, estimated costs of further performance necessary to complete all work, total contract price for supplies or services accepted by the Government for which final prices have been established, and estimated costs allocable to supplies or services accepted by the Government and for which final prices have not been established, is needed to negotiate the final prices of incentive-related items and services. Contractors are required to submit the information in accordance with several incentive fee FAR clauses: FAR 52.216–16, Incentive Price Revision—Firm Target; FAR 52.216–17, Incentive Price Revision—Successive Targets; and FAR 52.216–10, Incentive Fee.
The contracting officer evaluates the information received to determine the contractor's performance in meeting the incentive target and the appropriate price revision, if any, for the items or services.
Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the Federal Acquisition Regulation (FAR), and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice of request for comments regarding an extension to an existing OMB clearance.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve an extension of a previously approved information collection requirement concerning Novation/Change of Name Requirements.
Submit comments on or before July 31, 2018.
Submit comments identified by Information Collection 9000–0076, Novation/Change of Name Requirements, by any of the following methods:
•
•
Mr. Curtis E. Glover, Sr., Procurement Analyst, Office of Governmentwide Acquisition Policy, GSA, 202–208–4949 or via email
Federal Acquisition Regulation 42.1203 and 42.1204 provide requirements for contractors to request novation/change of name agreements and supporting documents when a firm performing under Government contracts wishes the Government to recognize (1) a successor in interest to these contracts, or (2) a name change, it must submit certain documentation to the Government.
Estimates are based on data available in the Federal Procurement Data System for fiscal years 2015 through 2017, which accounts for the decrease from 1,178 estimated respondents to 547 estimated respondents. This has resulted in the public burden hours being reduced to 1,094 from 2,356 for the information collection.
Public comments are particularly invited on: Whether this collection of information is necessary; whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled
CDC must receive written comments on or before July 31, 2018.
You may submit comments, identified by Docket No. CDC–2018–0029 by any of the following methods:
•
•
Submit all comments through the Federal eRulemaking portal (
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Leroy A. Richardson, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS–D74, Atlanta, Georgia 30329; phone: 404–639–7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
The CDC, Division for Heart Disease and Stroke Prevention (DHDSP), requests a one-year Office of Management and Budget (OMB) approval for a new information collection project titled
The CDC is the primary Federal agency for protecting health and promoting quality of life through the prevention and control of disease, injury, and disability. CDC is committed to programs that reduce the health and economic consequences of the leading causes of death and disability, thereby ensuring a long, productive, healthy life for all people.
Sodium reduction is a public health imperative. Although the 2015–2020 Dietary Guidelines for Americans recommends no more than 2,300 mg/day of sodium for adults, U.S. adults consume an average of more than 3,500 mg/day. CDC National Health and Nutrition Examination Survey (NHANES) data from 2013–2014 indicate that men over the age of 20 consume an average of 4,099 mg/day of sodium. The significant gap between recommended intake and average intake poses a serious public health risk; high sodium intake can lead to hypertension, a common and costly health risk in the United States. Researchers indicate that the number of American adults with hypertension, estimated at 77.9 million, continues to grow. The increasing prevalence of hypertension is especially troubling because high blood pressure can lead to serious health issues, including cardiovascular disease (CVD), stroke, and kidney disease. One study projected that the real direct medical costs of CVD will triple between 2010 and 2030, from $273 billion to $818 billion. Recent studies have shown that even modest population-level sodium reductions can lead to significant decreases in blood pressure and to potentially enormous savings—in lives and in dollars.
Reducing sodium levels presents a special set of challenges for public health programs because high sodium intake is largely the result of sodium found in processed foods and foods prepared in restaurants. Commonly used to enhance flavor, texture, and viscosity or to preserve foods, salt is often hidden and difficult for consumers to recognize. Past sodium reduction initiatives that focused on consumer outreach and education succeeded in creating awareness of the link between sodium and hypertension, but failed to make a significant impact on consumption levels. Although consumer outreach and education should be a part of any sodium reduction strategy, these strategies are independently insufficient. As such, multiple reports by the Institute of Medicine and the Food and Drug Administration have asserted the need for large-scale, population-based efforts to decrease sodium consumption.
Recognizing the importance of population-based approaches, CDC launched the first round of the SRCP in 2010 to reduce sodium intake by helping to create healthier food environments and a second round in 2013 to reduce sodium intake in food environments through population-based sodium reduction strategies. SRCP's project goals include increasing access to and availability of lower-sodium food options. The long-term goal of the initiative is to reduce sodium intake within the recommended levels in the Dietary Guidelines for Americans.
The 2010 SRCP awardees implemented strategies in a variety of venues, including worksites, schools, independent restaurants, grocery and convenience stores, hospitals, and venues serving meals for older adults (
CDC funded eight SRCP communities in 2016 to continue improving community and environmental supports for sodium reduction and to build practice-based evidence around effective population-based strategies to reduce sodium consumption. These communities are partnering with organizations to implement sodium reduction strategies in their food service venues. By creating a healthier environment, CDC seeks to decrease the population-wide burden of sodium intake.
CDC and RTI International propose to collect information from all partners of SRCP grantees that are willing to participate in order to estimate the costs to SRCP partners of implementing sodium reduction strategies. Partner organizations are those that work to implement the sodium reduction strategies in their food services and can include worksites, schools, universities, hospitals, senior meal programs, food
The insights to be gained from this data collection will be critical to understanding the full costs of implementing SRCP at all levels of implementation for a set of key sodium reduction activities, which is an important factor in program planning and maintaining program longevity and sustainability. The estimated annual burden hours are 88.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by July 2, 2018.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–5806
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces the next meeting of the Advisory Panel on Outreach and Education (APOE) (the Panel) in accordance with the Federal Advisory Committee Act. The Panel advises and makes recommendations to the Secretary of the U.S. Department of Health and Human Services (HHS) and the Administrator of the Centers for Medicare & Medicaid Services (CMS) on opportunities to enhance the effectiveness of consumer education strategies concerning CMS programs, initiatives and priorities. This meeting is open to the public.
Lynne Johnson, Acting Designated Federal Official, Office of Communications, CMS, 7500 Security Boulevard, Mail Stop S1–05–06, Baltimore, MD 21244–1850, 410–786–0090, email
The Advisory Panel for Outreach and Education (APOE) (the Panel) is governed by the provisions of Federal Advisory Committee Act (FACA) (Pub. L. 92–463), as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of federal advisory committees. The Panel is authorized by section 1114(f) of the Social Security Act (42 U.S.C. 1314(f)) and section 222 of the Public Health Service Act (42 U.S.C. 217a).
The Secretary of the U.S. Department of Health and Human Services (HHS) (the Secretary) signed the charter establishing the Citizen's Advisory Panel on Medicare Education
The Medicare Modernization Act of 2003 (MMA) (Pub. L. 108–173) expanded the existing health plan options and benefits available under the M+C program and renamed it the Medicare Advantage (MA) program. We have had substantial responsibilities to provide information to Medicare beneficiaries about the range of health plan options available and better tools to evaluate these options. The successful MA program implementation required CMS to consider the views and policy input from a variety of private sector constituents and to develop a broad range of public-private partnerships.
In addition, Title I of the MMA authorized the Secretary and the Administrator of CMS (by delegation) to establish the Medicare prescription drug benefit. The drug benefit allows beneficiaries to obtain qualified prescription drug coverage. In order to effectively administer the MA program and the Medicare prescription drug benefit, we have substantial responsibilities to provide information to Medicare beneficiaries about the range of health plan options and benefits available, and to develop better tools to evaluate these plans and benefits.
The Affordable Care Act (Patient Protection and Affordable Care Act, Pub. L. 111–148, and Health Care and Education Reconciliation Act of 2010, Pub. L. 111–152) expanded the availability of other options for health care coverage and enacted a number of changes to Medicare as well as to Medicaid and the Children's Health Insurance Program (CHIP). Qualified
The scope of this Panel also includes advising on issues pertaining to the education of providers and stakeholders with respect to the Affordable Care Act and certain provisions of the Health Information Technology for Economic and Clinical Health (HITECH) Act enacted as part of the American Recovery and Reinvestment Act of 2009 (ARRA).
On January 21, 2011, the Panel's charter was renewed and the Panel was renamed the Advisory Panel for Outreach and Education. The Panel's charter was most recently renewed on January 19, 2017, and will terminate on January 19, 2019 unless renewed by appropriate action.
Under the current charter, the APOE will advise the Secretary and the Administrator on optimal strategies for the following:
• Developing and implementing education and outreach programs for individuals enrolled in, or eligible for, Medicare, Medicaid, and the Children's Health Insurance Program (CHIP), or coverage available through the Health Insurance Marketplace
• Enhancing the federal government's effectiveness in informing Health Insurance Marketplace
• Expanding outreach to vulnerable and underserved communities, including racial and ethnic minorities, in the context of Health Insurance Marketplace
• Assembling and sharing an information base of “best practices” for helping consumers evaluate health coverage options.
• Building and leveraging existing community infrastructures for information, counseling, and assistance.
• Drawing the program link between outreach and education, promoting consumer understanding of health care coverage choices, and facilitating consumer selection/enrollment, which in turn support the overarching goal of improved access to quality care, including prevention services, envisioned under the Affordable Care Act.
The current members of the Panel are: Kellan Baker, Associate Director, Center for American Progress; Robert Blancato, President, National Association of Nutrition and Aging Services Programs; Deborah Britt, Executive Director of Community & Public Relations, Piedmont Fayette Hospital; Deena Chisolm, Associate Professor of Pediatrics & Public Health, The Ohio State University, Nationwide Children's Hospital; Robert Espinoza, Vice President of Policy, Paraprofessional Healthcare Institute; Louise Scherer Knight, Director, The Sidney Kimmel Comprehensive Cancer Center at Johns Hopkins; Roanne Osborne-Gaskin, M.D., Senior Medical Director, MDWise, Inc.; Cathy Phan, Outreach and Education Coordinator, Asian American Health Coalition DBA HOPE Clinic; Kamilah Pickett, Litigation Support, Independent Contractor; Alvia Siddiqi, Medicaid Managed Care Community Network (MCCN) Medical Director, Advocate Physician Partners, Carla Smith, Executive Vice President, Healthcare Information and Management Systems Society (HIMSS); Tobin Van Ostern, Vice President and Co-Founder, Young Invincibles Advisors; and Paula Villescaz, Senior Consultant, Assembly Health Committee, California State Legislature.
In accordance with section 10(a) of the FACA, this notice announces a meeting of the APOE. The agenda for the June 20, 2018 meeting will include the following:
Individuals or organizations that wish to make a 5-minute oral presentation on an agenda topic should submit a written copy of the oral presentation to the DFO at the address listed in the
The meeting is open to the public, but attendance is limited to the space available. Persons wishing to attend this meeting must register by contacting the DFO at the address listed in the
The REAL ID Act of 2005 (Pub. L. 109–13) establishes minimum standards for the issuance of state-issued driver's licenses and identification (ID) cards. It prohibits federal agencies from accepting an official driver's license or ID card from a state for any official purpose unless the Secretary of the Department of Homeland Security determines that the state meets these standards. Beginning October 2015, photo IDs (such as a valid driver's license) issued by a state or territory not in compliance with the Real ID Act will not be accepted as identification to enter federal buildings. Visitors from these states/territories will need to provide alternative proof of identification (such as a valid passport) to gain entrance into federal buildings. The current list of states from which a federal agency may accept driver's licenses for an official purpose is found at
We recommend that confirmed registrants arrive reasonably early, but no earlier than 45 minutes prior to the start of the meeting, to allow additional time to clear security. Security measures include the following:
• Presentation of a government-issued photographic identification to the Federal Protective Service or Guard Service personnel.
• Inspection, via metal detector or other applicable means, of all persons entering the building. We note that all items brought into HHH Building, whether personal or for the purpose of presentation or to support a presentation, are subject to inspection. We cannot assume responsibility for coordinating the receipt, transfer, transport, storage, set up, safety, or timely arrival of any personal belongings or items used for presentation or to support a presentation.
Individuals who are not registered in advance will not be permitted to enter the building and will be unable to attend the meeting.
This document does not impose information collection requirements, that is, reporting, recordkeeping, or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
Sec. 1114(f) of the Social Security Act (42 U.S.C. 1314(f)), sec. 222 of the Public Health Service Act (42 U.S.C. 217a), and sec. 10(a) of Pub. L. 92–463 (5 U.S.C. App. 2, sec. 10(a) and 41 CFR 102–3).
The IDCM Intake Assessment is intended to allow Immediate Disaster Case Management workers the ability to collect specific information, which includes demographics, and disaster caused unmet needs, from disaster survivors in order to create an in depth profile within the Electronic Case Management Record System (ECMRS.) This profile will provide a basis for the IDCM worker to generate and make available specific and customized plans of emergency assistance, and provide connections and referrals for disaster affected victims to Federal, state, local resources, which is critical to developing an overall recovery plan for each disaster survivor.
Division of Energy Assistance, Office of Community Services (OCS), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS).
Notice of public comment on the determination concerning funds available for reallotment.
Notice is hereby given of a preliminary determination that funds from the fiscal year (FY) 2017 Low Income Home Energy Assistance Program (LIHEAP) are available for reallotment to States, Territories, Tribes, and Tribal Organizations that received FY 2018 direct LIHEAP grants. No subgrantees or other entities may apply for these funds.
Section 2607(b)(1) of the Low Income Home Energy Assistance Act (the Act), (42 U.S.C. 8626(b)(1)) requires that, if the Secretary of HHS determines that, as of September 1 of any fiscal year, an amount in excess of 10 percent of the amount awarded to a grantee for that fiscal year (excluding Leveraging and REACH funds) will not be used by the grantee during that fiscal year, then the Secretary must notify the grantee and publish a notice in the
Submit comments on or before July 2, 2018.
Comments may be submitted to: J. Janelle George, Acting Director, Office of Community Services, Administration for Children and
Lauren Christopher, Director, Division of Energy Assistance, Office of Community Services, Administration for Children and Families, U.S. Department of Health and Human Services, 330 C Street SW, 5th Floor, Mail Room 5425, Washington, DC 20201. Telephone: (202) 401–4870. Email:
It has been determined that $536,595 in LIHEAP funds may be available for reallotment during FY 2018. This determination is based on FY 2017 Carryover and Reallotment Reports which showed that fifteen grantees reported reallotment funds. These grantees were State of Alaska, Aniak Traditional Council, Association of Village Council Presidents, Bristol Bay Native Association, Colorado River Indian Tribes, Hoh Indian Tribe, Jicarilla Apache Nation, Kalispel Tribe of Indians, Little River Band of Ottawa Indians, Miami Tribe of Oklahoma, Navajo Nation, Sac and Fox Nation of Oklahoma, Samish Indian Nation, Three Affiliated Tribes, and Tyme Maidu Tribe Berry Creek Rancheria. Grantees submitted the FY 2017 Carryover and Reallotment Reports to the OCS, as required by regulations applicable to LIHEAP at 45 CFR 96.81(b).
The LIHEAP statute allows grantees who have funds unobligated at the end of the federal fiscal year for which they are awarded to request that they be allowed to carry over up to 10 percent of their full-year allotments to the next federal fiscal year. Funds in excess of this amount must be returned to HHS and are subject to reallotment under section 2607(b)(1) of the Act (42 U.S.C. 8626(b)(1)). The amount described in this notice was reported by grantees as unobligated FY 2017 funds in excess of the amount that these grantees could carry over to FY 2018.
In accordance with section 2607(b)(3) of the Act (42 U.S.C. 8626(b)(3)), comments will be accepted for a period of 30 days from the date of publication of this notice.
After considering any comments submitted, all current LIHEAP grantees will be notified of the final reallotment amount redistributed to them for obligation in FY 2018. This decision will be published in a Dear Colleague Letter that gets posted to ACF's website.
If funds are reallotted, they will be allocated in accordance with section 2604 of the Act (42 U.S.C. 8623) and must be treated by LIHEAP grantees receiving them as an amount appropriated for FY 2018. As FY 2018 funds, they will be subject to all requirements of the Act, including section 2607(b)(2) (42 U.S.C. 8626(b)(2)), which requires that a grantee obligate at least 90 percent of its total block grant allocation for a fiscal year by the end of the fiscal year for which the funds are appropriated, that is, by September 30, 2018.
42 U.S.C. 8626.
This information collection will be housed in the On-Line Data Collection (OLDC) with in
In compliance with the requirements of the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. Chap 35), the Administration for Children and Families is soliciting public comment on the specific aspects of the information collection described above. Copies of the proposed collection of information can be obtained and comments may be forwarded by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 330 C Street SW, Washington, DC 20201, Attn: ACF Reports Clearance Officer. Email address:
The Department specifically requests comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted within 60 days of this publication.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Waivers of the Single, Shared System REMS Requirement.” This guidance describes how FDA intends to consider granting a waiver of the requirement in the Federal Food, Drug, and Cosmetic Act (FD&C Act) that the applicant for an abbreviated new drug application (ANDA) and its reference listed drug (RLD) use a single, shared system (SSS) for a required risk evaluation and mitigation strategy (REMS) with elements to assure safe use (ETASU).
Submit either electronic or written comments on the draft guidance by August 30, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance 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 draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993–0002, or to the Office of Communication, Outreach and Development, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Elaine Lippmann, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6238, Silver Spring, MD 20993, 301–796–
FDA is announcing the availability of a draft guidance for industry entitled “Waivers of the Single, Shared System REMS Requirement.” This guidance describes how the Agency intends to consider granting a waiver of the requirement in section 505–1(i) of the FD&C Act (21 U.S.C. 355–1(i)) that the applicant for an ANDA and its RLD use a SSS for a required REMS with ETASU.
Section 505–l(i)(l)(B) of the FD&C Act requires that a holder of an ANDA under section 505(j) use a “single, shared system” with the RLD for any ETASU, unless FDA waives this requirement. The statute permits a waiver of the SSS requirement if FDA finds that (1) “the burden of creating a [SSS] outweighs the benefit of a single, system, taking into consideration the impact on health care providers, patients, the applicant for the [ANDA], and the holder of the reference drug product,” or (2) an aspect of the ETASU for the applicable listed drug is claimed by an unexpired patent or trade secret and the ANDA applicant certifies that it sought a license for use of the aspect, but was unable to obtain one. If a waiver of the SSS requirement is granted, the ANDA may use “a different, comparable aspect of the [ETASU],” instead of participating in a SSS with the RLD.
This guidance is intended to explain the factors FDA will consider in evaluating a request for waiver of the SSS requirement and provide recommendations to ANDA applicants regarding the submission and content of waiver requests. The guidance also addresses FDA's interpretation of what constitutes a different, comparable aspect of the ETASU as described in section 505–1(i)(1)(B).
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Waivers of the Single, Shared System REMS Requirement.” 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 is not subject to Executive Order 12866.
This draft guidance refers to collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520). The preparation and submission of waiver requests (as described in 21 CFR 314.90 for new drug application applicants and 314.99(b) for ANDA applicants) has been approved under OMB control number 0910–0001. In accordance with the PRA, before publication of the final guidance document, FDA intends to solicit public comment and obtain OMB approval for any information collections recommended in this guidance that are new or that would represent material modifications to previously approved collections of information found in FDA regulations.
Persons with access to the internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by July 31, 2018.
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 July 31, 2018. 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
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A–12M, 11601 Landsdown St., North Bethesda, MD 20852, 301–796–5733,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection supports FDA regulations. As amended by the FDA Food Safety Modernization Act (FSMA) (Pub. L. 111–353), the Federal Food, Drug, and Cosmetic Act (FD&C Act) enables the Agency to better protect the public health by helping to ensure the safety and security of the food supply. It enables FDA to focus more on preventing food safety problems rather than relying primarily on reacting to problems after they occur. FSMA recognizes the important role industry plays in ensuring the safety of the food supply, including the adoption of modern systems of preventive controls in food production. Specifically, section 418 of the FD&C Act (21 U.S.C. 350g) sets forth requirements for hazard analysis and risk-based preventive controls for facilities that produce food for human consumption. To implement these provisions, regulations were codified under 21 CFR part 117—Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Controls for Human Food. The regulations establish requirements for a written food safety plan; hazard analysis preventive controls; monitoring; corrective actions and corrections; verification; supply-chain program; recall plan; and associated records, and became effective November 16, 2015. Currently, we continue to evaluate burden associated with the information collection requirements; however, for purposes of extending the information collection we retain the currently approved figures as shown below.
Our estimate of the burden for the information collection is as follows:
These figures are based on our regulatory impact analysis in support of the final rule on preventive controls for human food, which published in the
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance for industry entitled “Development of a Shared System REMS.” This draft guidance provides recommendations on the development of a shared system risk evaluation and mitigation strategy (REMS) for multiple prescription drug (including biological) products. This guidance describes some of the possible benefits of a shared system REMS, and provides general principles and recommendations to assist industry with the development of these programs.
Submit either electronic or written comments on the draft guidance by July 31, 2018 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance 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 draft guidance to the Division of Drug Information, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Lubna Merchant, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 4418, Silver Spring, MD 20993–0002, 301–796–5162, email:
FDA is announcing the availability of a draft guidance for industry entitled “Development of a Shared System REMS.” This guidance describes some of the possible benefits of shared system REMS, and provides general principles and recommendations to assist industry with the development of these programs.
Section 505–l(i)(l)(B) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355–1((i)(1)(B)) requires that a holder of an abbreviated new drug application (ANDA) approved under section 505(j) use a “single, shared system” with the reference listed drug (RLD) for any REMS with elements to assure safe use (ETASU) unless FDA waives this requirement.
The requirement under section 505–1(i)(1)(B) regarding a “single, shared system” only applies to ANDAs. However, FDA recognizes that it may be in the interest of public health to have a shared system REMS in other cases because it may increase efficiencies for applicants and stakeholders. A shared system REMS can encompass multiple prescription drug products and can be developed and implemented jointly by two or more applicants. It can be a program shared by a drug that is the subject of an ANDA and the listed drug, as required in section 505–1(i)(1)(B) (described above). It can also involve multiple new drug applications, ANDAs, or biologics license applications, approved under section 505(b)(1), (b)(2), or (j) of the FD&C Act (21 U.S.C. 355(b)(1), (b)(2) or (j)) or section 351(a) or (k) of the PHS Act (42 U.S.C. 262(a) or (k)), respectively, that form a shared system voluntarily.
Elsewhere in this issue of the
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Development of a Shared System REMS.” 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 is not subject to Executive Order 12866.
This draft guidance refers to collections of information that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520). The preparation and submission of a drug master file (as described in 21 CFR 314.420) by applicants for their shared system REMS submissions has been approved under OMB control number 0910–0001. In accordance with the PRA, before publication of the final guidance document, FDA intends to solicit public comment and obtain OMB approval for any information collections recommended in this guidance that are new or that would represent material modifications to previously approved collections of information found in FDA regulations.
Persons with access to the internet may obtain the draft guidance at either
Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice; amendment.
A notice was published in the
The written public comment period has been extended. All written comments are due to be submitted on or before June 15, 2018.
Individuals submitting written comments should submit their comments through the Federal eRulemaking Portal at
Alicia Richmond Scott, Designated Federal Official, Pain Management Best Practices Inter-Agency Task Force, U.S. Department of Health and Human Services, Office of the Assistant Secretary for Health, 200 Independence Avenue SW, Room 736E, Washington, DC 20201. Email:
Substance Abuse and Mental Health Services Administration, HHS.
Notice.
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines).
A notice listing all currently HHS-certified laboratories and IITFs is published in the
If any laboratory or IITF has withdrawn from the HHS National Laboratory Certification Program (NLCP) during the past month, it will be listed at the end and will be omitted from the monthly listing thereafter.
This notice is also available on the internet at
Giselle Hersh, Division of Workplace Programs, SAMHSA/CSAP, 5600 Fishers Lane, Room 16N03A, Rockville, Maryland 20857; 240–276–2600 (voice).
The Department of Health and Human Services (HHS) notifies federal agencies of the laboratories and Instrumented Initial Testing Facilities (IITF) currently certified to meet the standards of the Mandatory Guidelines for Federal Workplace Drug Testing Programs (Mandatory Guidelines). The Mandatory Guidelines were first published in the
The Mandatory Guidelines were initially developed in accordance with Executive Order 12564 and section 503 of Public Law 100–71. The “Mandatory Guidelines for Federal Workplace Drug Testing Programs,” as amended in the revisions listed above, requires strict standards that laboratories and IITFs must meet in order to conduct drug and specimen validity tests on urine specimens for federal agencies.
To become certified, an applicant laboratory or IITF must undergo three rounds of performance testing plus an on-site inspection. To maintain that certification, a laboratory or IITF must participate in a quarterly performance testing program plus undergo periodic, on-site inspections.
Laboratories and IITFs in the applicant stage of certification are not to be considered as meeting the minimum requirements described in the HHS Mandatory Guidelines. A HHS-certified laboratory or IITF must have its letter of certification from HHS/SAMHSA (formerly: HHS/NIDA), which attests that it has met minimum standards.
In accordance with the Mandatory Guidelines dated January 23, 2017 (82 FR 7920), the following HHS-certified laboratories and IITFs meet the minimum standards to conduct drug and specimen validity tests on urine specimens:
* The Standards Council of Canada (SCC) voted to end its Laboratory Accreditation Program for Substance Abuse (LAPSA) effective May 12, 1998. Laboratories certified through that program were accredited to conduct forensic urine drug testing as required by U.S. Department of Transportation (DOT) regulations. As of that date, the certification of those accredited Canadian laboratories will continue under DOT authority. The responsibility for conducting quarterly performance testing plus periodic on-site inspections of those LAPSA-accredited laboratories was transferred to the U.S. HHS, with the HHS' NLCP contractor continuing to have an active role in the performance testing and laboratory inspection processes. Other Canadian laboratories wishing to be considered for the NLCP may apply directly to the NLCP contractor just as U.S. laboratories do.
Upon finding a Canadian laboratory to be qualified, HHS will recommend that DOT certify the laboratory (
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of accreditation and approval of NMK Resources, Inc., as a commercial laboratory and gauger.
Notice is hereby given, pursuant to CBP regulations, that NMK Resources, Inc. has been approved to gauge petroleum and certain petroleum products and accredited to test petroleum and certain petroleum products for customs purposes for the next three years as of July 7, 2017.
The accreditation and approval of NMK Resources, Inc., as commercial laboratory and gauger became effective on July 7, 2017. The next triennial inspection date will be scheduled for July 2020.
Melanie A. Glass, Science Officer, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1331 Pennsylvania Avenue NW, Suite 1500N, Washington, DC 20229, tel. 202–344–1060.
Notice is hereby given pursuant to 19 CFR 151.12 and 19 CFR 151.13, that NMK Resources, Inc., 650 Grove Road, Suite #111, Thorofare, NJ 08086, has been approved to gauge petroleum and certain petroleum products and accredited to test petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. NMK Resources, Inc. is approved for the following gauging procedures for petroleum and certain petroleum products per the American Petroleum Institute (API) Measurement Standards:
NMK Resources, Inc. is accredited for the following laboratory analysis procedures and methods for petroleum and certain petroleum products set forth by the U.S. Customs and Border Protection Laboratory Methods (CBPL) and American Society for Testing and Materials (ASTM):
Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344–1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security and U.S. Forest Service, Department of Agriculture.
Notice of availability of Draft Environmental Impact Statement concerning the repair and maintenance of Bog Creek Road and closure of certain roads within the Blue-Grass Bear Management Unit in the Selkirk Mountains in Boundary County, Idaho; request for comments.
U.S. Customs and Border Protection (CBP) and the U.S. Forest Service (Forest Service) Idaho Panhandle National Forests (IPNF) announce the availability of the Bog Creek Road Project Draft Environmental Impact Statement (EIS) for public review. The Draft EIS identifies and assesses potential impacts upon the environment of: Repairing and maintaining an approximately 5.6-mile section of the existing Bog Creek Road, which is located in the Selkirk Mountains in Boundary County, Idaho, within approximately two miles of the Canadian border, on land within the Blue-Grass Bear Management Unit (BMU) that is managed by the Forest Service; and closing for motorized use additional roads within the Blue-Grass BMU to comply with the
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CD–ROM and print copies are available by sending a request to Paul Enriquez at
• The IPNF Supervisors Office, 3815 Schreiber Way, Coeur d'Alene, Idaho;
• Sandpoint Ranger District, 1602 Ontario Street, Sandpoint, Idaho;
• Bonners Ferry Ranger District, 6286 Main Street, Bonners Ferry, Idaho; and
• Priest Lake Ranger District, 32203 Highway 57, Priest River, Idaho.
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• Hand delivered to any of the Forest Service locations where CD–ROM and print copies of the Draft EIS are available; or
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Paul Enriquez, CBP, Border Patrol and Air and Marine Program Management Office, by telephone at 949–643–6365, or email at
U.S. Customs and Border Protection (CBP) and the U.S. Forest Service (Forest Service) Idaho Panhandle National Forests (IPNF) (collectively the Agencies) are proposing a road repair, maintenance, and motorized closure project in the Continental Mountain area of the Idaho Panhandle National Forests within the Bonners Ferry and Priest Lake Ranger Districts. The project has two objectives: (1) To provide safe east-west access for administrative use (as explained below) to this section of the U.S.-Canada border across the Selkirk Mountains, and (2) to meet grizzly bear motorized access standards within the Blue-Grass BMU of the Selkirk Grizzly Bear Recovery Zone in order to comply with the
The Bog Creek Road Project Draft EIS has been prepared to identify and assess potential impacts from the Proposed Action on the environment. The
The first component is the repair and maintenance of an approximately 5.6-mile section of Bog Creek Road (Forest Service Road [FSR] 1013), which would be conducted to allow the road to meet Forest Service road maintenance level 2 standards and would generally allow access for high-clearance vehicles. Maintenance level 2 roads are described in Forest Service Handbook 7709.58. Bog Creek Road is currently designated as a seasonally restricted road. Motorized use by the Forest Service, CBP, law enforcement, and other administrative agencies is permitted between April 1 and November 15 (active bear year) but is limited to 57 administrative vehicle round trips per active bear year. After road repair activities, the road designation would change to
Repair and maintenance would consist of grading and resurfacing areas of the road that have been heavily eroded by surface water flows, filling potholes, and removing protruding boulders. Repair would also include installation of six new culverts and replacement of six of the existing 67 corrugated metal pipe culverts located along the length of the roadway because they have partially rusted through, otherwise exceeded their usable life, or do not meet current design standards for width and capacity. The most intensive repair would occur at Spread Creek, where a culvert failure and road washout have made the road completely impassable. The road would not be widened, but limited areas that no longer meet minimum width requirements may require cut and fill work to achieve the desired road operating and safety standards. Trees and other vegetation within the roadway and to either side would be grubbed or cut back to facilitate safe vehicle passage.
The second component is the change in motorized designation of Blue Joe Creek Road (FSR 2546). Blue Joe Creek Road extends from the eastern terminus of the Bog Creek Road, running 7.4 miles alongside Blue Joe Creek, to the Continental Mine property. Blue Joe Creek Road is currently designated as seasonally restricted, and motorized access is limited to 57 vehicle round trips per active bear year. Under the Proposed Action, the current seasonal restrictions that limit the number of motorized administrative trips along Blue Joe Creek Road would be removed. The road would be designated as administrative open, which would allow for as-needed administrative motorized trips. This change in designation, when combined with the Bog Creek Road designation change, would allow for administrative trips by private property owners to access their property within the Blue-Grass BMU.
The final component is the motorized closure of selected seasonally restricted Forest Service roads. Under the Proposed Action, approximately 26 miles of seasonally restricted Forest Service roads would be closed to all wheeled motorized use within the Blue-Grass BMU. Closing the roads would allow the Forest Service to meet the requirements of at least 55 percent of the BMU as core area habitat, and no more than 26 percent of the BMU having a total motorized route density (TMRD) greater than 2 miles per square mile, as specified in the Access Amendment. The means by which motorized road closure would take place would vary by site and would include both decommissioning and long-term storage. Decommissioning involves permanently removing a road from the Forest Service transportation system. Long-term storage involves rendering a road undrivable. Roads stored for creation of grizzly bear core habitat would remain stored for a minimum of ten years. On-the-ground road work is typically the same or very similar for decommissioning and long-term storage, as both are intended to prevent future failures and erosion hazards. Both methods may involve one or a combination of the following treatments: Fully or partially recontouring the road prism, ripping the road surface, removing culverts and recontouring stream crossings, planting and seeding, mulching, or slashing disturbed areas.
All roads proposed for motorized closure under the Proposed Action are currently classified as seasonally restricted Forest Service roads. Administrative motorized use of these roads is permitted between April 1 and November 15; non-motorized public access on these roads is permitted year-round.
The Agencies developed alternatives to the Proposed Action described above and disclose the environmental impacts of these alternatives in the Draft EIS. In addition to the No-Action Alternative (Alternative 1) and the Proposed Action (Alternative 2), there are two other action alternatives analyzed: Modified Proposed Action (Alternative 3) and Blue-Grass BMU West-East Open Access (Alternative 4).
The No-Action Alternative (Alternative 1) represents the effects of not implementing the proposed repair and maintenance of Bog Creek Road and motorized closure of seasonally restricted Forest Service roads, while taking into account the effects of other past, ongoing, and reasonably foreseeable activities occurring in the area. This alternative proposes that no repair and maintenance activities would occur on the 5.6-mile section of Bog Creek Road and that the 26 miles of seasonally restricted Forest Service roads would continue to be available for motorized use in accordance with seasonal access restrictions. There would be no change in Forest Service management of the roads and CBP activities in the Blue-Grass BMU. Although the Forest Service would continue to examine road closure options to meet Access Amendment requirements within the Blue-Grass BMU under the No-Action Alternative, compliance with the Access Amendment standards would not change until currently unidentified other viable road closure options are implemented.
Alternative 3 is a modified version of the Proposed Action that would close a different set of seasonally restricted Forest Service roads to motorized access. The repair and maintenance activities proposed for Bog Creek Road and the
Alternative 4 is a modified version of the Proposed Action that would open Bog Creek Road and roads along the eastern approach to Bog Creek Road to public motorized access. Under Alternative 4, Bog Creek Road repair and maintenance and the motorized closure of seasonally restricted Forest Service roads would be identical to the Proposed Action. After repair of Bog Creek Road is completed, Alternative 4 would designate the 5.6 miles of the repaired Bog Creek Road as open for public motorized access year-round. However, winter motorized snowmobile use by the public is currently not allowed on Bog Creek Road as a result of rulings by the United States District Court of the Eastern District of Washington on November 7, 2006, and February 27, 2007, relating to recovery of Selkirk Mountain woodland caribou and the potential impacts of snowmobile use within the recovery area. Approximately 7.4 miles of Blue Joe Creek Road would change to an
The Draft EIS addresses the potential impacts from the Proposed Action and alternatives. Evaluations were conducted on various resources present in the Blue-Grass BMU, including: Threatened and endangered species, wildlife, fish, special-status plants, water, soils, recreation, and heritage. A preferred alternative to the Proposed Action has not yet been identified by the Agencies.
The Draft EIS is available for public comment. The Agencies invite comments on all aspects of the Draft EIS. Comments that will provide the most assistance to the Agencies will reference a specific section of the Draft EIS, explain the reason for any recommended change, and include data, information, or authority that supports such recommended change. Substantive comments received during the comment period will be addressed in the Final EIS. The Final EIS will be made available to the public through a Notice of Availability (NOA) in the
This project is subject to 36 CFR part 218, subparts A and B of the Forest Service's Project-level Pre-decisional Administrative Review Process. Pursuant to 36 CFR part 218, only those who provide timely and specific written comments regarding the proposed project during a comment period are eligible to file an objection with the Forest Service. Comments received regarding this Draft EIS are considered part of the administrative record for the National Environmental Policy Act (NEPA) review. Within this context, a commenter's personally identifiable information, such as name and contact information, may be released to a third party upon request under the Freedom of Information Act. Comments submitted anonymously, without a name and contact information, will be accepted and considered; however, anonymous comments will not provide the commenter with standing to participate in the Forest Service objection process.
The Agencies will hold three public open houses to inform the public and solicit comments about the Draft EIS. The open houses will include displays and handouts and will provide an opportunity for the public to ask questions and submit written comments on the Draft EIS. Open house schedule is as follows:
• June 19, 2018, 5:30 to 7:30 p.m.: Priest Lake Ranger District—32203 Highway 57, Priest River, Idaho;
• June 20, 2018, 5:30 to 7:30 p.m.: Sandpoint Ranger District—1602 Ontario Street, Sandpoint, Idaho;
• June 21, 2018, 5:30 to 7:30 p.m.: Bonners Ferry Ranger District—6286 Main Street, Bonners Ferry, Idaho.
This process is being conducted pursuant to the NEPA (42 U.S.C. 4321
Public scoping for the Bog Creek Road repair and maintenance proposal was initially conducted by CBP in February and March of 2013. Information gathered from the initial scoping effort was used to inform the Agencies about what level of NEPA analysis was necessary to evaluate the proposed project. The initial scoping information included the possibility that road closures may become part of the proposed action, but did not include specific motorized road closure information. Using initial scoping information, the Agencies determined that the NEPA analysis would be conducted through an EIS process.
The Notice of Intent (NOI) stating that CBP and the Forest Service planned to prepare an EIS for the Bog Creek Road Project was published in the
All scoping comments submitted during the initial scoping and NOI scoping were included in issue development for the current EIS process. A Scoping Report that summarizes both scoping efforts is available for review as part of the project record. The Scoping Report is available on the CBP public website:
Section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies to review all actions which may affect resources listed on, or eligible for, the National Register of Historic Places in order to take into account the effects of their undertakings on historic properties. In accordance with NHPA, the Agencies seek to obtain public comments on historic preservation issues related to the road repair and closure of roads for motorized use. This process will also afford the Idaho State Historic Preservation Officer and tribal
After the public review period is complete and the Agencies have reviewed the results, a list of comments and responses will be compiled and included in the Final EIS. The Agencies will select a preferred alternative that will be set forth in the Final EIS and Draft Record of Decision (ROD). The Final EIS and Draft ROD will be made available to the public through an NOA in the
Fish and Wildlife Service, Interior.
Notice of intent; notice of public scoping meetings; request for comments.
We, the U.S. Fish and Wildlife Service (Service), intend to prepare a draft programmatic environmental impact statement addressing the potential impacts on the human environment caused by alternatives described in habitat conservation plans (HCPs) for four similar wind energy projects. The HCPs were submitted to the Service in support of requests for incidental take permits (ITPs) under the Endangered Species Act authorizing the take of endangered species. The proposed permit actions involve a new HCP for the Pakini Nui Wind Farm on the Island of Hawai`i and major amendments to three existing HCPs addressing the Auwahi Wind and Kaheawa Wind Power II projects, both located on Maui, and the Kawailoa Wind Power project, located on O`ahu. All four wind energy facilities are already constructed and in operation. The proposed ITP and proposed ITP amendments would address take of three endangered species: The Hawaiian hoary bat, the Hawaiian goose, and the Hawaiian petrel.
The public scoping period begins with the publication of this notice in the
• Hawai`i: June 18, 2018, 6 to 8 p.m.
• Maui: June 20, 2018, 6 to 8 p.m.
• O`ahu: June 21, 2018 6 to 8 p.m.
To request further information or submit written comments, please use one of the following methods. Please include “Wind Energy HCPs and PEIS Scoping” in the subject line of your request, message, or comment.
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• Hawai`i: Na`alehu Community Center, 95–5635 Mamalahoa Hwy., Na`alehu, Hawai`i, HI 96772.
• Maui: Malcolm Center, 1305 North Holopono Street, Suite 5, Kīhei, Maui, HI 96753
• O`ahu: Sunset Beach Recreation Center, 59–540 Kamehameha Hwy., Haleiwa, O`ahu, HI 96712
Darren LeBlanc, at 808–792–9403, or Michelle Bogardus at 808–792–9473. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1–800–877–8339 during normal business hours. Also, FRS is available 24 hours a day, 7 days a week, to leave a message or question. You will receive a reply during normal business hours.
We, the U.S. Fish and Wildlife Service, are initiating the National Environmental Policy Act (NEPA) compliance process related to four incidental take permit (ITP) applications under section 10 of the Endangered Species Act, as amended (ESA) (16 U.S.C. 1531
The Service provides this notice to (1) advise other Federal and State agencies, local governments, and the general public of our intent to prepare a programmatic environmental impact statement (PEIS); (2) announce the initiation of a 30-day scoping period; and (3) request information and recommendations on the scope of the issues to be included in the PEIS, including input on the appropriateness of our intent to develop a single PEIS addressing project-specific alternatives and cumulative impacts of the four separate permit decisions, instead of preparing an individual EIS for each of the proposed permit actions. The four wind energy facilities are already constructed and in operation. Therefore, the PEIS will address only effects associated with the operation of the four wind energy projects.
The PEIS will serve as the Service's documentation of compliance with NEPA. The Service believes a programmatic NEPA analysis of similar wind energy project-related permit decisions provides the following benefits: A comprehensive analysis of cumulative impacts across all projects; a reduction in duplicative efforts between projects; improved consistency in the analysis; and a more efficient and comprehensive solicitation of public input.
Section 9 of the ESA prohibits “take” of fish and wildlife species listed as endangered or threatened. Under section 3 of the ESA, the term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct (16 U.S.C. 1532(19)). The term “harm” is further defined by regulation in title 50 of the Code of Federal Regulations as an act that actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering (50 CFR 17.3). The term
Pursuant to section 10(a)(1)(B) of the ESA, the Service may authorize take of federally listed species, if such take occurs incidental to otherwise legal activities and a habitat conservation plan (HCP) has been developed under section 10(a)(2)(A) that describes: (1) The impact that will likely result from such taking; (2) the steps an applicant will take to minimize and mitigate that take to the maximum extent practicable and the funding that will be available to implement such steps; (3) alternative actions to such taking that an applicant considered and the reasons why such alternatives are not being used; and (4) other measures the Service may require as being necessary or appropriate for the purposes of the plan.
Section 10(a)(1)(B) of the ESA contains provisions for issuing ITPs to non-Federal entities for the take of endangered and threatened species, provided the following criteria are met: (1) The taking will be incidental to otherwise lawful activities; (2) an applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking; (3) an applicant has ensured that adequate funding for the plan will be provided; (4) the taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild; and (5) the applicant will carry out any other measures we require as necessary or appropriate for the purposes of the plan. Regulations governing permits for endangered and threatened species are at 50 CFR 17.22 and 17.32, respectively. The Service's general permitting regulations, found at 50 CFR 13.1–13.29, also apply to these actions.
The Service intends to prepare a PEIS to evaluate the project-specific alternatives and cumulative impacts of four ITP decisions addressing a newly proposed HCP for the Pakini Nui Wind Farm and major amendments for three existing HCPs for the Auwahi Wind, Kawailoa Wind Power, and KWP II wind energy projects. If these proposed HCPs meet permit issuance criteria, the Service would issue separate ITPs to each of the four permit applicants. The existing projects, the amount of take authorized in their original ITP, and the estimated levels of take in the proposed new or amended HCPs (See Tables 1–3) are briefly described below. The ITPs, if issued, would authorize the incidental take of listed species caused by the operation of existing land-based wind energy facilities.
The Auwahi Wind project began commercial operation on December 28, 2012, and is located on Ulupalakua Ranch in east Maui, Hawai`i. Auwahi Wind Energy, LLC, was originally issued an ITP from the Service and an incidental take license (ITL) from the Hawai`i Department of Land and Natural Resources Division of Forestry and Wildlife on February 24 and February 9, 2012, respectively. The Auwahi Wind project consists of eight Siemens 3.0-megawatt (MW) wind turbines, augmented with an 11–MW
The original ITP and ITL, with 2014 amendments, authorized the following amounts of incidental take over the 25-year permit term: 21 Hawaiian hoary bats; 87 Hawaiian petrels; 5 Hawaiian geese; and Blackburn's sphinx moths (
Auwahi Wind Energy, LLC, is requesting a permit amendment to address a higher than anticipated amount of take of the Hawaiian hoary bat that has occurred during the first 5 years of operation. Auwahi Wind Energy, LLC, is requesting incidental take coverage for an additional estimated 176 Hawaiian hoary bats (for a total of 197 bats) over the 25-year permit term, which expires in 2037.
The Kawailoa Wind Power project is located approximately 4 miles from Haleiwa town, on the north shore of the island of O`ahu, Hawai`i, and began commercial operations in November of 2012. Kawailoa Wind Power, LLC, was issued an ITP and an ITL on December 8, 2011, and January 6, 2012, respectively. The Kawailoa Wind Power project consists of 30 2.3–MW wind turbine generators. Ancillary facilities include an underground electrical collection system, an operation and maintenance facility, and an approximately 4.0-mile above-ground transmission line.
The original ITP and ITL authorized the following amounts of incidental take over a 20-year permit term: 60 Hawaiian hoary bats; 12 Hawaiian ducks (koloa maoli;
Kawailoa Wind Power, LLC, is requesting a permit amendment to address a higher than anticipated amount of take of the Hawaiian hoary bat that has occurred during the first 5 years of operation. Kawailoa Wind Power, LLC, is requesting incidental take coverage for an additional estimated 162 Hawaiian hoary bats (for a total of 222 bats), over the 20-year permit term, which expires in 2031. Additionally, in 2017, Kawailoa Wind Power, LLC, documented the take of at least one Hawaiian petrel at their project site. Incidental take of this species was not authorized in their existing ITP or ITL; therefore, Kawailoa Wind Power, LLC, is requesting incidental take authorization for seven Hawaiian petrels in their permit amendment.
The Kaheawa Wind Power II (KWP II) project is located at Kaheawa Pastures above Mā`alaea town, in the southwestern portion of the island of Maui, Hawai`i, and began commercial operations in July 2012. KWP II, LLC, was issued an ITP and an ITL in January 2012. The KWP II project consists of 14 1.5–MW wind turbine generators. Ancillary facilities include an underground electrical collection and communication system, an operation and maintenance facility, a battery energy storage system, and an overhead electrical transmission line connecting the facility substation to the County's electrical grid.
The original ITP and ITL authorized the following levels of incidental take over the 20-year permit term, which expires in 2032: 11 Hawaiian hoary bats, 30 Hawaiian geese, 8 Newell's shearwater, and 43 Hawaiian petrel. The above levels of take were anticipated to result from project construction and operations, including collisions with vehicles, generator tie-lines, substations, wind turbines and other project structures.
Kaheawa Wind Power II, LLC, is requesting a permit amendment to address a higher than anticipated amount of take of the Hawaiian hoary bat and the Hawaiian goose that has occurred during the first 6 years of operation. Kaheawa Wind Power II, LLC, is requesting incidental take authorization for an additional estimated 27 Hawaiian hoary bats (for a total of 38 bats) over the 20-year permit term. Additionally, KWP II, LLC, is also requesting incidental take authorization for an additional estimated 14 Hawaiian geese (for a total of 44 geese) over the 20-year permit term.
The Pakini Nui Wind Farm is operated by Tawhiri Power, LLC, and is located on Ka Lae or South Point on the island of Hawai`i, Hawai`i. The Pakini Nui Wind Farm is currently not covered by a valid ITP or ITL, and Tawhiri Power, LLC, has not previously applied for an ITP or ITL. Tawhiri Power, LLC, has submitted a draft HCP to support their requests for an ITP and an ITL. The Pakini Nui Wind Farm began operations in April 2007 and consists of 14 1.5–MW wind turbine generators. Ancillary facilities include one mile of underground connector lines, an operation and maintenance building, a substation, and an overhead electrical transmission line connecting the facility substation to the County's electrical grid. The entire project facility footprint is 79.42 acres. Tawhiri Power, LLC, is requesting incidental take authorization for an estimated 26 Hawaiian hoary bats, 3 Hawaiian petrels, and 3 Hawaiian geese over a 20-year permit term.
The applicants are requesting incidental take authorization for one or more of the following species: The endangered Hawaiian hoary bat; the endangered Hawaiian goose; and the endangered Hawaiian petrel. Three of the applicants were authorized to take other listed species in their original ITPs; such take authorization would remain unchanged by the currently proposed amendments.
The Hawaiian hoary bat is the only fully terrestrial, native mammal in the Hawaiian Islands and was federally listed as endangered under the ESA on October 13, 1970 (35 FR 16047). The Hawaiian hoary bat is nocturnal, solitary, and small in size and is known to collide with wind turbine structures. Take of Hawaiian hoary bats at the three currently permitted wind projects (Auwahi Wind, Kawailoa Wind Power, and KWP II) has been higher than anticipated under their original HCPs. The applicants assert that more recent project-specific bat fatality data and use of new statistical tools for estimating and predicting take of bats provides confidence that their revised estimates of total project-related take of bats are conservative and are unlikely to be exceeded over the term of these projects.
The Hawaiian goose was listed as endangered under the ESA on March 11, 1967 (32 FR 4001). The Hawaiian goose is found in a variety of habitats including scrubland, grassland, golf courses, sparsely vegetated slopes, and open lowland country. This species is also known to collide with wind turbine structures.
The Hawaiian petrel was listed as endangered under the ESA on March 11, 1967 (32 FR 4001). The Hawaiian petrel
This notice was prepared pursuant to NEPA (42 U.S.C. 4321
To determine whether a proposed Federal action would require the preparation of an EIS, the Service must consider two distinct factors: Context and intensity (40 CFR 1508.27, Service and National Marine Fisheries Service HCP Handbook 2016). Context refers to the geographic scale (local, regional, or national) of significance of short- and/or long-term effects/impacts of a proposed action. Intensity refers to the severity of the effects/impacts relative to the affected settings, including the degree to which the proposed action affects: An endangered or threatened species or designated critical habitat; public health or safety; scientific, historic or cultural resources; or other aspects of the human environment.
In determining whether the preparation of an EIS is warranted, we must also consider the 10 components of intensity, as set forth under 40 CFR 1508.27(b):
1. Impacts that may be both beneficial and adverse. A significant impact may exist even if the Federal agency believes that on balance the effect will be beneficial.
2. The degree to which the proposed action affects public health or safety.
3. Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.
4. The degree to which the effects on the quality of the human environment are likely to be highly controversial.
5. The degree to which the potential impacts are highly uncertain or involve unique or unknown risks.
6. The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.
7. Whether the action is related to other actions with individually insignificant but cumulatively significant impacts.
8. The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.
9. The degree to which the action may adversely affect an endangered or threatened species or its habitat that has been determined to be critical under the ESA.
10. Whether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment.
The Service performed internal NEPA scoping for the four proposed ITP actions and identified the environmental issues requiring detailed analysis and also identified connected, similar, and cumulative actions. In this case, and after considering the above factors, the Service has determined that the four proposed ITP actions have the potential to significantly impact the human environment as described in the following paragraphs.
Nearly 30 percent of renewable energy generated on the islands of Hawaii, Maui, and O'ahu is sourced solely from land-based wind. Combined, the four proposed ITP actions would address 50 percent of the existing wind energy operations in the State of Hawaii. Three of the four ITP actions propose to significantly increase their authorized incidental take levels for the endangered Hawaiian hoary bat. The applicants assert that recent project-specific bat fatality data and use of new statistical tools account for unobserved fatalities in estimating and predicting take of bats. This information provides confidence that their revised estimates of total project-related take of bats are conservative (high). There is a significant amount of mathematical uncertainty built into the projected take estimate, such that permit applicants believe take levels will not be exceeded and any commensurate mitigation proposed would provide a net conservation benefit compared to the actual take impact to the species.
Cumulatively, the four proposed actions may have significant impacts to the Hawaiian hoary bat or other connected components of the human environment. The Hawaiian hoary bat is nocturnal, solitary, and small in size. These qualities have made it difficult for wildlife researchers to effectively study this species, and as a result much of the biological characteristics of the Hawaiian hoary bat are relatively unknown. The permit applicants may propose a suite of measures to mitigate for take of the Hawaiian hoary bat, including but not limited to: Habitat restoration, land acquisition, and scientific research to determine the relative size and priority needs of the Hawaiian hoary bat population. The results of this scientific research are intended to inform mitigation strategies for the Hawaiian hoary bat. Given the high level of uncertainty concerning biological impacts and mitigation efficacy, the context and intensity of potential impacts of these permit actions on the human environment are likely to be locally and regionally significant.
Examining the four proposed permit actions individually, the Service determined that each of the proposed actions is of sufficient size and complexity to warrant the preparation of an EIS; is similar to previous permit actions taken by the Service's Pacific Region that likewise required the preparation of an EIS; and may have significant effects on the human environment. On that basis and in accordance with regulations at 40 CFR 1501.4, 1507.3, and 1508.27, the Service believes preparation of an EIS is warranted to analyze the project-specific and cumulative environmental impacts associated with these four individual proposed ITP actions. We do not intend to prepare an environmental assessment for any of these four ITP actions.
In accordance with regulations at 40 CFR 1508.25, an agency may analyze similar actions in the same impact statement when this is the best way to assess their combined impacts. Due to the similarities between these four wind energy projects including geography, impacts to covered species, and proposed minimization and mitigation measures, the Service believes a combined PEIS is the most efficient and comprehensive approach for considering the project-specific and cumulative impacts of these actions on the human environment. The PEIS will ensure consistency and reduce duplication in analysis across all projects, support a comprehensive look at cumulative impacts, and simplify opportunities for public input and engagement.
We intend to gather information necessary to determine impacts and alternatives of permit decisions, regarding the potential issuance of separate ITPs to each of the four wind energy project applicants and the
The Service is requesting data, comments, new information, and/or recommendations from the public, other governmental agencies, the scientific community, Native Hawaiian organizations or entities, industry, or other interested parties related to our development of the PEIS or individual EISs. We seek specific comments on:
1. Biological information and relevant data (
2. Potential direct and indirect impacts on the human environment that would occur as a result of the continued operation of these wind energy facilities and the proposed increase in authorized take of the Hawaiian hoary bat, Hawaiian goose, and the Hawaiian petrel;
3. Whether a programmatic NEPA approach, as proposed, or separate NEPA evaluations for each of the four wind energy projects, is appropriate;
4. Possible alternatives to the proposed ITP actions that the Service should evaluate;
5. The presence of archaeological sites, buildings and structures, historic events, sacred and traditional areas, and other historic preservation concerns in the vicinity of any of the four wind project sites, including their mitigation areas, which are required to be considered in project planning by the National Historic Preservation Act; and
6. Other past, present, or reasonably foreseeable future activities on the islands of Oahu, Maui, and Hawaii that may contribute to the cumulative impact on the Hawaiian hoary bat, Hawaiian goose, and the Hawaiian petrel.
Once the draft PEIS (or individual EISs) and draft HCPs are prepared, there will be further opportunity for comment on the content of these documents through an additional public comment period.
You may submit your comments and materials by one of the methods listed above in
Persons needing reasonable accommodations to attend and participate in the public meetings should contact Darren LeBlanc or Michelle Bogardus at the Service's Pacific Islands Fish and Wildlife Office (see
We provide this notice in accordance with the requirements of section 10 of the ESA (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation (the Tribe) Liquor Control Ordinance (the Ordinance). The Ordinance certifies the Tribe's liquor licensing laws to regulate and control the possession, sale, and consumption of liquor within the jurisdiction of the Tribe's reservation. The Ordinance repeals and replaces the previous liquor control ordinance published in the
This Ordinance takes effect July 2, 2018.
Mr. Greg Norton, Tribal Government Specialist, Northwest Regional Office, Bureau of Indian Affairs, 911 Northeast 11th Avenue, Portland, OR 97232; telephone: (503) 231–6702; fax: (503) 231–2201.
Pursuant to the Act of August 15, 1953, Public Law 83–277, 67 Stat. 586, 18 U.S.C. 1161, as interpreted by the Supreme Court in
This notice is published in accordance with the authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs. I certify that the Shoalwater Bay Indian Tribe of the Shoalwater Bay Indian Reservation adopted Resolution Number: 02–16–18–07 (Liquor Control Ordinance) on February 16, 2018. The statute repeals and replaces the previous liquor control ordinance published in the
This Title shall be cited as the tribal “Liquor Control” code of the Shoalwater Bay Indian Tribe.
This title is enacted pursuant to the Tribe's inherent sovereignty and pursuant to the provisions of the Shoalwater Bay Tribal Constitution, Article VI, Powers of the Tribal Council, Section 1. Enumerated Powers, subsections (e),(f) and (x) and in conformity with the applicable laws of the State of Washington to the extent required under 18 U.S. C. § 1161.
Prior liquor control ordinances are hereby repealed. Chapter 2.06 of the
The definitions related to this Title are as follows:
A. Alcoholic Beverage: Shall mean any intoxicating liquor, spirits, beer, or any wine, as defined under the provisions of this Title or other applicable law or regulation.
B. Council: Shall mean the Tribal Council of the Shoalwater Bay Indian Tribe.
C. Legal Age: Shall mean the age requirements as defined in this Title.
D. Liquor Store: Shall mean any store established by the Tribe for the sale of alcoholic beverages or any entity licensed by the Tribe to sell alcoholic beverages.
E. On-Site Licensee: Shall mean the Shoalwater Bay Indian Tribe or its duly authorized licensee when it sells, or keeps for sale, any alcoholic beverage authorized under this Title for consumption on the premises where sold.
F. On-Site Sale: Shall mean the sale of any alcoholic beverage for consumption only upon the premises where sold.
G. Sale: Shall include the exchange, barter, traffic, donation, with or without consideration, in addition to the selling, supplying, or distributing, by any means whatsoever, of liquor, spirits, alcoholic beverage, or of any liquid known or described as beer or by any name whatever commonly used to describe malt or brewed liquor or of wine, by any person to any person; and also includes a sale or selling within an area of tribal jurisdiction to a foreign consignee or his or her agent.
H. Reservation: means the Shoalwater Bay Indian Reservation.
I. Shoalwater Bay Indian country shall mean all lands to fullest extent of applicable law under the control of the Tribe as well as all trust land owned by the Tribe both on and off of its Reservation.
J. Transaction: Shall mean any transfer of any bagged, bottled, boxed, canned or kegged alcoholic beverage, or the transfer of any contents of any bagged, bottled, boxed, canned or kegged alcoholic beverage from any liquor store, on-site dealer or vendor to any person.
K. Tribe: means the Shoalwater Bay Indian Tribe.
L. Tribal Court: means the Shoalwater Bay Tribal Court.
M. Tribal Council or Council: means the Shoalwater Bay Tribal Council.
N. Trust land: means all land held in trust or restricted fee status by the United States on behalf of the Shoalwater Bay Indian Tribe.
O. Vendor: Shall mean any person employed or under the supervision by and of a liquor store or on-site dealer who conducts sales or transactions involving alcoholic beverages.
It shall be a violation of Tribal law to manufacture for sale, sell, offer, or keep for sale, possess, transport or conduct any transaction involving any alcoholic beverage except in compliance with the terms, conditions, limitations, and restrictions specified in this Title.
The Tribal Council shall have the sole and exclusive right to authorize the importation of alcoholic beverages for sale or other exchange or for the purpose of conducting transactions therewith, and no person or organization shall so import any such alcoholic beverage into the Shoalwater Bay Indian Country and into trust land, which includes the Reservation and trust lands of the Tribe, wherever situated, unless authorized by the Tribal Council.
(a.) To promulgate rules and regulations governing the sale, manufacture, distribution, licensing and possession of alcoholic beverages on the Reservation;
(b.) To issue such licenses and permits as it deems appropriate permitting the sale or manufacture or distribution of liquor, for retail or wholesale, and to revoke such licenses;
(c.) To employ such managers, accountants, security personnel, inspectors, and such other personnel as it shall determine necessary to allow the Tribal Council to perform its functions;
(d.) To charter or create such tribal enterprises, divisions, corporations or other entities as it shall determine necessary to sell, possess, manufacture, or exchange alcoholic beverages as provided in Chapter 10.3 hereunder and elsewhere in Tribal law;
(e.) To do all other things necessary and proper to fulfill this Title and duties, rights and responsibilities it has hereunder.
In addition to any other licensed outlets under Chapter 10.4 of this Code, the Council may establish and maintain anywhere within the Shoalwater Bay Indian Country that the Council may deem advisable, a Tribal liquor store or stores for the retail sale or wholesale of alcoholic beverages in accordance with the provisions of this Title. The Council may set the prices of alcoholic beverages sold by any Tribal liquor store and may set such other regulations as it deems appropriate to regulate the store.
The Council may issue a license or licenses to establish and maintain anywhere within the Shoalwater Bay Indian Country that the Council may deem advisable, a retail establishment or establishments for storage and on-site consumption of alcoholic beverages in accordance with the provisions of this Title. The Council may set the prices of alcoholic beverages sold by these on-site dealers.
The Tribal Council may issue a license or licenses to establish and maintain anywhere within the Shoalwater Bay Indian Country that the Council may deem advisable, a grocery or groceries for storage and sale of alcoholic beverages in accordance with the provisions of this Title. The Council may set the prices of alcoholic beverages sold by these groceries.
The Council may issue a license or licenses for the consumption of alcoholic beverages at special events at specific times and places and under such conditions as it may deem appropriate by regulation. Such special events may include but not be limited to banquets, fund raisers, and private parties.
The Council may issue a license or licenses to establish and maintain anywhere within the Shoalwater Bay Indian Country that the Council may deem advisable, an establishment for the sale or distribution of alcoholic beverages at wholesale in accordance with the provisions of this Title. The Council may set the prices of alcoholic beverages sold by these distributors.
The Council may issue such other licenses and permits for alcohol or alcoholic beverages as it deems appropriate. Such additional licenses and permits may be issued pursuant to tribally issued regulations determining the terms and conditions as the Council may determine.
Applications for licenses or permits shall be subject to such conditions, fees and restrictions on these licenses or permits as the Council shall deem appropriate. Applications shall be submitted on the prescribed form to the Council or its authorized employees. The Council may, at its sole discretion and subject to the conditions of this Code and other tribal laws and regulations, issue or refuse to issue any license permit upon payment of the prescribed fee.
For the purpose of considering any application for a license or permit, the Council may cause an inspection of the premises to be made and may inquire into all matters with the construction and operation of the premises.
No license shall be issued to:
(a.) A person who is not a member of the Shoalwater Bay Indian Tribe;
(b.) A partnership entity unless each partner is qualified to obtain a license, as provided in this section;
(c.) A corporation or other entity unless all shareholders or owners are members of the Tribe;
(d.) A person whose place of business is conducted by a manager or agent, unless such manager or agent is also an enrolled member of the Tribe;
(e.) A person who has been convicted of a felony within five years prior to filing his or her application;
(f.) A person who has been convicted of a violation of any federal, state or tribal law concerning the manufacture, possession or sale of alcoholic beverages within the last five years or has forfeited his or her bond to appear in court within the preceding five years to answer charges for such violation; or
(g.) A person who is less than twenty-one years of age.
In conformity with State and federal law, the requirements of subparagraphs (a) through (f) may be waived by the Tribal Council for special occasion licenses.
Every license shall be issued in the name of the applicant and no license shall be transferable, nor shall the holder thereof allow any other person to use the license.
Before the Council shall issue any license, notice of the application shall be posted in public places and comments shall be received on the application for period of twenty (20) days at the Shoalwater Bay Tribal office.
Before the Council shall issue any license it shall give due consideration to the location of the business.
All licenses issued by the Tribe shall be posted in a conspicuous place on the licensed premises.
(a.) All licensed premises used in the storage or sale of alcoholic beverages, or any premises or parts of premises used or in any way connected, physically or otherwise, with the licensed business, shall at all times be open to inspection by any tribal inspector or tribal police officer authorized by the Council to do such inspection.
(b.) Every person, being on any such premises and having charge thereof, who refuses to admit a tribal inspector or tribal police officer demanding to enter therein pursuant to authority herein, or who obstructs or attempts to obstruct the entry of such inspector or tribal police officer, or who refuses to allow the inspector to examine the books of the licensee, or who refuses to or neglects to make any return required by this Code or the regulations passed pursuant thereto, shall be deemed to be in violation of this Code.
(a.) The Council may, for violation of this Code, suspend or cancel any license or permit; and all rights to keep or sell alcoholic beverages thereunder shall be suspended or terminated as the case may be.
(b.) Prior to cancellation or suspension, the Council shall send notice of its intent to cancel or suspend to the licensee or permit holder. A license or a permit is a privilege and no person shall have a vested right to one. The Council shall give at least ten (10) day's notice of such cancellation or suspension. The licensee shall have the right, prior to cancellation or suspension date, to apply to the Tribal Court for a hearing to determine whether the license was rightfully suspended or cancelled. The sovereign immunity of the Shoalwater Bay Tribe is waived for this hearing to seek declaratory and injunctive relief;
No license or permit shall be for a period longer than a year and may be for a shorter period at the discretion of the Tribe. Unless sooner cancelled, every license or permit issued by the Council shall expire at midnight on the last day of the Tribal fiscal year. Licenses issued less than six months before that date shall only cost one-half of the annual fee.
The Tribe may negotiate at its discretion an agreement with the State of Washington or obtain a State of Washington liquor license or licenses for any purpose including any tribally operated establishment that sells alcoholic beverages or conducts transactions involving alcoholic beverages to allow the Tribe or its licensees to sell liquor in Shoalwater Bay Indian Country or within trust land under the Tribe's control.
Any disputes or violations that arise under this Title shall be resolved by mediation or by a suit in Tribal Court, which shall have exclusive civil and criminal jurisdiction for actions arising under or to enforce this Title.
The Council and its agents shall act in conformity with Washington State laws regarding the liquor transactions to the extent required by applicable federal law, including 18 U.S.C. § 1161.
(a.) No person under the age of 21 years shall purchase or possess alcoholic beverages in any establishment operating pursuant to the provisions of this Title.
(b.) No person shall permit any other person under the age of 21 to consume liquor on his premises or any premises under their control except in those situations set out in this section. Any person violating this section shall be guilty of a separate violation of this Title for each and every drink so consumed.
(c.) Any person who shall sell or provide any liquor to any person under the age of 21 years shall be guilty of a violation of this Title for each such sale or drink provided.
(d.) Any person who transfers in any manner an identification of age to a person under the age of 21 years for the purpose of permitting such person to obtain liquor shall be guilty of an offense, provided that corroborative testimony of a witness other than the underage person shall be a requirement of finding a violation of this Title.
(e.) Any person who attempts to purchase an alcoholic beverage through the use of false or altered identification which falsely purports to show the individual to be over the age of 21 years shall be guilty of violating this Title.
No Tribally operated or licensed establishment shall sell, give, or furnish any alcoholic beverage or in any way allow any alcoholic beverage to be sold, given or furnished to a person who is obviously intoxicated.
No Tribally operated or licensed establishment shall sell or furnish alcoholic beverages for on-site purposes during hours or on days not in compliance with applicable law.
(a.) Any person who shall sell or offer for sale or distribute or transport in any manner, liquor in violation of this Title, or who shall operate or shall have liquor for sale in their possession without a license, shall be guilty of a violation of this Title subjecting them to civil fines assessed by the Tribal Council;
(b.) Any person within the boundaries of the reservation or trust land of the Tribe who buys liquor from any person other than a properly licensed facility or the Tribal Enterprise shall be guilty of a violation of this Title;
(c.) Any person who keeps or possesses liquor upon their person or in any place or on premises conducted or maintained by their principal or agent with the intent to sell or distribute it contrary to the provisions of this Title, shall be guilty of a violation of this Title;
(d.) Any person engaging wholly or in part in the business of carrying passengers for hire, and every agent, servant, or employee of such person, who shall knowingly permit any person to drink liquor in any public conveyance, shall be guilty of an offense under this Title. Any person who shall drink liquor in a public conveyance shall be guilty of a violation of this Title.
When requested by the provider of liquor, any person shall be required to present official documentation of the bearer's age, signature, and photograph. Official documentation includes one of the following:
(a.) Valid driver's license, identification, or enrollment card issued by any Tribe or State department of motor vehicles;
(b.) United States Active Duty Military Identification;
(c.) Liquor control authority card of identification of any state; or
(d.) Passport.
(a.) Liquor, which is possessed, including for sale, contrary to the terms of this Title is declared to be contraband. Any Tribal agent, employee or officer who is authorized by the Tribal Council to enforce this section shall seize all contraband and preserve it in accordance with the provisions established for the preservation of impounded property; and
(b.) Upon being found in violation of the Title, the party shall forfeit all right, title and interest in the items seized which shall become the property of the Tribe.
(a.) No liquor, other than beer and wine, sold pursuant to a Tribal license shall be sold on the Shoalwater Bay Indian Reservation, in Shoalwater Bay Indian Country or on trust land unless there shall be affixed a stamp of the Shoalwater Bay Tribal Council.
Any sales made in violation of this provision shall be remedied as set out in this Title. All liquor other than beer and wine sold pursuant to a Tribal license not so stamped, which is sold or held for sale, is hereby declared contraband and, in addition to any penalties imposed by the Court in violation of this section, it may be confiscated and forfeited in accordance with procedures herein.
(b.) No person other than an employee of the Tribe shall keep or have in his or her possession any legal seal prescribed under this Code unless the same is attached to a package which has been purchased from a tribal liquor outlet, nor shall any person keep or have in his or her possession any design in imitation of any official seal prescribed under this Code or calculated to deceive by its resemblance to any official seal or any paper upon which such design is stamped, engraved, lithographed, printed or otherwise marked. Any person violating this provision shall be in violation of this Title.
It shall be a defense to a suit for serving alcoholic beverages to a person under twenty-one years of age if such a person has presented a card of identification.
(a.) In addition to the presentation by the holder and verification of such card of identification, the seller shall require the person whose age may be in question to sign a card and place a date and number of this card of identification thereon. Such statement shall be upon a five-inch by eight-inch file card, which card shall be filed alphabetically by the licensee at or before the close of business on the day on which the statement is executed, in the file box contained containing a suitable alphabetical index and the card shall be subject to examination by any tribal peace officer or employee of the Tribe at all times.
(b.) Such card in the possession of a licensee may be offered as defense in any hearing by the Tribal Court for serving liquor to the person who signed the card and may be considered by the Court as evidence that the licensee acted in good faith.
Any person guilty of a violation of this Title or any regulation shall be liable to pay the Tribe the amount of $500 per violation plus costs as civil damages to defray the Tribe's cost of enforcement of this Title when there is no other penalty specifically provided.
(a.) In any proceeding under this Title, conviction of one unlawful sale or distribution of liquor shall establish prima facie intent of unlawfully keeping
(b.) The Shoalwater Bay Tribal Court shall have jurisdiction over any case brought by the Tribe for violations of this Code. The Tribal Court may, in addition to the above penalty, grant to the Tribe such other relief as may be necessary and proper for the enforcement of this Code, including but not limited to injunctive relief against acts in violation of this Code.
(a.) Any room, house, building, vehicle, structure, or other place where liquor is sold, manufactured, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this Title or of any other Tribal law relating to the manufacture, importation, transportation, possession, distribution, and sale of liquor, and all property kept in and used in maintaining such place, is hereby declared to be a nuisance;
(b.) The Chairman of the Tribal Council or, if the Chairman fails or refuses to do so, by a majority vote, the Tribal Council may institute and maintain an action in the name of the Tribe to abate and perpetually enjoin any nuisance declared under this Title. The Tribe shall not be required to give bond to maintain this action. In addition to all other remedies at Tribal law, the Tribal Court may also order the room, house, building, vehicle, structure, or place closed for a period of one (l) year or until the owner, lessee, tenant, or occupant thereof shall give bond of sufficient sum of not less than $25,000 payable to the Tribe and on the condition that liquor will not be thereafter manufactured, kept, sold, bartered, exchanged, given away, furnished, or otherwise disposed of thereof in violation of the provisions of this Title or of any other applicable Tribal law and that they will pay all fines, costs and damages assessed against them for any violation of this Title. If any conditions of the bond be violated, the bond may be recovered for the use of the Tribe; and
(c.) In all cases where any person has been found in violation of this Title relating to the manufacture, importation, transportation, possession, distribution, and sale of liquor, an action may be brought to abate as a nuisance any real estate or other property involved in the violation of the Title and violation of this Title shall be prima facie evidence that the room, house, building, vehicle, structure, or place against which such action is brought is a public nuisance.
(a.) The power to levy taxes under the provisions of this Title is vested exclusively with the Tribal Council.
(b.) All revenues received, funds collected, and property acquired by the Shoalwater Bay Tribal Council or by the Shoalwater Bay Tribal Enterprise pursuant to this Code shall be the property of the Shoalwater Bay Indian Tribe. The net proceeds shall be paid through the tribal treasurer in the general tribal fund of the Shoalwater Bay Indian Tribe for the general governmental services of the Tribe. The Tribe reserves the right to enter into any agreement with the State of Washington related to taxation in lieu of, or in addition to, this Chapter 10.9, as the Tribe deems necessary.
(a.) There is hereby levied and shall be collected a tax upon each sale of liquor, except beer and wine, whatever package or container, in the amount of three (3) cents per fluid ounce or fraction thereof contained in such package or container.
(b.) There is hereby levied and shall be collected a tax upon each sale of beer or wine in the amount of five percent (5%) of the selling price.
(c.) These excise taxes shall be added to the sale price of the liquor sold and shall be paid by the buyer to the Shoalwater Bay Liquor Enterprise or the licensed or permitted tribal seller who shall collect the same and hold those taxes in trust until collected by the Shoalwater Bay Tribal treasurer. The taxes provided for herein shall be the only taxes applicable to the activities of the Shoalwater Bay Liquor Enterprise.
(d.) All tax revenues shall be transferred to the Tribal treasurer for deposit in the tribal tax fund for the benefit of the Shoalwater Bay Indian Tribe. In appropriating from those tax revenues, the Council shall give priority to:
(1.) Strengthening tribal government which shall include but not be limited to strengthening tribal court and law enforcement systems and the system for administering and enforcing this Code.
(2.) Fire protection, roads, and water and sewage services.
(3.) Health, education, and other social services, and land acquisition and development needs. The Council shall have the sole discretion to determine which of the above priorities shall receive an appropriation and the amount of the appropriation for a given priority.
(e.) The Enterprise and retail licensees shall keep such records required by the Tribal treasurer to determine the amount of taxes owing and shall complete the tax returns in accordance with instructions from the Tribal treasurer.
(f.) Amendments to the amounts and types of taxes levied on the sale of liquor may be made from time to time by regulation by the Shoalwater Bay Tribal Council.
If any part of this Title or the application thereof to any party, person, or entity or to any circumstances shall be held invalid for any reason whatsoever, the remainder of the Title shall not be affected thereby, and shall remain in full force and effect as though no part thereof had been declared to be invalid.
This Title may be amended or repealed by a majority vote of the Tribal Council.
Nothing in this Title is intended to nor shall be construed as a waiver of the sovereign immunity of the Shoalwater Bay Indian Tribe except as provided in section 10.04.06.9 above.
This Title shall be effective upon the thirtieth (30th) day after the Secretary of the Interior certifies this Title and publishes it in the
Notwithstanding anything in this Title to the contrary, nothing herein is intended to nor shall be construed as a grant of jurisdiction from the Shoalwater Bay Indian Tribe to the State of Washington beyond that provided expressly by applicable law. The Tribe shall operate in conformity with State law and Tribal law to the extent required pursuant to 18 U.S.C. § 1161.
Bureau of Indian Affairs, Interior.
Notice.
The notice announces that the Tribal-State Class III Gaming Compact Amendment entered into between the Mohegan Tribe of Indians of Connecticut and the State of Connecticut is taking effect.
This compact takes effect on June 1, 2018.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Office of the Deputy Assistant Secretary—Policy and Economic Development, Washington, DC 20240, (202) 219–4066.
Under section 11 of the Indian Gaming Regulatory Act (IGRA) Public Law 100–497, 25 U.S.C. 2701
Bureau of Land Management, Department of the Interior.
Notice of intent.
As requested by Yellow Pine Solar, LLC, and in compliance with the National Environmental Policy Act of 1969, as amended (NEPA), the BLM Las Vegas Field Office will prepare an Environmental Impact Statement (EIS) for a proposed solar project located approximately 10 miles southeast of Pahrump, Nevada, and approximately 32 miles west of Las Vegas, Nevada. Publication of this Notice initiates the scoping process and opens a 90-day public comment period. Publication of this Notice also serves to segregate the public lands from appropriation under the public land laws, including location and entry under the Mining Law, but not disposal under the Mineral Leasing Act or the Materials Act, subject to valid existing rights. This Notice initiates the public scoping process and the segregation.
Comments on issues may be submitted in writing until August 30, 2018. The date(s) and location(s) of any scoping meetings will be announced at least 15 days in advance through local news media and the BLM website at:
Submit comments related to the project by any of the following methods:
For further information and/or to have your name added to the mailing list, send requests to: Nicollee Gaddis, Renewable Energy Project Manager, at telephone (702) 515–5136; or address 4701 North Torrey Pines Drive, Las Vegas, NV 89130–2301; or email
In 2016, Yellow Pine Solar, LLC requested an amended right-of-way (ROW) authorization for the construction, operation, maintenance, and decommissioning of a 250-megawatt (MW) photovoltaic (PV) power plant that would provide renewable energy to Nevada's electrical transmission grid. In 2011, the original ROW application was filed by Boulevard Associates, LLC, a subsidiary of NextEra Energy Resources, LLC, and the project is thus not subject to the decisions adopted by the 2012 Western Solar Plan, the BLM's Record of Decision (ROD) for Solar Energy Development in Six Southwestern States (BLM 2012).
The proposed project includes 9,290 acres of lands managed by the BLM. The project is located in Clark County at the intersection of Nevada State Route 160 and Tecopa Road, approximately 10 miles southeast of Pahrump, Nevada and approximately 32 miles west of Las Vegas.
The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the process for developing the EIS. At present, the BLM has identified the following preliminary issues: Threatened and endangered species, cultural resources, visual resources, surface water, recreation, socioeconomic effects, and cumulative impacts. The congressionally designated Old Spanish National Historic Trail crosses the area. Habitat for the federally listed desert tortoise is in this proposal area.
The BLM will consult with Native American tribes on a government-to-government basis in accordance with applicable laws, regulations, Executive Order 13175, and other policies. Tribal concerns will be given due consideration, including any impacts on Indian Trust assets. Federal, State, and local agencies, along with other stakeholders that may be interested or affected by the BLM's decision on this project, are invited to participate in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
In 2013, the BLM published a Final Rule,
The lands segregated under this notice are legally described as follows:
As provided in the Final Rule, the segregation of lands in this Notice will not exceed 2 years from the date of publication unless extended for up to 2 additional years, through publication of a new notice in the
Upon termination of segregation of these lands, all lands subject to this segregation will automatically reopen to appropriation under the public land laws.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty order on xanthan gum from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted June 1, 2018. To be assured of consideration, the deadline for responses is July 2, 2018. Comments on the adequacy of responses may be filed with the Commission by August 14, 2018.
Mary Messer (202–205–3193), 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 (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202–205–3408.
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 18–5–408, expiration date June 30, 2020. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Information To Be Provided in Response to This Notice of Institution: As used below, the term “firm” includes any related firms.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3–5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping and/or countervailing duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of Title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted a review pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty order on sodium hexametaphosphate from China would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted June 1, 2018. To be assured of consideration, the deadline for responses is July 2, 2018. Comments on the adequacy of responses may be filed with the Commission by August 14, 2018.
Mary Messer (202–205–3193), 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 (
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(2) The
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202–205–3408.
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 18–5–410, expiration date June 30, 2020. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty order on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3–5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit,
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
United States International Trade Commission.
Notice.
The Commission hereby gives notice that it has instituted reviews pursuant to the Tariff Act of 1930 (“the Act”), as amended, to determine whether revocation of the antidumping duty orders on steel concrete reinforcing bar from Belarus, China, Indonesia, Latvia, Moldova, Poland, and Ukraine would be likely to lead to continuation or recurrence of material injury. Pursuant to the Act, interested parties are requested to respond to this notice by submitting the information specified below to the Commission.
Instituted June 1, 2018. To be assured of consideration, the deadline for responses is July 2, 2018. Comments on the adequacy of responses may be filed with the Commission by August 14, 2018.
Mary Messer (202–205–3193), 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 (
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Former Commission employees who are seeking to appear in Commission five-year reviews are advised that they may appear in a review even if they participated personally and substantially in the corresponding underlying original investigation or an earlier review of the same underlying investigation. The Commission's designated agency ethics official has advised that a five-year review is not the same particular matter as the underlying original investigation, and a five-year review is not the same particular matter as an earlier review of the same underlying investigation for purposes of 18 U.S.C. 207, the post employment statute for Federal employees, and Commission rule 201.15(b) (19 CFR 201.15(b)), 79 FR 3246 (Jan. 17, 2014), 73 FR 24609 (May 5, 2008). Consequently, former employees are not required to seek Commission approval to appear in a review under Commission rule 19 CFR 201.15, even if the corresponding underlying original investigation or an earlier review of the same underlying investigation was pending when they were Commission employees. For further ethics advice on this matter, contact Charles Smith, Office of the General Counsel, at 202–205–3408.
No response to this request for information is required if a currently valid Office of Management and Budget (“OMB”) number is not displayed; the OMB number is 3117 0016/USITC No. 18–5–409, expiration date June 30, 2020. Public reporting burden for the request is estimated to average 15 hours per response. Please send comments regarding the accuracy of this burden estimate to the Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436.
Information To Be Provided in Response to this Notice of Institution: If you are a domestic producer, union/worker group, or trade/business association; import/export
(1) The name and address of your firm or entity (including World Wide Web address) and name, telephone number, fax number, and Email address of the certifying official.
(2) A statement indicating whether your firm/entity is an interested party under 19 U.S.C. 1677(9) and if so, how, including whether your firm/entity is a U.S. producer of the
(3) A statement indicating whether your firm/entity is willing to participate in this proceeding by providing information requested by the Commission.
(4) A statement of the likely effects of the revocation of the antidumping duty orders on the
(5) A list of all known and currently operating U.S. producers of the
(6) A list of all known and currently operating U.S. importers of the
(7) A list of 3–5 leading purchasers in the U.S. market for the
(8) A list of known sources of information on national or regional prices for the
(9) If you are a U.S. producer of the
(a) Production (quantity) and, if known, an estimate of the percentage of total U.S. production of the
(b) Capacity (quantity) of your firm to produce the
(c) the quantity and value of U.S. commercial shipments of the
(d) the quantity and value of U.S. internal consumption/company transfers of the
(e) the value of (i) net sales, (ii) cost of goods sold (COGS), (iii) gross profit, (iv) selling, general and administrative (SG&A) expenses, and (v) operating income of the
(10) If you are a U.S. importer or a trade/business association of U.S. importers of the
(a) The quantity and value (landed, duty-paid but not including antidumping duties) of U.S. imports and, if known, an estimate of the percentage of total U.S. imports of
(b) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. commercial shipments of
(c) the quantity and value (f.o.b. U.S. port, including antidumping duties) of U.S. internal consumption/company transfers of
(11) If you are a producer, an exporter, or a trade/business association of producers or exporters of the
(a) Production (quantity) and, if known, an estimate of the percentage of total production of
(b) Capacity (quantity) of your firm(s) to produce the
(c) the quantity and value of your firm's(s') exports to the United States of
(12) Identify significant changes, if any, in the supply and demand conditions or business cycle for the
(13) (OPTIONAL) A statement of whether you agree with the above definitions of the
This proceeding is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.61 of the Commission's rules.
By order of the Commission.
On May 24, 2018, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of Utah in the lawsuit entitled
The United States filed this lawsuit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The United States' complaint names J. Daniel Stevens, in his capacity as trustee of the Fifam Trust, as defendant. The complaint requests recovery of costs that the United States incurred responding to releases of hazardous substances at the North Salt Lake HazMat Site in Salt Lake City, Utah. Mr. Stevens, on behalf of the Fifam Trust, agrees to sell the Site property and to pay 75% of the net proceeds to the EPA Hazardous Substance Superfund in reimbursement of the United States' response costs. The United States will pay $302,950 to the EPA Hazardous Substance Superfund to resolve the alleged liability of the Department of Defense, the Defense Logistics Agency, and DLA Disposition Services. Under the consent decree, the United States agrees not to sue Mr. Stevens or the Fifam Trust under sections 106 or 107 of CERCLA regarding the Site, and Mr. Stevens and the Fifam Trust agree not to sue the United States with respect to the Site. Mr. Stevens, the Fifam Trust, the Department of Defense, the Defense Logistics Agency, and DLA Disposition Services will receive protection against contribution claims under CERCLA with respect to the Site.
The publication of this notice opens a period for public comment on the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $16.75 (25 cents per page reproduction cost) payable to the United States Treasury.
On May 24, 2018, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Hawaii in the lawsuit entitled
The Complaint in this Clean Water Act case was filed against the defendants on April 27, 2018. The Complaint alleges that the defendants, Triple Dragon LLC, Trung Anh Quach, and Aukusitino Lui Mauia, are civilly liable for violations of Section 311 of the Clean Water Act (“CWA”), 33 U.S.C. 1321. Mr. Quach is the managing member of the company and Mr. Mauia was the operator of the vessel at the time the Coast Guard discovered the violations. The Complaint alleges that the company and individuals are liable for violations related to the commercial longline fishing vessel
Under the proposed Consent Decree, the defendants will perform corrective measures to remedy the violations and prevent future violations, including: (1) Repairing the vessel to reduce the quantity of oily waste generated during a fishing voyage; (2) providing crewmembers with training on the proper handling of oily wastes; (3) documenting proper oily waste management and disposal after returning to port; and (4) submitting compliance reports to the Coast Guard and the Department of Justice.
The consent decree also requires the company, company manager, and vessel operator to each pay a civil penalty. The penalty amounts were set considering each defendant's limited ability to pay a higher penalty, as demonstrated through documentation submitted to the United States and analyzed by a financial expert. Triple Dragon LLC must pay a civil penalty of $15,000; the company manager, Trung Anh Quach, must pay a civil penalty of $10,000; and the vessel operator, Aukusitino Lui Maui, must pay a civil penalty of $500. Under the terms of the Clean Water Act, the penalties paid for these discharges will be deposited in the federal Oil Spill Liability Trust Fund managed by the National Pollution Funds Center.
The publication of this notice opens a period for public comment on the proposed 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 proposed Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $15.75 (25 cents per page reproduction cost) payable to the United States Treasury.
On May 24, 2018, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of Hawaii in the lawsuit entitled
The Complaint in this Clean Water Act case was filed against the defendants concurrently with the lodging of the Consent Decree. The Complaint alleges that the defendants, Capt. Millions III, LLC, Brian Nguyen, and Kha Van, are civilly liable for violations of Section 311 of the Clean Water Act (“CWA”), 33 U.S.C. 1321. Mr. Nguyen is the managing member of the company and Mr. Van is the longtime operator of the vessel. The Complaint alleges that the company and individuals are liable for violations related to the commercial longline fishing vessel
Under the proposed Consent Decree, the defendants will perform corrective measures to remedy the violations and prevent future violations, including: (1) Repairing the vessel to reduce the quantity of oily waste generated during a fishing voyage; (2) providing crewmembers with training on the proper handling of oily wastes; (3) documenting proper oily waste management and disposal after returning to port; and (4) submitting compliance reports to the Coast Guard and the Department of Justice.
The consent decree also requires the company, company manager, and vessel operator to each pay a civil penalty. The penalty amounts were set considering each defendant's limited ability to pay a higher penalty, as demonstrated through documentation submitted to the United States and analyzed by a financial expert. Capt. Millions III, LLC must pay a civil penalty of $10,000; the company manager, Brian Nguyen, must pay a civil penalty of $5,000; and the vessel operator, Kha Van, must pay a civil penalty of $7,000. Under the terms of the Clean Water Act, the penalties paid for these discharges will be deposited in the federal Oil Spill Liability Trust Fund managed by the National Pollution Funds Center.
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Acting Assistant Attorney General, Environment and Natural Resources
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $13.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting the Employment and Training Administration) sponsored information collection request (ICR) revision titled, “Quarterly Narrative Progress Report, Employment and Training Supplemental Budget Request Activities,” to the Office of Management and Budget (OMB) for review and approval for use in accordance with the Paperwork Reduction Act (PRA) of 1995. Public comments on the ICR are invited.
The OMB will consider all written comments that agency receives on or before July 2, 2018.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov website at
Submit comments about this request by mail to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–ETA, Office of Management and Budget, Room 10235, 725 17th Street NW, Washington, DC 20503; by Fax: 202–395–5806 (this is not a toll-free number); or by email:
Michel Smyth by telephone at 202–693–4129, TTY 202–693–8064, (these are not toll-free numbers) or sending an email to
This ICR seeks approval under the PRA for revisions to the Quarterly Narrative Progress Report, Employment and Training Supplemental Budget Request Activities information collection. To monitor the progress of each State Workforce Agency in successfully implementing projects funded through Supplemental Budget Requests, this collection will request information including the funded project's title and purpose, timeline and milestones, and project implementation status. This information collection has been classified as a revision, because Form ETA–9178 will now cover Reemployment & Systems Integration—Dislocated Worker Grants. The ETA also updated the title of the collection to “Quarterly Narrative Progress Report, Employment and Training Supplemental Budget Request Activities.” Social Security Act section 303(a)(6) authorizes this information collection.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
44 U.S.C. 3507(a)(1)(D).
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold an Open Meeting on Tuesday, June 5, 2018 at 10:00 a.m.
The meeting will be held in the Multi-Purpose Room L–006 at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
The meeting will begin at 10:00 a.m. (ET) and will be open to the public. Seating will be on a first-come, first-served basis. Visitors will be subject to security checks. The meeting will be webcast on the Commission's website at
The subject matters of the Open Meeting will be the Commission's consideration of:
• Whether to adopt a new rule as well as amendments to rules and forms to provide certain registered investment companies (“funds”) with an optional method to transmit shareholder reports.
• whether to issue a release requesting comment about processing fees for delivering shareholder reports and other materials to fund investors.
• whether to issue a release requesting comment from individual investors and other interested parties on how to enhance the delivery, design, and content of fund disclosures, including shareholder reports and prospectuses.
• whether to propose amendments to rules adopted under section 13 of the Bank Holding Company Act related to prohibitions and restrictions on proprietary trading and certain interests in, and relationships with, hedge funds and private equity funds (commonly known as the “Volcker rule”).
At times, changes in Commission priorities require alterations in the scheduling of meeting items.
For further information, please contact Brent J. Fields from the Office of the Secretary at (202) 551–5400.
This notice announces a meeting of the Department of State's International Telecommunication Advisory Committee (ITAC). The ITAC will meet on June 26, 2018, at AT&T, 1120, 20th Street NW, Washington DC at 2:00 p.m. to review the results of recent multilateral meetings, update on preparations for the International Telecommunication Union (ITU) 2018 Plenipotentiary Conference (PP–18), and discuss preparations for other upcoming multilateral meetings at the ITU. The meeting will focus on the following topics:
PP–18 will take place in Dubai, United Arab Emirates, from October 29 to November 17, 2018. The Plenipotentiary Conference, which takes place every four years, is the highest policy-making body of the ITU. PP–18 is expected to determine the overall policy direction of the ITU; adopt the strategic and financial plans for the next four years; elect the 48 members of Council, 12 members of the Radio Regulations Board, and five senior ITU elected officials; and consider and adopt, if appropriate, amendments to the ITU Constitution and Convention.
Attendance at the ITAC meeting is open to the public as seating capacity allows. The public will have an opportunity to provide comments at this meeting at the invitation of the chair. Persons wishing to request reasonable accommodation during the meeting should send their requests to
Further details on this ITAC meeting will be announced through the Department of State's email list,
Please send all inquiries to
Based upon a review of the administrative record assembled in this matter, and in consultation with the Attorney General and the Secretary of the Treasury, I have concluded that there is a sufficient factual basis to find that Al-Nusrah Front (and other aliases) is also known as Hay'at Tahrir al-Sham, also known as Hay'et Tahrir al-Sham, also known as Hayat Tahrir al-Sham, also known as HTS, also known as Assembly for the Liberation of Syria, also known as Assembly for Liberation of the Levant, also known as Liberation of al-Sham Commission, also known as Liberation of the Levant Organisation,
Therefore, pursuant to Section 1(b) of Executive Order 13224, I hereby amend the designation of Al-Nusrah Front as a Specially Designated Global Terrorist to include the following new aliases: Hay'at Tahrir al-Sham, also known as Hay'et Tahrir al-Sham, also known as Hayat Tahrir al-Sham, also known as HTS, also known as Assembly for the Liberation of Syria, also known as Assembly for the Liberation of the Levant, also known as Liberation of al-Sham Commission, also known as Liberation of the Levant Organisation, also known as Tahrir al-Sham, also known as Tahrir al-Sham Hay'at.
This determination shall be published in the
Based upon a review of the Administrative Record assembled pursuant to Section 219 of the Immigration and Nationality Act, as amended (8 U.S.C. 1189) (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, I have concluded that there is a sufficient factual basis to find that the following are aliases of Al-Nusrah Front (and other aliases): Hay'at Tahrir al-Sham, also known as Hay'et Tahrir al-Sham, also known as Hayat Tahrir al-Sham, also known as HTS, also known as Assembly for the Liberation of Syria, also known as Assembly for Liberation of the Levant, also known as Liberation of al-Sham Commission, also known as Liberation of the Levant Organisation, also known as Tahrir al-Sham, also known as Tahrir al-Sham Hay'at.
Therefore, pursuant to Section 219(b) of the INA, as amended (8 U.S.C. 1189(b)), I hereby amend the designation of Al-Nusrah Front as a foreign terrorist organization to include the following new aliases: Hay'at Tahrir al-Sham, also known as Hay'et Tahrir al-Sham, also known as Hayat Tahrir al-Sham, also known as HTS, also known as Assembly for the Liberation of Syria, also known as Assembly for the Liberation of the Levant, also known as Liberation of al-Sham Commission, also known as Liberation of the Levant Organisation, also known as Tahrir al-Sham, also known as Tahrir al-Sham Hay'at.
This determination shall be published in the
Office of the United States Trade Representative.
Notice with request for comments.
The Office of the United States Trade Representative (USTR) is providing notice that Canada has requested the establishment of a dispute settlement panel under the
Although USTR will accept any comments received during the course of the dispute settlement proceedings, you should submit your comment on or before June 25, 2018, to be assured of timely consideration by USTR.
USTR strongly prefers electronic submissions made using the Federal eRulemaking Portal:
Assistant General Counsel Katherine Wang at (202) 395–6214, or Senior Associate General Counsel J. Daniel Stirk at (202) 395–9617.
Section 127(b)(1) of the Uruguay Round Agreements Act (URAA) (19 U.S.C. 3537(b)(1)) requires notice and opportunity for comment after the United States submits or receives a request for the establishment of a WTO dispute settlement panel. Pursuant to this provision, USTR is providing notice that the United States has received a request for a dispute settlement panel pursuant to the WTO
On March 16, 2018, Canada requested the establishment of a WTO dispute settlement panel regarding certain countervailing measures on softwood lumber products from Canada as well as an alleged measure treating Nova Scotia and New Brunswick as in-country benchmarks for provincial stumpage markets in Alberta, Ontario, and Québec. Canada argues that these measures are inconsistent with Articles 1, 2, 10, 14, 11, 19, 21, and 32 of the
USTR invites written comments concerning the issues raised in this dispute. All submissions must be in English and sent electronically via
The
For any comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC”. Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top and bottom of that page and the submission should clearly indicate, via brackets, highlighting, or other means, the specific information that is business confidential. If you request business confidential treatment, you must certify in writing that disclosure of the information would endanger trade secrets or profitability, and that the information would not customarily be released to the public. Filers of submissions containing business confidential information also must submit a public version of their comments. The file name of the public version should begin with the character “P”. The “BC” and “P” should be followed by the name of the person or entity submitting the comments or rebuttal comments. If this is not sufficient to protect business confidential information or otherwise protect business interests, please contact Sandy McKinzy at (202) 395–9483 to discuss whether alternative arrangements are possible.
USTR may determine that information or advice contained in a comment, other than business confidential information, is confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If a submitter believes that information or advice is confidential, s/he must clearly designate the information or advice as confidential and mark it as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page, and provide a non-confidential summary of the information or advice.
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR will maintain a docket on this dispute settlement proceeding, docket number USTR–2018–0016, accessible to the public at
Office of the United States Trade Representative.
Notice with request for comments.
The Office of the United States Trade Representative (USTR) is providing notice that Canada has requested the establishment of a dispute settlement panel under the
Although USTR will accept any comments received during the course of the dispute settlement proceedings, you should submit your comment on or before June 25, 2018, to be assured of timely consideration by USTR.
USTR strongly prefers electronic submissions made using the Federal eRulemaking Portal:
Assistant General Counsel Katherine Wang at (202) 395–6214, or Senior Associate General Counsel J. Daniel Stirk at (202) 395–9617.
Section 127(b)(1) of the Uruguay Round Agreements Act (URAA) (19 U.S.C. 3537(b)(1)) requires notice and opportunity for comment after the United States submits or receives a request for the establishment of a WTO dispute settlement panel. Pursuant to this provision, USTR is providing notice that the United States has received a request for a dispute settlement panel pursuant to the WTO
On March 16, 2018, Canada requested the establishment of a WTO dispute settlement panel regarding U.S. antidumping measures applying a differential pricing analysis and zeroing to softwood lumber products from Canada. Canada argues application of a differential pricing analysis and zeroing is inconsistent with Articles 1, 2.1, 2.4, and 2.4.2 of the
USTR invites written comments concerning the issues raised in this dispute. All submissions must be in English and sent electronically via
The
For any comments submitted electronically containing business confidential information, the file name of the business confidential version should begin with the characters “BC”. Any page containing business confidential information must be clearly marked “BUSINESS CONFIDENTIAL” on the top and bottom of that page and the submission should clearly indicate, via brackets, highlighting, or other means, the specific information that is business confidential. If you request business confidential treatment, you must certify in writing that disclosure of the information would endanger trade secrets or profitability, and that the information would not customarily be released to the public. Filers of submissions containing business confidential information also must submit a public version of their comments. The file name of the public version should begin with the character “P”. The “BC” and “P” should be followed by the name of the person or entity submitting the comments or rebuttal comments. If this is not sufficient to protect business confidential information or otherwise protect business interests, please contact Sandy McKinzy at (202) 395–9483 to discuss whether alternative arrangements are possible.
USTR may determine that information or advice contained in a comment, other than business confidential information, is confidential in accordance with section 135(g)(2) of the Trade Act of 1974 (19 U.S.C. 2155(g)(2)). If a submitter believes that information or advice is confidential, s/he must clearly designate the information or advice as confidential and mark it as “SUBMITTED IN CONFIDENCE” at the top and bottom of the cover page and each succeeding page, and provide a non-confidential summary of the information or advice.
Pursuant to section 127(e) of the URAA (19 U.S.C. 3537(e)), USTR will maintain a docket on this dispute settlement proceeding, docket number USTR–2018–0015, accessible to the public at
The Department of Veterans Affairs (VA) gives notice under the Federal Advisory Committee Act that the Special Medical Advisory Group will meet on June 6, 2018 from 2:30 p.m.–4:30 p.m. ET. This meeting will be virtual. Members of the public can join—please contact
The purpose of the committee is to advise the Secretary of Veterans Affairs and the Under Secretary for Health on the care and treatment of Veterans, and other matters pertinent to the Veterans Health Administration (VHA).
The agenda for the meeting will focus on VHA Modernization. There will not be a public comment period. If any member of the public would like to submit comments for the committee to consider at this meeting, please submit in writing to
(b) The Federal Government must do more to apply the Statute in a manner consistent with effective and efficient Government. To fulfill this obligation, agencies should secure CBAs that: promote an effective and efficient means of accomplishing agency missions; encourage the highest levels of employee performance and ethical conduct; ensure employees are accountable for their conduct and performance on the job; expand agency flexibility to address operational needs; reduce the cost of agency operations, including with respect to the use of taxpayer-funded union time; are consistent with applicable laws, rules, and regulations; do not cover matters that are not, by law, subject to bargaining; and preserve management rights under section 7106(a) of title 5, United States Code (management rights). Further, agencies that form part of an effective and efficient Government should not take more than a year to renegotiate CBAs.
(a) The phrase “term CBA” means a CBA of a fixed or indefinite duration reached through substantive bargaining, as opposed to (i) agreements reached through impact and implementation bargaining pursuant to sections 7106(b)(2) and 7106(b)(3) of title 5, United States Code, or (ii) mid-term agreements, negotiated while the basic comprehensive labor contract is in effect, about subjects not included in such contract.
(b) The phrase “taxpayer-funded union time” means time granted to a Federal employee to perform non-agency business during duty hours pursuant to section 7131 of title 5, United States Code.
(b)
(c)
(d)
(e) Within 18 months of the first meeting of the Labor Relations Group, the OPM Director, as the Chair of the group, shall submit to the President,
(b) Consistent with the requirements and provisions of chapter 71 of title 5, United States Code, and other applicable laws and regulations, an agency, when negotiating with a collective bargaining representative, shall:
(b) During any collective bargaining negotiations under chapter 71 of title 5, United States Code, and consistent with section 7114(b) of that chapter, the agency shall negotiate in good faith to reach agreement on a term CBA, memorandum of understanding (MOU), or any other type of binding agreement that promotes the policies outlined in section 1 of this order. If such negotiations last longer than the period established by the CBA ground rules -- or, absent a pre-set deadline, a reasonable time -- the agency shall consider whether requesting assistance from the FMCS and, as appropriate, the Panel, would better promote effective and efficient Government than would continuing negotiations. Such consideration should evaluate the likelihood that continuing negotiations without FMCS assistance or referral to the Panel would produce an agreement consistent with the goals of section 1 of this order, as well as the cost to the public of continuing to pay for both agency and collective bargaining representative negotiating teams. Upon the conclusion of the sixth month of any negotiation, the agency head shall receive notice from appropriate agency staff and shall
(c) If the commencement or any other stage of bargaining is delayed or impeded because of a collective bargaining representative's failure to comply with the duty to negotiate in good faith pursuant to section 7114(b) of title 5, United States Code, the agency shall, consistent with applicable law consider whether to:
(d) An agency's filing of a ULP complaint against a collective bargaining representative shall not further delay negotiations. Agencies shall negotiate in good faith or request assistance from the FMCS and, as appropriate, the Panel, while a ULP complaint is pending.
(e) In developing proposed ground rules, and during any negotiations, agency negotiators shall request the exchange of written proposals, so as to facilitate resolution of negotiability issues and assess the likely effect of specific proposals on agency operations and management rights. To the extent that an agency's CBAs, ground rules, or other agreements contain requirements for a bargaining approach other than the exchange of written proposals addressing specific issues, the agency should, at the soonest opportunity, take steps to eliminate them. If such requirements are based on now-revoked Executive Orders, including Executive Order 12871 of October 1, 1993 (Labor-Management Partnerships) and Executive Order 13522 of December 9, 2009 (Creating Labor-Management Forums to Improve Delivery of Government Services), agencies shall take action, consistent with applicable law, to rescind these requirements.
(f) Pursuant to section 7114(c)(2) of title 5, United States Code, the agency head shall review all binding agreements with collective bargaining representatives to ensure that all their provisions are consistent with all applicable laws, rules, and regulations. When conducting this review, the agency head shall ascertain whether the agreement contains any provisions concerning subjects that are non-negotiable, including provisions that violate Government-wide requirements set forth in any applicable Executive Order or any other applicable Presidential directive. If an agreement contains any such provisions, the agency head shall disapprove such provisions, consistent with applicable law. The agency head shall take all practicable steps to render the determinations required by this subsection within 30 days of the date the agreement is executed, in accordance with section 7114(c) of title 5, United States Code, so as not to permit any part of an agreement to become effective that is contrary to applicable law, rule, or regulation.
(b) Consistent with section 1 of this order, agencies that engage in bargaining over procedures pursuant to section 7106(b)(2) of title 5, United States Code, shall, consistent with their obligation to negotiate in good faith, bargain over only those items that constitute procedures associated with the exercise of management rights, which do not include measures that excessively interfere with the exercise of such rights. Likewise, consistent with section 1 of this order, agencies that engage in bargaining over appropriate arrangements pursuant to section 7106(b)(3) of title 5, United States Code, shall, consistent with their obligation to negotiate in good faith, bargain over only those items that constitute appropriate arrangements for employees adversely affected by the exercise of management rights. In such negotiations, agencies shall ensure that a resulting appropriate arrangement does not excessively interfere with the exercise of management rights.
(b) Within 90 days of the date of this order, the OPM Director shall prescribe a reporting format for submissions required by subsection (a) of this section. Within 30 days of the OPM Director's having prescribed the reporting format, agencies shall use this reporting format and make the submissions required under subsection (a) of this section.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) Nothing in this order shall abrogate any CBA in effect on the date of this order.
(d) The failure to produce a report for the agency head prior to the termination or renewal of a CBA under section 4(a) of this order shall not prevent an agency from opening a CBA for renegotiation.
(e) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(a) Except for purposes of section 4 of this order, “agency” has the meaning given the term in section 7103(a)(3) of title 5, United States Code, but includes only executive agencies. For purposes of section 4 of this order, “agency” has the meaning given to “Executive agency” in section 105 of title 5, United States Code, but excludes the Government Accountability Office.
(b) “Agency business” shall mean work performed by Federal employees, including detailees or assignees, on behalf of an agency, but does not include work performed on taxpayer-funded union time.
(c) “Bargaining unit” shall mean a group of employees represented by an exclusive representative in an appropriate unit for collective bargaining under subchapter II of chapter 71 of title 5, United States Code.
(d) “Discounted use of government property” means charging less to use government property than the value of the use of such property, as determined by the General Services Administration, where applicable, or otherwise by the generally prevailing commercial cost of using such property.
(e) “Employee” has the meaning given the term in section 7103(a)(2) of title 5, United States Code, except for purposes of section 4 of this order, in which case it means an individual employed in an “Executive
(f) “Grievance” has the meaning given the term in section 7103(a)(9) of title 5, United States Code.
(g) “Labor organization” has the meaning given the term in section 7103(a)(4) of title 5, United States Code.
(h) “Paid time” shall mean time for which an employee is paid by the Federal Government, including both duty time, in which the employee performs agency business, and taxpayer-funded union time. It does not include time spent on paid or unpaid leave, or an employee's off-duty hours.
(i) “Taxpayer-funded union time” shall mean official time granted to an employee pursuant to section 7131 of title 5, United States Code.
(j) “Union time rate” shall mean the total number of duty hours in the fiscal year that employees in a bargaining unit used for taxpayer-funded union time, divided by the number of employees in such bargaining unit.
(b) (i) If an agency agrees to authorize amounts of taxpayer-funded union time under section 7131(d) of title 5, United States Code, that would cause the union time rate in a bargaining unit to exceed 1 hour (or proposes to the Federal Service Impasses Panel or an arbitrator engaging in interest arbitration an amount that would cause the union time rate in a bargaining unit to exceed 1 hour), the agency head shall report this agreement or proposal to the President through the Director of the Office of Personnel Management (OPM Director) within 15 days of such an agreement or proposal. Such report shall explain why such expenditures are reasonable, necessary, and in the public interest, describe the benefit (if any) the public will receive from the activities conducted by employees on such taxpayer-funded union time, and identify the total cost of such time to the agency. This reporting duty cannot be delegated.
(c) Nothing in this section shall be construed to prohibit any agency from authorizing taxpayer-funded union time as required under sections 7131(a) and 7131(c) of title 5, United States Code, or to direct an agency to negotiate to include in a collective bargaining agreement a term that precludes an agency from granting taxpayer-funded union time pursuant to those provisions.
(2) Employees who have spent one-quarter of their paid time in any fiscal year on non-agency business may continue to use taxpayer-funded union time in that fiscal year for purposes covered by sections 7131(a) or 7131(c) of title 5, United States Code.
(3) Any time in excess of one-quarter of an employee's paid time used to perform non-agency business in a fiscal year shall count toward the limitation set forth in subparagraph (1) of this subsection in subsequent fiscal years.
(2) The prohibition in subparagraph (1) of this subsection does not apply to:
(b) Employees may not use taxpayer-funded union time without advance written authorization from their agency, except where obtaining prior approval is deemed impracticable under regulations or guidance adopted pursuant to subsection (c) of this section.
(c) (i) The requirements of this section shall become effective 45 days from the date of this order. The Office of Personnel Management (OPM) shall be responsible for administering the requirements of this section. Within 45 days of the date of this order, the OPM Director shall examine whether existing regulations are consistent with the rules set forth in this section. If the regulations are not, the OPM Director shall propose for notice and public comment, as soon as practicable, appropriate regulations to clarify
(e) Nothing in this order shall be construed to prohibit agencies from permitting employees to take unpaid leave to perform representational activities under chapter 71 of title 5, United States Code, including for purposes covered by section 7121(b)(1)(C) of title 5, United States Code.
(b) As soon as practicable, but not later than 180 days from the date of this order, to the extent permitted by law, each agency shall develop and implement a procedure governing the authorization of taxpayer-funded union time under section 4(b) of this order. Such procedure shall, at a minimum, require a requesting employee to specify the number of taxpayer-funded union time hours to be used and the specific purposes for which such time will be used, providing sufficient detail to identify the tasks the employee will undertake. That procedure shall also allow the authorizing official to assess whether it is reasonable and necessary to grant such amount of time to accomplish such tasks. For continuing or ongoing requests, each agency shall require requests for authorization renewals to be submitted not less than once per pay period. Each agency shall further require separate advance authorization for any use of taxpayer-funded union time in excess of previously authorized hours or for purposes for which such time was not previously authorized.
(c) As soon as practicable, but not later than 180 days from the date of this order, each agency shall develop and implement a system to monitor the use of taxpayer-funded union time to ensure that it is used only for authorized purposes, and that it is not used contrary to law or regulation. In developing these systems, each agency shall give special attention to ensuring taxpayer-funded union time is not used for:
(b) Agencies shall notify the OPM Labor Relations Group established pursuant to the Executive Order entitled “Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining” of May 25, 2018, if a bargaining unit's union time rate exceeds 1 hour.
(c) If an agency's aggregate union time rate (i.e., the average of the union time rates in each agency bargaining unit, weighted by the number of employees in each unit) has increased overall from the last fiscal year, the agency shall explain this increase in the report required under subsection (a) of this section.
(d) The OPM Director shall set a date by which agency submissions under this section are due.
(b) OPM shall analyze the agency submissions under section 6 of this order and produce an annual report detailing:
(c) The OPM Director shall publish the annual report required by this section by June 30 of each year. The first report shall cover fiscal year 2019 and shall be published by June 30, 2020.
(d) The OPM Director shall, after consulting with the Chief Human Capital Officers designated under chapter 14 of title 5, United States Code, promulgate any additional guidance that may be necessary or appropriate to assist the heads of agencies in complying with the requirements of this order.
(b) Each agency shall consult with employee labor representatives about the implementation of this order. On the earliest date permitted by law, and to effectuate the terms of this order, any agency that is party to a collective bargaining agreement that has at least one provision that is inconsistent with any part of this order shall give any contractually required notice of its intent to alter the terms of such agreement and either reopen negotiations and negotiate to obtain provisions consistent with this order, or subsequently terminate such provision and implement the requirements of this order, as applicable under law.
(b) Nothing in this order shall be construed to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under chapter 71 of title 5, United States Code, or encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment.
(c) Nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency, or the head thereof.
(d) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(e) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(f) If any provision of this order, including any of its applications, is held to be invalid, the remainder of this order and all of its other applications shall not be affected thereby.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(b) Supervisors and deciding officials should not be required to use progressive discipline. The penalty for an instance of misconduct should be tailored to the facts and circumstances.
(c) Each employee's work performance and disciplinary history is unique, and disciplinary action should be calibrated to the specific facts and circumstances of each individual employee's situation. Conduct that justifies discipline of one employee at one time does not necessarily justify similar discipline of a different employee at a different time -- particularly where the employees are in different work units or chains of supervision -- and agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct. Nonetheless, employees should be treated equitably, so agencies should consider appropriate comparators as they evaluate potential disciplinary actions.
(d) Suspension should not be a substitute for removal in circumstances in which removal would be appropriate. Agencies should not require suspension of an employee before proposing to remove that employee, except as may be appropriate under applicable facts.
(e) When taking disciplinary action, agencies should have discretion to take into account an employee's disciplinary record and past work record, including all past misconduct -- not only similar past misconduct. Agencies should provide an employee with appropriate notice when taking a disciplinary action.
(f) To the extent practicable, agencies should issue decisions on proposed removals taken under chapter 75 of title 5, United States Code, within 15 business days of the end of the employee reply period following a notice of proposed removal.
(g) To the extent practicable, agencies should limit the written notice of adverse action to the 30 days prescribed in section 7513(b)(1) of title 5, United States Code.
(h) The removal procedures set forth in chapter 75 of title 5, United States Code (Chapter 75 procedures), should be used in appropriate cases to address instances of unacceptable performance.
(i) A probationary period should be used as the final step in the hiring process of a new employee. Supervisors should use that period to assess how well an employee can perform the duties of a job. A probationary period can be a highly effective tool to evaluate a candidate's potential to be an asset to an agency before the candidate's appointment becomes final.
(j) Following issuance of regulations under section 7 of this order, agencies should prioritize performance over length of service when determining which employees will be retained following a reduction in force.
(a) subject to grievance procedures or binding arbitration disputes concerning:
(b) make any agreement, including a collective bargaining agreement:
(c) generally afford an employee more than a 30-day period to demonstrate acceptable performance under section 4302(c)(6) of title 5, United States Code, except when the agency determines in its sole and exclusive discretion that a longer period is necessary to provide sufficient time to evaluate an employee's performance.
(b) Compilation and submission of the data required by subsection (a) of this section shall be conducted in accordance with all applicable laws, including those governing privacy and data security.
(c) To enhance public accountability of agencies for their management of the Federal workforce, the OPM Director shall, consistent with applicable law, publish the information received under subsection (a) of this section, at the minimum level of aggregation necessary to protect personal privacy. The OPM Director may withhold particular information if publication would unduly risk disclosing information protected by law, including personally identifiable information.
(d) Within 60 days of the date of this order, the OPM Director shall issue guidance regarding the implementation of this section, including with respect to any exemptions necessary for compliance with applicable law and the reporting format for submissions required by subsection (a) of this section.
(b) The head of each agency shall take steps to conform internal agency discipline and unacceptable performance policies to the principles and requirements of this order. To the extent consistent with law, each agency head shall:
(c) Within 15 months of the adoption of any final rules issued pursuant to subsection (a) of this section, the OPM Director shall submit to the President a report, through the Director of the Office of Management and Budget, evaluating the effect of those rules, including their effect on the ability of Federal supervisors to hold employees accountable for their performance.
(d) Within a reasonable amount of time following the adoption of any final rules issued pursuant to subsection (a) of this section, the OPM Director and the Chief Human Capital Officers Council shall undertake a Government-wide initiative to educate Federal supervisors about holding employees accountable for unacceptable performance or misconduct under those rules.
(b) Agencies shall consult with employee labor representatives about the implementation of this order. Nothing in this order shall abrogate any collective bargaining agreement in effect on the date of this order.
(c) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(e) If any provision of this order, including any of its applications, is held to be invalid, the remainder of this order and all of its other applications shall not be affected thereby.
Office of the Assistant Secretary for Health, Office of the Secretary, HHS.
Proposed rule.
The Office of Population Affairs (OPA), in the Office of the Assistant Secretary for Health, proposes to revise its Title X regulations (Title X of the Public Health Service Act) to ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning and related statutory requirements. In addition, OPA proposes amendments to the Title X regulations that would, among other things, clarify grantee responsibilities to provide a broad range of family planning methods; to require documented compliance with State and local laws requiring notification or the reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence, and human trafficking; to provide free or low cost access to family planning services for those women who are unable to obtain employer-sponsored insurance coverage for certain contraceptive services due to their employers' religious beliefs or moral convictions; to provide for the appropriate expenditure of federal Title X funds on family planning services, rather than on lobbying or related activities; and to appropriately encourage family participation in family planning decisions, all as required by Federal law.
Comments on this proposed rule are invited. To be considered, comments must be received by July 31, 2018.
Written comments may be submitted to the Department of Health and Human Services, Office of the Assistant Secretary for Health, Office of Population Affairs, as specified below. Any comment that is submitted will also be made available to the public.
Comments, identified by “Family Planning” may be submitted by one of the following methods:
Comments received will be posted without change to
Valerie Huber at (202) 690–7694.
Title X of the Public Health Service Act (PHS Act or the Act), 42 U.S.C. 300 through 300a–6, was enacted in 1970 by Public Law 91–572. It authorizes the Secretary of Health and Human Services, among other things, “to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents).” PHS Act sec. 1001(a); 42 U.S.C. 300(a).
Presently, the Title X program funds approximately 90 public health departments and community health, family planning, and other private nonprofit agencies through grants, supporting delivery of family planning services at almost 4,000 service sites.
Section 1008 of the Act contains the following prohibition, which has not been altered since it was enacted in 1970:
None of the funds appropriated under this title shall be used in programs where abortion is a method of family planning.
It is, and has been, the intent of both Houses that funds authorized under this legislation be used only to support preventive family planning services, population research, infertility services and other related medical, information, and educational activities. The conferees have adopted the language contained in section 1008, which prohibits the use of such funds for abortion, in order to make clear this intent.
Since it originally created the Title X program in 1970, Congress has, from time to time, imposed additional requirements on it. For example, the annual Title X appropriation includes the provisos that “all pregnancy counseling shall be nondirective”
Congress has given particular instructions for the services provided under Title X to minors and other vulnerable populations. Congress specifically required that Title X provide distinct services for adolescents.
Since 1971, the Department has repeatedly exercised rulemaking authority with respect to the Title X program. Section 1006(a) of the Act, 42 U.S.C. 300a–4, grants rulemaking power to the Department: It provides that “[g]rants and contracts made under this subchapter shall be made in accordance with such regulations as the Secretary may promulgate.” The Department began to exercise that authority by issuing regulations implementing section 1008 in 1971.
On February 2, 1988, the Secretary of Health and Human Services promulgated Title X regulations (the “1988 Regulations”) to give specific program guidance regarding the statutory prohibition on the use of Title X funds in programs where abortion is a method of family planning. The Department noted “as a matter of experience with Title X, its responsibility to administer the program as provided by Congress, and its general administrative discretion, that the provisions of the current guidelines do not faithfully or effectively maintain the prohibition contained in section 1008.” Statutory Prohibition on Use of Appropriated Funds in Programs Where Abortion is a Method of Family Planning; Standard of Compliance for Family Planning Services Projects, Final Rule, 53 FR 2922, 2923 (Feb. 2, 1988). The Department sought to address this deficiency.
The 1988 Regulations had several key features to support compliance with the statutory prohibition. To more effectively implement section 1008, the regulations prohibited Title X projects from counseling or referring project clients for abortion as a method of family planning; required grantees to separate their Title X project—physically and financially—from any abortion activities; and implemented compliance standards for family planning projects under Title X to specifically prohibit certain actions that promote or encourage, or advocate abortion as a method of family planning, such as the use of project funds for lobbying for abortion, developing and disseminating materials advocating abortion, or taking legal action to make abortion available as a method of family planning. 53 FR 2922 (Feb. 2, 1988).
The 1988 Regulations were upheld on both statutory and constitutional grounds by the United States Supreme Court in
The Supreme Court similarly rejected constitutional challenges to the regulations. As an initial matter, it upheld the statutory limitation of Title X funds to programs where abortion is not a method of family planning, concluding that “[t]here is no question but that the statutory prohibition contained in § 1008 is constitutional” because Congress “may `make a value judgment favoring childbirth over abortion and . . . implement that judgment by the allocation of public funds.' ”
The challenged regulations implement the statutory prohibition by prohibiting counseling, referral, and the provision of information regarding abortion as a method of family planning. They are designed to ensure that the limits of the federal program are observed. The Title X program is designed not for prenatal care, but to encourage family planning. A doctor who wished to offer prenatal care to a project patient who became pregnant could properly be prohibited from doing so because such service is outside the scope of the federally funded program. The regulations prohibiting abortion counseling and referral are of the same ilk. . . . This is not a case of the Government `suppressing a dangerous idea,' but of a prohibition on a project grantee or its employees from engaging in activities outside of the project's scope.
By requiring that the Title X grantee engage in abortion-related activity separately from activity receiving federal funding, Congress has, consistent with our teachings . . . not denied it the right to engage in abortion-related activities. Congress has merely refused to fund such activities out of the public fisc, and the Secretary has simply required a certain degree of separation from the Title X project in order to ensure the integrity of the federally funded program.
The 1988 Regulations continued to govern the Title X program until February 5, 1993, when a new Administration suspended them pursuant to a Presidential Memorandum and issued a proposed regulation, 58 FR 7464, that it finalized seven years later,
Finally, the 2000 Regulations “incorporated in the regulatory text the policies relating to nondirective counseling and referral of the 1981 Program Guidelines for Project Grants for Family Planning Services [1981 Guidelines].” 65 FR at 41271. Those 1981 Guidelines, for the first time, required nondirective counseling about pregnancy options, including abortion, and did so in a way that “creat[ed] the appearance of treating each option identically,” despite the statutory prohibition on funding programs where abortion is a method of family planning.
On December 19, 2016, the Department finalized a rule that amended Title X eligibility requirements, requiring that no grantee/recipient making subawards for the provision of services as part of its Title X project prohibit an entity from receiving a subaward for reasons other than its ability to provide Title X services. 81 FR 91852 (Dec. 19, 2016) (the “2016 Regulation”). The Department's stated reason for issuing the rule was to respond to new approaches to competing or distributing Title X funds that were being employed by several states. To that end, the Department asserted that “[a]llowing project recipients, including states and other entities, to impose restrictions on subrecipients for reasons other than their ability to provide Title X services has been shown to have an adverse effect on the number of people receiving Title X services and the fundamental goals of the Title X program.”
Yet the 2016 Regulation, if implemented, would have entailed certain adverse consequences. As an initial matter, it would have denied States and other grantees the freedom to choose subrecipients as they saw fit, within the Title X statutory parameters. Moreover, it could have resulted in the discontinuation of funding for entire States. A comment from the chief legal officers and/or governors from nine States explained their opposition to the rule as follows: “[The purpose of Title X is] to promote and assist in the establishment of voluntary family planning projects that offer a broad range of acceptable and effective family planning methods and services. The program is also targeted toward services for adolescents. This rule does not further that goal; but rather it is intended to protect funding for certain providers even at the expense of the entire program.”
The 2016 Regulation took effect on January 18, 2017, but was nullified under the Congressional Review Act less than three months later. The President signed Public Law 115–23, “Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the final rule submitted by Secretary of Health and Human Services relating to compliance with Title X requirements by project recipients in selecting subrecipients” on April 13, 2017. As a result, the 2016 Regulation must be “treated as though such rule had never taken effect.” 5
The Department must consider the effectiveness of its policies enforcing statutory mandates on a continuing basis. As the Supreme Court noted in
The Department now believes the policies outlined in this proposed rule are based on the best interpretation of, and provide appropriate guidance for compliance with, Title X. In particular, the Department believes that the policies outlined in this proposed rule provide for the best interpretation of section 1008 of Title X and of associated provisions, including the appropriations provisos and riders governing the Title X program. The standards proposed here are designed to refocus the Title X program on its statutory mission—the provision of voluntary, preventive family planning services specifically designed to enable individuals to determine the number and spacing of their children—while clarifying that pregnant women must be referred for appropriate prenatal care services, rather than receiving them within a Title X project, because those services are not part of family planning services within the Title X program.
As discussed in section II.B. below, the Department interprets section 1008 to establish a broad prohibition on funding, directly or indirectly, activities related to abortion as a method of family planning. Thus, the Department believes that section 1008's mandate is most clearly met where there is a clear separation between Title X programs and programs in which abortion is presented or provided as a method of family planning. The 2000 regulations are inconsistent with that interpretation insofar as they require referral for abortion, allow the use of funds for infrastructure building that could be used for abortion services, and do not require clear physical and financial separation between Title X activities and abortion-related services. In addition, the regulations do not ensure transparency and accountability in the use of taxpayer funds insofar as they fail to provide the Department information about subrecipients, to ensure monitoring for potential misuse of funds, and to address expressly federal laws (including a Title X specific appropriations proviso) that prohibit the use of taxpayer funds for political activity or lobbying. Finally, the regulations prescribe inadequate grant criteria for selecting recipients of Title X funds who will comply with all of these requirements. If finalized and implemented as proposed, the new regulations would contribute to more clients being served, gaps in service being closed, and improved client care that better focuses on the family planning mission of the Title X program.
As part of its ongoing obligation to ensure compliance with federal law, the Department has determined that the existing regulations do not ensure compliance with the prohibition in section 1008 that “none of the funds appropriated” for Title X “be used in programs where abortion is a method of family planning.” In the view of the Department, that prohibition includes any action that directly or indirectly facilitates, encourages, or supports in any way the use of abortion as a method of family planning. That interpretation follows from the text and purpose of the statute.
To begin, section 1008 “broad[ly]” “prohibits the use of Title X funds `in programs where abortion is a method of family planning.' ”
The legislative history confirms this meaning. The Conference Report stated that “[i]t is, and has been, the intent of both Houses that the funds authorized under this legislation be used only to support preventive family planning services, population research, infertility services, and other related medical, information and education activities.” H.R. Conf. Rep. No. 91–1667 at 8 (1970). Congressman John D. Dingell, Jr., the principal sponsor of section 1008, further explained on the floor of the House:
I set forth in my extended remarks the reasons why I offered to the amendment [sic], which prohibited abortion as a method of family planning. . . . With the “prohibition of abortion”, the committee members clearly intended that abortion is not to be encouraged or promoted in any way through this legislation. Programs that include abortion as a method of family planning are
To give effect to Section 1008, the Department now considers it important and appropriate to draw a wall of separation between Title X programs and prohibited activities. Title X programs may not directly or indirectly facilitate, promote, or encourage abortion in any way. For example, referral is an integral part of the provision of any method of family planning. When provided for abortion, a referral necessarily treats abortion as a method of family planning and runs afoul of the statute. Similarly, Title X programs that subsidize other programs where abortion is a method of family planning, through infrastructure building, cost sharing, or otherwise, run afoul of the statute. Congress made clear that “none” of the Title X funds should go to support such programs.
The Department previously took the position, in a notice published concurrently with the 2000 Regulations, that section 1008 precluded only funding of activities that “directly facilitate the use of abortion as a method of family planning, such as providing transportation for an abortion, explaining and obtaining signed abortion consent forms from clients interested in abortions, negotiating a reduction in fees for an abortion, and scheduling or arranging for the performance of an abortion, promoting or advocating abortion within Title X program activities, or failing to preserve sufficient separation between Title X program activities and abortion-related activities.” Provision of Abortion-Related Services in Family Planning Services Projects, 65 FR 41281 (July 3, 2000) (“Notice”). The Department mandated that providers provide counseling on and referral for abortion, if requested by the client.
But the Department no longer considers that position appropriate in light of restrictions set forth in the statute. Section 1008 does not merely prohibit “direct” funding for abortion. It prohibits
As discussed above, the Department has concluded the requirement under 42 CFR 59.5(a)(5) that a project must provide abortion counseling and referrals to pregnant women upon request is inconsistent with section 1008.
In addition, the requirement that Title X projects offer pregnant women the opportunity to be provided information and counseling regarding, and referrals for, abortion is inconsistent with the conscience protections embodied in the Church, Coats-Snowe, and Weldon Amendments.
For these reasons, the Department proposes to change the Title X regulations to eliminate the requirement that Title X projects provide abortion referral and counseling. In addition, consistent with the purpose of the program, the proposed rule would prohibit recipients from using Title X funds to perform, promote, refer for, or support abortion as a method of family planning. This rule would better align with both the best reading of section 1008 and with the Federal conscience statutes. Recognizing, however, the duty of a physician to promote patient safety, a doctor would be permitted to provide nondirective counseling on abortion.
A second statutory problem is raised by the fact that the 2000 Regulations required financial, but not physical, separation between Title X Projects and the abortion activities of the Title X grantee/subrecipient. Organizations that actively include abortion as a method of family planning have consistently received Title X funding. The 2000 regulations permit shared facilities, common staff, and single file systems between Title X supported activities and non-Title X abortion-related activities in the following ways:
(a) A common waiting room is permissible, as long as the costs [are] properly pro-rated; (b) common staff is permissible, so long as salaries are properly allocated and all abortion related activities of the staff members are performed in a program which is entirely separate from the Title X project; (c) a hospital offering abortions for family planning purposes and also housing a Title X project is permissible, as long as the abortion activities are sufficiently separate from the Title X project; and (d) maintenance of a single file system for abortion and family planning patients is permissible, so long as costs are properly allocated. 65 FR 41281, 41282 (July 3, 2000).
This concern is particularly acute in light of more recent evidence that abortions are increasingly performed at sites that focus primarily on contraceptive and family planning services—sites that could themselves be recipients of Title X funds. The Guttmacher Institute's recent report,
Together, these circumstances create a risk of intentional or unintentional misuse of Title X funds and have created public confusion over the scope of Title X services, whether Title X projects provide abortion services, and whether the Federal government (and, ultimately, Federal taxpayers), is funding abortion services provided by organizations that are recipients (or subrecipients) of Title X grants/funds. The Department believes that such potential co-mingling and confusion is evidence that the 2000 Regulations neither adequately reflect nor further the text and purpose of section 1008. As discussed above, the Department interprets section 1008 to require Title X project activities to be separate and distinct from non-Title X abortion activities. Thus, when a grantee conducts abortion activities that are not part of the Title X project, and would not be permissible if they were, the grantee must ensure that the Title X-supported project is separate and distinguishable from those other activities.
The proposed regulation would reduce, and potentially eliminate, any confusion—actual or potential—as to the scope of services supported by Title X funds by requiring Title X projects to maintain clear physical and financial program separation from programs that use abortion as a method of family planning. This bright-line rule would create a clearer, more transparent system of separation and accountability, similar to that established by the 1988 Regulations and affirmed by the Supreme Court in
The current flexibility in the use of Title X funds raises additional concerns about the fungibility of assets that could be used—sometimes with an attendant increase in marginal cost—to build infrastructure for abortion services. By law, Title X providers must secure other sources of revenue to leverage Title X grants.
Up-front funding helps supply a cash-flow cushion for providers who are often operating on tight and uncertain budgets. More specifically, Title X recipients use the program's flexible grant funding in a variety of ways to address staff-related issues, including hiring individuals capable of meeting communities' need for linguistic or culturally appropriate care, training staff on the latest medical techniques or to provide tailored counseling for clients with special needs, maintaining sufficient staff to operate outside regular business hours and paying sufficient wages to staff at all levels to reduce high turnover rates that often plague health centers. Providers may also use Title X funds for operational investments, such as utilizing advanced technologies and facilitating more accessible and efficient client care . . . . Finally, Title X undergirds the infrastructure and general operations of the health centers themselves in ways that Medicaid and private insurance simply cannot. Title X funds go to centers up front as grants, rather than after the fact as reimbursement for services centers have provided to individual enrollees. Providers have long relied on that flexibility to hire, train and maintain their staff to meet the diverse needs of their clients and community. They have also depended on these grants to keep their lights on and their doors open, to adapt to unexpected budget shortfalls and to make improvements to their facilities. Such versatility is even more vital in the era of health reform. The up-front investments in staffing, training and infrastructure needed to work effectively with health plans—and to thereby draw in new revenue to serve more clients—are substantial, and flexible funds like those provided through Title X are ideal for such investments. Those expenses include upgrading health information technology systems and training staff on their use, training clinicians and front-line staff to properly code and bill for services provided, obtaining the appropriate credentials to ensure third-party reimbursement, and devoting time and resources to researching available health plans and negotiating contracts with them. They may also include expenses related to outsourcing some administrative functions to private contractors or as part of collaborations with other health care providers.
Title X can subsidize the intensive outreach necessary to encourage some individuals to seek services. Furthermore, by paying for everything from staff salaries to utility bills to medical supplies, Title X funds provide the essential infrastructure support that enables clinics to go on and claim Medicaid reimbursement for the clients they serve.
Infrastructure building may include securing physical space, developing or acquiring health information technology systems (including electronic health records), bulk purchasing of contraceptives or other clinic supplies, clinical training for staff, and community outreach and recruiting. An anecdotal story from Guttmacher in the report
Ibarra of California's Venice clinic says her agency sends street outreach teams into the community with backpacks of condoms and basic educational materials, while other teams make regular visits to homeless shelters. Often, it will take multiple visits to a shelter or street-corner conversations until someone feels safe enough to come to a clinic. According to Ibarra, Title X will fund and train the outreach workers, purchase the condoms and often even develop the educational materials they distribute. Only when a client actually comes to the clinic is reimbursement available (through Medicaid or any other source), and then only if the client qualifies. According to Annette Amey, director of program evaluation for CFHC, “it's all about getting people to the inside of the clinic door, and for that Title X dollars are indispensable.”
The Department is concerned about this infrastructure building on both statutory and policy grounds. As a statutory matter, the use of Title X funds to build infrastructure that can be used for purposes prohibited with these funds, such as support for the abortion business of a Title X grantee or subrecipient, clearly violates section 1008. As a policy matter, Title X is the only discrete, domestic, Federal grant program focused solely on the provision of cost-effective family planning methods and services. As the number of Americans at or below the poverty level has increased, the need to prioritize the use of Title X funds for the provision of family planning service has as well.
The proposed physical and financial separation of Title X projects from all activities that could not be funded by those programs, as well as the separate provision addressing the use of Title X funds for infrastructure purposes, would address this concern. Because Title X projects would not share any infrastructure with abortion-related activities, direction of Title X funds toward such infrastructure would no longer threaten to divert funds to impermissible activities. That separation would thus ensure that Title X funds are used for the purposes expressly mandated by Congress, that is, to offer family planning methods and services—and that any infrastructure built with Title X funds would not be used for impermissible purposes.
In addition to ensuring compliance with section 1008, the Department seeks to address three additional concerns posed by the 2000 regulations with respect to the responsible use of taxpayer funds.
Transparency in the use of governmental funds is an important principle for responsible government. This transparency helps to ensure accountability for, and wise use of, taxpayers' money. Current Title X regulations, however, do not require grantees to submit information to the government about their subrecipients, referral agencies, or other partners to whom Title X funds may flow. This lack of information is a barrier to OPA's oversight of the activities of its program
Therefore, under the new regulations, Title X grant applicants would be required to share the following within their applications and, if funded, in required reports and responses to performance measures, wherever practicable:
• Names and locations of subrecipients, referral individuals and agencies, as well as services provided and to be provided by those entities;
• Detailed descriptions of any partnerships, including the extent of collaboration, with subrecipients, referral individuals and agencies, as well as less formal partners within the community, in order to demonstrate a seamless continuum of care for clients;
• A clear explanation of how the grantee will ensure adequate oversight and accountability for quality and effectiveness outcomes among subrecipients and those who serve as referrals for ancillary or core services.
The Department has additional concerns about the potential for misuse of Title X funds and misbilling or overbilling of other Federal or state programs by Title X grantees under the current regulatory scheme. Although Title X is the only discrete domestic family planning grant program, other programs also fund family planning. In fact, 75% of all family planning services are funded through Medicaid; only 10% are funded through Title X.
Numerous studies have documented misuse/overbilling for family planning services. The HHS Office of Inspector General (OIG) conducted a Federal audit of Medicaid-reimbursed claims for family planning services in New York State and found that about 25% of a sample of such claims were not eligible for Family Planning Benefit Program (FPBP) reimbursements.
• In New York State, one Medicaid provider was found to have received significant overpayments for family planning services.
• A Medicaid provider, under threat of being terminated from the Illinois Medicaid program, was charged with overbilling for birth control.
• Another Title X recipient and Medicaid provider in Pennsylvania was found out of compliance by HRSA for overbilling.
• A Medicaid provider (and Title X grantee) in Washington State was audited following charges that it engaged in improper billing practices. The Washington Medicaid Fraud Control Unit investigated; as a result of the investigation, the grantee reimbursed the Medicaid program.
• The state of Nebraska found that significant abortion-related expenses were charged against the Title X grant by a subrecipient.
• In Wisconsin, an audit of a Title X grantee found Medicaid overbilling problems, including no proof of prescription, excessive reimbursements beyond what is allowable, and other irregularities.
• In Massachusetts, a Title X grantee was subject to an OIG investigation, where the grantee admitted to comingling Title X expenses with all
These examples raise concerns about the integrity of the Title X program. While only a few of these cases involve documented misuse of Title X funds or violation of Title X's financial requirements, the Department is concerned these instances suggest that at least some recipients or subrecipients of Title X funds may not understand, and/or may not be in compliance with, requirements regarding the receipt or use of Federal funds, including Title X funds.
More broadly, grantees from a variety of federal programs commonly fail to verify personnel costs with the actual time spent on the grant-supported activities compared to time spent on non-grant functions by fully documenting time with personnel activity reports. In addition, it is not uncommon for project costs in federal reports to be inconsistent with time and status reports or bookkeeping ledgers, or for grantees to lack adequate documentation for the amount allocated to the grant for indirect costs. Yet infrastructure costs can benefit the organization generally, rather than only as it pertains to activities permitted under the grant project.
The Department believes it necessary to address this issue with expanded monitoring, reporting, transparency, and accountability requirements. Because of the specific statutory prohibitions and requirements imposed on Title X projects, and the regulatory requirement—both currently and as proposed—for financial separation, the Department does not believe that the general grants management requirements are sufficient to address the issue. Rather, the Department proposes specific requirements to ensure legal and ethical usage of taxpayer dollars. These requirements are discussed in greater detail below, but they include requiring programs to: Ensure compliance with statutory requirements; have a plan in place to demonstrate that grantees and subrecipients are aware of certain reporting requirements that apply in their state; provide adequate training with respect to those requirements; maintain records about clients for whom state reporting requirements apply; receive approval for any change in the usage of grant funds; and fully account for and justify charges against the Title X grant.
The current regulations also raise concerns about compliance with other federal laws that govern expenditures of taxpayer funds.
In addition to the Anti-Lobby Act, 18 U.S.C. 1913, the Department's annual appropriations act establishes a comprehensive framework prohibiting the use of Federal funding, including Title X funds, for publicity and propaganda. One set of prohibitions applies across the Executive Branch: “No part of any funds appropriated in this or any other Act shall be used by an agency of the executive branch, other than for normal and recognized executive-legislative relationships, for publicity or propaganda purposes, and for the preparation, distribution or use of any kit, pamphlet, booklet, publication, radio, television, or film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself.”
Yet another provision, which expressly applies to the Departments of Labor, Health and Human Services, and Education, adds “electronic communication” and substitutes “video” for “film” in the list of prohibited media, sweeps into its ambit “any State or local legislature or legislative body,” and adds “any proposed or pending legislation, administrative action, or order issued by the executive branch of any State or local government” to the prohibited targets.
Finally, the Byrd Amendment applies to the recipients of Federal contracts, grants, or loans, as well as the funded parties to cooperative agreements. It prohibits them from using such funds to lobby in connection with the award, extension, continuation, renewal, amendment, or modification of the funding mechanism under which monetary assistance was received.
The current regulations offer no guidance on the application of these restrictions to the Title X program. Yet these restrictions on the use of appropriated funds clearly prohibit the use of Title X funds to encourage, promote, or advocate for abortion, to support any legislative proposal that encourages abortion, or to support or oppose any candidate for public office. Without guidance from the Department, it is possible that Title X grantees could intentionally, or unintentionally and unknowingly, use Title X funds for prohibited lobbying or political activities, or use such funds to support or pay dues/association fees to organizations where a majority of funds are used for such purposes. Indeed, issues surrounding family planning and abortion are highly controversial and routinely the subject of debate and policy consideration in the political and legislative processes at the national, state and local levels. As a consequence, and even without consideration of violations of these requirements, it is important that recipients of Title X funds fully understand the statutory prohibition on the use of Federal funds for lobbying and political activity.
The proposed rule would provide more explicit direction, in requiring Title X grantees to provide a written assurance that they both understand and agree to the prohibitions related to lobbying and political activity with the use of grant funds. Because of the specific statutory prohibitions applicable to Title X, and the regulatory requirement—both currently and as
The current Title X regulations set forth application review criteria that give HHS significant flexibility in determining awards, but need to be updated to more fully ensure that successful applicants both meet the statutory requirements of the Title X program and are adequately responsive to the statutory goals and purposes of the Title X program. The statute sets forth several factors that HHS shall take into account in making grants and contracts,
As a result, while the statute and current regulations give HHS discretion in considering and weighting factors, the application review criteria in the regulation could be more comprehensive and rigorous, so that the strongest prospective grantees are more likely to be selected, and less qualified applicants would be less likely to garner high scores. The Department is focused on ensuring compliance with the statutory Title X requirements (
Therefore, through the proposed rule, the Department seeks to achieve a two-fold goal:
1. Update application review criteria to better achieve the statutory requirements and goals of Title X.
2. Increase competition and rigor among applicants, encouraging broader and more diverse applicants and better ensuring the selection of quality applicants.
The Department and OPA desire to award grants for the establishment and operation of those Title X projects that would best promote the purposes of Title X and meet the statutory requirements.
The Department proposes revising the current application review criteria at 45 CFR 59.7 through this rulemaking process to establish the following criteria for selection of Title X grantees. Under this proposed regulation, any grant applications that do not clearly address how the proposal will satisfy the requirements of the regulation would not proceed to the competitive review process, but would be deemed ineligible for funding. The Department would explicitly summarize each provision of the regulation (or include the entire regulation) within the Funding Announcement, and would require applicants to describe their affirmative compliance with each provision. If a proposal is deemed compliant with the regulation, then applicants would be rated based on at least the following criteria for selection within the competitive grant review process:
(1) The degree to which the applicant's project plan adheres to the Title X statutory purpose and goals for the “establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents)” (PHS Act Sec. 1001(a), 42 U.S.C. 300(a)), which meet all of the statutory and regulatory requirements and restrictions, and where “none of the funds . . . shall be used in programs where abortion is a method of family planning.” (PHS Act Sec. 1008, 42 U.S.C. 300a–6).
(2) The degree to which “the relative need of the applicant” (PHS Act Sec. 1001(b), 42 U.S.C. 300(b)) is demonstrated in the proposal, and the applicant shows capacity to “make rapid and effective use” (PHS Act Sec. 1001(b), 42 U.S.C. 300(b)), of grant funds, including and especially among a broad range of partners and diverse subrecipients and referral individuals and organizations, and among non-traditional Title X partnering organizations.
(3) The degree to which the applicant takes into account “the number of patients to be served” (PHS Act Sec. 1001(b), 42 U.S.C. 300(b)), while also targeting areas that are more sparsely populated and/or places in which there are not adequate family planning services available.
(4) “The extent to which family planning services are needed locally” (PHS Act Sec.1001(b), 42 U.S.C. 300(b)) and the applicant proposes innovative ways to provide services to unserved or underserved patients.
The Department seeks public comment as to whether additional regulatory application review criteria may be necessary or advisable to implement the Department's interpretation of the statutory provisions applicable to Title X, in particular section 1008; to protect the rights of individuals and entities who decline to participate in abortion-related activities; or to ensure that all services funded through Title X offer optimal health benefits to clients of all ages. The Department also seeks public comment as to whether the protections and services funded through Title X are adequately implemented and clearly understood throughout the Title X program, in order to alleviate the current confusion, and avoid future confusion, among clients and the general public.
The Department has legal authority to amend Title X regulations on the requirements applicable to projects for family planning services under section 1006 of the Public Health Service Act, 42 U.S.C. 300a–4. Section 1006 of the Act states that “[g]rants and contracts made under this title shall be made in accordance with such regulations as the Secretary may promulgate.” The Department has repeatedly exercised that authority to issue regulations to guide Title X grantees in carrying out the program.
The proposed regulations described below in the section-by-section discussion of the proposed rule would clarify, require compliance with, and provide for the enforcement of, statutory limitations and requirements placed on Title X projects and grantees. These
The proposed regulations also would require compliance with, and provide for the enforcement of, statutory provisions applicable to the provision of family planning services to minors and other vulnerable populations. Title X itself requires that, “[t]o the extent practicable, entities which receive grants or contracts under this subsection shall encourage familiy [sic] participation in projects under this subsection.” Omnibus Budget Reconciliation Act of 1981, Public Law 97–35, sec. 931(b)(1), 95 Stat. 375, 570 (1981); 42 U.S.C. 300(a). A rider in HHS's annual appropriations act adds that “[n]one of the funds appropriated in this Act may be made available to any entity under title X of the PHS Act unless the applicant for the award certifies to the Secretary that it encourages family participation in the decision of minors to seek family planning services.” Consolidated Appropriations Act, 2018, Public Law 115–141, Div. H, sec. 207, 132 Stat. 348, 736 (2018). It also requires an applicant to certify that it “provides counseling to minors on how to resist attempts to coerce minors into engaging in sexual activities.”
Finally, the proposed regulations would require compliance with, and provide for the enforcement of, several additional laws that protect the conscience rights of individuals and entities who decline to perform, participate in, or refer for abortions, including the Church Amendments (42 U.S.C. 300a–7), the Coats-Snowe Amendment (section 245 of the Public Health Service Act, 42 U.S.C. 238n), and the Weldon Amendment,
Under federal law, including Title X, subrecipients of federal funds who agree to assist a primary grantee in implementing the grant project are required to comply with the same requirements that are imposed on the grantee. In order to ensure clarity and full implementation of the requirements of Title X and its implementing regulations, the Secretary proposes to amend § 59.1 to make it clear that these regulatory requirements apply equally to subrecipients and to grantees, that grantees are responsible for requiring that their subrecipients (and the subrecipients of such subrecipients) agree to comply with such requirements, and that grantees are responsible for ensuring that their subrecipients so comply.
Title X authorizes the Secretary to not only award grants but also enter into contracts to establish and operate voluntary family planning projects. 42 U.S.C. 300(a). Although contracts are used for Title X training, the Department is not aware of a history of establishing or operating Title X family planning projects by use of contracts instead of grants. Nevertheless, because the use of contracts to establish and operate family planning projects is explicitly authorized in the statute, the Department believes that the regulations should state that the substantive requirements for Title X family planning projects apply to projects whether they are established by grants or contracts. Therefore these rules propose to specify in § 59.1 that, except for §§ 59.3, 59.4, 59.8, and 59.10, the regulations of this subpart would also be applicable to the execution of contracts under Title X to assist in the establishment and operation of voluntary family planning projects. Applicable regulations would be applied in accordance with the statutes, procedures, and regulations that apply to the execution of a Federal contract, as distinct from a grant. Section 59.1 would specify that the use of the terms “grant,” “award,” “grantee,” and “subrecipient” in applicable regulations of this subpart would apply similarly to contracts, contractors and subcontractors, and the use of the term “project” or “program” would also apply to a project or program established by use of a contract. The Departments would specify that §§ 59.3, 59.4, 59.8, and 59.10 would not apply to contracts, because those sections generally describe processes specifically applicable to grants and grant applications, as distinct from the substantive requirements of the other sections of this subpart. Because of the lack of a history of using contracts to establish or operate Title X projects, and because Title X funds used for a contract would offset funds used for a grant, the Department does not believe that specifying that these regulations also generally apply to Title X contracts would affect the regulatory or economic impact of these proposed rules. The Department invites comment on the applicability of these regulations to contracts for the provision of family planning services under Title X.
The current Title X regulations include a limited number of definitions that are very general in scope including “Act,” “family,” “low-income family,” “nonprofit,” “Secretary,” and “state.” Important terms, such as “family planning,” “grantee,” and “subrecipient,” are not defined. The Department believes that, as a result of these omissions, the Title X regulations fail to provide sufficient clarity for prospective grantees and subrecipients, current grantees and subrecipients, and the general public. To ensure greater clarity and accountability in the use of Title X funds, the Secretary proposes the addition of four new definitions to the Title X regulations, 42 CFR 59.2:
Under the proposed regulations, “family planning” would be defined as the voluntary process of identifying goals and developing a plan for the number and spacing of children and the means by which those goals may be achieved. These means include a broad range of acceptable and effective choices, which may range from choosing not to have sex to the use of other family planning methods and services to limit or enhance the likelihood of conception (including contraceptive methods, and natural family planning or other fertility awareness-based methods), and the management of infertility (including adoption). Family planning services include preconceptional counseling, education, and general reproductive and fertility health care to improve maternal and infant outcomes, and the health of women, men, and adolescents who seek family planning services. Family planning and family planning services are never coercive and are strictly voluntary. Family planning does not include post-conception care (including obstetric or prenatal care) or abortion as a method of family planning. Family planning, as supported under this subpart, should reduce the incidence of abortion.
The Department believes that this proposed definition, which largely tracks the definition of “family planning” in the 1988 Regulations, would provide greater clarity to grantees and subrecipients as to the type of activities that can be provided by projects funded under Title X. It is clear that Congress intended the term “family planning” to be broader in scope than simply contraception; natural family planning and infertility services are included as mandatory services explicitly enumerated in section 1001(a). Physical examinations, breast and cervical cancer screenings, sexually transmitted disease (STD) and human immunodeficiency virus (HIV) testing, and pregnancy testing and counseling would continue to be authorized by this definition under the rubric of “general reproductive and fertility health care.” The proposed definition includes concepts from the 1988 rule identifying family planning as a process of establishing objectives for the number and spacing of children and the means of achieving those objectives. The proposed definition elaborates on “objectives” by specifying they involve both goals and plans, as inherent in the term family “planning.” The definition specifies that the process is “voluntary,” “strictly voluntary,” and “never coercive,” consistent with the statutory requirement that Title X apply only to “voluntary” family planning. The definition specifies that family planning includes management of infertility (including adoption). Both this definition and the 1988 definition include general reproductive health care.
The other newly proposed definitions are designed to provide greater clarity concerning which entities are subject to the provisions of Title X.
The Department proposes that “project” or “program” be defined as a plan or sequence of activities that fulfills the requirements elaborated in a Title X funding announcement and may be comprised of, and implemented by a single grantee or subrecipient, or a group of partnering providers who, under a grantee or subrecipient, deliver comprehensive family planning services that satisfy the requirements of the grant within a service area. These proposed definitions are consistent with current Title X program practices.
The Department proposes definitions of “grantee” and “subrecipient” because confusion surrounds their meanings. In this proposed rule, “grantee” would mean the entity that receives Federal financial assistance through a grant and assumes legal and financial responsibility and accountability for the awarded funds and for the performance of the activities approved for funding and for making the required reports to OPA.
A clear definition of “subrecipient” is necessary to ensure program integrity related to both financial and programmatic requirements. Title X service sites (
Therefore, the Department proposes to define “subrecipient” as any entity that provides family planning services with Title X funds under a written agreement with a grantee or another subrecipient. These subrecipients have entered into binding agreements or other financial relationships with Title X grantees to provide Title X services in a given State or community. A “[s]ubrecipient” may also be referred to as a “delegate” or “contract agency.” These entities receive Title X funds to provide Title X services, and are subject to the Title X statute and regulations. This proposed definition would help clarify the entities that receive Title X monies, how they use these funds, and how their services comply with the purpose of the Title X program. In addition, the definition would elucidate the relationship between the grantees and their subrecipients, and would convey, along with the proposed changes to § 59.1, that grantees are responsible for ensuring that their subrecipients (and the subrecipients of such subrecipients) comply with all statutory and regulatory requirements.
To the extent an entity receives Title X funds from a grantee or a subrecipient, it receives funds to provide Title X services, and is thus a subrecipient subject to the Title X statute and regulations. By contrast, some referral agencies do not receive funds from the Title X grant program, but may nevertheless provide information, counseling, or services to a Title X client. A referral agency or individual is a person or entity which is a specialist in a certain field of service and to whom the Title X project refers patients for additional services not available at the Title X clinic site, or not adequately available at the site, to serve the immediate needs of the patient. For example, an individual may visit the Title X clinic for contraceptive services, but in the course of conversation, it may be revealed that the individual wants to end a current intimate and unhealthy relationship. In this case, a referral could then be made to an entity that has expertise in relationship counseling beyond what is available in this Title X clinic. In this and similar cases, the referral agencies would not be considered subrecipients, since they do not receive Title X funds. But because such services are an extension of the overall Title X service provision, in certain cases referral agencies participate in, and receive intrinsic non-monetary benefits as a result of, a formal or informal partnership with a Title X project. Accordingly, we seek comment on whether such a referral agency should be subject to the same reporting requirements as a grantee or subrecipient—by means of requiring grantees and subrecipients to use referral agencies only if they require the referral agencies to submit the required information. This could apply if the referral agency:
• Has a written agreement with the grantee or another subrecipient;
• specifically uses its inclusion in the Title X project to expand its influence in the community; or
• conducts its services, activities, or communications in such a way that its participation in the Title X project is central, or very important, to its existence.
Finally, this proposed rule would amend the definition of “low income family” to include women who are unable to obtain certain family planning services under their employer-sponsored health insurance policies due to their employers' religious beliefs or moral convictions. This would preserve conscience protections for entities and individuals whose health plans are subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act, while providing free or low-cost family planning services for such women at risk of unintended pregnancy or who otherwise desire comprehensive, holistic, family planning services.
The proposed definition of “low income family” would maintain the ability of a Title X project to determine whether unemancipated minors who desire confidential services are low income based on their own resources. However, to ensure compliance with the statutory requirement that Title X projects encourage family participation in the decision of minors to seek family planning services, Title X clinics would be required to document in the minor's medical records the specific actions taken with respect to each minor to encourage such family participation. Documentation of such encouragement would not be required if the Title X clinic documents in the medical record that (1) the minor is suspected to be the victim of child abuse or incest and (2) it has, consistent with and if permitted or required by applicable State or local law, reported the situation to the relevant authorities.
Consistent with the requirements of the Joint Resolution of Disapproval,
Section 1001(a) of the Title X statute requires Title X projects to “offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods . . .).” The current regulations state, somewhat differently, that projects must “[p]rovide a broad range of acceptable and effective medically approved family planning methods (including natural family planning methods) and services (including infertility services and services for adolescents),” and note that “[i]f an organization offers only a single method of family planning, it may participate as part of a project as long as the entire project offers a broad range of family planning services.” 42 CFR 59.5(a)(1).
The current regulation, while worded differently than the statute, does not override the statutory requirement that projects offer “a broad range of acceptable and effective family planning methods and services (including natural family planning methods . . .).” 42 U.S.C. 300(a). Although the current regulations require that projects provide, at a minimum, a broad range of “medically approved” family planning methods, they do not preclude the Department from requiring more, namely, as the statute provides, “a broad range of acceptable and effective family planning methods and services (including natural family planning methods . . .).” Moreover, the current regulations do not define “medically approved,” and have not required that a family planning method be regulated, approved, or certified by any particular agency or accreditation body. If a family planning method is, as required by the statute, “acceptable and effective,” it is likely to be approved by at least some medical sources. For example, in March 2016, the American College of Obstetricians and Gynecologists (ACOG) launched the “Women's Preventive Services Initiative.” In its “Clinical Recommendations,” ACOG recommended that instruction in fertility awareness-based methods of family planning, and counseling, initiation of use, follow-up care, management, and evaluation of the same, be provided with no cost-sharing in health coverage.
Similarly, certain family planning methods or services may not fall under the regulatory jurisdiction or expertise of some government agencies. The Food and Drug Administration has regulatory jurisdiction over drugs, biologics, and medical devices. As such, while it has regulatory authority over and approves or clears contraceptive drugs and devices, FDA would not necessarily have regulatory jurisdiction over, or an approval process for, other family planning methods. Some fertility awareness-based methods of family planning might be a drug or device, such as certain fertility awareness kits that are or contain a medical device.
The Department proposes to revert to the statutory language that Title X projects “offer a broad range of acceptable and effective family planning methods and services.” In so doing, the proposed rule would remove the language specifying that the family planning methods and services offered by a Title X project be “medically approved.” That language does not appear in the statute and may cause confusion about the type of family planning methods or services that a project may or should provide, and the type of approvals (if any) necessary before a Title X project can provide such method or service. The statutory language of “acceptable and effective family methods or services” provides better guidance for the types of methods and services that Congress sought to fund.
The proposed rule would also make it more explicit that the requirement to provide a “broad range” of acceptable and effective family planning methods and services does not require a project to provide every acceptable and effective family planning method or service. The meaning of “broad range” has been the subject of inquiries from grantees and lawmakers at all levels of government, as well as from members of the public, and has resulted in potentially inconsistent interpretations of the “broad range” mandate. Some have interpreted the “broad range” requirement of section 1001(a), as well as of 42 CFR 59.5(a)(1), to require that a project provide all forms of family planning approved or cleared by the Food and Drug Administration (FDA). The plain language of the statutory (and regulatory) requirements, however, does not require projects to provide every acceptable and effective family planning
Not every grantee or subrecipient can provide—or should be required to provide—all services. The proposed rule would also make it more explicit that the requirement to provide a “broad range” of acceptable and effective family planning methods and services does not require a project to provide every acceptable and effective family planning method or service. This proposed change reflects the fact that, as the range of available family planning methods has significantly increased over the last few decades, it has become increasingly difficult and expensive for a Title X project to offer all acceptable and effective forms of family planning. Indeed, family planning projects are confronted with a variety of pharmacological, technological, or medical device options to consider in service delivery, with widely varying costs. Staffing limitations, technological capacity, economics (including costs and demand), and conscience concerns may be taken into account when grantees or subrecipients determine which methods they will offer within their scope of services. For example, natural family planning (NFP) services (and other fertility-awareness based methods) are a recognized form of family planning services under the statute, but many couples or families seeking these services may prefer specialized, single-method NFP service sites. Other sites serving men may offer only family planning methods relevant to that population. Another site may be a hospital satellite location which is primarily diagnostic in function, although it also offers some on-site family planning services. Such sites are permissible as components of a Title X family planning project, as long as the overall project provides a broad range of acceptable and effective family planning methods and services. In these examples, some participants in the Title X project offer specialized services, but not a broad range of family planning methods and services. However, such limited family planning service offering is permissible as long as the overall Title X project offers a broad range of family planning services, including contraceptives.
Thus, under the proposed rule, no Title X project would be required to provide every acceptable and effective family planning method or service, but all Title X projects would be required to provide a broad range of family planning methods. Family planning methods which are permitted with Title X funds include (but are not limited to): Male condom, spermicide, cervical cap, fertility awareness based methods, female condom, diaphragm, vaginal contraceptive ring, IUD, oral contraceptives, shot/injection, implantable rod, vasectomy, and sexual risk avoidance (or avoiding sex). Under the proposed rule, any organization that desires to provide only a single method, or limited number of methods of family planning, may participate, as long as the Title X project as a whole offers a broad range of family planning methods and services. Title X specifically identifies natural family planning, infertility services, and services for adolescents, as voluntary family planning services that Title X projects “shall offer,” 42 U.S.C. 300(a), making these family planning methods and services mandatory for each Title X project (although, as discussed elsewhere herein, it is not required that each provider within a project offer each method). That is, included in the broad range of acceptable and effective family planning methods and services that each Title X project must offer are natural family planning methods, infertility services, and services for adolescents.
The proposed rule would also remove the requirement that past grantees be consulted for new services or projects in their locale as set forth in paragraph (a)(10)(i) of the current regulation. We believe that removing this requirement would encourage a broader range of applicants and permit innovative approaches that may not have been envisioned or supported by past grantees. While communication and coordination is often beneficial and encouraged, removing the requirement for consultation is intended to have the effect of loosening the status quo for service provision in a community in favor of a broader reach in order to previously underserved populations.
The proposed rule would make it clear that, as contemplated by the statute, family planning is not limited to, or synonymous with, access to various methods of contraception, but includes a broader understanding of family planning methods and services. Family planning services should fit the family planning needs of the individual, and/or couple (if applicable). And in order to promote a holistic approach to family planning and reproductive health, the proposed rule would inform Title X service providers that they should offer either comprehensive primary health services onsite or have a robust referral linkage with primary health providers who are in physical proximity to the Title X site. This provision decreases the overall cost and transportation challenges related to access for vital health care services that may be discovered as a result of routine family planning screening and consultation. Title X service providers should ensure that they have a broad range of partners and diverse subrecipients in order to make it easier for all clients, particularly low income clients, to access necessary medical services and related educational and counseling services, as stipulated by the statute and as necessary to ensure that screening, diagnosis, and treatment can be provided within close proximity of the clinic, and to ensure that the most needy have access to care.
To expand transparency surrounding Title X services, the proposed rule would require applicants to provide the following within their applications (to the extent secured at the time of application) and, if funded, in required reports, and in response to performance measures, wherever practicable:
• Names and locations of subrecipients, referral individuals and agencies, as well as services provided and to be provided by those entities;
• Detailed descriptions of all partnerships with such entities, including the extent of any
• A clear explanation of how the grantee will ensure adequate oversight and accountability for quality and effectiveness outcomes among subrecipients and those who serve as referrals for ancillary or core services.
In addition, in order to promote compliance with a requirement present in both Title X itself and the Title X appropriations provisions,
As discussed above, the Department is focused on achieving better integration of primary and preventive care among a diverse group of applicants, using review criteria as a meaningful instrument to assess the quality of the applicant and the application. The current regulations give HHS flexibility in selecting grantees and determining awards, but could better ensure that review criteria are geared to achieving the selection of grantees that can best achieve the goals and purposes of the Title X program. Therefore, through the proposed rule, we would seek to achieve a two-fold goal:
• Update application review criteria to better achieve the statutory requirements and goals of Title X.
• Increase competition and rigor among applicants, encouraging broader and more diverse applicants, and better ensuring quality applicants will be selected.
The Department desires to award grants for the establishment and operation of those Title X projects that would best promote the purposes of Title X and meet the statutory requirements imposed on Title X projects.
We propose revising the current application review criteria at § 59.7 through this rulemaking process to update and expand criteria for selection of Title X grantees as follows. Any grant applications that do not clearly address how the proposal will satisfy the requirements of this regulation would not proceed to the competitive review process, but would be deemed ineligible for funding. The Department would explicitly summarize each provision of the regulation (or include the entire regulation) within the Funding Announcement, and would require each applicant to describe their affirmative compliance with each provision. If the proposal is deemed compliant with the regulation, then applicants would be subject to criteria for selection within the competitive grant review process, including:
(1) The degree to which the applicant's project plan adheres to the Title X statutory purpose and goals for the “establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents,” (PHS Act Sec. 1001(a), 42 U.S.C. 300(a)), which meet all of the statutory and regulatory requirements and restrictions, and where “none of the funds . . . shall be used in programs where abortion is a method of family planning.” (PHS Act Sec. 1008, 42 U.S.C. 300a–6.)
(2) The degree to which “the relative need of the applicant” (PHS Act Sec 1001(b), 42 U.S.C. 300(b)) is demonstrated in the proposal and the applicant shows capacity to “make rapid and effective use” (PHS Act Sec. 1001(b), 42 U.S.C. 300(b)) of grant funds, including and especially among a broad range of partners and diverse subrecipients and referral individual and organizations, and among non-traditional Title X partnering organizations.
(3) The degree to which the applicant takes into account “the number of patients to be served” (PHS Act Sec. 1001(b), 42 U.S.C. 300(b)), while also targeting areas that are more sparsely populated and/or places in which there are not adequate family planning services available.
(4) “The extent to which family planning services are needed locally” (PHS Act Sec.1001(b), 42 U.S.C. 300(b)) and the applicant proposes innovative ways to provide services to unserved or underserved patients.
These proposed criteria would advance compliance with the text and purpose of Title X by seeking grantees to better serve the targeted population with services that are needed, focused on family planning in the context of holistic health in both the short and long term.
The Department seeks public comment as to whether additional regulatory application review criteria may be necessary or advisable to reflect the text and purpose of the statutory provisions applicable to Title X, in particular section 1008; to protect the rights of individuals and entities who decline to participate in abortion-related activities; or to ensure that all services funded through Title X offer optimal health benefits to clients of all ages. The Department also seeks public comment as to whether the protections and services funded through Title X are adequately implemented and clearly understood throughout the Title X program, in order to alleviate the current confusion, and avoid future confusion, among clients and the general public.
As discussed above, Title X grantees and subrecipients are required to comply with all State and local laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, and the like. Section 59.11 currently provides that personal information may not be disclosed absent consent by the individual, except to provide treatment, or as required by law, “with appropriate safeguards for confidentiality.” To ensure that Title X grantees and subrecipients comply with applicable reporting requirements, the proposed rule would clarify that concerns about confidentiality of information may not be used as a rationale for noncompliance with such reporting laws.
Current Title X regulations at 42 CFR 59.5(a)(5) state that “[e]ach project supported under this part must . . . not provide abortion as a method of family planning.” However, the Department has determined that such regulations do not provide sufficient guidance to ensure that Title X projects comply with section 1008 and do not encourage or promote abortion as a method of family planning. Proposed § 59.13 would accordingly require that programs seeking Title X funding provide assurance satisfactory to the Secretary that, as Title X grantees, they do not provide abortions and do not include abortion as a method of family planning.
Proposed § 59.14 would expressly prohibit Title X projects from performing, promoting, referring for, or supporting, abortion as a method of family planning.
Proposed § 59.14 would prohibit referral for abortion as a method of family planning or any other affirmative action to secure such an abortion in a Title X project. Under the proposed provision, referrals could not be used as an indirect means to encourage or promote abortion. In addition, Title X projects do not themselves provide post-conception care. Thus, proposed § 59.14 would require that pregnant women be referred outside of the Title X project for prenatal care and other related medical and social services, as well as for other services relating to pregnancy after pregnancy is confirmed. In no case would the proposed provision permit a Title X-funded family planning program to make a referral for, or determine the appropriateness of, abortion as a method of family planning. As discussed above, a doctor, though not required to do so, would be permitted to provide nondirective counseling on abortion.
It is important to recognize that proposed § 59.14 would not prohibit Title X projects from providing the factual information necessary to assess risks of a particular family planning or contraceptive method as set out in the patient package inserts. Neither would proposed § 59.5, or § 59.14 preclude a health care professional from disclosing to a woman any physical findings the professional has made regarding the woman's condition; communicating an assessment of the urgency of the need for treatment; or ensuring that the woman is referred to the appropriate specialist for treatment of the condition, including emergent conditions, with adequate follow-up provided. Further, the proposed provision does not propose to alter the current requirement that Title X grantees and subrecipients provide for “necessary referral to other medical facilities when medically indicated,” 42 CFR 59.5(b)(1);
Further, it is not the intent of the proposed regulatory provision at § 59.14 to restrict the ability of health professionals to communicate to a patient any information they discover in the course of physical examination or otherwise about her medical condition, such as a condition that might make her extant pregnancy high risk. Nor would the provision preclude a health professional from disclosing to the woman any physical findings he or she has made regarding her condition and communicating his or her assessment of the urgency of her need for treatment or action, consistent with the exercise of his or her professional judgment, although the treatment or action might fall outside the parameters of the Title X program. Read together, proposed § 59.14 and current § 59.5(b)(1) would require that, if a woman who comes to a Title X-funded family planning program is confirmed to be pregnant, she must be referred externally for services related to her pregnancy. The program would be permitted to provide her with a listing of licensed health care providers of appropriate prenatal medical care and delivery services, from which she may choose. But Title X projects would not directly or indirectly encourage or promote abortion as a method of family planning through the manner in which referrals are made, or
Proposed § 59.15 would create a requirement of both physical and financial separation between Title X services and any abortion services provided by the Title X grantee or subrecipient. As noted above, the current Title X program only requires financial (or bookkeeping) separation between Title X services and any abortion services provided by the Title X grantee or subrecipient. In accordance with section 1008, the Department wishes to ensure, among other things, that there is a clear separation between Title X services and any abortion services provided by a Title X grantee or subrecipients and that Title X funds are not being used to build infrastructure that supports, or may be used to support, the separate abortion business of a Title X grantee or subrecipient.
Proposed § 59.15 would require that Title X projects be physically and financially separate from programs in which abortion is provided or presented as a method of family planning, including programs that refer for abortions and programs that encourage, promote or advocate abortion as a method of family planning. It would describe relevant criteria that the Secretary proposes to use in determining whether a project has demonstrated sufficient separation from prohibited activities. Thus, proposed § 59.15 would prohibit locating a Title X supported family planning program in a fashion which would not be physically and financially separate. This proposed standard would take into account the degree of separation of, among other things, waiting, consultation, examination, and treatment areas—as well as telephone numbers, email addresses, any official communication devices, including social media, or websites. Thus, under the proposed provision, an impermissible use of Title X funds might occur when the physical facility of a grantee or subrecipient organization's Title X-funded family planning program shares space with any abortion-related operations.
By requiring that Title X projects be physically and financially separate from abortion-related activities conducted by the grantee or subrecipient, proposed § 59.15 would help facilitate compliance with Section 1008's prohibition on abortion as a method of family planning. It would also facilitate the Department's enforcement against grantees or subrecipients that do not comply with the statutory requirement that abortion not be a method of family planning in a Title X project. In particular, proposed § 59.15 would allow the Department (and grantees) to make better case-by-case determinations about whether particular Title X projects or clinic locations have sufficient physical and financial separation from prohibited activities. To determine whether sufficient separation exists in a particular case, the Department would weigh all relevant factors, including:
• The existence of separate, accurate accounting records;
• The degree of separation from facilities (
• The existence of separate personnel, electronic or paper-based health care records, and workstations;
• The extent to which signs and other forms of identification of the Title X project are present, and signs and materials referencing or promoting abortion are absent.
Because circumstances or site-specific factors are complex and organizational realities are varied, the Department would consider individual circumstances unique to a grantee or Title X provider. We intend to take a case-by-case approach in order to ensure program integrity, with sensitivity to individual projects and providers, and without imposing unnecessary requirements. We seek comment on whether additional factors should be considered, or whether any of the proposed factors should be omitted.
The Department also seeks public comment as to whether additional regulatory provisions are necessary to reflect the text and purpose of section 1008. Even with a bright line rule of actual physical separation, confusion could still arise if the separate facilities—one facility providing Title X services and one providing abortion as a method of family planning—are operated under the same name. Similarly, the lack of a requirement of organizational separation could continue to blur the line between permitted and prohibited Title X services and activities, making enforcement more difficult. For example, individuals seeking Title X services may mistakenly visit non-Title X sites engaged in activities such as abortion which are actually prohibited by Title X, but that have the same names and are part of the same organization as the Title X site. The Department, therefore, seeks public comment as to whether additional regulatory provisions, such as a requirement for a Title X clinic to operate under a distinct name from a facility that provides abortion as a method of family planning, or for organizational separation, are necessary to ensure compliance with section 1008.
Consistent with the statutory provisions discussed above, and the prohibition in section 1008 on the use of Title X funds in programs where abortion is a method of family planning, proposed § 59.16 sets out a number of restrictions designed to ensure that Title X grantees and subrecipients do not promote or encourage abortion as a method of family planning using Title X funds. The proposed rule would prohibit the following actions when undertaken with Title X funds: Lobbying, providing speakers that promote abortion in the project or by the use of project funds, attending events or conferences during which such lobbying takes place, paying dues to organizations that advocate for the availability of abortion services, taking legal action to make abortion available as a method of family planning, and developing or disseminating materials advocating abortion as a method of family planning or otherwise promoting a favorable attitude toward abortion. Thus, consistent with proposed § 59.15, any grantee or subrecipient engaging in these activities with non-Title X funds, would be required to give evidence that such use of funds is physically and financially separate from the use of Title X funds.
New provision § 59.17 would address explicitly the requirement for Title X projects to comply with all State and local laws regarding the notification or reporting of crimes involving sexual exploitation, child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence, and human trafficking. The Consolidated Appropriations Act, 2018 included the following provision: “Notwithstanding any other provision of law, no provider of services under Title X of the Public Health Service Act shall be exempt from any State law requiring notification or the reporting of child abuse, child molestation, sexual abuse, rape, or incest.”
Title X grantees and subrecipients have an affirmative obligation to comply with notification or reporting requirements; merely being aware of such requirements is insufficient to comply with the law. As Representative Ernest Istook said during the debate regarding the provision:
It says, if there is a situation, such as I described, involving an underage child, Title X providers must report that and comply with State law the same as anyone else who deals with services to our young people.
Some practitioners have proposed that providers avoid soliciting or determining the age of the adolescent or the age of their sexual partner as a means of assuring the adolescent of confidential services and, thus, avoiding the potential responsibility of reporting. But Title X exempts neither Title X clinics nor Title X healthcare providers from their responsibility to comply with State and local reporting laws. Sexual exploitation, abuse, or assault (including statutory rape) are crimes that affect individuals, families, and communities. Title X projects should lead the Nation in protecting those who are vulnerable to sexual abuse, rape, and assault; in developing protocols to identify clients who may be at risk for sexual abuse; in counseling teens on, and in producing programs and materials that assist teens in, resisting sexual exploitation, abuse, and coercion;
The Department believes that existing efforts to ensure compliance with State and local reporting laws protecting minors and other vulnerable populations should be strengthened. While a 2005 report from the Department's Office of Inspector General (OIG) revealed that OPA informs and periodically reminds Title X grantees and subrecipients of their responsibilities regarding State child-abuse and sexual-abuse reporting requirements, it could not determine the extent to which grantees actually comply with these requirements.
Proposed § 59.17 would clarify the affirmative duty of Title X grantees and subrecipients to comply with State and local laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence, and human trafficking. It would require that Title X grantees and subrecipients have in place a plan that demonstrates that the grantee and any subrecipients are aware of what specific reporting requirements apply to them in their State (or jurisdiction), and provide adequate training for all personnel with respect to these requirements and how such reports are to be made. As part of prevention, protection, and risk assessment efforts, grantees and subrecipients should include in such plan protocols to identify individuals who are victims of sexual abuse or targets for underage sexual victimization and to ensure that every minor who presents for treatment is provided counseling on how to resist attempts to coerce minors into engaging in sexual activities. In addition, Title X projects would be required to conduct a preliminary screening of any teen who presents with an STD, pregnancy, or suspicion of abuse in order to rule out victimization of a minor. Such screening would be required with respect to any individual who is under the age of consent in the jurisdiction in which the individual receives Title X services. If positively diagnosed, projects are permitted to also treat STDs.
Additionally, proposed § 59.17 would require grantees and subrecipients to maintain records that would identify, among other things, the age of any minor clients served, the age of their sexual partner(s) where required by law, and what reports or notifications were made to appropriate State agencies. The Department would use this documentation to ensure appropriate compliance with State and local reporting requirements.
Consistent with section 1008, proposed § 59.18 would prohibit the use of Title X funds to build infrastructure of a Title X grantee or subrecipient for purposes outside of those permitted under the Title X regulations and authorized within section 1001 of the Public Health Service Act and not barred by section 1008—that is, to offer family planning methods and services, which do not include abortion as a method of family planning. It would clarify that grantees should use the majority of grant funds to provide direct services to clients and give a detailed accounting for usage related to grant dollars, both in applications for funding and in any annually required reporting. Under proposed § 59.18, any change in the usage of grant funds within the grant cycle would require the approval of the Department. In addition, § 59.18 would require each project to fully account for,
As detailed previously, the current flexibility in the usage of Title X funds permits an interchangeability of assets that grantees may have used to build infrastructure for non-Title X purposes, including abortion services. This danger is exacerbated because Title X providers must secure other sources of revenue to leverage Title X grants.
The Department proposes two different periods of transition to these requirements. Most of the proposed changes to the Title X regulations are merely clarifications of existing statutory requirements or impose requirements that would not seem to require a lengthy period of time for compliance. The Department recognizes, however, that it might take a longer period of time for grantees and subrecipients to comply with the proposed requirement to establish and maintain physical separation of the Title X project from the provision of abortion. Accordingly, the following compliance dates are proposed to provide a transition period:
• Section 59.15: Requirement for physical separation: One year after the date of publication of the final rule.
• All other proposed requirements, including the requirement for financial separation: 60 Days following publication of the final rule.
We have examined the impacts of this proposed rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA), section 1102(b) of the Social Security Act, section 202 of the Unfunded Mandates Reform Act of 1995, Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act, 5 U.S.C. 804(2), section 654, 5 U.S.C. 601 (note), on the Assessment of Federal Regulation and Policies on Families, Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017), and the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). We estimate that this rulemaking is not “economically significant” as measured by the $100 million threshold. We have prepared a regulatory impact analysis that, to the best of our ability, presents the costs and benefits of the rulemaking and are including it here in order to provide further evidence of the value of this proposed rule. This proposed rule has been submitted to the Office of Management and Budget for review.
The RFA requires agencies that issue a regulation to analyze options for regulatory relief of small entities, businesses, and 501(c)(3) and government entities if a rule has a significant impact on a substantial number of small entities. The RFA generally defines a “small entity” as (1) a proprietary firm meeting the size standards of the Small Business Administration (SBA); (2) a nonprofit organization that is not dominant in its field; or (3) a small government jurisdiction with a population of less than 50,000. (States and individuals are not included in the definition of “small entity.”) HHS considers a rule to have a significant economic impact on a substantial number of small entities if at least 5 percent of small entities experience an impact of more than 3 percent of revenue. HHS proposed to certify that the proposed rule would not have a significant economic impact on a substantial number of small entities. Supporting analysis is provided below.
Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $150 million. HHS does not expect this proposed rule to result in expenditures that would exceed this amount.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on state and local governments or has federalism implications. HHS has determined that the proposed rule, if finalized, would not contain policies that would 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. The proposed changes in the rule represent the
This rule proposes to amend the regulations governing the Title X program to ensure programmatic compliance and integrity. Specifically, the proposed rule:
(1) Aligns the regulation with the statutory requirements and purpose of the Title X program, the appropriations provisos and riders addressing the Title X program, and other obligations and requirements established under other Federal law;
(2) Expands the scope of enforcement and auditing mechanisms available to the Department to enforce such program requirements; and
(3) Requires individuals and entities covered by this proposed rule to adhere to certain procedural and administrative requirements that aim to improve client care and increase transparency.
(4) We evaluate the effects of this rule over 2019–2023. Costs are estimated to be $45.5 million in 2019 and $14.6 million in subsequent years. Present value costs of $88.6 million and annualized costs of $21.1 million are estimated using a 3 percent discount rate; present value costs of $72.4 million and annualized costs of $21.6 million are estimated using a 7 percent discount rate. The quantified and non-quantified benefits and costs are summarized in Table 1.
We invite comment on all aspects of this regulatory impact analysis, including the assumptions and conclusions contained in the analysis.
This proposed rule seeks to address two categories of problems:
(1) Insufficient compliance with the statutory program integrity requirements and purpose and goals of the Title X program (especially those related to section 1008), the appropriations provisos and riders addressing the Title X program, and other obligations and requirements established under other Federal law; and
(2) Lack of transparency regarding the provision of services (with respect to both the identity of the providers and the services being provided by such entities). Each of the issues discussed supra in Part II (Need for Change) fall into one or more of these categories.
While the current regulations state that Title X projects must not provide abortion as a method of family planning, they do not provide sufficient guidance to ensure that Title X projects comply with section 1008 by not encouraging or promoting abortion as a method of family planning. Limiting section 1008's prohibition to only “direct” facilitation of abortion is not consistent with the best reading of that provision, which was intended to ensure that Title X funds are not used to encourage or promote abortion in any way. For example, the current regulations:
• Mandate that providers provide counseling on and referral for abortion, if requested by the client;
• Permit shared locations, facilities, personnel, file systems, phone numbers, and websites between Title X clinics and abortion clinics, creating confusion regarding the scope of Title X services and whether the Federal government is funding abortion services; and
• Permit a fungibility of assets that can be used to build infrastructure for abortion services, including physical space, health information technology systems, including electronic health records, bulk purchasing of contraceptives and other clinic supplies, clinical training for staff, and community recruitment.
The lack of clear operational guidance on the abortion restriction in section 1008 has created confusion as to what activities are proscribed by section 1008. With abortions increasingly performed at nonspecialized clinics primarily serving contraceptive and family planning clients, it is critical that the Department ensure that Federal funds are not directly or indirectly supporting, encouraging, or promoting abortion as a method of family planning and that there is a clear demarcation between Title X funded services and abortion-related services for which Title X funds cannot be used.
The current regulations suffer from additional deficiencies. They are inconsistent with the conscience protections embodied in the Church, Coats-Snowe, and Weldon Amendments; do not address the statutory requirement that Title X projects encourage family participation in minors' decisions to seek family planning services; do not expressly address the obligation of Title X grantees and subrecipients to comply with State reporting or notification requirements; and do not expressly prohibit the use of Title X funds to encourage, promote, or advocate for abortion, to support any legislative proposal that encourages abortion, or to
This proposed rule addresses each of the foregoing problems. First, to assist the Department in ensuring compliance with, and enforcement of, the section 1008 prohibition, the proposed rule would prohibit family planning projects from using Title X funds to provide or present abortion as a method of family planning; require assurances of compliance; eliminate the requirement that Title X projects provide abortion counseling and referral; prohibit Title X projects from performing, promoting, referring for, or supporting, abortion as a method of family planning; require physical and financial separation of Title X activities from those which are prohibited under section 1008; prohibit certain activities that encourage, promote, or advocate for abortion; and provide clarification on the appropriate use of funds in regard to the building of infrastructure.
To assist the Department in ensuring compliance with, and enforcement of, appropriations provisos and riders addressing the Title X program, the proposed rule would reiterate the voluntary, non-coercive nature of Title X services; require Title X facilities to encourage family participation in a minor's decision to seek family planning services; explicitly prohibit the use of Title X funds for any activity that in any way tends to promote public support or opposition to any legislative proposal or candidate for office; incorporate the encouragement of family participation into the regulations; clarify the affirmative duty of projects to comply with State and local laws requiring notification and reporting of criminal sexual exploitation; clarify that confidentiality of information may not be used as a rationale for noncompliance with such notification or reporting laws; and require assurances of compliance and maintenance of records.
To assist the Department in ensuring compliance with, and enforcement of, conscience protections embodied in the Church, Coats-Snowe, and Weldon Amendments, the proposed rule would eliminate the requirement that Title X projects provide abortion counseling and referral; prohibit Title X projects from performing, promoting, referring for, or supporting, abortion as a method of family planning; and clarify that single-method service sites are permissible as components of a Title X family planning project, as long as the overall project provides a broad range of acceptable and effective family planning methods and services.
The Department believes that these proposed changes would ensure fidelity to the statutory requirements and purposes of the Title X program, the appropriations provisos and riders addressing the Title X program, and obligations and requirements established under other Federal law. They would do so by aligning the current regulations with these statutory provisions and providing the Department with the oversight tools necessary to ensure compliance.
Second, to ensure that the Title X program places an adequate emphasis on holistic family planning services that recognize the need for linkages with comprehensive primary health care providers, the proposed rule would clarify the definition of family planning; require the referral of pregnant patients for appropriate prenatal and/or social services; require the provision of comprehensive primary health services onsite or through a robust referral linkage; and update the application review criteria.
The Department expects that these proposed changes would ensure that the Title X program takes a holistic approach to family planning through the inclusion of referral to prenatal care and social services for pregnant clients and requiring either comprehensive primary health services onsite or through a robust referral linkage.
Third, to improve transparency regarding the provision of services, the proposed rule would require additional information from applicants and grantees regarding subrecipients, referral agencies, and community partners; require a clear explanation of how grantees would ensure adequate oversight and accountability for compliance and quality outcomes among subrecipients and those who serve as referrals for ancillary or core services; and require each project supported under Title X to fully account for, and justify, charges against the Title X grant. The Department anticipates that these proposed changes will provide the information necessary to ensure, and determine compliance with the statutory provisions on, program integrity, and the legal and ethical usage of taxpayer dollars.
Title X grantees and subrecipients must comply with the Federal laws that are the subject of this proposed rulemaking. In addition to conducting outreach and providing technical assistance, OPA would have the authority to initiate compliance reviews and take appropriate action to assure compliance with the provisions in this proposed rule.
This proposed rule would affect the operations of entities who may receive Title X grants or be subrecpients of such entities at some point in time. According to the 2016 Family Planning Annual Report (FPAR), there were 91 Title X grantees and 1,117 Title X subrecipients in 2016. These entities operated at 3,898 service sites, and provided services to 4,007,552 people. For purposes of this analysis, we assume that these numbers will remain the same across time. Title X services were delivered by 3,550 clinical services provider FTEs, which include 780 physician FTEs, 258 registered nurse FTEs, and 2,512 combined FTEs from physician's assistants (PAs), nurse practitioners (NPs), and certified nurse midwives (CNMs). These FTEs are associated with 1,403 Title X family planning encounters per FTE, for 5.0 million total Title X family planning encounters across these providers in 2016. Title X services are also delivered by other types of service providers, who were involved with 1.7 million Title X family planning encounters in 2016. Providers in these categories include registered nurses, public health nurses, licensed vocational or licensed practical nurses, certified nurse assistants, health educators, social workers, and clinic aides. To estimate the number of FTEs in these categories, we assume that there are 1,403 encounters per FTE for individuals in these categories, which implies approximately 1,219 FTEs in this category in 2016. To convert FTEs reported in Family Planning Annual Report (FPAR) to the number of individuals in these categories, we assume that each individual works an average of between 0.5 FTEs and 1.0 FTEs delivering Title X services, with 0.75 FTEs as our central estimate, uniformly across occupation categories. This implies that there are approximately 4,733 clinical service providers and 1,625 other service providers associated with the provision of Title X-funded family planning services. We use these estimates as our
We estimate the hourly wages of individuals affected by this proposed rule using information on hourly wages in the May 2016 National Occupational Employment and Wage Estimates provided by the U.S. Bureau of Labor Statistics
Throughout, estimates are presented in 2016 dollars. When present value and annualized values are presented, they are discounted relative to year 2016. Finally, we estimate impacts over five years starting in 2019.
In order to comply with the regulatory changes proposed in this proposed rule, affected entities would first need to learn the rule's requirements, review their policies in the context of these new requirements, and determine how to respond. Affected entities here would include not only existing grantees and subrecipients, but also potential grantees and subrecipients. Consistent with our view that this proposed rule would increase competition for Title X funding, we estimate that potential grantees and subrecipients range between 100% and 300% of their 2016 values, with a central estimate of 200%. This implies 182 potential grantees and 2,234 potential subrecipients. We estimate that learning the rule's requirements and determining how to respond would require an average of 20 hours for potential grantees and an average of 10 hours for potential subrecipients, divided evenly between managers and lawyers, in the first year following publication of the final rule. As a result, using wage information provided in Table 2, this implies costs of $3.11 million in the first year following publication of a final rule in this rulemaking.
Individuals involved with delivering family planning services would also need to receive training on the requirements of the proposed rule. To convert FTEs reported in FPAR to the number of individuals that would receive training, we assume that each individual works an average of between 0.5 FTEs and 1.0 FTEs delivering Title X services, with 0.75 FTEs as our central estimate. This implies that there are approximately 4,733 clinical service providers and 1,625 other service providers who would need training in order to ensure compliance with these regulations when finalized. We estimate that these individuals would require an average of 4 hours of training in the first year following publication of this rule. In subsequent years, we assume that this new information would be incorporated into existing training requirements, resulting in no incremental burden. As a result, using wage information provided in Table 2, this would imply costs of $2.71 million in the first year following publication of a final rule in this rulemaking.
In addition, training materials would need to be updated to reflect changes made by this rulemaking. Training materials for Title X providers are currently developed by contract. We estimate that these updates would cost approximately $200,000. In addition, changes to training materials would require interaction with OPA employees in order to ensure that the materials are suitable for Title X providers. We estimate that this would require half of an FTE at the GS–13 level and half of an FTE at the GS–14 level. We estimate that all of these costs would be incurred in the first year following publication of the final rule. As a result, using wage information provided in Table 2, this would imply costs of $0.43 million in the first year following publication of a final rule in this rulemaking.
Title X grantees and subrecipients would face new assurance requirements because of this proposed rule. We estimate that these new requirements would require a lawyer to spend an average of 3 hours reviewing the assurances, 3 hours reviewing organizational policies and procedures, or to take other actions to assess compliance, and a medical and health services manager to spend 2 hours total for the same tasks the first year following publication of the final rule at each grantee and subrecipient. In subsequent years, we estimate that these new requirements would require a lawyer to spend an average of 1 hour reviewing the assurances, 3 hours reviewing organizational policies and procedures, or to take other actions to assess compliance, and a medical and health services manager to spend 2 hours total for the same tasks at each grantee and subrecipient. As a result, using wage information provided in Table 2, this would imply costs of $1.2 million in the first year and $0.9 million in subsequent years following publication of a final rule in this rulemaking.
Title X grantees and subrecipients would need to document their compliance with new requirements because of this proposed rule. First, Title X grantees are required to encourage minors to involve family in their decisions to seek family planning services. Actions taken to satisfy this requirement must be documented in a minor's medical record. We estimate that each occurence would require a physician assistant to spend an average of 2 minutes to make appropriate documentation in a minor's medical
Second, grantees must generate reports with information related to subrecipients, referral agencies and individuals involved in the grantee's Title X project. We estimate that these new requirements would require a health services manager to spend an average of 4 hours in each year following publication of the final rule at each grantee and subrecipient. As a result, using wage information provided in Table 2, this would imply costs of $0.3 million in each years following publication of a final rule in this rulemaking.
This proposed rule would result in additional monitoring of Title X grantees and subrecipients in order to ensure compliance with new regulatory and existing statutory requirements. We estimate that addressing additional monitoring and enforcement activities would require management staff for each grantee to spend an average of an additional 40 hours each year, and would require an average of an additional 10 hours for each Title X service provider each year. Finally, additional monitoring and enforcement require additional time spent by Federal staff. We estimate this would require 3 FTEs at the GS–13 level, 2 FTEs at the GS–14 level, and 2 FTEs at the GS–15 level. As a result, using wage information provided in Table 2, this would imply costs of $8.53 million every year following publication of a final rule in this rulemaking.
As a result of this proposed rule, Title X providers would be required to provide Title X services at facilities that physically separate from locations at which abortion as a method of family planning is provided. A Congressional Research Service
Title X providers are already required by the statute to encourage minors to involve their parents in family planning services. However, it is currently unclear whether this requirement is being satisfied by Title X providers. As a result, this proposed rule would require that actions be taken to satisfy this requirement and that such actions be documented in a minor's medical record. We believe that this will result in improved compliance with the statutory requirement that minors be encouraged to involve their parents in family planning services. As noted previously, we estimate that complying with the requirement to document the encouragement of family participation will result in 600,000 adolescent patients' medical records requiring documentation as a result of these requirements each year. We estimate that an additional 0–50% of these adolescents, with a central estimate of 25%, would receive additional encouragement to involve parents as a result of a final rule in this rulemaking proceeding each year. We estimate that this would require an average of an additional ten minutes spent by a registered nurse and ten minutes spent by the service recipient in each case. These impacts would occur in each year following publication of a final rule in this rulemaking. As a result, using wage information provided in Table 2, this would imply costs of $2.93 million in each year following publication of a final rule.
This proposed rule is expected to offer benefits to taxpayers and stakeholders who want assurance that their tax dollars are being used in compliance with the requirements of the Title X program. It is also expected to increase the number of entities interested in participating in Title X as grantees or subrecipient service providers and, thereby, to increase patient access to family planning services focused on optimal health outcomes for every Title X client. Third, because of the clarifying language, as well as the new provisions within this proposed rule, we also expect the quality of service to improve. Finally, the proposed rule would clarify the role of the Title X program within communities across the nation, expand and diversify the field of medical professionals who serve individuals and families, and build a better appreciation for the important services offered as a result.
As discussed in the preamble, the statutory prohibition on the use of Title X funds in programs/projects where abortion is a method of family planning has been in existence as long as the program, and has been reiterated through annual appropriations provisos. This proposed rule is expected to provide the Department with tools to ensure compliance with those statutory requirements. It is also expected to increase transparency and assurances that taxpayer dollars are being used as Congress intended. The Title X program, too, would benefit, as the requirement of physical and financial separation and the prohibition on infrastructure building for non-Title X purposes would ensure greater accountability for the use of Federal funds, mitigate confusion about what services the Federal government supports and funds, and increase the amount of Title X funds
The Department expects that the proposed rule would have additional benefits for patients and providers. Benefits for patients are at least twofold. First, as noted above, the new regulation would require Title X service providers to offer either comprehensive primary health services onsite or have a robust referral linkage with primary health providers who are in close physical proximity to the Title X site. This would promote seamless care and services for patients while expanding the breadth of services available within the states, territories and throughout the regions.
Second, the proposed regulation would protect certain patients from further victimization. It would do so by requiring Title X grantees and subgrantees to comply with all State and local laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence, and human trafficking; to develop a plan for such compliance and provide adequate training for all personnel on the subject; and to maintain records identifying the age of any minor clients served, the age of their sexual partner(s) where required by law, and the reports or notifications made to appropriate State or local law enforcement or other authorities, in accordance with such laws. These provisions would protect patients, especially minor children, from further victimization, and promote the identification and bringing to justice of those who would prey on women and children.
For providers, the proposed regulation is expected to create benefits through respect for conscience. It would do so by better aligning the Title X regulations with the statutory prohibitions on discrimination against health care entities, including individual health care providers, who refuse to participate in abortion-related activity such as counseling and referrals. Potential grantees, and subrecipients that refuse to provide abortion counseling and referrals may now be eligible and interested in applying to provide family planning services under the current Title X regulations. And the expansion of provider and family planning options would have salutary benefits for patients, including for patients who seek providers who share their religious or moral convictions.
As the Department has stated with regard to other conscience protection actions, open communication in the doctor-patient relationship would foster better over-all care for patients. While the benefit of open and honest communication between a patient and her doctor is difficult to quantify, one study showed that even “the quality of communication [between the physician and patient] affects outcomes . . . [and] influences how often, and if at all, a patient would return to that same physician.”
The Department carefully considered the alternatives to this proposed rule, but concluded that none would adequately address the two categories of problems it seeks to address: (1) Insufficient compliance with the statutory requirements and the purpose and goals of the Title X program (especially those related to section 1008), the appropriations provisos and riders addressing the Title X program, and other obligations and requirements established under other Federal law; and (2) lack of transparency regarding the provision of services.
First, the Department considered maintaining the status quo and utilizing programmatic guidance and funding opportunity announcements (FOAs, also known as notices of funding opportunities) to address the problems described above. Such actions, however, would be incompatible with part 59 as it currently exists. Specifically, Title X providers would still be required to provide counseling on, and referral for, abortion upon request, a requirement inconsistent with section 1008 that could be discouraging to, and disqualify, potential grantees and subrecipients that refuse to counsel on, or provide referrals for, abortion. The maintenance of this requirement, as noted above, potentially violates the Coats-Snowe Amendment and the Weldon Amendment. Moreover, there would be no mechanisms by which the Department would be able to verify whether grantees and their subrecipients are complying with the statutory program integrity, education, and reporting requirements. In addition, the Department would still be using application review criteria that the Department now believes fail to ensure that applicants comply with the statutory requirements of the Title X program. As detailed earlier in the preamble, application review criteria must serve as a meaningful instrument to assess the quality of the applicant and the application. The current application review criteria lack rigor, making it possible for less qualified applicants to garner high scores and affording the Department little help in selecting strong Title X grantees. While the Department has discretion under the current criteria to issue FOAs that add to criteria in the regulation, as past FOAs have done, and the Department could thus seek to strengthen the selection criteria through FOA requirements, such an approach is inadequate to ensure that appropriate criteria are fully set forth, required by regulation, and give the public notice of the long term commitment of the program.
HHS considered a variety of options to ensure that it is clear to grantees, the general public, and patients who depend upon Title X services, that Title X programs do not fund, support, or promote abortion as a method of family planning. Specifically, we considered:
(1)
(2)
Thus, for these reasons and the reasons for our decision to propose both physical and financial separation, we preliminary determine that both of these options would be insufficient to ensure statutory compliance and clarity regarding such compliance. The Department seeks public comment on these alternatives.
The Department seeks comment on whether additional policies or requirements, beyond those proposed herein, should be imposed to ensure compliance. These include expanding the requirement that referral agencies that do not receive Title X funds but nevertheless provide information, counseling, or services to Title X clients be subject to the same reporting and compliance requirements as do grantees and subrecipients; and requiring organizational separation in addition to physical and financial separation.
The Department invites comment on both its proposed approach and other approaches to assure compliance with the statutory requirements, along with the provision of holistic family planning services, age appropriate education and services for adolescents, and other services that promote healthy outcomes and provide transparency regarding the provision of services.
Executive Order 13771 (January 30, 2017) requires that the costs associated with significant new regulations “to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” This proposed rule, if finalized as proposed, is expected to be an Executive Order 13771 regulatory action. The Department estimates that this rule generates $13.6 million in annualized costs at a 7% discount rate, discounted relative to fiscal year 2016, over a perpetual time horizon.
As discussed above, the RFA requires agencies that issue a regulation to analyze options for regulatory relief of small entities if a proposed rule has a significant impact on a substantial number of small entities. HHS considers a rule to have a significant economic impact on a substantial number of small entities if at least 5 percent of small entities experience an impact of more than 3 percent of revenue.
We calculate the costs of the proposed changes per service site over 2019–2023. The estimated average annualized cost of the rule per service site is approximately $5,423 using a 3 percent discount rate. We note that this figure includes all costs, and that relatively large entities are likely to experience proportionally higher costs. The U.S. Small Business Administration establishes size standards that define a small entity. According to these standards, family planning centers with revenues below $11.0 million are considered small entities. Since the estimated costs of the proposed rule would be a small fraction of the standard by which a family planning center entity is considered a small entity, the Department anticipates that the proposed rule would not have a significant economic impact on a substantial number of small entities.
Section 654 of the Treasury and General Government Appropriations Act of 1999, Public Law 105–277, sec. 654, 112 Stat. 2681 (1998), requires Federal departments and agencies to determine whether a proposed policy or regulation could affect family well-being.
Agencies must assess whether the proposed regulatory action: (1) Impacts the stability or safety of the family, particularly in terms of marital commitment; (2) impacts the authority of parents in the education, nurture, and supervision of their children; (3) helps the family perform its functions; (4) affects disposable income or poverty of families and children; (5) if the regulatory action financially impacts families, are justified; (6) may be carried out by State or local government or by the family; and (7) establishes a policy concerning the relationship between the behavior and personal responsibility of youth and the norms of society.
The Department believes the action taken in this proposed rule cannot be carried out by State or local government or by the family because the rule pertains to the enforcement of certain Federal laws and the administration of a Federal program.
The Secretary proposes to certify that this proposed rule has been assessed in accordance with Section 654 of the Treasury and General Government Appropriations Act of 1999, Public Law 105–277, sec. 654, 112 Stat. 2681 (1998), and would not negatively affect family well-being.
This proposed rule contains information collection requirements (ICRs) that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. A description of these provisions is given in the following paragraphs with an estimate of the annual burden, summarized in Table 3. To fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (PRA) requires that we solicit comment on the following issues:
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on each of the required issues under section 3506(c)(2)(A) of the PRA. The collections of information required by the proposed rule relate to § 59.2 (Definitions), § 59.5 (What requirements must be met by a family planning project?), § 59.7 (What criteria would the Department of Health and Human Services use to decide which family planning services projects to fund and in what amounts?), § 59.13 (Standards of compliance with prohibition on abortion), § 59.17 (Compliance with reporting requirements), and § 59.18 (Appropriate use of funds).
Proposed § 59.2 would apply to situations where an unemancipated minor wishes to receive services on a confidential basis and be considered on the basis of her/his own resources, as would proposed § 59.5(a)(14). In such cases, the Title X provider would be required to document in the minor's medical records the specific actions taken by the provider to encourage the minor to involve her/his family (including her/his parents or guardian) in her/his decision to seek family planning services. This documentation requirement would not apply if the Title X provider (1) believes that the minor is a victim of child abuse or incest and (2) has, consistent with applicable State or local law, reported the situation to the relevant authorities. The reporting requirement must be documented in the medical record.
Proposed § 59.5 would require Title X providers to report, in grant applications and in all required reports, information regarding subrecipients and referral agencies and individuals, including a detailed description of the extent of collaboration and a clear explanation of how the grantee would ensure adequate oversight and accountability; and to maintain records with respect to minors on the specific actions taken to encourage family participation (or the reason why such family participation was not encouraged).
Proposed § 59.7 would require Title X grant applicants to describe, within their applications, their affirmative compliance with each provision of the regulations governing the Title X program.
Proposed § 59.13 would require Title X grantees to provide assurance satisfactory to the Secretary that, as a Title X grantee, it does not provide abortion and does not include abortion as a method of family planning. This assurance would include, at a minimum, representations (supported by documentary evidence where the Secretary requests it) as to compliance with § 59.13 and each of the requirements in §§ 59.14 through 59.16.
Proposed § 59.17 would require Title X grantees to provide appropriate documentation or other assurance satisfactory to the Secretary that it has in place and has implemented a plan to comply with all State and local laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence, and human trafficking. It would also require Title X grantees to maintain records to demonstrate compliance with the requirements of § 59.17, and make continuation of funding for Title X services contingent upon demonstrating to the Secretary that the criteria have been met.
Lastly, proposed § 59.18 would require Title X grantees to give a detailed accounting of use related to grant dollars, both in their applications for funding, and within any annually required reporting, and to fully account for, and justify, charges against the Title X grant.
Burden of Response: The Department is committed to leveraging existing grant, contract, annual reporting, and other Departmental forms where possible, rather than creating additional, separate forms for recipients to sign. We anticipate two separate burdens of response: (1) Assurance of compliance; and (2) documentation of compliance. The burden for the assurance of compliance is the cost of grantee and/or subrecipient staff time to (a) review the assurance language as well as the underlying language related to stated requirements; (b) to review grantee and/or subrecipient policies and procedures or to take other actions to assess grantee and/or subrecipient compliance with the requirements to which the grantee and/or subrecipient is required to assure compliance.
The labor cost would include a lawyer spending an average of 3 hours reviewing all assurances and a medical and health service manager spending an average of one hour reviewing and signing the assurances at each grantee and subrecipient. We estimate the number of grantees and subrecipients at 1,208, based on 2016 number of Title X grantees and subrecipients, as represented in Title X FPAR data. The mean hourly wage (not including benefits and overhead) for these occupations is $67.25 per hour for the lawyer and $52.58 for the medical and health service manager, as noted in the table above. The labor cost is $307,000 in the first year (($67.25 × 3 + $52.58 × 1) × 1,208 grantees and subrecipients). We estimate that the cost, in subsequent years, would be $145,000, which would represent an annual allotment of one hour for the lawyer and one hour for the medical and health service manager (($67.25 × 1 + $52.58 × 1) × 1,208 grantees and subrecipients).
The Department estimates that all recipients and subrecipients will review their organizational policies and procedures or take other actions to self-assess compliance with applicable Title X requirements each year, spending an average of 4 hours doing so. The labor cost is a function of a lawyer spending an average of 3 hours and a medical and health service manager spending an average of one hour. The labor cost for self-assessing compliance, such as reviewing policies and procedures, is a total of $307,000 each year (($67.25 × 3 + $52.58 × 1) × 1,208 grantees and subrecipients).
The burden for the documentation of compliance is the cost of grantee and/or subrecipient staff time to (a) document in a minor's medical records actions taken to encourage the minor to involve parents in family planning services and (b) complete reports regarding information related to subrecipients, referral agencies and individuals involved in the grantee's Title X project. We assume that a physician assistant would be used to document such compliance. The mean hourly wage (not including benefits and overhead) for this occupation is $49.08 per hour. The labor cost would require spending an average of 10 minutes to make appropriate documentation in a minor's medical records. Approximately 20% (800,000) of the 4 million Title X clients are adolescents. We estimate that complying with the requirement to encourage family participation will result in 75% (600,000) of adolescent patients' medical records requiring appropriate documentation. The labor cost will be $982,000 each year ($49.08 per hour × 2 minutes × 600,000 adolescents).
The labor cost would also include a medical and health services manager spending an average of four hours each year to complete reports regarding information related to subrecipients, and referral agencies and individuals involved in the grantee's Title X project at each grantee and subrecipient. The labor cost will be $254,000 each year ($52.58 per hour × 4 hours × 1,208 grantees and subrecipients).
The Department asks for public comment on the proposed information collection including what additional benefits may be cited as a result of this proposed rule.
Comments regarding the collection of information proposed in this proposed rule must refer to the proposed rule by name and docket number, and must be submitted to both OMB and the Docket Management Facility where indicated under
When it issues a final rule, the Department plans to publish in the
Abortion, Birth control, Family planning, Grant programs.
For the reasons set forth in the preamble, the Department of Health and Human Services proposes to amend 42 CFR chapter I, subchapter D, part 59, as set forth below:
42 U.S.C. 300 through 300a–6.
(a) The regulations of this subpart are applicable to the award of grants under section 1001 of the Public Health Service Act (42 U.S.C. 300) to assist in the establishment and operation of voluntary family planning projects. These projects shall consist of the educational, comprehensive medical, and social services necessary to aid individuals to determine freely the number and spacing of their children. Unless otherwise specified, the requirements imposed by these regulations apply equally to grantees and subrecipients, grantees shall require subrecipients (and the subrecipients of subrecipients) to comply with the requirements contained in such regulations pursuant to their written contracts with such subrecipients, and shall be required to ensure that their subrecipients (and the subrecipients of subrecipients) comply with such requirements.
(b) Except for §§ 59.3, 59.4, 59.8, and 59.10, the regulations of this subpart are also applicable to the execution of contracts under section 1001 of the Public Health Service Act (42 U.S.C. 300) to assist in the establishment and operation of voluntary family planning projects, and will be applied in accordance with the applicable statutes, procedures and regulations that generally govern Federal contracts. To this extent, the use of the terms “grant,” “award,” “grantee” and “subrecipient” in applicable regulations of this subpart will apply similarly to contracts, contractors and subcontractors, and the use of the term “project” or “program” will also apply to a project or program established by means of a contract.
The revisions and additions read as follows:
(1) Unemancipated minors who wish to receive services on a confidential basis must be considered on the basis of their own resources, provided that the Title X provider has documented in the minor's medical records the specific actions taken by the provider to encourage the minor to involve her/his family (including her/his parents or guardian) in her/his decision to seek family planning services, except that documentation of such encouragement is not to be required if the Title X provider has documented in the medical record:
(i) That it suspects the minor to be the victim of child abuse or incest; and
(ii) That it has, consistent with and if permitted or required by applicable State or local law, reported the situation to the relevant authorities.
(2) With respect to contraceptive services, a woman can be considered from a “low-income family” if she has health insurance coverage through an employer which does not provide the contraceptive services sought by the woman because it has a sincerely held religious or moral objection to providing such coverage.
Any public or nonprofit private entity in a State may apply for a grant under this subpart.
The revisions and additions read as follows:
(a) * * *
(1) Provide a broad range of acceptable and effective family planning methods (including contraceptives, natural family planning and other fertility-awareness based methods) and services (including infertility services, including adoption, and services for adolescents). Such projects are not required to provide every acceptable and effective family planning method or service. A participating entity may offer only a single method or a limited number of methods of family planning as long as the entire project offers a broad range of such family planning methods and services.
(5) Not provide, promote, refer for, support, or present abortion as a method of family planning.
(12) In order to promote holistic health and provide seamless care, Title X service providers should offer either comprehensive primary health services onsite or have a robust referral linkage with primary health providers who are in close physical proximity to the Title X site.
(13) Ensure transparency in the delivery of services by reporting the following information in grant applications and all required reports:
(i) Subrecipients and referral agencies and individuals by name, location, expertise and services provided or to be provided;
(ii) Detailed description of the extent of the collaboration with subrecipients, referral agencies and individuals, as well as less formal partners within the community, in order to demonstrate a seamless continuum of care for clients; and
(iii) Clear explanation of how the grantee will ensure adequate oversight and accountability for quality and effectiveness of outcomes among subrecipients and those who serve as referrals for ancillary or core services.
(14) Encourage family participation in the decision of minors to seek family planning services and ensure that the records maintained with respect to each minor document the specific actions taken to encourage such family participation (or the specific reason why such family participation was not encouraged).
(b) * * *
(1) Provide for medical services related to family planning (including physician's consultation, examination prescription, and continuing supervision, laboratory examination, contraceptive supplies) and necessary referral to other medical facilities when medically indicated, consistent with § 59.14(a), and provide for the effective usage of contraceptive devices and practices.
(8) Except as provided in § 59.14(a), provide for coordination and use of referral arrangements with other providers of health care services, local health and welfare departments, hospitals, voluntary agencies, and health services projects supported by other federal programs.
(a) Within the limits of funds available for these purposes, the Secretary may award grants for the establishment and operation of those projects which will, in the Department's judgment, best promote the purposes of statutory provisions applicable to the Title X program.
(b) Any grant applications that do not clearly address how the proposal will satisfy the requirements of this regulation shall not proceed to the competitive review process, but shall be deemed ineligible for funding. The Department will explicitly summarize each provision of the regulation (or include the entire regulation) within the Funding Announcement, and shall require each applicant to describe their plans for affirmative compliance with each provision.
(c) If the proposal is deemed compliant with this regulation, then applicants will be subject to criteria for selection within the competitive grant review process, including:
(1) The degree to which the applicant's project plan adheres to the Title X statutory purpose and goals for the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents), which meet all of the statutory and regulatory requirements and restrictions, and where none of the funds . . . shall be used in programs where abortion is a method of family planning.
(2) The degree to which the relative need of the applicant is demonstrated in the proposal and the applicant shows capacity to make rapid and effective use of grant funds, including and especially
(3) The degree to which the applicant takes into account the number of patients to be served while also targeting areas that are more sparsely populated and/or places in which there are not adequate family planning services available.
(4) The extent to which family planning services are needed locally and the applicant proposes innovative ways to provide services to unserved or underserved patients.
All information as to personal facts and circumstances obtained by the project staff about individuals receiving services must be held confidential and not be disclosed without the individual's documented consent, except as may be necessary to provide services to the patient or as required by law, with appropriate safeguards for confidentiality; concern with respect to the confidentiality of information, however, may not be used as a rationale for noncompliance with laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence, human trafficking, or similar reporting laws. Otherwise, information may be disclosed only in summary, statistical, or other form which does not identify particular individuals.
A project may not receive funds under this subpart unless it provides assurance satisfactory to the Secretary that, as a Title X grantee, it does not provide abortion and does not include abortion as a method of family planning. Such assurance must also include, at a minimum, representations (supported by documentary evidence where the Secretary requests it) as to compliance with this section and each of the requirements in §§ 59.14 through 59.16. A project supported under this subpart must comply with such requirements at all times during the project period.
(a)
(b)
(c)
(d)
(e)
(2) A Title X project discovers an ectopic pregnancy in the course of conducting a physical examination of a client. Referral arrangements for emergency medical care are immediately provided. Such action complies with the requirements of paragraph (b) of this section.
(3) After receiving comprehensive care at a Title X provider, a pregnant woman decides to have an abortion, is concerned about her safety during the procedure, and asks the Title X project to provide her with a referral to an abortion provider. The Title X project tells her that it does not refer for abortion but provides her a list of licensed, qualified health care professionals in the area (some of whom provide abortion as part of their primary health care services). The list includes, among other licensed, qualified, comprehensive health care providers, a local health care professional who provides abortions in addition to comprehensive prenatal care. Inclusion of this provider/clinic on the list is consistent with paragraph (a) of this section.
(4) A pregnant woman asks the Title X project to provide her with a list of abortion providers in the area. The project tells her that it does not refer for abortion and provides her a list that consists of hospitals and clinics and other providers that provide prenatal care and abortions. None of the entries on the list are providers that principally provide abortions. Although there are several appropriate licensed, qualified providers of prenatal care in the area that do not provide or refer for abortions, none of these providers are included on the list. Provision of the list
(5) A pregnant woman requests information on abortion and asks the Title X project to refer her for an abortion. The project counselor tells her that the project does not consider abortion a method of family planning and therefore does not refer for abortion. The counselor further tells the client that the project can help her to obtain prenatal care and necessary social services, and provides her with a list of such providers from which the client may choose. Such actions are consistent with paragraph (a) of this section.
(6) Title X project staff provide contraceptive counseling to a client in order to assist her in selecting a contraceptive method. In discussing oral contraceptives, the project counselor provides the client with information contained in the patient package insert accompanying a brand of oral contraceptives, referring to abortion only in the context of a discussion of the relative safety of various contraceptive methods and in no way promoting abortion as a method of family planning. The provision of this information does not constitute abortion referral.
A Title X project must be organized so that it is physically and financially separate, as determined in accordance with the review established in this section, from activities which are prohibited under section 1008 of the Act and §§ 59.13, 59.14, and 59.16 from inclusion in the Title X program. In order to be physically and financially separate, a Title X project must have an objective integrity and independence from prohibited activities. Mere bookkeeping separation of Title X funds from other monies is not sufficient. The Secretary will determine whether such objective integrity and independence exist based on a review of facts and circumstances. Factors relevant to this determination shall include:
(a) The existence of separate, accurate accounting records;
(b) The degree of separation from facilities (
(c) The existence of separate personnel, electronic or paper-based health care records, and workstations; and
(d) The extent to which signs and other forms of identification of the Title X project are present, and signs and material referencing or promoting abortion are absent.
(a)
(1) Lobbying for the passage of legislation to increase in any way the availability of abortion as a method of family planning;
(2) Providing speakers or educators who, in the Title X project or the use of Title X project funds, promote the use of abortion as a method of family planning;
(3) Attending events or conferences during which the grantee or subrecipient engages in lobbying;
(4) Paying dues to any group that, as a more than insignificant part of its activities, advocates abortion as a method of family planning and does not separately collect and segregate funds used for lobbying purposes;
(5) Using legal action to make abortion available in any way as a method of family planning; and
(6) Developing or disseminating in any way materials (including printed matter, audiovisual materials and web-based materials) advocating abortion as a method of family planning or otherwise promoting a favorable attitude toward abortion.
(b)
(2) A Title X project makes an appointment for a pregnant client with an abortion clinic. The Title X project has violated paragraph (a) of this section.
(3) A Title X project pays dues with project funds to a state association that, among other activities, lobbies at state and local levels for the passage of legislation to protect and expand the legal availability of abortion as a method of family planning. The association spends a significant amount of its annual budget on such activity. Payment of dues to the association violates paragraph (a)(4) of this section.
(4) An organization conducts a number of activities, including operating a Title X project. The organization uses non-project funds to pay dues to an association that, among other activities, engages in lobbying to protect and expand the legal availability of abortion as a method of family planning. The association spends a significant amount of its annual budget on such activity. Payment of dues to the association by the organization does not violate paragraph (a)(4) of this section.
(5) An organization that operates a Title X project engages in lobbying to increase the legal availability of abortion as a method of family planning. The project itself engages in no such activities, and the facilities and funds of the project are kept separate from prohibited activities. The project is not in violation of paragraph (a)(1) of this section.
(6) Employees of a Title X project write their legislative representatives in support of legislation seeking to expand the legal availability of abortion, in their personal capacities and using no project funds to do so. The Title X project has not violated paragraph (a)(1) of this section.
(7) On her own time and at her own expense, a Title X project employee speaks before a legislative body in support of abortion as a method of family planning. The Title X project has not violated paragraph (a) of this section.
(8) A Title X project uses Title X funds for sex education classes in a local high school. During the course of the class, information is distributed to students that includes abortion as a method of family planning. The Title X project has violated paragraph (a) of this section.
(a) Title X projects shall comply with all State and local laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence or human trafficking (collectively, “State notification laws”).
(b) A project may not receive funds under this subpart unless it provides appropriate documentation or other assurance satisfactory to the Secretary that it:
(1) Has in place and implemented a plan to comply with State laws Such plan shall include, at a minimum, policies and procedures with respect to
(i) A summary of obligations of the project or organizations and individuals carrying out the project under State notification laws, including any obligation to inquire or determine the age of a minor client or of a minor client's sexual partner(s);
(ii) Timely and adequate annual training of all individuals (whether or not they are employees) serving clients for or on behalf of the project regarding State notification laws; policies and procedures of the Title X project and/or provider with respect to notification and reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence and human trafficking; and compliance with State notification laws.
(iii) Protocols to ensure that every minor who presents for treatment is provided counseling on how to resist attempts to coerce them into engaging in sexual activities; and
(iv) Commitment to conduct a preliminary screening of any teen who presents with a sexually transmitted disease (STD), pregnancy, or any suspicion of abuse, in order to rule out victimization of a minor. Such screening would be required with respect to any individual who is under the age of consent in the state of the proposed service area. Projects are permitted to diagnose, test for, and treat STDs.
(2) Maintains records to demonstrate compliance with each of the requirements set forth in paragraph (b)(1) of this section, including which:
(i) Indicate the age of minor clients;
(ii) Indicate the age of the minor client's sexual partners where required by law, and
(iii) Document each notification or report made pursuant to such State notification laws.
(c) Continuation of grantee or subrecipient funding for Title X services is contingent upon demonstrating to the satisfaction of the Secretary that the criteria have been met.
(d) The Secretary may review records maintained by a grantee or subrecipient for the sole purpose of ensuring compliance with the requirements of this section.
(a) Title X funds shall not be used to build infrastructure for purposes prohibited with these funds, such as support for the abortion business of a Title X grantee or subrecipient. Funds shall only be used for the purposes, and in direct implementation of the funded project, expressly permitted with this regulation and authorized within section 1001 of the Public Health Service Act, that is, to offer family planning methods and services. Grantees must use the majority of grant funds to provide direct services to clients, and each grantee shall give a detailed accounting for the use of grant dollars, both in their applications for funding, and within any annually required reporting. Further, any significant change in the usage of grant funds within the grant cycle shall not be undertaken without the approval of the Office of Population Affairs.
(b) Title X funds shall not be expended for any activity (including the publication or distribution of literature) that in any way tends to promote public support or opposition to any legislative proposal or candidate for office.
(c) Each project supported under Title X shall fully account for, and justify, charges against the Title X grant. The Department shall put additional protections in place to prevent any possible misuse of Title X funds through misbilling or overbilling, or any other unallowable expense.
(a) In accordance with § 59.15, with respect to the requirement for physical separation that is effective after [DATE OF PUBLICATION OF THE FINAL RULE IN THE
(b) In accordance with § 59.15, with respect to the requirement for financial separation is effective after [DATE OF PUBLICATION OF THE FINAL RULE IN THE
(c) In regards to all other requirements are effective after [DATE OF PUBLICATION OF THE FINAL RULE IN THE
Occupational Safety and Health Administration (OSHA), Labor.
Proposed rule.
OSHA is proposing a nine-month extension of the compliance date for certain ancillary requirements of the general industry beryllium standard (from March 12, 2018 to December 12, 2018). This proposal would not extend the compliance date for the permissible exposure limits (PELs), exposure assessment, respiratory protection, medical surveillance, or medical removal protection provisions, or for any provisions for which the standard already establishes compliance dates in 2019 and 2020. OSHA has preliminarily determined that this proposal will maintain essential safety and health protections for workers while OSHA prepares an NPRM to clarify specific provisions of the beryllium standard that would both maintain the standard's worker safety and health protections and address employers' compliance burdens.
Submit comments to this proposed rule, hearing requests, and other information by July 2, 2018. All submissions must bear a postmark or provide other evidence of the submission date.
Submit comments, hearing requests, and other material, identified by Docket No. OSHA–H005C–2006–0870, using any of the following methods:
In this preamble, OSHA cites to documents in Docket No. OSHA–H005C–2006–0870, the docket for this rulemaking. To simplify these document cites, OSHA uses “Document ID” followed by the last four digits of the full docket identification number. For example, if a document's full docket identification number is ID–OSHA–H005C–2006–0870–1234, the citation used in this preamble would be Document ID 1234. The docket is available at
OSHA is publishing this Notice of Proposed Rulemaking (NPRM) to propose a nine-month extension of the compliance date for certain requirements of the general industry beryllium standard (29 CFR 1910.1024), which was promulgated on January 9, 2017 (82 FR 2470). The standard provides that the compliance date for the affected requirements is March 12, 2018, but on March 2, 2018, OSHA issued a memorandum stating that no provisions of the standard would be enforced until May 11, 2018. Then, on
This proposed action would revise the standard to extend the compliance date for the affected provisions until December 12, 2018. OSHA is proposing to extend the compliance date for select ancillary requirements of the general industry standard, but this proposal would not extend the compliance date for PELs, exposure assessment, respiratory protection, medical surveillance, or medical removal protection provisions, or for any provisions for which the standard already establishes compliance dates in 2019 and 2020. It also would not affect the applicability of the scope and application paragraph or the definitions, except to allow employers to comply with the definitions of “CBD diagnostic center,” “chronic beryllium disease,” and “confirmed positive” that will be proposed in the later substantive rulemaking NPRM (Document ID 2156).
As described in Section I.D, Explanation of Proposed Action and Request for Comment, OSHA is planning to propose revisions to the beryllium standard in accordance with a settlement agreement entered into with stakeholders on April 24, 2018 (Document ID 2156). The upcoming rulemaking will affect select ancillary provisions in the standard. OSHA is concerned that beginning enforcement of those provisions before publication of the substantive proposal may result in employer confusion or improper implementation of the relevant provisions of the rule.
This proposed rule is not economically significant. OSHA is revising 29 CFR 1910.1024(o)(2) to extend the deadline for compliance with certain provisions of the beryllium rule for nine months. This proposed rule is expected to be an Executive Order (E.O.) 13771 deregulatory action. Details on OSHA's cost/cost savings estimates for this proposed rule can be found in the rule's preliminary economic analysis in the “Agency Determinations” section of this preamble. OSHA has estimated that, at a 3 percent discount rate over 10 years, there are net annual cost savings of $0.76 million per year for this proposed rule; at a discount rate of 7 percent there are net annual cost savings of $1.73 million per year. When the Department uses a perpetual time horizon, the annualized cost savings of the proposed rule is $1.65 million with 7 percent discounting.
OSHA published an NPRM for occupational exposure to beryllium in the
OSHA held a public hearing in Washington, DC, on March 21 and 22, 2016. The Agency heard testimony from several organizations, including public health groups, industry representatives, and labor unions. Following the hearing, participants had an opportunity to submit additional evidence and data, as well as final briefs, arguments, and summations (Document ID 1756, Tr. 326).
On January 9, 2017, after considering the entire record, OSHA issued a final rule with three separate standards for general industry, shipyards, and construction, in order to tailor requirements to the circumstances found in these sectors. See 82 FR 2470 (January 9, 2017). The final beryllium standards established new PELs of 0.2 μg/m
Following promulgation of the final standard, representatives of general industry employers, including Materion Corporation, along with representatives of the coal-fired power industry and the aluminum production industry, challenged the rule in federal court and approached OSHA with questions and concerns about some of the provisions in the final rule.
In response to the stakeholder feedback, and to resolve the pending litigation, OSHA is planning to propose revisions to certain provisions in the general industry standard and rely on its de minimis policy while the rulemaking is pending so that employers may comply with the proposed provisions without risk of a citation.
OSHA is proposing to revise the “Dates” provision of the beryllium standard (at 29 CFR 1910.1024(o)(2)) to extend the deadline for compliance with most of the ancillary requirements of the standard from March 12, 2018, to December 12, 2018. As previously discussed, this proposed action would provide time for preparation and publication of a planned NPRM that will impact the provisions covered by this extension so that employers may comply with the proposed provisions without risk of a citation (Document ID 2156).
OSHA will be proposing modifications to ancillary provisions of the beryllium standard in response to stakeholder questions and concerns. These concerns were raised during lengthy settlement discussions among OSHA, the United Steelworkers of America (the union representing the largest proportion of beryllium-exposed workers), Materion Corporation (the leading producer of beryllium and beryllium products), some of Materion's customers, and the National Association of Manufacturers (Document ID 2156). In addition to agreeing on the proposed revisions, the parties agreed that if OSHA was not able to finalize the substantive NPRM before December 12, 2018, compliance with the beryllium standard as modified by the proposal would be accepted as compliance with the standard under OSHA's de minimis policy (Document ID 2156).
The revisions OSHA plans to propose are primarily clarifying or simplifying in nature (Document ID 2156). They are designed to enhance worker protections by ensuring that the rule is well-understood and compliance is simple and straightforward. All of the provisions covered by this extension will be affected by the planned rulemaking.
OSHA has preliminarily determined that it would be undesirable, for both the Agency and the regulated community, to begin enforcement of the ancillary provisions of the standard that will be affected by the upcoming rulemaking. Enforcing compliance with the relevant ancillary requirements, as currently written, before publishing the agreed-upon proposal, is likely to result in employers taking unnecessary measures to comply with provisions that OSHA intends to clarify. This proposed compliance date extension will give OSHA time to prepare and publish the planned substantive NPRM to amend the standard before employers must comply with the affected provisions of the rule, at which point OSHA may rely on its de minimis policy and employers may comply with the proposed provisions without risk of a citation.
Therefore, OSHA is proposing this short extension of the compliance date for the following provisions: Beryllium work areas and regulated areas (paragraph (e)), written exposure control plans (paragraph (f)(1)), personal protective clothing and equipment (paragraph (h)), hygiene areas and practices (paragraph (i) except for change rooms and showers; see below), housekeeping (paragraph (j)), communication of hazards (paragraph (m)), and recordkeeping (paragraph (n)).
Not every provision in the standard will be covered by the proposed extension. First, the proposal will not affect the compliance date for the updated TWA PEL and STEL (paragraph (c)), exposure assessment (paragraph (d)), or respiratory protection (paragraph (g)). These paragraphs are not affected by the regulatory revisions OSHA plans to propose, and are essential to ensure employers are controlling worker exposures to beryllium while OSHA works on the rulemaking to amend other aspects of the standard. The compliance dates for paragraphs (c), (d), and (g) are unaffected by this proposal.
Second, the proposal will not affect the compliance date for medical surveillance (paragraph (k)) or medical removal protection (paragraph (l)). Although OSHA plans to propose clarifications to certain definitions pertaining to paragraph (k) (Medical Surveillance), OSHA has preliminarily determined that the proposed clarifications would not substantially affect the actions that employers must take to comply with the medical surveillance provisions of the beryllium standard (Document ID 2156).
Third, the proposal will not affect paragraph (a), Scope and application. It will also not affect paragraph (b), Definitions, except as described above to allow employers to comply with the definitions of “CBD diagnostic center,” “chronic beryllium disease,” and “confirmed positive” that are included in the settlement agreement and will be proposed in the substantive rulemaking NPRM (Document ID 2156).
Finally, the compliance date for change rooms and showers required by paragraph (i) of the standard will remain March 11, 2019 (29 CFR 1910.1024(o)(2)(i)), and the compliance date to implement engineering controls required by paragraph (f) of the standard will remain March 10, 2020 (29 CFR 1910.1024(o)(2)(ii)). OSHA expects to publish the planned NPRM well in advance of these compliance dates.
Although OSHA is proposing to extend the compliance date for paragraph (m), Communication of Hazards—which includes specific labeling requirements—manufacturers, importers, and employers are still obligated to label hazardous chemicals containing beryllium, ensure that safety data sheets are readily available, and train workers on the hazards of beryllium in accordance with the Hazard Communication Standard (HCS), 29 CFR 1910.1200. OSHA encourages employers to review their hazard communication program, employee training, and other hazard communication practices (such as workplace labeling) to ensure continued compliance with the HCS. Also, while OSHA is proposing to extend the compliance date for the recordkeeping requirements of paragraph (n), OSHA expects employers to continue to comply with 29 CFR 1910.1020 (Access
OSHA seeks comment on this proposal to revise paragraph (o) of the general industry beryllium standard to extend the compliance date for select ancillary provisions. OSHA welcomes comment on both the duration and scope of the proposed compliance date extension. OSHA encourages commenters to include a rationale for any concerns raised with this proposal, as well as for alternatives that they propose. OSHA also requests comment on the “Agency Determinations” section that follows, including the preliminary economic analysis and other regulatory impacts of this rule on the regulated community. Please note that comments on the changes OSHA plans to propose to the ancillary requirements of the general industry standard should be reserved for submission during the public comment period for that NPRM.
Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601–612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) require that OSHA estimate the benefits, costs, and net benefits of regulations, and analyze the impacts of certain rules that OSHA promulgates. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.
This proposed rule is not an “economically significant regulatory action” under Executive Order 12866 or UMRA, or a “major rule” under the Congressional Review Act (5 U.S.C. 801
At a discount rate of 3 percent, this proposed compliance date extension would yield annualized cost savings of $0.76 million per year for 10 years. At a discount rate of 7 percent, this proposal would yield an annualized cost savings of $1.73 million per year for 10 years. When the Department uses a perpetual time horizon to allow for cost comparisons under Executive Order 13771 (82 FR 9339, Jan. 30, 2017), the annualized cost savings of this proposed compliance date extension is $1.65 million at a discount rate of 7 percent.
More than one year has elapsed since promulgation of the beryllium standard on January 9, 2017, so OSHA has updated the projected costs for general industry contained in the final economic analysis (FEA) that accompanied the rule from 2015 to 2017 dollars, using the latest Occupational Employment Statistics (OES) wage data (for 2016) and inflating them to 2017 dollars. Additionally, although familiarization costs were included in the cost estimates developed in the beryllium FEA, OSHA expects that those costs have already been incurred by affected employers, and is excluding them from its analysis of the cost savings associated with the proposed extension of compliance dates. Thus, baseline costs for this preliminary economic analysis (PEA) are the projected costs from the 2017 FEA, updated to 2017 dollars, less familiarization costs.
OSHA notes that it did not include an overhead labor cost in the 2017 FEA, and has not accounted for such costs in this PEA. There is not one broadly accepted overhead rate, and the use of overhead to estimate the marginal costs of labor raises a number of issues that should be addressed before applying overhead costs to analyze the cost implications of any specific regulation. There are several ways to look at the cost elements that fit the definition of overhead, and there is a range of overhead estimates currently used within the federal government—for example, the Environmental Protection Agency has used 17 percent,
If OSHA had included an overhead rate when estimating the marginal cost of labor, without further analyzing an appropriate quantitative adjustment, and adopted for these purposes an overhead rate of 17 percent on base wages, the cost savings of this proposal would increase to approximately $0.82 million per year, at a discount rate of 3 percent, or to approximately $1.87 million per year, at a discount rate of 7 percent.
The beryllium standard went into effect on May 20, 2017, with most compliance obligations beginning on March 12, 2018. OSHA is proposing to extend the compliance date for specific provisions until December 12, 2018. The compliance dates for the updated PELs, exposure assessment, respiratory protection, medical surveillance, and medical removal protection requirements, and for some other provisions for which the standard already establishes compliance dates in 2019 and 2020, would not change as a result of this proposal. The applicability of the scope and application paragraph and the definitions would also not change as a result of this proposal, except to allow employers to comply with the definitions of “CBD diagnostic center,” “chronic beryllium disease,” and “confirmed positive” that will be
OSHA estimated cost savings of the proposed extension relative to baseline costs, where baseline costs reflect the costs of compliance
The undiscounted cost savings by provision and year are presented below in Table 1. As shown in Table 1, and described elsewhere in this notice, the cost savings described in this PEA reflect savings only for provisions covered by the proposed compliance date extension. OSHA estimated no cost savings for the PELs, exposure assessment, respiratory protection, medical surveillance, or medical removal protection provisions (as they are not covered by the proposed extension), or for any provisions for which the rule already establishes compliance dates in 2019 (change rooms/showers) or 2020 (engineering controls).
In the FEA for the beryllium standard, OSHA concluded that the rule was technologically feasible. OSHA has preliminarily determined that this proposal is also technologically feasible because it does not change any of the rule's substantive requirements, and, if adopted, would simply give employers more time to comply with some of the rule's ancillary requirements. Furthermore, OSHA previously concluded that the beryllium standard was economically feasible. As this proposal does not impose any new substantive requirements, and results in cost savings, OSHA has preliminarily concluded that the proposal is also economically feasible.
The planned rulemaking to revise the general industry beryllium standard is intended to be responsive to questions and concerns expressed by stakeholders regarding ancillary provisions of the rule. Safety and health programs can be inefficacious if employers and other stakeholders are unclear about OSHA requirements. Hence, by addressing stakeholder questions and concerns, the planned rulemaking will make it more likely that the regulated community will realize the full benefits of the rule, as estimated in the 2017 beryllium FEA. Although it is not possible to quantify the effect of stakeholder uncertainty on the projected benefits of the rule, OSHA preliminarily believes that the short term loss of benefits associated with this proposed extension of initial compliance dates will be more than offset in the long term by the benefits that will be realized as a result of the Agency's effort to provide additional clarity in the rule. OSHA has preliminarily determined that this proposal will maintain essential safety and health protections for workers.
This proposal will result in cost savings for affected employers, and those savings fall below levels that could be said to have a significant positive economic impact on a substantial number of small entities.
This NPRM does not propose changes to the information collections already approved by Office of Management and Budget (OMB). OMB approved the information collection requirements for the general industry beryllium standard under OMB Control Number 1218–0267, with an expiration date of April 30, 2020.
OSHA reviewed this proposed rule in accordance with Executive Order 13132 on Federalism (64 FR 43255, (Aug. 10, 1999)), which requires that Federal agencies, to the extent possible, refrain from limiting state policy options, consult with states prior to taking any actions that would restrict state policy options, and take such actions only when clear constitutional authority exists and the problem is national in scope. Executive Order 13132 provides for preemption of state law only with the expressed consent of Congress. Federal agencies must limit any such preemption to the extent possible.
Under Section 18 of the Occupational Safety and Health Act of 1970 (OSH Act; 29 U.S.C. 651
OSHA previously concluded from its analysis that promulgation of the beryllium standard complies with Executive Order 13132 (82 FR at 2633). In states without an OSHA-approved State Plan, any standard developed from this proposed rule would limit state policy options in the same manner as every standard promulgated by OSHA. For State Plan States, Section 18 of the OSH Act, as noted in the previous paragraph, permits State Plan States to develop and enforce their own beryllium standards provided these requirements are at least as effective in providing safe and healthful employment and places of employment as the requirements specified in this proposal.
When Federal OSHA promulgates a new standard or more stringent amendment to an existing standard, State Plans must amend their standards to reflect the new standard or amendment, or show OSHA why such action is unnecessary,
The proposed amendments to OSHA's beryllium standard would not impose any new requirements on employers. Accordingly, State Plans would not have to amend their standards to extend the compliance dates for their beryllium rules, but they may do so within the limits of any extension adopted by Federal OSHA.
When OSHA issued the final rule establishing standards for occupational exposure to beryllium, it reviewed the rule according to the Unfunded Mandates Reform Act of 1995 (UMRA; 2 U.S.C. 1501
As discussed above in Section II. A (Preliminary Economic Analysis and Regulatory Flexibility Certification) of this preamble, this proposed extension does not impose any costs on private-sector employers beyond those costs already identified in the final rule for beryllium in general industry. Because OSHA reviewed the total costs of the final rule under UMRA, no further review of those costs is necessary. Therefore, for purposes of UMRA, OSHA certifies that this proposed rule does not mandate that state, local, or tribal governments adopt new, unfunded regulatory obligations of, or increase expenditures by the private sector by, more than $100 million in any year.
OSHA reviewed this proposed rule in accordance with Executive Order 13175 (65 FR 67249) and determined that it does not have “tribal implications” as defined in that order. As proposed, the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.
The purpose of the Occupational Safety and Health Act of 1970 (29 U.S.C. 651
In addition to materially reducing a significant risk, a health standard must be technologically and economically feasible.
Beryllium, Occupational safety and health.
For the reasons stated in the preamble of this proposed rule, OSHA proposes to amend 29 CFR part 1910 as follows:
29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 12–71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR 50017), 5–2002 (67 FR 65008), 5–2007 (72 FR 31160), 4–2010 (75 FR 55355), or 1–2012 (77 FR 3912); 29 CFR part 1911; and 5 U.S.C. 553, as applicable.
Section 1910.1030 also issued under Public Law 106–430, 114 Stat. 1901.
Section 1910.1201 also issued under 40 U.S.C. 5101
(o)
(2)
(ii) Change rooms and showers required by paragraph (i) of this standard: March 11, 2019;
(iii) Engineering controls required by paragraph (f) of this standard: March 10, 2020; and
(iv) All other obligations of this standard: December 12, 2018.