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Agricultural Marketing Service, USDA.
Final rule.
This final rule establishes a Federal Milk Marketing Order (FMMO) regulating the handling of milk in California. This final rule issues a marketing order incorporating the entire state of California and adopts the same dairy product classification and pricing provisions used throughout the current FMMO system. The California FMMO provides for the recognition of producer quota as administered by the California Department of Food and Agriculture. More than the required number of producers for the California marketing area have approved the issuance of the order. This final rule also announces AMS's intention to merge the information collection forms used to conduct the producer referendum with the reporting forms used in the other dairy marketing orders.
Erin C. Taylor, Order Formulation and Enforcement Division, USDA/AMS/Dairy Program, STOP 0231–Room 2963, 1400 Independence Ave. SW, Washington, DC 20250–0231, (202) 720–7183, email address:
This rule, in accordance with 7 CFR 900.14(c), is the Secretary's final rule in this proceeding and issues a marketing order as defined in 7 CFR 900.2(j).
Accordingly, this final rule adopts amendments detailed in the proposed rule (83 FR 14110), with one minor technical correction to paragraph numbering in § 1051.73(c)(2). The proposed rule designated two consecutive paragraphs in that section as paragraph (c)(2)(vii). This final rule corrects the proposed rule by redesignating the second paragraph as paragraph (c)(2)(viii).
This rule is effective with publication of the Announcement of Advanced Prices and Pricing Factors on October 17, 2018 (see § 1051.53). Affected parties must comply with all provisions of this rule beginning November 1, 2018.
This administrative action is governed by the provisions of Sections 556 and 557 of Title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866.
This final rule is not considered an Executive Order 13771 regulatory action because it does not meet the definition of a “regulation” or “rule” under Executive Order 12866.
The amendments adopted in this final rule have been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect and will not preempt any state or local law, regulations, or policies, unless they present an irreconcilable conflict with this rule.
AMS 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.
The Agricultural Marketing Agreement Act of 1937 (AMAA), as amended (7 U.S.C. 601–674 and 7253), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the AMAA, any handler subject to a marketing order may request modification or exemption from such order by filing with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The AMAA provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review USDA's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.
Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612), the Agricultural Marketing Service (AMS) considered the economic impact of this action on small entities. Accordingly, AMS prepared this final regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Small dairy farm businesses have been defined by the Small Business Administration (SBA) (13 CFR 121.601) as those businesses having annual gross receipts of less than $750,000. The SBA's definition of small agricultural service firms, which includes handlers that will be regulated under this marketing order, varies depending on the product manufactured. Small fluid milk and ice cream manufacturers are defined as having 1,000 or fewer employees. Small butter and dry or condensed dairy product manufacturers are defined as having 750 or fewer employees. Small cheese manufacturers are defined as having 1,250 or fewer employees.
For the purpose of determining which California dairy farms are “small businesses,” the $750,000 per year criterion was used to establish a production guideline that equates to approximately 315,000 pounds of milk per month. Although this guideline does not factor in additional monies that may be received by dairy farmers, it is a standard encompassing most small dairy farms. For the purpose of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the employee limit for that type of manufacturing, the plant is considered a large business even if the local plant has fewer than the defined number of employees.
Interested persons were invited to present evidence at the hearing on the
Record evidence indicates that implementing the California FMMO would not impose a disproportionate burden on small businesses. Currently, the California dairy industry is regulated by a California State Order (CSO) that is administered and enforced by CDFA. While the CSO and FMMOs have differences, they both maintain similar classified pricing and marketwide pooling functions. Therefore, it is not expected that the regulatory change will have a significant impact on California small businesses.
The record evidence indicates that while the program is likely to impose some costs on the regulated parties, those costs would be outweighed by the benefits expected to accrue to the California dairy industry. In conjunction with the publication of the final decision (83 FR 14110), AMS released a Regulatory Economic Impact Analysis (REIA) to study the possible impacts of the California FMMO. The analysis reflects the provisions of this FMMO and may be viewed at
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this final rule also announces AMS's intention to merge the OMB Report Forms under a California Federal Milk Marketing Order (from Milk Handlers and Milk Marketing Cooperatives, 0581–0298), and the forms used to conduct the producer referendum (Referendum Ballots, 0581–0300) with the reporting forms used in the rest of the dairy marketing orders (Report Forms Under the Federal Milk Marketing Order Program, 0581–0032). Any additional information collection and recordkeeping requirements that may be imposed under the order would be submitted to OMB for public comment and approval.
The findings and determinations hereinafter set forth are hereby ratified and confirmed, except where they may conflict with those set forth herein.
The promulgation of the marketing agreement and order is based on the record of a public hearing held September 22 through November 18, 2015 in Clovis, California. The hearing was held to receive evidence on four proposals submitted by dairy farmers, handlers, and other interested parties. Notice of this hearing was published in the
Upon the basis of the evidence introduced at the public hearing and its record, it is found that:
(a) The order as hereby promulgated, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the AMAA;
(b) The parity prices of milk, as determined pursuant to section 2 of the AMAA, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions that affect market supply and demand for milk in California. The minimum prices specified in the tentative marketing agreement and order, as hereby established, are prices that will reflect the aforesaid factors, ensure a sufficient quantity of pure and wholesome milk, and be in the public interest; and
(c) The tentative marketing agreement and order, as hereby established, will regulate the handling of milk in the same manner as, and applies only to, persons in the respective classes of industrial and commercial activity specified in, marketing agreements upon which a hearing has been held.
(2)
It is hereby determined that:
(a) The refusal or failure of handlers (excluding cooperative associations specified in section 8c(9) of the AMAA) of more than 50 percent of the milk marketed within the specified marketing areas to sign a proposed marketing agreement, tends to prevent the effectuation of the declared policy of the AMAA;
(b) The issuance of this order establishing the California order is the only practical means pursuant to the declared policy of the AMAA of advancing the interests of producers as defined in the order as hereby promulgated; and
(c) The issuance of this order establishing the California order is favored by at least two-thirds of the producers who were engaged in the production of milk for sale in the respective marketing areas.
Milk marketing orders.
7 U.S.C. 601–674, and 7253.
The terms, definitions, and provisions in part 1000 of this chapter apply to this part unless otherwise specified. In this part, all references to sections in part 1000 refer to part 1000 of this chapter.
The marketing area means all territory within the bounds of the following states and political subdivisions, including all piers, docks, and wharves connected therewith and all craft moored thereat, and all territory occupied by government (municipal, State, or Federal) reservations, installations, institutions, or other similar establishments if any part thereof is within any of the listed states or political subdivisions:
All of the State of California.
See § 1000.3.
See § 1000.4.
See § 1000.5.
See § 1000.6.
(a) A distributing plant, other than a plant qualified as a pool plant pursuant to paragraph (b) of this section or § _____.7(b) of any other Federal milk order, from which during the month 25 percent or more of the total quantity of fluid milk products physically received at the plant (excluding concentrated milk received from another plant by agreement for other than Class I use) are disposed of as route disposition or are transferred in the form of packaged fluid milk products to other distributing plants. At least 25 percent of such route disposition and transfers must be to outlets in the marketing area.
(b) Any distributing plant located in the marketing area which during the month processed at least 25 percent of the total quantity of fluid milk products physically received at the plant (excluding concentrated milk received from another plant by agreement for other than Class I use) into ultra-pasteurized or aseptically-processed fluid milk products.
(c) A supply plant from which the quantity of bulk fluid milk products shipped to (and physically unloaded into) plants described in paragraph (c)(1) of this section is not less than 10 percent of the Grade A milk received from dairy farmers (except dairy farmers described in § 1051.12(b)) and handlers described in § 1000.9(c), including milk diverted pursuant to § 1051.13, subject to the following conditions:
(1) Qualifying shipments may be made to plants described in paragraphs (c)(1)(i) through (iv) of this section, except that whenever shipping requirements are increased pursuant to paragraph (g) of this section, only shipments to pool plants described in paragraphs (a), (b), and (d) of this section shall count as qualifying shipments for the purpose of meeting the increased shipments:
(i) Pool plants described in paragraphs (a), (b), and (d) of this section;
(ii) Plants of producer-handlers;
(iii) Partially regulated distributing plants, except that credit for such shipments shall be limited to the amount of such milk classified as Class I at the transferee plant; and
(iv) Distributing plants fully regulated under other Federal orders, except that credit for shipments to such plants shall be limited to the quantity shipped to (and physically unloaded into) pool distributing plants during the month and credits for shipments to other order plants shall not include any such shipments made on the basis of agreed-upon Class II, Class III, or Class IV utilization.
(2) Concentrated milk transferred from the supply plant to a distributing plant for an agreed-upon use other than Class I shall be excluded from the supply plant's shipments in computing the supply plant's shipping percentage.
(d) Two or more plants operated by the same handler and located in the marketing area may qualify for pool status as a unit by meeting the total and in-area route disposition requirements of a pool distributing plant specified in paragraph (a) of this section and subject to the following additional requirements:
(1) At least one of the plants in the unit must qualify as a pool plant pursuant to paragraph (a) of this section;
(2) Other plants in the unit must process Class I or Class II products, using 50 percent or more of the total Grade A fluid milk products received in bulk form at such plant or diverted therefrom by the plant operator in Class I or Class II products; and
(3) The operator of the unit has filed a written request with the market administrator prior to the first day of the month for which such status is desired to be effective. The unit shall continue from month-to-month thereafter without further notification. The handler shall notify the market administrator in writing prior to the first day of any month for which termination or any change of the unit is desired.
(e) A system of two or more supply plants operated by one or more handlers may qualify for pooling by meeting the shipping requirements of paragraph (c) of this section in the same manner as a single plant subject to the following additional requirements:
(1) Each plant in the system is located within the marketing area. Cooperative associations or other handlers may not use shipments pursuant to § 1000.9(c) to qualify supply plants located outside the marketing area;
(2) The handler(s) establishing the system submits a written request to the market administrator on or before July 15 requesting that such plants qualify as a system for the period of August through July of the following year. Such request will contain a list of the plants participating in the system in the order, beginning with the last plant, in which the plants will be dropped from the system if the system fails to qualify. Each plant that qualifies as a pool plant within a system shall continue each month as a plant in the system through the following July unless the handler(s) establishing the system submits a written request to the market administrator that the plant be deleted from the system or that the system be discontinued. Any plant that has been so deleted from a system, or that has failed to qualify in any month, will not be part of any system for the remaining months through July. The handler(s) that have established a system may add a plant operated by such handler(s) to a system if such plant has been a pool plant each of the 6 prior months and would otherwise be eligible to be in a system, upon written request to the market administrator no later than the 15th day of the prior month. In the event of an ownership change or the business failure of a handler who is a participant in a system, the system may be reorganized to reflect such changes if a written request to file a new marketing agreement is submitted to the market administrator; and
(3) If a system fails to qualify under the requirements of this paragraph (e), the handler responsible for qualifying the system shall notify the market administrator which plant or plants will be deleted from the system so that the remaining plants may be pooled as a system. If the handler fails to do so, the market administrator shall exclude one or more plants, beginning at the bottom of the list of plants in the system and continuing up the list as necessary until the deliveries are sufficient to qualify the remaining plants in the system.
(f) Any distributing plant, located within the marketing area as described in § 1051.2:
(1) From which there is route disposition and/or transfers of packaged fluid milk products in any non-federally regulated marketing area(s) located within one or more States that require handlers to pay minimum prices for raw milk, provided that 25 percent or more of the total quantity of fluid milk products physically received at such plant (excluding concentrated milk received from another plant by agreement for other than Class I use) is disposed of as route disposition and/or is transferred in the form of packaged fluid milk products to other plants. At least 25 percent of such route disposition and/or transfers, in aggregate, are in any non-federally regulated marketing area(s) located within one or more States that require handlers to pay minimum prices for raw milk. Subject to the following exclusions:
(i) The plant is described in paragraph (a), (b), or (e) of this section;
(ii) The plant is subject to the pricing provisions of a State-operated milk pricing plan which provides for the payment of minimum class prices for raw milk;
(iii) The plant is described in § 1000.8(a) or (e); or
(iv) A producer-handler described in § 1051.10 with less than three million pounds during the month of route disposition and/or transfers of packaged fluid milk products to other plants.
(2) [Reserved]
(g) The applicable shipping percentages of paragraphs (c) and (e) of this section and § 1051.13(d)(2) and (3) may be increased or decreased, for all or part of the marketing area, by the market administrator if the market administrator finds that such adjustment is necessary to encourage needed shipments or to prevent uneconomic shipments. Before making such a finding, the market administrator shall investigate the need for adjustment either on the market administrator's own initiative or at the request of interested parties if the request is made in writing at least 15 days prior to the month for which the requested revision is desired effective. If the investigation shows that an adjustment of the shipping percentages might be appropriate, the market administrator shall issue a notice stating that an adjustment is being considered and invite data, views, and arguments. Any decision to revise an applicable shipping or diversion percentage must be issued in writing at least one day before the effective date.
(h) The term pool plant shall not apply to the following plants:
(1) A producer-handler as defined under any Federal order;
(2) An exempt plant as defined in § 1000.8(e);
(3) A plant located within the marketing area and qualified pursuant to paragraph (a) of this section which meets the pooling requirements of another Federal order, and from which more than 50 percent of its route disposition has been in the other Federal order marketing area for 3 consecutive months;
(4) A plant located outside any Federal order marketing area and qualified pursuant to paragraph (a) of this section that meets the pooling requirements of another Federal order and has had greater route disposition in such other Federal order's marketing area for 3 consecutive months;
(5) A plant located in another Federal order marketing area and qualified pursuant to paragraph (a) of this section that meets the pooling requirements of such other Federal order and does not have a majority of its route disposition in this marketing area for 3 consecutive months, or if the plant is required to be regulated under such other Federal order without regard to its route disposition in any other Federal order marketing area;
(6) A plant qualified pursuant to paragraph (c) of this section which also meets the pooling requirements of another Federal order and from which greater qualifying shipments are made to plants regulated under the other Federal order than are made to plants regulated under the order in this part, or the plant has automatic pooling status under the other Federal order; and
(7) That portion of a regulated plant designated as a nonpool plant that is physically separate and operated separately from the pool portion of such plant. The designation of a portion of a regulated plant as a nonpool plant must
(i) Any plant that qualifies as a pool plant in each of the immediately preceding 3 months pursuant to paragraph (a) of this section or the shipping percentages in paragraph (c) of this section that is unable to meet such performance standards for the current month because of unavoidable circumstances determined by the market administrator to be beyond the control of the handler operating the plant, such as a natural disaster (ice storm, wind storm, flood, fire, earthquake, breakdown of equipment, or work stoppage, shall be considered to have met the minimum performance standards during the period of such unavoidable circumstances, but such relief shall not be granted for more than 2 consecutive months.
See § 1000.8.
See § 1000.9.
(a)
(1) The care and management of the dairy animals and the other resources and facilities designated in paragraph (b)(1) of this section necessary to produce all Class I milk handled (excluding receipts from handlers fully regulated under any Federal order) are under the complete and exclusive control, ownership, and management of the producer-handler and are operated as the producer-handler's own enterprise and at its sole risk.
(2) The plant operation designated in paragraph (b)(2) of this section at which the producer-handler processes and packages, and from which it distributes, its own milk production is under the complete and exclusive control, ownership, and management of the producer-handler and is operated as the producer-handler's own enterprise and at its sole risk.
(3) The producer-handler neither receives at its designated milk production resources and facilities nor receives, handles, processes, or distributes at or through any of its designated milk handling, processing, or distributing resources and facilities other source milk products for reconstitution into fluid milk products or fluid milk products derived from any source other than:
(i) Its designated milk production resources and facilities (own farm production);
(ii) Pool handlers and plants regulated under any Federal order within the limitation specified in paragraph (c)(2) of this section; or
(iii) Nonfat milk solids which are used to fortify fluid milk products.
(4) The producer-handler is neither directly nor indirectly associated with the business control or management of, nor has a financial interest in, another handler's operation; nor is any other handler so associated with the producer-handler's operation.
(5) No milk produced by the herd(s) or on the farm(s) that supplies milk to the producer-handler's plant operation is:
(i) Subject to inclusion and participation in a marketwide equalization pool under a milk classification and pricing program under the authority of a State government maintaining marketwide pooling of returns; or
(ii) Marketed in any part as Class I milk to the non-pool distributing plant of any other handler.
(b)
(1) Milk production resources and facilities shall include all resources and facilities (milking herd(s), buildings housing such herd(s), and the land on which such buildings are located) used for the production of milk which are solely owned, operated, and which the producer-handler has designated as a source of milk supply for the producer-handler's plant operation. However, for purposes of this paragraph (b)(1), any such milk production resources and facilities which do not constitute an actual or potential source of milk supply for the producer-handler's operation shall not be considered a part of the producer-handler's milk production resources and facilities.
(2) Milk handling, processing, and distribution resources and facilities shall include all resources and facilities (including store outlets) used for handling, processing, and distributing fluid milk products which are solely owned by, and directly operated or controlled by the producer-handler or in which the producer-handler in any way has an interest, including any contractual arrangement, or over which the producer-handler directly or indirectly exercises any degree of management control.
(3) All designations shall remain in effect until canceled pursuant to paragraph (c) of this section.
(c)
(1) Milk from the milk production resources and facilities of the producer-handler, designated in paragraph (b)(1) of this section, is delivered in the name of another person as producer milk to another handler.
(2) The producer-handler handles fluid milk products derived from sources other than the milk production facilities and resources designated in paragraph (b)(1) of this section, except that it may receive at its plant, or acquire for route disposition, fluid milk products from fully regulated plants and handlers under any Federal order if such receipts do not exceed 150,000 pounds monthly. This limitation shall not apply if the producer-handler's own-farm production is less than 150,000 pounds during the month.
(3) Milk from the milk production resources and facilities of the producer-handler is subject to inclusion and participation in a marketwide equalization pool under a milk classification and pricing plan operating under the authority of a State government.
(d)
(1) The name, plant location(s), and farm location(s) of persons designated as producer-handlers;
(2) The names of those persons whose designations have been cancelled; and
(3) The effective dates of producer-handler status or loss of producer-handler status for each. Such announcements shall be controlling with respect to the accounting at plants of other handlers for fluid milk products received from any producer-handler.
(e)
(f)
(a) Except as provided in paragraph (b) of this section,
(1) Received at a pool plant directly from the producer or diverted by the plant operator in accordance with § 1051.13; or
(2) Received by a handler described in § 1000.9(c).
(b) Producer shall not include:
(1) A producer-handler as defined in any Federal order;
(2) A dairy farmer whose milk is received at an exempt plant, excluding producer milk diverted to the exempt plant pursuant to § 1051.13(d);
(3) A dairy farmer whose milk is received by diversion at a pool plant from a handler regulated under another Federal order if the other Federal order designates the dairy farmer as a producer under that order and that milk is allocated by request to a utilization other than Class I; and
(4) A dairy farmer whose milk is reported as diverted to a plant fully regulated under another Federal order with respect to that portion of the milk so diverted that is assigned to Class I under the provisions of such other order.
Except as provided for in paragraph (e) of this section,
(a) Received by the operator of a pool plant directly from a producer or a handler described in § 1000.9(c). All milk received pursuant to this paragraph (a) shall be priced at the location of the plant where it is first physically received;
(b) Received by a handler described in § 1000.9(c) in excess of the quantity delivered to pool plants;
(c) Diverted by a pool plant operator to another pool plant. Milk so diverted shall be priced at the location of the plant to which diverted; or
(d) Diverted by the operator of a pool plant or a cooperative association described in § 1000.9(c) to a nonpool plant located in the States of California, Arizona, Nevada, or Oregon, subject to the following conditions:
(1) Milk of a dairy farmer shall not be eligible for diversion unless at least one day's production of such dairy farmer is physically received as producer milk at a pool plant during the first month the dairy farmer is a producer. If a dairy farmer loses producer status under the order in this part (except as a result of a temporary loss of Grade A approval or as a result of the handler of the dairy farmer's milk failing to pool the milk under any order), the dairy farmer's milk shall not be eligible for diversion unless at least one day's production of the dairy farmer has been physically received as producer milk at a pool plant during the first month the dairy farmer is re-associated with the market;
(2) The quantity of milk diverted by a handler described in § 1000.9(c) may not exceed 90 percent of the producer milk receipts reported by the handler pursuant to § 1051.30(c) provided that not less than 10 percent of such receipts are delivered to plants described in § 1051.7(c)(1)(i) through (iii). These percentages are subject to any adjustments that may be made pursuant to § 1051.7(g); and
(3) The quantity of milk diverted to nonpool plants by the operator of a pool plant described in § 1051.7(a), (b) or (d) may not exceed 90 percent of the Grade A milk received from dairy farmers (except dairy farmers described in § 1051.12(b)) including milk diverted pursuant to this section. These percentages are subject to any adjustments that may be made pursuant to § 1051.7(g).
(4) Diverted milk shall be priced at the location of the plant to which diverted.
(e) Producer milk shall not include milk of a producer that is subject to inclusion and participation in a marketwide equalization pool under a milk classification and pricing program imposed under the authority of a State government maintaining marketwide pooling of returns.
(f) The quantity of milk reported by a handler pursuant to either § 1051.30(a)(1) or (c)(1) for April through February may not exceed 125 percent, and for March may not exceed 135 percent, of the producer milk receipts pooled by the handler during the prior month. Milk diverted to nonpool plants reported in excess of this limit shall be removed from the pool. Milk in excess of this limit received at pool plants, other than pool distributing plants, shall be classified pursuant to § 1000.44(a)(3)(v) and (b). The handler must designate, by producer pick-up, which milk is to be removed from the pool. If the handler fails to provide this information, the market administrator will make the determination. The following provisions apply:
(1) Milk shipped to and physically received at pool distributing plants in excess of the previous month's pooled volume shall not be subject to the 125 or 135 percent limitation;
(2) Producer milk qualified pursuant to § _____.13 of any other Federal Order and continuously pooled in any
(3) The market administrator may waive the 125 or 135 percent limitation:
(i) For a new handler on the order, subject to the provisions of paragraph (f)(4) of this section; or
(ii) For an existing handler with significantly changed milk supply conditions due to unusual circumstances; and
(4) A bloc of milk may be considered ineligible for pooling if the market administrator determines that handlers altered the reporting of such milk for the purpose of evading the provisions of this paragraph (f).
See § 1000.14.
See § 1000.15.
See § 1000.16.
See § 1000.18.
See § 1000.19.
See § 1000.25.
See § 1000.26.
See § 1000.27.
See § 1000.28.
Each handler shall report monthly so that the market administrator's office receives the report on or before the 9th day after the end of the month, in the detail and on the prescribed forms, as follows:
(a) Each handler that operates a pool plant shall report for each of its operations the following information:
(1) Product pounds, pounds of butterfat, pounds of protein, and pounds of solids-not-fat other than protein (other solids) contained in or represented by:
(i) Receipts of producer milk, including producer milk diverted by the reporting handler, from sources other than handlers described in § 1000.9(c); and
(ii) Receipts of milk from handlers described in § 1000.9(c);
(2) Product pounds and pounds of butterfat contained in:
(i) Receipts of fluid milk products and bulk fluid cream products from other pool plants;
(ii) Receipts of other source milk; and
(iii) Inventories at the beginning and end of the month of fluid milk products and bulk fluid cream products;
(3) The utilization or disposition of all milk and milk products required to be reported pursuant to this paragraph (a); and
(4) Such other information with respect to the receipts and utilization of skim milk, butterfat, milk protein, and other nonfat solids as the market administrator may prescribe.
(b) Each handler operating a partially regulated distributing plant shall report with respect to such plant in the same manner as prescribed for reports required by paragraph (a) of this section. Receipts of milk that would have been producer milk if the plant had been fully regulated shall be reported in lieu of producer milk. The report shall show also the quantity of any reconstituted skim milk in route disposition in the marketing area.
(c) Each handler described in § 1000.9(c) shall report:
(1) The product pounds, pounds of butterfat, pounds of protein, pounds of solids-not-fat other than protein (other solids) contained in receipts of milk from producers; and
(2) The utilization or disposition of such receipts.
(d) Each handler not specified in paragraphs (a) through (c) of this section shall report with respect to its receipts and utilization of milk and milk products in such manner as the market administrator may prescribe.
(a) On or before the 20th day after the end of each month, each handler that operates a pool plant pursuant to § 1051.7 and each handler described in § 1000.9(c) shall report to the market administrator its producer payroll for the month, in the detail prescribed by the market administrator, showing for each producer the information described in § 1051.73(f).
(b) Each handler operating a partially regulated distributing plant who elects to make payment pursuant to § 1000.76(b) shall report for each dairy farmer who would have been a producer if the plant had been fully regulated in the same manner as prescribed for reports required by paragraph (a) of this section.
In addition to the reports required pursuant to §§ 1051.30 and 1051.31, each handler shall report any information the market administrator deems necessary to verify or establish each handler's obligation under the order.
See § 1000.40.
See § 1000.42.
See § 1000.43.
See § 1000.44.
See § 1000.45.
See § 1000.50.
The Class I differential shall be the differential established for Los Angeles County, California, which is reported in § 1000.52. The Class I price shall be the price computed pursuant to § 1000.50(a) for Los Angeles County, California.
See § 1000.52.
See § 1000.53.
See § 1000.54.
For the purpose of computing a handler's obligation for producer milk, the market administrator shall determine for each month the value of milk of each handler with respect to each of the handler's pool plants and of
(a)
(2) Add an amount obtained by multiplying the pounds of butterfat in Class I by the Class I butterfat price; and
(b)
(2) Add an amount obtained by multiplying the pounds of butterfat in Class II times the Class II butterfat price.
(c)
(2) Add an amount obtained by multiplying the pounds of other solids in Class III skim milk by the other solids price; and
(3) Add an amount obtained by multiplying the pounds of butterfat in Class III by the butterfat price.
(d)
(2) Add an amount obtained by multiplying the pounds of butterfat in Class IV by the butterfat price.
(e)
(f)
(g)
(h)
(i)
For each month the market administrator shall compute a producer price differential per hundredweight. The report of any handler who has not made payments required pursuant to § 1051.71 for the preceding month shall not be included in the computation of the producer price differential, and such handler's report shall not be included in the computation for succeeding months until the handler has made full payment of outstanding monthly obligations. Subject to the conditions of this introductory text, the market administrator shall compute the producer price differential in the following manner:
(a) Combine into one total the values computed pursuant to § 1051.60 for all handlers required to file reports prescribed in § 1051.30;
(b) Subtract the total values obtained by multiplying each handler's total pounds of protein, other solids, and butterfat contained in the milk for which an obligation was computed pursuant to § 1051.60 by the protein price, other solids price, and the butterfat price, respectively;
(c) Add an amount equal to the minus location adjustments and subtract an amount equal to the plus location adjustments computed pursuant to § 1051.75;
(d) Add an amount equal to not less than one-half of the unobligated balance in the producer-settlement fund;
(e) Divide the resulting amount by the sum of the following for all handlers included in these computations:
(1) The total hundredweight of producer milk; and
(2) The total hundredweight for which a value is computed pursuant to § 1051.60(i); and
(f) Subtract not less than 4 cents nor more than 5 cents from the price computed pursuant to paragraph (e) of this section. The result shall be known as the producer price differential for the month.
On or before the 14th day after the end of each month, the market administrator shall announce publicly the following prices and information:
(a) The producer price differential;
(b) The protein price;
(c) The nonfat solids price;
(d) The other solids price;
(e) The butterfat price;
(f) The average butterfat, nonfat solids, protein and other solids content of producer milk; and
(g) The statistical uniform price for milk containing 3.5 percent butterfat, computed by combining the Class III price and the producer price differential.
See § 1000.70.
Each handler shall make payment to the producer-settlement fund in a manner that provides receipt of the funds by the market administrator no later than the 16th day after the end of the month (except as provided in § 1000.90). Payment shall be the amount, if any, by which the amount specified in paragraph (a) of this section exceeds the amount specified in paragraph (b) of this section:
(a) The total value of milk to the handler for the month as determined pursuant to § 1051.60.
(b) The sum of:
(1) An amount obtained by multiplying the total hundredweight of producer milk as determined pursuant to § 1000.44(c) by the producer price differential as adjusted pursuant to § 1051.75;
(2) An amount obtained by multiplying the total pounds of protein, other solids, and butterfat contained in producer milk by the protein, other solids, and butterfat prices respectively; and
(3) An amount obtained by multiplying the pounds of skim milk and butterfat for which a value was computed pursuant to § 1051.60(i) by the producer price differential as adjusted pursuant to § 1051.75 for the location of the plant from which received.
No later than the 18th day after the end of each month (except as provided in § 1000.90), the market administrator shall pay to each handler the amount, if any, by which the amount computed pursuant to § 1051.71(b) exceeds the amount computed pursuant to § 1051.71(a). If, at such time, the balance in the producer-settlement fund is insufficient to make all payments pursuant to this section, the market administrator shall reduce uniformly such payments and shall complete the payments as soon as the funds are available.
(a)
(1)
(2)
(i) The hundredweight of producer milk received times the producer price differential for the month as adjusted pursuant to § 1051.75;
(ii) The pounds of butterfat received times the butterfat price for the month;
(iii) The pounds of protein received times the protein price for the month;
(iv) The pounds of other solids received times the other solids price for the month;
(v) Less any payment made pursuant to paragraph (a)(1) of this section;
(vi) Less proper deductions authorized in writing by such producer, and plus or minus adjustments for errors in previous payments to such producer subject to approval by the market administrator;
(vii) Less deductions for marketing services pursuant to § 1000.86; and
(viii) Less deductions authorized by CDFA for the California Quota Program pursuant to § 1051.11.
(b)
(c)
(1) For bulk fluid milk products and bulk fluid cream products received from a cooperative association in its capacity as the operator of a pool plant and for milk received from a cooperative association in its capacity as a handler pursuant to § 1000.9(c) during the first 15 days of the month, at not less than the lowest announced class prices per hundredweight for the preceding month;
(2) For the total quantity of bulk fluid milk products and bulk fluid cream products received from a cooperative association in its capacity as the operator of a pool plant, at not less than the total value of such products received from the association's pool plants, as determined by multiplying the respective quantities assigned to each class under § 1000.44, as follows:
(i) The hundredweight of Class I skim milk times the Class I skim milk price for the month plus the pounds of Class I butterfat times the Class I butterfat price for the month. The Class I price to be used shall be that price effective at the location of the receiving plant;
(ii) The pounds of nonfat solids in Class II skim milk by the Class II nonfat solids price;
(iii) The pounds of butterfat in Class II times the Class II butterfat price;
(iv) The pounds of nonfat solids in Class IV times the nonfat solids price;
(v) The pounds of butterfat in Class III and Class IV milk times the butterfat price;
(vi) The pounds of protein in Class III milk times the protein price;
(vii) The pounds of other solids in Class III milk times the other solids price; and
(viii) Add together the amounts computed in paragraphs (c)(2)(i) through (vii) of this section and from that sum deduct any payment made pursuant to paragraph (c)(1) of this section; and
(3) For the total quantity of milk received during the month from a cooperative association in its capacity as a handler under § 1000.9(c) as follows:
(i) The hundredweight of producer milk received times the producer price differential as adjusted pursuant to § 1051.75;
(ii) The pounds of butterfat received times the butterfat price for the month;
(iii) The pounds of protein received times the protein price for the month;
(iv) The pounds of other solids received times the other solids price for the month; and
(v) Add together the amounts computed in paragraphs (c)(3)(i) through (v) of this section and from that sum deduct any payment made pursuant to paragraph (c)(1) of this section.
(d)
(e)
(f)
(1) The name, address, Grade A identifier assigned by a duly constituted regulatory agency, and payroll number of the producer;
(2) The daily and total pounds, and the month and dates such milk was received from that producer;
(3) The total pounds of butterfat, protein, and other solids contained in the producer's milk;
(4) The minimum rate or rates at which payment to the producer is required pursuant to the order in this part;
(5) The rate used in making payment if the rate is other than the applicable minimum rate;
(6) The amount, or rate per hundredweight, or rate per pound of component, and the nature of each deduction claimed by the handler; and
(7) The net amount of payment to the producer or cooperative association.
For purposes of making payments for producer milk and nonpool milk, a plant location adjustment shall be determined by subtracting the Class I price specified in § 1051.51 from the Class I price at the plant's location. The difference, plus or minus as the case may be, shall be used to adjust the payments required pursuant to §§ 1051.73 and 1000.76.
See § 1000.76.
See § 1000.77.
See § 1000.78.
On or before the payment receipt date specified under § 1051.71, each handler shall pay to the market administrator its pro rata share of the expense of administration of the order at a rate specified by the market administrator that is no more than 8 cents per hundredweight with respect to:
(a) Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) that were delivered to pool plants of other handlers;
(b) Receipts from a handler described in § 1000.9(c);
(c) Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) and other source milk allocated to Class I pursuant to § 1000.44(a)(3) and (8) and the corresponding steps of § 1000.44(b), except other source milk that is excluded from the computations pursuant to § 1051.60(h) and (i); and
(d) Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to § 1000.76(a)(1)(i) and (ii).
See § 1000.86.
See § 1000.90.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737–100, –200, –200C, –300, –400, and –500 series airplanes. This AD was prompted by reports of cracks found in the rear spar web and lower chord on the left and right wings. This AD requires repetitive detailed inspections for cracking of the rear spar web and lower chord, and applicable on-condition actions. We are issuing this AD to address the unsafe condition on these products.
This AD is effective July 13, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 13, 2018.
For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600; telephone 562–797–1717; internet
You may examine the AD docket on the internet at
Payman Soltani, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712–4137; phone: 562–627–5313; fax: 562–627–5210; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737–100, –200, –200C, –300, –400, and –500 series airplanes. The NPRM published in the
We are issuing this AD to address cracks in the rear spar of the left and right wing between wing buttock line (WBL) 91 and WBL 155, which could lead to the inability of a principal structural element to sustain required flight loads and adversely affect the structural integrity of the airplane.
We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.
The Boeing Company stated its support for the NPRM.
Southwest Airlines (Southwest), requested that we revise paragraph (h) of the proposed AD, which refers to the “Compliance” section of Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017, regarding the different compliance times for the two inspection methods given in Table 1 of the “Compliance” section for Group 2 airplanes. Southwest stated that the planned inspection method should have no bearing on the timing of the inspection, and therefore the compliance times should be the same for both options. They did not specify which of the two compliance times they would favor.
We acknowledge the commenter's request. While the compliance times for inspections are not normally dependent on the planned inspection method, in this case, the initial compliance times were adjusted to account for differences in the probability of detection using a visual inspection versus an eddy current inspection. Because an eddy current inspection is more capable of detecting smaller cracks than a visual inspection, the initial compliance time was shortened for those airplanes that are inspected using the visual inspection option. We have not changed this AD in this regard.
Aviation Partners Boeing stated that the installation of winglets using Supplemental Type Certificate (STC) ST01219SE does not affect the actions specified in the NPRM.
We agree with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added paragraph (c)(2) to this AD to state that installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this final rule with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for addressing the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.
We reviewed Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017. This service information describes procedures for repetitive detailed or surface High Frequency Eddy Current (HFEC) inspections for cracking of the rear spar web and lower chord, and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 160 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 13, 2018.
None.
(1) This AD applies to all The Boeing Company Model 737–100, –200, –200C, –300, –400, and –500 series airplanes, certificated in any category.
(2) Installation of Supplemental Type Certificate (STC) ST01219SE (
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of cracks found in the rear spar web and lower chord on the left and right wings. We are issuing this AD to detect and correct cracks in the rear spar of the left and right wing between wing buttock line (WBL) 91 and WBL 155, which could lead to the inability of a principal structural element to sustain required flight loads and adversely affect the structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For airplanes identified as Group 1 in Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017: Within 120 days after the effective date of this AD, inspect the airplane and do all applicable corrective actions using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
For airplanes identified as Group 2 in Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017: Except as required by paragraph (i) of this AD, at the applicable times specified in the “Compliance” section of Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017.
Guidance for accomplishing the actions required by this AD is included in Boeing Alert Service Bulletin 737–57A1337, dated September 14, 2017, which is referred to in Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017.
(1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017, uses the phrase “the original issue date of Requirements Bulletin 737–57A1337 RB,” this AD requires using “the effective date of this AD.”
(2) Where Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017, specifies contacting Boeing, this AD requires repair using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
(1) The Manager, Los Angeles ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k)(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, Los Angeles ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Payman Soltani, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712–4137; phone: 562–627–
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (l)(3) and (l)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Requirements Bulletin 737–57A1337 RB, dated September 14, 2017.
(ii) Reserved.
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110–SK57, Seal Beach, CA 90740–5600; telephone 562–797–1717; internet
(4) 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.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
We are adopting a new airworthiness directive (AD) for all Airbus Model A318–111 and –112 airplanes; Model A319–111, –112, –113, –114, and –115 airplanes; Model A320–211, –212, –214, and –216 airplanes; and Model A321–111, –112, –211, –212, and –213 airplanes. This AD was prompted by a review of maintenance instructions for a blend repair of the snout diameter of the main beam assembly of the forward engine mount that would create an excessive gap between the bearing mono-ball and the snout. This AD requires modifying the main beam assembly of the forward engine mount. We are issuing this AD to address the unsafe condition on these products.
This AD is effective July 13, 2018.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 13, 2018.
For Airbus service information identified in this final rule, contact Airbus, Airworthiness Office–EIAS, 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
Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198–6547; telephone 425–227–1405; fax 425–227–1149.
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A318–111 and –112 airplanes; Model A319–111, –112, –113, –114, and –115 airplanes; Model A320–211, –212, –214, and –216 airplanes; and Model A321–111, –112, –211, –212, and –213 airplanes. The NPRM published in the
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017–0132R1, dated November 22, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318–111 and –112 airplanes; Model A319–111, –112, –113, –114, and –115 airplanes; Model A320–211, –212, –214, and –216 airplanes; and Model A321–111, –112, –211, –212, and –213 airplanes. The MCAI states:
A review of maintenance instructions revealed that the Goodrich Aerospace CFM56–5B, Forward Engine Mount Component Maintenance Manual (CMM) 71–21–08, revision (rev.) 1 up to 46 (inclusive), repair 10 (Blend Repair-Beam Assembly Snout Diameter), provides instructions to blend the wear on the forward engine mount assembly, Part Number (P/N) 642–2000–9, 642–2000–13, or 642–2000–25, creating an excessive gap between the bearing mono-ball and the snout of the forward engine mount main beam assembly, P/N 642–2006–501, or P/N 642–2006–503.
This condition, if not detected and corrected, could lead to in-flight failure of a forward engine mount and consequent detachment of an engine, possibly resulting in reduced control of the aeroplane and injury to persons on the ground.
To address this potential unsafe condition, Airbus issued Service Bulletin (SB) A320–71–1065 and SB A320–71–1066, and
Consequently, EASA issued AD 2017–0132, requiring replacement of the affected forward engine mount main beam assemblies. As the same main beam assemblies are certified for CFM56–5A engine installation, that [EASA] AD also applied to aeroplanes with that engine.
Since that [EASA] AD was issued, it was determined that, for aeroplanes equipped with an affected forward engine mount main beam assembly, installation of an affected assembly can still be allowed until replacement, as required by this [EASA] AD.
For the reason described above, this [EASA] AD is revised accordingly.
Required actions include modifying the main beam assembly of the forward engine mount. The modification includes repairing, replacing, or reworking the main beam assembly. You may examine the MCAI in the AD docket on the internet at
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
The Air Line Pilots Association, International (ALPA) and Jake Watson stated their support for the proposed AD. American Airlines (AAL) stated that it has no objection to the intent of the NPRM.
AAL stated that the proposed AD should require Goodrich Aerospace Service Bulletin RA32071–159, Rev 1, dated July 25, 2017 (“SB RA32071–159 Rev 1”), which corrects part number references, revises illustrations, and clarifies the procedure. Alternatively, AAL asserted that the proposed AD should allow the use of RA32071–159 Rev 1, or later revisions. AAL stated that Goodrich Aerospace Service Bulletin RA32071–159, dated November 20, 2016, is not useable due to multiple issues.
We do not agree to require RA32071–159 Rev 1. Goodrich Aerospace Service Bulletin RA32071–159 is referenced as an additional source of guidance in Airbus Service Bulletin A320–71–1065, Revision 01, dated July 28, 2017; and Airbus Service Bulletin A320–71–1066, dated December 1, 2016; for inspecting and corrective actions. We acknowledge that RA32071–159 Rev 1 contains several improvements. Therefore, we recommend operators incorporate the latest approved service information. However, in paragraphs (g)(2)(ii) and (h) of this AD, we refer to “Goodrich Aerospace Service Bulletin RA32071–159” and not to any specific revision. Therefore, we have not changed this AD in this regard.
AAL stated that Goodrich Aerospace Service Bulletin RA32071–159 requires operators to “fully disassemble the engine mount assembly”, which is not necessary for the dimensional inspection of the snout. AAL noted that, as long as the mount is not installed on the engine, the bearing assembly can be removed to expose the snout, clean, and measure the snout. AAL added that if an operator is forced to fully disassemble the mount, it will drive the mount to an overhaul, which is time consuming and costly.
We infer that the commenter is asking that we exclude full disassembly of the engine mount assembly from the inspection specified in paragraph (h) of the proposed AD. We do not agree. Neither Airbus nor the state of design authority, EASA, has informed the FAA that the snout diameter can be conclusively measured without full disassembly of the engine mount assembly. AAL did not provide any justification supported by approval from EASA; or Airbus's EASA Design Organization Approval (DOA) to allow deviation from the required for compliance section of the service information. However, under the provisions of paragraph (n) of this AD, we will consider requests for approval of an alternative method of compliance if sufficient data are submitted to substantiate that a deviation would provide an acceptable level of safety. We have made no change to this AD in this regard.
AAL also asked that the FAA compel Goodrich Aerospace to incorporate FAA Advisory Circular 20–176A, dated June 16, 2014, into Goodrich Aerospace Service Bulletin RA32071–159 for the purpose of “. . . distinguishing which steps in an SB will have a direct effect on detecting, preventing, resolving, or eliminating the unsafe condition identified in an AD.” AAL asserted that Goodrich Aerospace has had 7 years to evaluate and incorporate the best practices for drafting service bulletins related to ADs.
We disagree with the commenter's request. FAA Advisory Circular 20–176A, dated June 16, 2014, provides best practices for drafting service bulletins related to ADs. Although we recommend that the original equipment manufacturer (OEM) specify “RC” steps in service information, the FAA advisory circular is not mandatory, only a recommendation as best practices. We have not changed this AD in this regard.
Delta Airlines (Delta) asked that the proposed AD not specify a revision level for Goodrich Aerospace Service Bulletin RA32071–159. Delta added that, if one must be specified, all revisions published prior to the effective date of the AD should be acceptable methods of compliance.
We agree with the commenter's request that the revision level of Goodrich Aerospace Service Bulletin RA32071–159 not be specified. As previously explained, this AD does not specify a revision level for Goodrich Aerospace Service Bulletin RA32071–159. Therefore, no change to this AD is necessary in this regard.
Delta requested that paragraph (g)(1) of the proposed AD be revised to specify that maintenance records must confirm that Repair 10 of Component Maintenance Manual (CMM) 71–21–08, Revisions 1 through 46, has never been performed. Delta stated that, based on the NPRM and service information, it is clear that the discrepant repair is Repair 10 of CMM 71–21–08, Revisions 1 through 46. Delta added that paragraph (g)(1) of the proposed AD does not specify that maintenance records must show only that forward mount main beams have not been repaired per the discrepant Repair 10 of CMM 71–21–08, Revisions 1 through 46, which would classify them as affected main beams.
We disagree with the commenter's request; however, we provide the following clarification. The intent of paragraph (g)(1) of this AD is that if no maintenance record exists then there is a possibility that the main beam has been repaired using Repair 10 of CMM 71–21–08 Revisions 1 through 46, and, therefore, qualifies as an “affected main beam.” We have not changed this AD in this regard.
Delta asked that the exceptions in paragraphs (g)(2)(i) through (g)(2)(iii) of the proposed AD also apply to parts for which maintenance records are not available to confirm repair history. Delta stated that this will account for mounts that are not installed on-wing and future spare purchases. Delta added that paragraph (g)(2) of the proposed AD does not permit parts with unknown repair history to be excluded if the criteria in paragraphs (g)(2)(i) through (g)(2)(iii) of the proposed AD are met. Delta noted that paragraph (g)(1) of the proposed AD, parts with unknown repair history, are considered “affected main beams” and have the same compliance requirements as parts that have been repaired per discrepant Repair 10 of CMM 71–21–08, Revisions 1 through 46.
We do not agree with the commenter's request. Exceptions in paragraphs (g)(2)(i) through (g)(2)(iii) of this AD are based on the fact that maintenance records exist. Therefore, these exceptions do not apply to parts with unknown repair history in paragraph (g)(1) of this AD. We have not changed this AD in this regard.
Delta and Lufthansa Technik (Lufthansa) asked that we allow use of later revisions of the CMM repairs in paragraphs (g)(2)(ii) and (h) of the proposed AD. Delta noted that paragraph (g)(2)(ii) doesn't specify that a repair per the corrected Repair 10 of CMM 71–21–08, Revision 47 (and later), or Repair 21 of CMM 71–21–06, Revision 59 (and later), excludes forward mount main beams from the effectivity. Delta added that the dimensional requirements of corrected Repair 10 and Repair 21 are equivalent to the requirements of Goodrich Aerospace Service Bulletin RA32071–159, and ensure that any main beams repaired will meet the intent of the proposed AD.
Delta stated that paragraph (h) of the proposed AD doesn't specify that a qualifying inspection can be done as specified in the instructions of the later revisions of CMMs 71–21–08 and 71–21–06 that introduced the corrected Repair 10 and Repair 21. Delta explained that CMM 71–21–08, Revision 48 (and later), and CMM 71–21–06, Revision 60 (and later), contain the correct snout diameters as specified in Repair 10 of CMM 71–21–08, Revision 47, and Repair 21 of CMM 71–21–06, Revision 59. Delta further noted that EASA AD 2017–0132R1, dated November 22, 2017, permits the use of later revisions of the CMMs with corrected Repairs 10 and 21.
We disagree with the commenters' requests. We cannot use the phrase, “or later approved revisions,” in an AD when referring to the service document because doing so violates Office of the Federal Register (OFR) regulations for approval of materials “incorporated by reference” in rules. In general terms, we are required by these OFR regulations to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as “referenced” material, in which case we may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for “incorporation by reference.” To allow operators to use later revisions of the referenced document (issued after publication of the AD), either we must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance (AMOC) with this AD under the provisions of paragraph (n) of this AD. We have not changed this AD in this regard.
Delta asked that paragraph (i) of the proposed AD clarify that airplanes on which the main beams have never been replaced are considered Group 2 airplanes. Delta stated that paragraph (i) of the proposed AD doesn't specify that airplanes on which the main beams have never been replaced (and thus never repaired) since aircraft delivery should be considered Group 2 airplanes. Delta added that an airplane on which the forward mounts have never been replaced since aircraft delivery will not have the discrepant Repair 10 of CMM 71–21–08, Revisions 1 through 46.
We do not agree to revise paragraph (i) of this AD; however, we have clarified the airplane group as follows. Paragraph (i) of this AD specifies Group 2 airplanes are airplanes on which an affected main beam has not been installed as of the effective date of this AD. Therefore, airplanes with main beams that have never been replaced since aircraft delivery might be considered Group 2 airplanes, if the original main beam is not an affected main beam as defined in paragraph (g) of this AD. However, if for example, an airplane with main beams that have never been replaced does not have maintenance records to conclusively confirm the part has never been repaired, as specified in paragraph (g)(1) of this AD, then it is a Group 1 airplane. We have not changed this AD in this regard.
Delta asked that the proposed AD use the language “inspect and disposition” instead of “modify” to describe the action required by paragraph (j) of the proposed AD. Additionally, Delta asked that the proposed AD specify that replacement of a forward mount assembly containing an affected main beam with a forward mount assembly that contains an AD-compliant main beam is an acceptable means of compliance. Delta stated that paragraph (j) of the proposed AD uses the term “modify” to describe compliance with the requirements of the inspection and repair of the mounts. Delta added that, based on the instructions in the service information, the intent of the work instructions is to inspect affected main beams and disposition based on inspection findings; the dispositions range from scrapping the main beam to blending, based on measured snout diameter. Delta noted that the replacement of a forward mount assembly that contains an affected main beam with a forward mount assembly with an AD-compliant main beam meets the intent of the proposed AD to remove affected main beams from service.
We partially agree. We do not agree to replace “modify” with “inspect and disposition,” because corrective action cannot be defined by the term “disposition,” which is open to interpretation. Operators must follow the instructions in the Airbus service information referenced in paragraph (j) of this AD for the applicable method of compliance. However, we acknowledge that, while the Accomplishment Instructions of Airbus Service Bulletin A320–71–1066, dated December 1, 2016, specify to do a “Modification of the FWD Engine Mount Assembly on Engine 1 and Engine 2,” the Accomplishment Instructions of Airbus Service Bulletin A320–71–1065, Revision 01, dated July 28, 2017, specify to do inspections and applicable corrective actions. Therefore, we have changed paragraph (j) of this AD to replace “modify” with “modify, including doing all applicable inspections and corrective actions.”
Lufthansa requested that we include Goodrich Aerospace Service Bulletin
We do not agree. The commenter provided no explanation of what is unclear in paragraph (j) or how adding the Goodrich Aerospace service bulletin will clarify the requirements of paragraph (j). Therefore, we have not changed this AD in this regard.
Delta and Lufthansa asked that the proposed AD include credit for doing previous actions by accomplishing Goodrich Aerospace Service Bulletin RA32071–159; Repair 10 of CMM 71–21–08, Revision 47 (and later); or Repair 21 of CMM 71–21–06, Revision 59 (and later). Delta stated that paragraph (l) of the proposed AD includes credit for previous actions only for compliance with Airbus Service Bulletin A320–71–1065, Revision 01, dated July 28, 2017. Delta asserted that the intent of the proposed AD is met by the accomplishment of Goodrich Aerospace Service Bulletin RA32071–159; Repair 10 of CMM 71–21–08, Revision 47 (and later); or Repair 21 of CMM 71–21–06, Revision 59 (and later); due to the correction of the inspection and repair requirements.
We do not agree with the commenter's request. Goodrich Aerospace Service Bulletin RA32071–159 is referenced in the airplane level Airbus service information as a secondary document; therefore, it is not an alternate for the instructions in the airplane level service information. All of the steps in paragraph 3.C. of Airbus Service Bulletin A320–71–1065, Revision 01, dated July 28, 2017, are required for compliance and must be done to comply with this AD. If not done before the effective date of this AD, paragraph (f) of this AD states that you must comply with the actions in the AD, “unless already done.”
Regarding future revisions of CMM repairs, we may not refer to any document that does not yet exist. To allow operators to use later revisions of a required document (issued after publication of the AD), either we must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance with the requirements of an AD under the provisions of the AMOC paragraph of the AD. However, as explained previously, the identified CMM repairs are not required for accomplishment of any action in this AD; therefore, no change to this AD is necessary in this regard.
Delta asked that paragraph (m) of the proposed AD, “Parts Installation Prohibition,” be changed to permit the same allowance to install an affected main beam onto an aircraft equipped with an affected forward engine mount assembly within the compliance windows defined in paragraph (j) of the proposed AD. Delta stated that paragraph (m) of the proposed AD prohibits the installation of an affected main beam on any airplane after the effective date of the AD. Delta further points out that the parallel EASA AD 2017–0132R1, dated November 22, 2017, permits the installation of an affected main beam onto an aircraft equipped with an affected forward engine mount assembly within the compliance times defined in paragraph (j) of the proposed AD.
We agree with the commenter's request. After the NPRM was issued, EASA issued AD 2017–0132R1, dated November 22, 2017, which revised its parts installation requirement. We have revised paragraph (m) of this AD to match the EASA AD. In addition, we have revised this AD to refer to EASA AD 2017–0132R1, dated November 22, 2017.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously, with minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
Airbus has issued Service Bulletin A320–71–1065, Revision 01, dated July 28, 2017. This service information describes procedures for modifying the main beam assembly of the forward engine mount. The modification includes, among other things, repair or replacement of the main beam assembly.
Airbus has also issued Service Bulletin A320–71–1066, dated December 1, 2016. This service information describes procedures for modifying the main beam assembly of the forward engine mount. The modification includes, among other things, rework of the main beam assembly.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 500 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD 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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866,
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
3. Will not affect intrastate aviation in Alaska, and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective July 13, 2018.
None.
This AD applies to all Airbus Model A318–111 and –112 airplanes; Model A319–111, –112, –113, –114, and –115 airplanes; Model A320–211, –212, –214, and –216 airplanes; and Model A321–111, –112, –211, –212, and –213 airplanes; certificated in any category.
Air Transport Association (ATA) of America Code 71, Powerplant.
This AD was prompted by a review of maintenance instructions for a blend repair of the diameter of the snout of the main beam assembly of the forward engine mount that would create an excessive gap between the bearing mono-ball and the snout. We are issuing this AD to prevent in-flight failure of a forward engine mount, and consequent detachment of an engine, which could result in reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
For the purposes of this AD: An “affected main beam” is any main beam assembly of the forward engine mount, part number (P/N) 642–2006–501 or P/N 642–2006–503, identified in paragraph (g)(1) or (g)(2) of this AD.
(1) Any part for which no maintenance records are available to confirm the part has never been repaired.
(2) Any part that was repaired as specified in Repair 10, of Goodrich Aerospace Component Maintenance Manual (CMM) 71–21–08, Revisions 1 through 46, except for parts identified in paragraphs (g)(2)(i), (g)(2)(ii), and (g)(2)(iii) of this AD.
(i) Any part on which a qualifying inspection identified in paragraph (h) of this AD has been done and there were no findings (the inspection was passed).
(ii) Any part on which a qualifying inspection identified in paragraph (h) of this AD has been done and that part has been repaired as specified in Goodrich Aerospace Service Bulletin RA32071–159.
(iii) Any part that has been repaired in accordance with other instructions approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).
For the purposes of this AD: “A qualifying inspection” is an inspection done as specified in Goodrich Aerospace Service Bulletin RA32071–159; or for CFM56–5B engines, an inspection done as specified in Repair 10 of Goodrich Aerospace CMM 71–21–08, Revision 47; or for CFM56–5A engines, an inspection done as specified in Repair 21 of Goodrich Aerospace CMM 71–21–06, Revision 59.
For the purposes of this AD: “Group 1 airplanes” are airplanes on which an affected main beam has been installed as of the effective date of this AD. “Group 2 airplanes” are airplanes on which an affected main beam has not been installed as of the effective date of this AD; this includes airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued after the effective date of this AD.
For Group 1 airplanes as identified in paragraph (i) of this AD: At the earliest of the compliance times specified in paragraphs (j)(1), (j)(2), and (j)(3) of this AD, modify, including doing all applicable inspections and corrective actions, for each affected main beam identified in paragraph (g) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320–71–1065, Revision 01, dated July 28, 2017; or Airbus Service Bulletin A320–71–1066, dated December 1, 2016; as applicable; except as required by paragraph (k) of this AD.
(1) Within 48 months after the effective date of this AD.
(2) Within 10,000 flight cycles after the effective date of this AD.
(3) Within 15,000 flight hours after the effective date of this AD.
Where Airbus Service Bulletin A320–71–1065, Revision 01, dated July 28, 2017, specifies to contact a manufacturer for appropriate action, and specifies that action as “RC” (Required for Compliance): Before further flight, accomplish corrective actions in accordance with the procedures specified in paragraph (n)(2) of this AD.
This paragraph provides credit for the actions required by paragraph (j) of this AD involving Airbus Service Bulletin A320–71–1065, Revision 01, dated July 28, 2017, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320–71–1065, dated December 1, 2016.
Do not install on any airplane an affected main beam or a forward engine mount assembly equipped with an affected main beam, as specified in paragraph (m)(1) or (m)(2) of this AD, as applicable.
(1) For Group 1 airplanes: After modification of the airplane as required by paragraph (j) of this AD.
(2) For Group 2 airplanes: As of the effective date of this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017–0132R1, dated November 22, 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 Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198–6547; telephone 425–227–1405; fax 425–227–1149.
(3) Airbus service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (p)(4) and (p)(5) of this AD.
(4) Goodrich service information identified in this AD that is not incorporated by reference is available at Goodrich Corporation, Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910–2098; phone: 619–691–2719; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Service Bulletin A320–71–1065, Revision 01, dated July 28, 2017.
(ii) Airbus Service Bulletin A320–71–1066, dated December 1, 2016.
(3) For Airbus service information identified in this AD, contact Airbus, Airworthiness Office–EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email:
(4) For Goodrich service information identified in this final rule, contact Goodrich Corporation, Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910–2098; phone: 619–691–2719; email:
(5) 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.
(6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 777–300ER series airplanes. This AD requires replacing the water filter assembly in certain steam ovens. This AD was prompted by a report that water can enter the steam oven cavity and become heated and then released when the oven door is opened. We are issuing this AD to address the unsafe condition on these products.
This AD is effective June 25, 2018.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 25, 2018.
We must receive comments on this AD by July 23, 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 final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110 SK57, Seal Beach, CA 90740–5600; telephone 562 797 1717; internet
You may examine the AD docket on the internet at
Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206–231–3565; email:
We have received a report that members of the cabincrew on a Model 787 airplane were injured when hot
The Jamco steam ovens installed on Model 777–300ER series airplanes have the same part numbers as those installed on the affected Model 787 airplane; therefore, Model 777–300ER series airplanes are subject to the same unsafe condition revealed on the Model 787 airplane. The unsafe condition on Model 787 airplanes has been addressed.
We reviewed Boeing Service Bulletin 777–25–0617, dated June 6, 2014. The service information describes procedures for replacing the water filter assembly in Jamco steam ovens, P/N ASN2001–1 and P/N ASN2001–12. 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 issuing 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 AD requires accomplishing the actions specified in the service information described previously.
There are currently no domestic operators of this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the
We will post all comments we receive, without change, to
Currently, there are no affected U.S.-registered airplanes. If an affected airplane is imported and placed on the U.S. Register in the future, we provide the following cost estimates to comply with this AD:
According to the manufacturer, some or all of the costs of this 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 known 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 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 and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective June 25, 2018.
None.
This AD applies to The Boeing Company Model 777–300ER series airplanes, certificated in any category, as identified in Boeing Service Bulletin 777–25–0617, dated June 6, 2014.
Air Transport Association (ATA) of America Code 25, Equipment/furnishings.
This AD was prompted by a report that water can enter the steam oven cavity and become heated and then released when the oven door is opened. This condition, if not addressed, could result in injury to the cabincrew.
Comply with this AD within the compliance times specified, unless already done.
Within 375 days after the effective date of this AD: Replace the water filter assembly for Jamco steam ovens, part number (P/N) ASN2001–1 and P/N ASN2001–12, at the locations identified in, and in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777–25–0617, dated June 6, 2014.
Boeing Service Bulletin 777–25–0617, dated June 6, 2014, refers to Jamco Service Bulletin ASN2001–25–3118, Revision 1, dated June 5, 2014, as an additional source of information for replacement of the water filter assembly.
As of the effective date of this AD, no person may install on any airplane, a Jamco steam oven having P/N ASN2001–1 or P/N ASN2001–12, unless the modification required by paragraph (g) of this AD is accomplished for that steam oven.
(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 certification office, send it to the attention of the person identified in paragraph (j) 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 Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206–231–3565; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Service Bulletin 777–25–0617, dated June 6, 2014.
(ii) Reserved.
(3) 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
(4) 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.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class E airspace extending upward from 700 feet above the surface at Pago Pago International Airport, Pago Pago, American Samoa (AS), to accommodate new area navigation (RNAV) procedures at the airport. This action is necessary for the safety and management of instrument flight rules (IFR) operations within the National Airspace System.
Effective 0901 UTC, September 13, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is
Kenneth Ready, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267–8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the earth at Pago Pago International Airport, Pago Pago, American Samoa, to support IFR operations at the airport.
The FAA published a notice of proposed rulemaking (NPRM) in the
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Pago Pago International Airport, Pago Pago, AS. This airspace is necessary to accommodate the redesign for IFR operations in standard instrument approach and departure procedures at the airport. Class E airspace is established within a 7-mile radius of Pago Pago International Airport and within 4 miles either side of the 071° bearing extending from the 7-mile radius to 10.6 miles northeast, and within 4 miles either side of the 240° bearing extending from the 7-mile radius to 10.4 miles southwest; and that airspace extending upward from 1,200 feet above the surface within a 20-mile radius of Pago Pago International Airport, excluding that airspace extending beyond 12 miles of the shoreline.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of establishing Class E airspace extending upward from 700 feet above the surface at Pago Pago International Airport, Pago Pago, American Samoa (AS) to accommodate new area navigation (RNAV) procedures at the airport qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, Paragraph 5–6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to cause any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5–2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 7-mile radius of Pago Pago International Airport, and within 4 miles either side of the 071° bearing of the Pago Pago International Airport extending from the 7-mile radius to 10.6 miles northeast of the airport, and within 4 miles either side of the 240° bearing of the airport, and extending from 7-miles radius to 10.4 miles southwest of the Pago Pago
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies the San Francisco, CA, Class B airspace area to contain aircraft conducting instrument flight rules (IFR) instrument approach procedures to San Francisco International Airport (SFO), San Francisco, CA. The FAA is taking this action to improve the flow of air traffic, enhance safety, and reduce the potential for midair collision in the SFO Class B airspace area while accommodating the concerns of airspace users. Further, this effort supports the FAA's national airspace redesign goal of optimizing terminal and enroute airspace to reduce aircraft delays and improve system capacity.
Effective date 0901 UTC, August 16, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Kenneth Ready, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267–8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the San Francisco, CA, Class B airspace area to improve the flow of air traffic and enhance safety within the National Airspace System (NAS).
This document amends FAA Order 7400.11B, airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The FAA published a notice of proposed rulemaking (NPRM) in the
Class B airspace designations are published in paragraph 3000 of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class B airspace designations listed in this document will be subsequently published in the Order.
In the response to the NPRM, several individuals and three aviation groups: Airline Pilots Association, International (ALPA), Aircraft Owners and Pilot Association (AOPA), and Experimental Aircraft Association (EAA) submitted comments expressing support for the proposed design of the San Francisco Class B and provided substantive comments and recommendations to further the design. The comments were grouped in the following:
Having considered the issues and recommendations provided by the commenters, the FAA offers the following responses.
One individual commenter stated glider operations are just outside of the current lateral limits of the airspace and expanding the airspace may cause issues for the operations that exist in those locations.
Prior to publishing the NPRM, the FAA formed an ad-hoc committee and held informal airspace meetings to present a pre-rulemaking outline of the revised Class B airspace. At that time, representatives from the glider community expressed concern that the changes to the airspace would have a negative impact on glider activity near Mount Diablo. Based on this input, the proposal put forth in the NPRM reflected changes to the Class B airspace over Mt. Diablo by eliminating some of the Class B airspace previously suggested during the pre-rulemaking phase and raising the floor in other areas to 7000 feet. The FAA is retaining these changes in the final rule to accommodate glider operations in the Mount Diablo area. In addition, the airspace over Pacifica was raised in the design proposal, accepted during the ad-hoc and thereby accommodating hang gliders.
Four comments were received regarding the shape and altitudes associated with Area C and Area D. One
Areas C and D were not designed to capture the Area Navigation (RNAV) departure procedures (DPs). These areas were designed to contain the instrument approaches to Runway (RWY) 10. Track data shows that the SNTNA DP, GNNRR DP and WESLA DPs do not enter Area C or D. All of these DPs have an initial climb gradient of at least 500 feet per nautical mile and standard aircraft performance places them above the C and D areas. The DPs were designed in compliance with the current RNAV DP design criteria in concert with industry and air traffic control standards. They were flown in simulators under varied wind conditions and have been utilized without incident since March 2015.
Three other comments were concerned that lowering the floor of Areas C and D would impede VFR transiting along the coast.
Area C is an arrival extension to Area A and was built to contain RNAV approaches to RWY10. Area D provides a longer arrival extension from the west and also contains the RWY10 arrival approaches and neither can be raised. The RNAV approach to RWY10L crosses NORMM (intermediate fix) which is located just outside of Area D at or above 3,500 feet descending on a 3-degree glide path to cross XATTU (final approach fix) at or above 1,800 feet descending. XATTU is located on the border of Area C and Area A. Area D is needed to contain this descent path. The RNAV approaches to RWY10R cross DOTNE (intermediate fix) at 3,500 feet descending on a 3-degree glide path to cross JULOS (final approach fix) at 1,900 feet descending. DOTNE is just outside of Area D and JULOS is in the center of Area C. Area D is needed to contain this decent path. Area C is needed to capture the descent through 1,900 feet to 1,600 on the approach.
Two individual commenters stated lowering Area B from 1500 to 1400 feet will almost certainly lead to inadvertent Class B violations from pilots making a right crosswind departure from KSQL RWY30. Additionally, they indicate that it will put a general aviation pilot at a disadvantage if flying over water.
The FAA concurs and raised the floor of Area B to 1,500 feet.
Two aviation groups (AOPA and EAA) stated lowering the floor of Area F would reduce the airspace available for aircraft to transit the VFR flyway simultaneously in both directions from San Carlos Airport (SQL) and Palo Alto (PAO) airport. AOPA also indicated the FAA must justify the reduction of the Class B floor, as it does not appear to be aligned with any final approach course. AOPA and EAA both raised concerns for the potential of a mid-air collision due to compression and congestion. One aviation group (ALPA) concurs with the NPRM design, which was suggested by the ad hoc committee.
The FAA policy for airspace design directs that Class B airspace designers have the flexibility to use the configuration that best meets the purposes of reducing mid-air collision potential, assures containment of instrument approaches, and enhances the efficient use of airspace. The floor of the Area F airspace takes into account the visual approaches to the runway, which enhances the efficiency of the airspace.
Published procedures, separation minimum, track data, and local experience were used to determine the required airspace floor in this area. Additionally, SFO arrivals to RWY28 have two charted visual approaches that are highly used, thereby increasing efficiency to the airport. San Francisco's air traffic control tower and Northern California TRACON (NCT) advertise and issue side-by-side visual approaches approximately 86% of the time. Visual approaches are a critical component of the efficiency of the San Francisco Airport. The arrival rate during visual meteorological conditions (VMC) when using side-by-side visual approaches is 54 arrivals and during instrument meteorological conditions (IMC) it is 36 arrivals. The higher efficiency rate is only possible through the use of visual approaches. While operating at the higher rate the FAA has a requirement to maintain vertical separation between the two visual approach aircraft until visual separation is applied. Aircraft altitudes are stepped down when using visual approaches. Aircraft arriving RWY28L are kept lower than aircraft on RWY28R. This allows the FAA to safely transition to simultaneous ILS approaches quickly if a weather front comes in, which is a common occurrence in the San Francisco Bay area. Additionally, a special flyway was developed to facilitate PAO and SQL airports traffic. The highest minimum vectoring altitude (MVA) on RWY28L final is 2100 feet. NCT uses the airspace to 2100 feet in Area F; however, due to the mid-air collision concerns raised by the aviation group commenters, the floor is being raised to 2300 feet in this final rule.
The floor inside of Area F will be raised to 2,300 feet and VFR aircraft will have adequate maneuvering altitude with this design.
AOPA and EAA requested justification for the establishment of a 10,000-foot ceiling to the Class B airspace. AOPA noted that the 10,000-foot ceiling will require general aviation pilots seeking to transit the Class B airspace to fly at a low altitude (less than 1,600 feet MSL) or a high altitude (over 10,000 feet MSL). AOPA states that the FAA should improve the opportunity for general aviation aircraft to overfly the coast at cruise altitudes more normally utilized, such as 7,500 and 8,500 feet MSL. AOPA recommended that the Class B areas west of the U.S. coast have a ceiling of 7,000 feet MSL to facilitate general aviation overflight without the requirement to obtain a clearance. One aviation group (ALPA) concurred with the NPRM design stating departure and arrival procedures enter and exit the Class B at higher altitudes.
Generally, the standard design for Class B airspace is from the surface to 10,000 feet MSL. Class B airspace surrounds the nation's busiest airports in terms of airport operations or passenger enplanements. The configuration of each Class B airspace area is individually tailored and is designed to contain all published instrument procedures. The current Class B airspace between 8,000 and 10,000 feet at San Francisco International Airport is used to do much of the vectoring of aircraft to facilitate sequencing and provide for separation on final. The airspace around the Bay Area is very congested and the only airspace available for vectoring that facilitates the sequencing of arrivals and prevents conflict with other arrivals and departures is offshore. Fifty percent of the aircraft on the SERFR from the south are vectored. Aircraft from the east cannot be vectored without conflicting with multiple other arrival and departure routes. There are a significant number of arrivals from the west, northwest, and southwest offshore. The FAA is being asked by the public to perform more vectoring offshore to mitigate aircraft noise. Additionally,
One individual commenter stated, because the lateral boundaries of Class B airspace are being expanded, the Mode C veil will be extended as well. The commenter noted that this change will cause financial loss due to the equipment requirements (Mode C transponder/ADS–B Out) associated with this airspace expansion. Additionally, one individual commenter contends the expansion of the Class B airspace will have a negative financial burden to aircraft owners due to Automatic Dependent Surveillance-Broadcast (ADS–B) requirement in 14 CFR 91.225(d)(3)”; stating privately owned aircraft will have to move their aircraft further away from the Class B airspace if they do not equip for ADS–B.
The FAA does not agree with the commenter who states the Mode C Veil will expand with the expansion of the Class B airspace. The Mode C veil was established by an independent 14 Code of Federal Regulation (CFR) rulemaking action under part 91.215 “ATC transponder and altitude reporting equipment and use.” Although the Class B airspace extends beyond 30 miles in certain areas around SFO, the Mode C veil does not extend with the Class B airspace and remains a 30-mile ring around SFO.
The FAA does not agree with the individual commenters that stated expansion beyond 30 miles for the Class B will expand the forthcoming ADS–B equipment mandate. The ADS–B requirement in 14 CFR 91.225 states ADS–B equipment is required in 1) Class B, 2) within 30 miles and up to 10,000 feet MSL of a Class B, 3) above the ceiling and within the lateral boundaries of a Class B upward to 10,000 feet MSL. In the three locations where SFO's Class B extends beyond 30 miles all altitudes for those areas are 8,000 feet to 10,000 feet MSL. Considering these areas are Class B (from 8,000 to 10,000 feet MSL) they require ADS–B equipment. There is no provision stating you must equip with ADS–B below the floor and within the boundaries of a Class B outside the 30-mile ring. Hence, aircraft that choose not to equip with the ADS–B mandate in the year 2020, will not have to extend beyond 30 miles to other airports because the SFO Class B expanded beyond 30 miles at higher altitudes.
In the NPRM, the FAA proposed lower floor altitudes for Areas B and F but have raised these altitudes in response to comments received to the NPRM. Initially, Area B was proposed at 1,400 feet MSL and has been changed to 1,500 feet MSL. Area F was proposed at 2,100 feet MSL and has been changed to 2,300 feet MSL.
Additionally, a charting error is being corrected to Area C. The initial geographic lat/long coordinate (lat. 37°41′25″ N, long. 122°30′23″ W) in Area C was duplicated at the end of the description in the NPRM. The FAA is removing the unnecessary secondary geographic lat/long coordinate to correct the charting error.
The FAA is amending Title 14 of the Code of Federal Regulations (14 CFR) part 71 to modify the SFO Class B airspace area. This action (depicted on the attached graphic) moves away from the three concentric circle (upside down wedding cake) design configuration and is redrawn based on arrival and departure routes into and out of SFO. Using this design approach allows the FAA to minimize the Class B airspace necessary to contain instrument procedures within Class B airspace for aircraft arriving and departing SFO and to re-designate current Class B airspace as Class E or Class G to make it available for aircraft circumnavigating the Class B airspace area. Additionally, the proposed modifications would better segregate IFR aircraft arriving/departing SFO and VFR aircraft operating in the vicinity of the SFO Class B airspace area. The modifications to the SFO Class B airspace area are discussed below.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a
The FAA has determined that this action of redesigning Class B airspace associated with the KSFO for the purpose of reducing the potential for midair collisions in airspace around airports with high-density air traffic, qualifies for categorical exclusion under the National Environmental Policy Act and its agency-specific implementing regulations in FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” regarding categorical exclusions for procedural actions at paragraph 5–6.5.a, which categorically excludes from full environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points. This airspace action is an editorial change only and is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5–2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there is no new information collection requirement associated with this rule.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96–354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96–39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995).
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows.
It is appropriate to redesign SFO Class B airspace for reasons described earlier including the availability of new procedures such as the use of “Optimized Profile Descents,” advances in technology; migration to GPS from ground based navigation facilities and updated charting criteria.
This regulation will modify the San Francisco, CA, (SFO) Class B airspace area to improve the flow of air traffic, enhance safety and reduce the potential for midair collision in the SFO Class B airspace area while accommodating the concerns of airspace users. This effort supports the FAA's national airspace redesign goal of optimizing terminal and enroute airspace to reduce aircraft delays and improve system capacity.
The Class B airspace redesign may enhance opportunities for more fuel-efficient descent profiles.
Further, the SFO Class B airspace redesign will enhance safety by containing IFR traffic arriving and departing SFO within the confines of Class B airspace and will better segregate IFR and VFR aircraft.
Finally, the regulation will return current Class B airspace that is not being used for SFO airport arrivals or departures to the NAS. Because it will modify SFO Class B airspace to take advantage of more fuel efficient approaches and optimize terminal and enroute airspace to reduce delays and improve system capacity, the rule is expected to be a minimal cost rule with the potential to result in minor cost savings.
FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.
The Regulatory Flexibility Act of 1980 (Pub. L. 96–354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The redesign of the SFO Class B airspace will not affect a substantial number of small entities because the redesign does not alter or amend any existing flight path at SFO. Any change to an existing flight path will be achieved through a separate action. Therefore, the expected outcome, if any, will be a minimal economic impact on small entities affected by this rulemaking action.
If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the
The Trade Agreements Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States.
Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will improve safety and is consistent with the Trade Agreements Act.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106 (f),106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA or we) is classifying the microneedling device for aesthetic use into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the microneedling device for aesthetic use's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective June 8, 2018. The classification was applicable on March 1, 2018.
Kimberly Ferlin, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G449, Silver Spring, MD, 20993–0002, 240–402–1834,
Upon request, FDA has classified the microneedling device for aesthetic use as class II (special controls), which we
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105–115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112–144). A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA shall classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less burdensome 510(k) process, when necessary, to market their device.
On July 5, 2016, Bellus Medical, LLC, submitted a request for De Novo classification of the SkinPen Precision System. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on March 1, 2018, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 878.4430. We have named the generic type of device microneedling device for aesthetic use, and it is identified as a device using one or more needles to mechanically puncture and injure skin tissue for aesthetic use. This classification does not include devices intended for transdermal delivery of topical products such as cosmetics, drugs, or biologics.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910–0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910–0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910–0120; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910–0485.
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 878 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(a)
(b)
(1) The technical specifications and needle characteristics must be identified, including needle length, geometry, maximum penetration depth, and puncture rate.
(2) Non-clinical performance data must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be tested:
(i) Accuracy of needle penetration depth and puncture rate;
(ii) Safety features built into the device to protect against cross-contamination, including fluid ingress protection; and
(iii) Identification of the maximum safe needle penetration depth for the device for the labeled indications for use.
(3) Performance data must demonstrate the sterility of the patient-contacting components of the device.
(4) Performance data must support the shelf life of the device by demonstrating continued sterility, package integrity, and device functionality over the intended shelf life.
(5) Performance data must demonstrate the electrical safety and electromagnetic compatibility (EMC) of all electrical components of the device.
(6) Software verification, validation, and hazard analysis must be performed for all software components of the device.
(7) The patient-contacting components of the device must be demonstrated to be biocompatible.
(8) Performance data must validate the cleaning and disinfection instructions for reusable components of the device.
(9) Labeling must include the following:
(i) Information on how to operate the device and its components and the typical course of treatment;
(ii) A summary of the device technical parameters, including needle length, needle geometry, maximum penetration depth, and puncture rate;
(iii) Validated methods and instructions for reprocessing of any reusable components;
(iv) Disposal instructions; and
(v) A shelf life.
(10) Patient labeling must be provided and must include:
(i) Information on how the device operates and the typical course of treatment;
(ii) The probable risks and benefits associated with use of the device; and
(iii) Postoperative care instructions.
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA or we) is classifying the in vivo cured intramedullary fixation rod into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the in vivo cured intramedullary fixation rod's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.
This order is effective June 8, 2018. The classification was applicable on December 19, 2017.
Peter Allen, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1512, Silver Spring, MD 20993–0002, 301–796–6402,
Upon request, FDA has classified the in vivo cured intramedullary fixation rod as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by
The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).
FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).
FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105–115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112–144). A device sponsor may utilize either procedure for De Novo classification.
Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).
Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.
Under either procedure for De Novo classification, FDA shall classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.
We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less burdensome 510(k) process, when necessary, to market their device.
On December 28, 2016, IlluminOss Medical, Inc. submitted a request for De Novo classification of the IlluminOss Photodynamic Bone Stabilization System. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.
We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on December 19, 2017, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 888.3023. We have named the generic type of device in vivo cured intramedullary fixation rod, and it is identified as a prescription implanted device consisting of a balloon that is inserted into the medullary canal of long bones for the fixation of fractures. The balloon is infused with, and completely encapsulates, a liquid monomer that is exposed to a curing agent that polymerizes the monomer within the balloon creating a hardened rigid structure.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.
At the time of classification, in vivo cured intramedullary fixation rods are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met (referring to 21 U.S.C. 352(f)(1)).
The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910–0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910–0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910–0120; and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910–0485.
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 888 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360
(a)
(b)
(1) Non-clinical performance testing must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be tested:
(i) Mechanical testing must be conducted on the final device to assess burst, abrasion, bending, and torsion in static and dynamic conditions.
(ii) Mechanical testing must demonstrate the integrity of the balloon including testing for leaks, ruptures, and release of cured/uncured material.
(iii) Performance testing must demonstrate that the device can be inserted and removed.
(iv) Performance testing must demonstrate the ability, in the event of a leak, to remove the uncured material from its in vivo location.
(v) Performance testing must demonstrate the reliability and accuracy of the curing method used.
(vi) Thermal safety testing must be conducted to evaluate the temperature rise during curing.
(2) Electrical safety, electromagnetic compatibility (EMC) testing, and electromagnetic interference (EMI) testing must be conducted for all electrical components.
(3) All patient-contacting components must be demonstrated to be biocompatible.
(4) Performance data must demonstrate the sterility and pyrogenicity of patient contacting components of the device that are provided sterile.
(5) Performance data must validate the reprocessing instructions for any reusable components or instruments.
(6) Performance data must support the shelf life of the system by demonstrating continued sterility, package integrity, and system functionality over the established shelf life.
(7) Technological characterization of the device must include materials, curing agents, and a description of the operating principles of the device, including the delivery system and devices which initiate the curing process.
(8) Labeling must include the following:
(i) A detailed summary of the device technical parameters.
(ii) Information describing all materials of the device.
(iii) Information describing how to perform the procedure and use the device, including the delivery system and devices which initiate the curing process, as well as how to remove the device and any uncured materials.
(iv) A shelf life.
(v) Validated methods and instructions for reprocessing any reusable components or instruments.
Internal Revenue Service (IRS), Treasury.
Final rule.
This document contains final regulations that prevent a corporate partner from avoiding corporate-level gain through transactions with a partnership involving equity interests of the partner or certain related entities. This document also contains final regulations that allow consolidated group members that are partners in the same partnership to aggregate their bases in stock distributed by the partnership for the purpose of limiting the application of rules that might otherwise cause basis reduction or gain recognition. This document also contains final regulations that may also require certain corporations that engage in gain elimination transactions to reduce the basis of corporate assets or to recognize gain. These final regulations affect partnerships and their partners.
Concerning the final regulations, Kevin I. Babitz, (202) 317–6852.
On June 12, 2015, the Department of the Treasury (and the IRS published final and temporary regulations (TD 9722) under section 337(d) of the Internal Revenue Code (Code) in the
A notice of proposed rulemaking (REG–149518–03) withdrawing proposed regulations under section 337(d) published in 1992, and proposing new proposed regulations by cross-reference to the temporary regulations, was published in the
The Treasury Department and the IRS received one comment letter in response to the 2015 regulations. Except as described below, the commenter largely supported the 2015 regulations while recommending some minor modifications and clarifications to the 2015 regulations under both section 337(d) and section 732(f). The comment letter is discussed in detail in the Explanation of Provisions section of this preamble.
After considering this comment letter, this Treasury decision adopts as final regulations the rules set forth in the 2015 regulations under section 337(d) (with only minor, nonsubstantive clarifications in response to the commenter's request for additional certainty regarding certain collateral effects) and section 732(f) (without any change). However, the Treasury Department and the IRS are considering publishing a new notice of proposed rulemaking to propose more substantive amendments to the final regulations under section 337(d) and to allow for additional public comment with respect to these more substantive proposals in response to the comment letter, further reflection by the Treasury Department and the IRS, and concerns raised by practitioners.
In
Under current law, sections 311(b) and 336(a) require a corporation that distributes appreciated property to its shareholders to recognize gain determined as if the property were sold to the shareholders for its fair market value. Additionally, section 631 of the Act added section 337(d) to permit the Secretary to prescribe regulations that are necessary or appropriate to carry out the purposes of the
After the enactment of sections 311(b) and 337(d), the Treasury Department and the IRS became aware of transactions in which taxpayers used a partnership to postpone or avoid completely gain generally required to be recognized under section 311(b). In one example of this transaction, a corporation entered into a partnership and contributed appreciated property. The partnership then acquired stock of that corporate partner, and later made a liquidating distribution of this stock to the corporate partner. Under section 731(a), the corporate partner did not recognize gain on the partnership's distribution of its stock. By means of this transaction, the corporation had disposed of the appreciated property it formerly held and had acquired its own stock, permanently avoiding its gain in the appreciated property. If the corporation had directly exchanged the appreciated property for its own stock, section 311(b) would have required the corporation to recognize gain upon the exchange.
In response to these types of abusive transactions, the Treasury Department and the IRS issued Notice 89–37, 1989–1 CB 679, on March 9, 1989. Notice 89–37 announced that future regulations under section 337(d) would address the use of partnerships to avoid the repeal of the
On December 15, 1992, the Treasury Department and the IRS published a notice of proposed rulemaking under section 337(d) (PS–91–90, REG–208989–90, 1993–1 CB 919) in the
The 2015 regulations under section 337(d) set forth a rule (the deemed redemption rule) that was aimed at protecting the repeal of the
The 2015 regulations did not adopt the separate distribution rule set forth in the 1992 proposed regulations. Instead, the 2015 regulations applied the deemed redemption rule to partnership distributions of Stock of the Corporate Partner to the Corporate Partner as though the partnership amended its agreement, immediately before the distribution, to allocate 100 percent of the distributed stock to the Corporate Partner. The 2015 regulations also set forth de minimis and inadvertence exceptions to the deemed redemption rule.
Section 538 of the Ticket to Work and Work Incentives Improvement Act of 1999, Public Law 106–170 (113 Stat. 1860) (December 17, 1999), added section 732(f) generally effective for distributions of made after July 14, 1999. Section 732(f) provides that if (1) a corporate partner receives a distribution from a partnership of stock in another corporation (distributed corporation); (2) the corporate partner has control of the distributed corporation, defined as ownership of stock meeting the requirements of section 1504(a)(2), immediately after the distribution or at any time thereafter (control requirement); and (3) the partnership's basis in the stock immediately before the distribution exceeded the corporate partner's basis in the stock immediately after the distribution, then the basis of the distributed corporation's property must be reduced by this excess. The amount of this reduction is limited to the amount by which the sum of the aggregate adjusted basis of property and the amount of money of the distributed corporation exceeds the corporate partner's adjusted basis in the stock of the distributed corporation. The corporate partner must recognize gain to the extent that the basis of the distributed corporation's property cannot be reduced.
Congress enacted section 732(f) due to concerns that a corporate partner could otherwise negate the effects of a basis step-down to distributed property required under section 732(b) by applying the step-down against the basis of the stock of the distributed corporation.
For example, assume a corporate partner has a partnership interest with zero basis and receives a partnership distribution of high-basis stock in a corporation. The corporate partner's basis in the distributed corporation's stock is reduced to zero under section 732(a) or section 732(b). If the partnership has elected under section 754, then the basis of other partnership property is increased by an equal amount under section 734(b). The section 732 basis decrease and the section 734(b) basis increase generally offset each other. However, if the corporate partner owned stock in the distributed corporation that satisfied the control requirement, the corporate partner could liquidate the distributed corporation under section 332, and section 334(b) would generally provide for a carryover basis in the distributed corporation's property received by the corporate partner in the liquidation. Taken together, these rules could permit the partnership to increase the basis of its retained property without an equivalent basis reduction following the liquidation of the distributed corporation. Section 732(f) generally precludes this result by requiring that either the distributed corporation must reduce the basis of its property or the corporate partner must recognize gain (to the extent the distributed corporation is unable to reduce the basis of its property). Thus, section 732(f) generally ensures that any basis increase under section 734(b) is offset.
Section 732(f)(8) grants the Secretary authority to prescribe regulations that may be necessary to carry out the purposes of this subsection, including regulations to avoid double counting and to prevent the abuse of such purposes.
In the preamble to the 2015 regulations under section 732(f), the Treasury Department and the IRS stated that the application of section 732(f) was too broad in some circumstances and too narrow in others. Specifically, the application was overbroad because section 732(f) could require basis reduction or gain recognition even though that basis reduction or gain recognition did not further the purposes of section 732(f). Alternatively, the application was too narrow because corporate partners could inappropriately avoid the purposes of section 732(f) by engaging in transactions that allow corporate partners to receive property held by a distributed corporation without reducing the basis of that property to account for basis reductions under section 732(b) made when the partnership distributed stock of the distributed corporation to the corporate partner.
To address these concerns, the 2015 regulations set forth specific rules governing the application of section 732(f) in two specific sets of circumstances. The first rule would permit consolidated group members to aggregate the bases of their respective interests in the same partnership, in certain circumstances, for section 732(f) purposes. The second rule would restrict corporate partners from entering into certain transactions or a series of transactions (gain elimination transactions), such as a distribution followed by a reorganization under section 368(a), that might eliminate gain in the stock of a distributed corporation while avoiding the effects of a basis step-down under section 732(f) because the control requirement would not be immediately satisfied.
In addition, the 2015 regulations under section 732(f) required taxpayers to apply those rules to tiered partnerships in a manner consistent with the purpose of section 732(f).
The final regulations under section 337(d) provide that the purpose of the regulations is to prevent corporate taxpayers from using a partnership to circumvent gain required to be recognized under section 311(b) or section 336(a). These final regulations, including the rules governing the amount, timing, and character of recognized gain, must be applied in a manner consistent with, and which reasonably carries out, this purpose.
These final regulations apply when a partnership, either directly or indirectly, owns, acquires, or distributes Stock of the Corporate Partner (as defined in § 1.337(d)–3(c)(2) of these final regulations). Under these final regulations, a Corporate Partner (as defined at § 1.337(d)–3(c)(1) of these final regulations) may recognize gain when it is treated as acquiring or increasing its interest in Stock of the Corporate Partner held by a partnership in exchange for appreciated property in a manner that avoids gain recognition under section 311(b) or section 336(a). These final regulations also provide exceptions under which a Corporate Partner is not required to recognize gain.
The 2015 regulations defined a
The commenter asked whether an equity interest issued by a third party on a Corporate Partner's stock, such as an option issued by a bank on the Corporate Partner's stock, was considered Stock of the Corporate Partner. The Treasury Department and the IRS confirm that all options, warrants, and other similar interests issued by third parties on a Corporate Partner's stock, a Controlling Corporation's stock, or any interests in any entity to the extent that the value of the interest is attributable to Stock of the Corporate Partner, are Stock of the Corporate Partner under both the temporary regulations and these final regulations. No inference is intended regarding whether options, warrants, and other similar interests are subject to section 1032 where they create an equity interest in the Stock of the Corporate Partner.
The 2015 regulations provided that Stock of the Corporate Partner includes the stock (or other equity interests) in a Controlling Corporation. The commenter asked whether stock in a Controlling Corporation wholly constitutes Stock of the Corporate Partner or only constitutes Stock of the Corporate Partner to the extent the value of the Controlling Corporation's stock is attributable to that corporation's interest in the Corporate Partner. These final regulations clarify that it is intended that stock (or any other equity interest) in a Controlling Corporation will wholly constitute Stock of the Corporate Partner irrespective of the ratio of the Controlling Corporation's interest in the Corporate Partner to the Controlling Corporation's total assets. In response to this comment, the final regulations also include a new example to clearly illustrate this point. See
With respect to the rule that Stock of the Corporate Partner includes an interest in an entity to the extent that the value of the interest is attributable to the Stock of the Corporate Partner (Value Rule), the commenter asked that, in cases in which the entity is not controlled by the Corporate Partner and which is not a Controlling Corporation, that a limitation be added that the interest in the entity would not be treated as Stock of the Corporate Partner if less than 20 percent of the assets of the entity consisted of Stock of the Corporate Partner. The Treasury Department and the IRS agree with the commenter that the Value Rule in the 2015 regulations could be overbroad in certain situations but decline to adopt the commenter's specific suggestion in these final regulations because such a rule would be too generous and could permit taxpayers to structure transactions that would contravene the purpose of section 337(d) and these regulations. However, the Treasury Department and the IRS are considering publishing new proposed regulations to limit the application of the Value Rule to entities that are not Controlling Corporations but which own, directly or indirectly, 5 percent or more of the stock, by vote or value, of the Corporate Partner and clarifying how taxpayers would determine what portion of the value of the interest in the entity is attributable to Stock of the Corporate Partner.
The 2015 regulations defined Stock of the Corporate Partner to include stock in a Controlling Corporation. The 2015 regulations employed the section 304(c) definition of control, which generally requires the ownership of stock with either 50 percent of the voting power in the corporation or 50 percent of the value of the corporation. While section 304(c) incorporates the constructive ownership rules of section 318(a) with some modifications, the 2015 regulations excluded the application of sections 318(a)(1) and (3) from its definition of control.
The commenter agreed with excluding section 318(a)(3) attribution from the application of section 304(c) under the 2015 regulations, but noted that it may be inappropriate to exclude section 318(a)(1) family attribution. The commenter suggested that families could invoke this exclusion to structure partnerships in such a way to avoid these regulations but which would be transactions that should otherwise be subject to these final regulations. The Treasury Department and the IRS agree that excluding family attribution under section 318(a)(1) could produce inappropriate results. Additionally, the Treasury Department and the IRS have also determined that taxpayers could structure transactions designed to take advantage of the lack of section 318(a)(3) attribution. Therefore, the Treasury Department and the IRS are considering publishing new proposed regulations to further modify the definition of Stock of the Corporate Partner so that it would no longer exclude attribution under sections 318(a)(1) and (3) when determining whether an interest in an entity is Stock of the Corporate Partners under section 304(c), but which would limit the proposed expanded scope of section 304(c) control to entities that own, directly or indirectly, an interest in the Corporate Partner.
The 2015 regulations provided an exception from the definition of Stock of the Corporate Partner in the case of certain related-party partnerships. Under this exception, Stock of the Corporate Partner did not include any stock or other equity interests held or acquired by a partnership if all interests in the partnership's capital and profits are held by members of an affiliated group defined in section 1504(a) that includes the Corporate Partner (Affiliated Group Exception).
The commenter suggested that the final regulations extend the Affiliated Group Exception to partnerships in which a high percentage, but not all, of its interests are owned by affiliated group members. The commenter asserted that, under these facts, there would be no reason to require gain recognition. The commenter also recommended that the final regulations extend the affiliated group exception to lower-tier partnerships owned by one or more upper-tier partnerships, if the upper-tier partnerships are entirely owned by members of an affiliated group that includes the Corporate Partner.
After further study of this issue, and in light of the other exceptions to the deemed redemption rule, the Treasury Department and the IRS decline to adopt these comments because even without such extensions the Affiliated Group Exception could permit inappropriate elimination of corporate level built-in gain. For example—
Assume that P, a corporation, owns all of the stock of S1, and S1 owns all of the stock of CP. P, S1, and CP are members of an affiliated group. P and CP form a 50–50 partnership, where CP contributes an appreciated asset to the partnership, and P contributes S1 stock with a basis equal to fair market value. After seven years, the partnership liquidates and distributes the S1 stock to CP and the appreciated asset to P. At that time, the asset may be sold outside of the group with an artificially increased basis. While the built-in gain that was in the asset now is preserved in the S1 stock held by CP, the group may permanently eliminate the gain without tax by causing CP to liquidate. CP would receive nonrecognition treatment on distribution of the S1 stock to S1 under section 332, and S1 would receive nonrecognition treatment on the receipt of its own stock under section 1032. Thus, the liquidation of CP permanently eliminates the built-in gain on the appreciated asset that attached to the hook stock CP held in S1 after the liquidation of the partnership.
Although these final regulations retain the Affiliated Group Exception, the Treasury Department and the IRS are considering publishing new proposed regulations to remove the Affiliated Group Exception because this exception can permit corporations to engage in transactions with partnerships to eliminate permanently the built-in gain on appreciated assets or otherwise to avoid the purposes of
The 2015 regulations provided that, for partnerships that hold Stock of the Corporate Partner, the 2015 regulations apply to a transaction (or a series of transactions) that is a “Section 337(d) Transaction.” The 2015 regulations defined a
In certain circumstances, a partnership's acquisition of Stock of the Corporate Partner does not have the effect of an exchange of appreciated property for that stock. For example, if a partnership with an operating business uses the cash generated in that business to purchase Stock of the Corporate Partner, the deemed redemption rule does not apply to the stock purchase because the Corporate Partner's share in appreciated property has not been reduced, and thus no exchange has occurred. The Treasury Department and the IRS acknowledge that such stock acquisitions would not trigger the deemed redemption rule. The Treasury Department and the IRS note, however, that because of the administrative difficulties in tracing the source of cash used to acquire Corporate Partner stock, taxpayers wishing to invoke this exception must maintain appropriate records or other documentation to affirmatively demonstrate that the consideration used in the exchange to acquire the Stock of the Corporate Partner at issue came from operating cashflow.
The commenter asked whether the 2015 regulations encompassed other types of acquisitions of Stock of the Corporate Partner for cash, and requested that the final regulations include examples of transactions that do not have the effect of an exchange of appreciated property for Stock of the Corporate Partner. The Treasury Department and the IRS considered this comment, but decline to add additional examples because those examples would go beyond the scope of these final regulations which is to prevent the exchange of appreciated property for Stock of the Corporate Partner.
The 2015 regulations provided that if a transaction is a Section 337(d) Transaction, a Corporate Partner must recognize gain under the deemed redemption rule. To determine the amount of gain, the Corporate Partner must first determine the amount of appreciated property (other than Stock of the Corporate Partner) effectively exchanged for Stock of the Corporate Partner (by value) and then calculate the amount of taxable gain recognized.
The deemed redemption rule applies only to the extent that the transaction has the effect of an exchange by the Corporate Partner of its interest in appreciated property for Stock of the Corporate Partner. Thus, this rule does not apply to the extent a transaction has the effect of an exchange by a Corporate Partner of non-appreciated property for Stock of the Corporate Partner or has the effect of an exchange by a Corporate Partner of appreciated property for property other than Stock of the Corporate Partner.
The 2015 regulations set forth general principles that apply in determining the amount of appreciated property effectively exchanged for Stock of the Corporate Partner. These general principles require that the Corporate Partner's economic interest with respect to both Stock of the Corporate Partner and all other appreciated property of the partnership be determined based on all facts and circumstances, including the allocation and distribution rights set forth in the partnership agreement.
A Corporate Partner must recognize gain under the 2015 regulations even if the Section 337(d) Transaction would not otherwise change the Corporate Partner's allocable share of gain under section 704(c). For example, if a Corporate Partner contributes
The Treasury Department and the IRS did not receive comments on this general deemed redemption rule. Therefore, these final regulations adopt the rule set forth in the 2015 regulations.
Under the 2015 regulations, the deemed redemption rule did not apply to transactions involving stock that does not meet the definition of Stock of the Corporate Partner. The commenter asked whether, in cases in which the deemed redemption rule does not apply to an initial transaction because the definition of Stock of the Corporate Partner is not satisfied, if certain subsequent transactions would trigger gain recognition by treating those transactions as Section 337(d) Transactions. The Treasury Department and the IRS intend for certain subsequent transactions to trigger gain recognition as Section 337(d) Transactions. Therefore, in response to this comment, the Treasury Department and the IRS clarify that these final regulations apply to certain transactions involving related parties in which a first transaction does not constitute a Section 337(d) Transaction because the partnership does not own stock in either a Corporate Partner or in a Controlling Corporation, but the Corporate Partner in a later, separate transaction transfers its partnership interest to a related corporation whose stock the partnership owns. In these transactions, the deemed redemption rule will trigger gain as if the first transaction was a Section 337(d) Transaction with the result that the transferee corporation who is now itself a Corporate Partner will “step into the shoes” of the first Corporate Partner and will be subject to the deemed redemption rule to the extent of the first Corporate Partner's remaining built-in gain in the appreciated asset immediately prior to the transfer.
The 2015 regulations provided that, if the Corporate Partner has an existing interest in the partnership's Stock of the Corporate Partner prior to the Section 337(d) Transaction, the deemed redemption rule applies only with respect to the Corporate Partner's incremental increase in the Stock of the Corporate Partner. For example, changing allocations to increase a Corporate Partner's interest in the Stock of the Corporate Partner from 50 percent to 80 percent and to decrease the Corporate Partner's interest in other appreciated property from 80 percent to 50 percent would have the effect of an exchange by the Corporate Partner of the 30-percent incremental decrease in its interest in the appreciated property for the 30-percent incremental increase in the Stock of the Corporate Partner. The Treasury Department and the IRS did not receive comments on this rule, and therefore, these final regulations adopt the rule set forth in the 2015 regulations.
For purposes of recognizing gain under the deemed redemption rule, the 2015 regulations provided that a Corporate Partner's interest in an identified share of Stock of the Corporate Partner will never be less than the Corporate Partner's largest interest (by value) in that share of Stock of the Corporate Partner that was taken into account when the partnership previously determined whether there had been a Section 337(d) Transaction (regardless of whether the Corporate Partner recognized gain in the earlier transaction). See
This limitation does not apply if any reduction in the Corporate Partner's interest in the identified share of Stock of the Corporate Partner occurred as part of a plan or arrangement to circumvent the purpose of these final regulations. See
The commenter raised a question regarding the numbers used in this
The 2015 regulations provided that, if a transaction is a Section 337(d) Transaction, the deemed redemption rule requires the Corporate Partner to recognize a percentage of the total gain in partnership appreciated property that is subject to the exchange equal to a fraction, the numerator of which is the Corporate Partner's interest (by value) in appreciated property effectively exchanged for Stock of the Corporate Partner under the deemed redemption rule, and the denominator of which is the Corporate Partner's interest (by value) in appreciated property immediately before the Section 337(d) Transaction. The 2015 regulations define this fraction as the
The gain from the hypothetical sale used to compute gain under the deemed redemption rule is determined by applying the principles of section 704(c), which generally requires the partnership to take into account variations between the adjusted tax basis and fair market value of partnership property at the time it is contributed to the partnership and upon certain other events that allow or
The commenter also noted that the 2015 regulations do not specify the character of the gain that a Corporate Partner recognizes in a Section 337(d) Transaction. In response to this comment, the final regulations clarify that the character of the gain that the Corporate Partner recognizes in a Section 337(d) Transaction is the same character of the gain that the Corporate Partner would have recognized if, immediately before the Section 337(d) Transaction, the Corporate Partner had disposed of the appreciated property in a fully taxable transaction for cash in an amount equal to the fair market value of such property (taking into account section 7701(g)).
The 2015 regulations contained two rules related to the effect of the deemed redemption rule on partner and partnership basis. First, the 2015 regulations require the Corporate Partner to increase its basis in its partnership interest by an amount equal to the gain that the Corporate Partner recognizes in a Section 337(d) Transaction. This basis increase is necessary to prevent the Corporate Partner from recognizing gain a second time when the partnership liquidates (or, if property is distributed to the Corporate Partner, when that property is sold). Under the 2015 regulations, this basis increase applies regardless of whether the partnership has a Section 754 election in effect. The commenter suggested that the final regulations clarify how a basis increase is treated for basis-recovery purposes. The final regulations provide this clarification by specifying that this increase is treated as property that is placed in service by the partnership in the taxable year of the Section 337(d) Transaction.
Second, the 2015 regulations require the partnership to increase its adjusted tax basis in the appreciated property that is treated as the subject of a Section 337(d) Transaction by the amount of gain that the Corporate Partner recognized with respect to that property as a result of the Section 337(d) Transaction. The Treasury Department and the IRS did not receive comments on this basis increase rule and, accordingly, these final regulations adopt the rule set forth in the 2015 regulations.
The 2015 regulations extended the deemed redemption rule to certain distributions to the Corporate Partner of Stock of the Corporate Partner. These rules governing distributions applied only if the distributed stock had previously been the subject of a Section 337(d) Transaction or became the subject of a Section 337(d) Transaction as a result of the distribution (a section 337(d) distribution). The 2015 regulations did not apply to a distribution to the Corporate Partner of the Stock of the Corporate Partner to which section 732(f) applied at the time of the distribution.
If the deemed redemption rule applied to a distribution, the 2015 regulations deem the partnership to amend its agreement immediately before the distribution to allocate a 100 percent interest in that portion of the stock to the Corporate Partner that is distributed and to allocate an appropriately reduced interest in other partnership property away from the Corporate Partner. The 2015 regulations employ this deemed allocation solely for purposes of recognizing gain, and no inference is intended with regard to the treatment of such allocations generally.
The Treasury Department and the IRS did not receive comments on this general rule governing partnership distributions and, accordingly, these final regulations adopt the rule set forth in the 2015 regulations.
The 2015 regulations provided that if a distribution is a section 337(d) distribution, then in addition to any gain recognized under the deemed redemption rule upon the distribution of Stock of the Corporate Partner to the Corporate Partner, the 2015 regulations also would require the Corporate Partner to recognize gain to the extent that the partnership's basis in the distributed Stock of the Corporate Partner exceeds the Corporate Partner's basis in its partnership interest (as reduced by any cash distributed in the transaction) immediately before the distribution.
The commenter noted that the language used in this provision differs from the gain recognition provision of section 732(f)(1)(C), which evaluates whether the partnership's adjusted basis in the distributed stock immediately before the distribution exceeded the Corporate Partner's adjusted basis in that stock immediately after the distribution. The commenter asked whether these differences were intentional and, if so, for the explanation of the differences. The differences were not intentional and the Treasury Department and the IRS have determined that the provisions should be the same. Accordingly, the language of the gain recognition rule in these final regulations is modified to conform to the language used in the section 732(f) gain recognition provision.
The 2015 regulations set forth two rules under sections 337(d) and 732 to coordinate the effects of the rule requiring gain recognition when the basis of the Stock of the Corporate Partner is stepped down on a section 337(d) distribution with existing rules for determining the basis of property upon partnership distributions.
The first rule applied for purposes of: (1) Determining the basis of property distributed to the Corporate Partner (other than the basis of the Corporate Partner in its own stock); (2) determining the basis of the Corporate Partner's remaining partnership interest; (3) determining the partnership's basis in undistributed Stock of the Corporate Partner; and (4) computing gain on the distribution. For these purposes, the basis of Stock of the Corporate Partner distributed to the Corporate Partner equals the greater of (i) the partnership's basis of that distributed Stock of the Corporate Partner immediately before the distribution, or (ii) the fair market value of that distributed Stock of the Corporate Partner immediately before
The commenter asked whether this basis rule applies solely to the Corporate Partner or whether it applies for all purposes and recommended expanding
The second rule applied when a Corporate Partner receives both Stock of the Corporate Partner and other property in a section 337(d) distribution. Under this rule, the basis to be allocated to the properties distributed under section 732(a) or (b) is allocated first to the Stock of the Corporate Partner before taking into account the distribution of any other property (other than cash). Therefore, before taking into account the distribution of other property, the Corporate Partner will reduce its basis in its partnership interest by the Corporate Partner's basis in the distributed Stock of the Corporate Partner (but not below zero). The Corporate Partner will determine its basis in other distributed partnership property and in its remaining partnership interest after giving effect to this reduction. The 2015 regulations set forth this rule to ensure that the purposes of the repeal of the
When a Corporate Partner receives a partnership distribution of its own stock, it is unclear under existing law whether the Corporate Partner has basis in that stock. (See, for example, Rev. Rul. 2006–2, 2006–1 CB 261.) The resolution of this question is beyond the scope of these final regulations. However, because the distribution to a Corporate Partner of its own stock affects the Corporate Partner's basis in other distributed property and any retained partnership interest, these final regulations make clear that the partnership and the Corporate Partner must determine the basis of other distributed property and any retained partnership interest by reference to the partnership's basis in the distributed Stock of the Corporate Partner. That is, the Corporate Partner determines its basis in other distributed property and in any retained partnership interest as though the distributed stock was stock other than Stock of the Corporate Partner. Similarly, the 2015 regulations computed any gain recognition on the distribution by comparing the Corporate Partner's basis in its partnership interest to the basis of that Stock of the Corporate Partner in the hands of the partnership (without regard to whether the Corporate Partner can have basis in the distributed stock). No inference is intended with respect to the question of whether a corporation does or does not have basis in its own stock.
The commenter noted that duplication of gain under sections 337(d) and 732(f) may occur under the 2015 regulations. The commenter provided an example in which a Corporate Partner could potentially recognize gain first under section 337(d) from a partnership distribution to which section 732(f) does not apply, because its control requirement is not satisfied at the time of the distribution, but then later be subject to the 732(f) basis reduction if the control requirement is subsequently satisfied. The Treasury Department and the IRS agree with the commenter and therefore, these final regulations set forth a basis rule providing that, for purposes of determining the amount of the decrease to the basis of property held by a distributed corporation pursuant to section 732(f), the amount of this decrease is reduced by the amount of gain that a Corporate Partner has recognized under this section in a Section 337(d) Transaction, both in cases where section 732(f) applies at the time of the Section 337(d) Transaction and in cases where section 732(f) is subsequently triggered. This rule prevents the Corporate Partner from recognizing the same gain twice.
The 2015 regulations set forth a de minimis rule providing that the 2015 regulations do not apply to a Corporate Partner if three conditions are satisfied. These conditions are tested upon the occurrence of a Section 337(d) Transaction and upon any subsequent revaluation event described in § 1.704–1(b)(2)(iv)(
The first condition requires that both the Corporate Partner and any persons related to the Corporate Partner under section 267(b) or section 707(b) own, in the aggregate, less than 5 percent of the partnership. The second condition requires that the partnership hold Stock of the Corporate Partner worth less than 2 percent of the value of the partnership's gross assets, including Stock of the Corporate Partner. The third condition requires that the partnership has never, at any point in time, held more than $1,000,000 in Stock of the Corporate Partner or more than 2 percent of any particular class of Stock of the Corporate Partner.`
The 2015 regulations provided a special rule that applies if the conditions of the de minimis rule are satisfied at the time of a Section 337(d) Transaction, but are not satisfied at the time of a subsequent Section 337(d) Transaction or revaluation event described in § 1.704–1(b)(2)(iv)(
The Treasury Department and the IRS are concerned that taxpayers could intentionally plan to combine entities, each meeting the de minimis limits, to avoid the purposes of these final regulations. To address this concern, in these final regulations, the Treasury Department and the IRS add a clarifying provision to the de minimis exception stating that the exception does not apply to Stock of the Corporate Partner that is acquired as part of a plan to circumvent the purpose of these final regulations.
The 2015 regulations set forth another exception titled the “inadvertence rule.” This exception provided that the 2015 regulations do not apply to Section 337(d) Transactions in which the partnership satisfies two requirements. First, the partnership must dispose of, by sale or distribution, the Stock of the Corporate Partner before the due date (including extensions) of its federal income tax return for the taxable year in which the partnership acquired the stock (or in which the Corporate Partner joined the partnership, if applicable). Second, the partnership must not have distributed the Stock of the Corporate Partner to the Corporate Partner or a person possessing section 304(c) control of the Corporate Partner.
The commenter asked, whether, notwithstanding the exception's title, the dispositions needed to be inadvertent to qualify for the exception. In order to avoid any ambiguity or any assumption that these dispositions must be inadvertent, these final regulations rename the exception to state that the exception simply applies to “certain dispositions of stock” that qualify for the exception and that inadvertence is not a requirement.
The Treasury Department and the IRS also note that this exception requires that the stock at issue is not distributed to the Corporate Partner or a Controlling Corporation. As discussed in (1)(B) of this Explanation of Provisions with respect to the general definition of Stock of the Corporate Partner, the Treasury Department and the IRS are considering publishing new proposed regulations to modify the definition of Stock of the Corporate Partner to remove the exception for attribution under section 318(a)(1) and (3) from the scope of section 304(c) control.
The commenter requested that these final regulations provide examples on how to measure a Corporate Partner's partnership interest in more complex partnership agreements, such as situations in which the agreement contains a distribution waterfall. Similarly, the commenter requested that these final regulations provide more detailed examples relating to tiered partnership structures. The Treasury Department and the IRS believe that the purpose of these final regulations is to set forth rules of general applicability to prevent a corporate partner from avoiding corporate level gain through transactions with a partnership. The Treasury Department and the IRS therefore believe that providing such detailed examples is beyond the scope of these final regulations.
These final regulations adopt the rules set forth in the 2015 regulations under section 732(f) without any change to conform the application of section 732(f) with Congress' identified purposes for enacting sections 337(d), 732(f), and 1502 in certain situations.
As discussed in the Background, section 732(f) generally applies on a partner-by-partner basis. However, the Treasury Department and the IRS determined that, in certain circumstances, it is appropriate to aggregate the bases of consolidated group members in a partnership for purposes of applying section 732(f).
The 2015 regulations provided that corporate partners that are members of the same consolidated group (as defined in § 1.1502–1(h)) could aggregate their bases in interests in the same partnership for purposes of section 732(f) when two conditions are met. First, two or more of the corporate partners receive a distribution of stock in a distributed corporation from the partnership. Second, the distributed corporation is or becomes a member of the distributee partners' consolidated group following the distribution.
Under this rule, section 732(f) only applies to the extent that the partnership's adjusted basis in the distributed stock immediately before the distribution exceeds the aggregate basis of the distributed stock in the hands of all members of the distributee corporate partners' consolidated group immediately after the distribution. The 2015 regulations included the requirement that the distributed corporation be a member of the consolidated group in order to avoid unintended consequences that could result if that corporation were a controlled foreign corporation.
The commenter recommended that the final regulations extend this basis-aggregation rule to include a distributed corporation (including a controlled foreign corporation) that is owned by members of the distributee partners' consolidated group following the distribution. The commenter stated that the distributed corporation need not be a member of the distributee partners' consolidated group, and that the rule should apply to corporations like a controlled foreign corporation that cannot be a member of a consolidated group. The Treasury Department and the IRS decline to adopt the comment because there could be unanticipated consequences if the distributed corporation were a controlled foreign corporation.
The 2015 regulations also provided rules that restrict corporate partners from entering into transactions or a series of transactions (gain elimination transactions), such as a distribution followed by a reorganization under section 368(a), that might eliminate gain in the stock of a distributed corporation while avoiding the effects of a basis step-down in transactions, because the section 732(f) control requirement is not immediately satisfied.
Accordingly, the 2015 regulations provided that, in the event of a gain elimination transaction, section 732(f) shall apply as though the corporate partner acquired control (as defined in section 732(f)(5)) of the distributed corporation immediately before the gain elimination transaction.
The Treasury Department and the IRS did not receive comments on the proposed rule governing gain elimination transactions. These final regulations adopt the rules set forth in the 2015 regulations.
The 2015 regulations required taxpayers to apply its rules to tiered partnerships in a manner consistent with the purpose of section 732(f). These final regulations maintain this requirement. The commenter requested that these final regulations provide examples illustrating their application to tiered partnerships. The Treasury Department and the IRS decline to adopt this comment, because such examples are beyond the scope of these final regulations, which is to set forth rules of general applicability governing the application of section 732(f) to two specific sets of circumstances.
These final regulations apply to transactions occurring on or after June 12, 2015.
This regulation is not subject to review under section 6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Department of the Treasury and the Office of Management and Budget regarding review of tax regulations.
Further, pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is
Pursuant to section 7805(f), these final regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and no comments were received.
Notice 89–37 cited in this document is published in the Internal Revenue Bulletin (or Cumulative Bulletin) and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at
The principal author of these final regulations is Kevin I. Babitz, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
Section 1.337(d)–3 also issued under 26 U.S.C. 337(d).
Section 1.732–3 also issued under 26 U.S.C. 337(d), 732(f)(8), and 1502.
(a)
(b)
(c)
(1)
(2)
(ii)
(3)
(i) A Corporate Partner contributes appreciated property to a partnership that owns Stock of the Corporate Partner;
(ii) A partnership acquires Stock of the Corporate Partner;
(iii) A partnership that owns Stock of the Corporate Partner distributes appreciated property to a partner other than a Corporate Partner;
(iv) A partnership distributes Stock of the Corporate Partner to the Corporate Partner; or
(v) A partnership agreement is amended in a manner that increases a Corporate Partner's interest in Stock of the Corporate Partner (including in connection with a contribution to, or distribution from, a partnership).
(4)
(d)
(2)
(3)
(ii)
(4)
(ii)
(e)
(2)
(ii)
(A) The partnership's basis of that distributed Stock of the Corporate Partner immediately before the distribution; or
(B) The fair market value of that distributed Stock of the Corporate Partner immediately before the distribution less the partner's allocable share of gain from all of the Stock of the Corporate Partner if the partnership sold all of its assets in a fully taxable transaction for cash in an amount equal to the fair market value of such property (taking into account section 7701(g)) immediately before the distribution.
(iii)
(3)
(f)
(A) The Corporate Partner and any persons related to the Corporate Partner under section 267(b) or section 707(b) own in the aggregate less than 5 percent of the partnership;
(B) The partnership holds Stock of the Corporate Partner with a value of less than 2 percent of the partnership's gross assets (including the Stock of the Corporate Partner); and
(C) The partnership has never, at any point in time, held in the aggregate—
(
(
(ii)
(2)
(i) Is disposed of (by sale or distribution) by the partnership before the due date (including extensions) of its federal income tax return for the taxable year during which the Stock of the Corporate Partner is acquired (or for the taxable year in which the Corporate Partner becomes a partner, whichever is applicable); and
(ii) Is not distributed to the Corporate Partner or a corporation that controls the Corporate Partner within the meaning of section 304(c), except that section 318(a)(1) and (3) shall not apply.
(g)
(h)
(ii) Because A and X are equal partners in AX in all respects, the partnership formation causes X's interest in X stock to increase from $0 to $50 and its interest in Asset 1 to decrease from $100 to $50. Thus, the partnership formation is a Section 337(d) Transaction because the formation has the effect of an exchange by X of $50 of Asset 1 for $50 of X stock.
(iii) X must recognize gain under paragraph (d) of this section with respect to Asset 1 to prevent the circumvention of section 311(b) principles. X's gain equals the product of X's Gain Percentage and the gain from Asset 1 that X would recognize (decreased, but not below zero, by any gain that X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) if, immediately before the Section 337(d) Transaction, all assets were sold in a fully taxable transaction for cash in an amount equal to the fair market value of such property. If Asset 1 had been sold in a fully taxable transaction immediately before the formation of partnership AX, X's allocable share of gain would have been $80. X's Gain Percentage is 50 percent (equal to a fraction, the numerator of which is X's $50 interest in Asset 1 effectively exchanged for X stock, and the denominator of which is X's $100 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $40 of gain ($80 multiplied by 50 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraph (d)(4)(i) of this section, X's basis in its AX partnership interest increases from $20 to $60. Under paragraph (d)(4)(ii) of this section, AX's basis in Asset 1 increases from $20 to $60 because Asset 1 is the appreciated property treated as the subject of the exchange.
(ii) Because P controls X within the meaning of section 304(c), stock in P is Stock of the Corporate Partner under paragraph (c)(2)(i) of this section.
(iii) Because A and X are equal partners in AX in all respects, the partnership formation causes X's interest in Stock of the Corporate Partner stock to increase from $0 to $50 and its interest in Asset 1 to decrease from $100 to $50. Thus, the partnership formation is a Section 337(d) Transaction because the formation has the effect of an exchange by X of $50 of Asset 1 for $50 of Stock of the Corporate Partner.
(iv) X must recognize gain under paragraph (d) of this section with respect to Asset 1 to prevent the circumvention of section 311(b) principles. X's gain equals the product of X's Gain Percentage and the gain from Asset 1 that X would recognize (decreased, but not below zero, by any gain that X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) if, immediately before the Section 337(d) Transaction, all assets were sold in a fully taxable transaction for cash in an amount equal to the fair market value of such property. If Asset 1 had been sold in a fully taxable transaction immediately before the formation of partnership AX, X's allocable share of gain would have been $80. X's Gain Percentage is 50 percent (equal to a fraction, the numerator of which is X's $50 interest in Asset 1 effectively exchanged for Stock of the Corporate Partner, and the denominator of which is X's $100 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $40 of gain ($80 multiplied by 50 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraph (d)(4)(i) of this section, X's basis in its AX partnership interest increases from $20 to $60. Under paragraph (d)(4)(ii) of this section, AX's basis in Asset 1 increases from $20 to $60 because Asset 1 is the appreciated property treated as the subject of the exchange.
(ii) When AX liquidates, X's interests in its stock and in Asset 1 do not change. Thus, the liquidation is not a Section 337(d) Transaction because it does not have the effect of an exchange by X of appreciated property for Stock of the Corporate Partner.
(iii) Paragraph (e) of this section applies because the distributed X stock was the subject of a previous Section 337(d) Transaction and because section 732(f) does not apply. Under § 1.732–1(c)(1)(iii), the distribution to X of X stock is deemed to immediately precede the distribution of 50 percent of Asset 1 to X for purposes of determining X's basis in the distributed property. For purposes of determining X's basis in Asset 1 and X's gain on distribution, the basis of the distributed X stock is treated as $50, the greater of $50 (50 percent of the stock's $100 basis in the hands of the partnership), or $50, the fair market value of that distributed X stock ($100) less X's allocable share of gain from the distributed X stock if AX had sold all of its assets in a fully taxable transaction for cash in an amount equal to the fair market value of such property immediately before the distribution ($50). Thus, X reduces its basis in its partnership interest by $50 prior to the distribution of Asset 1. Accordingly, X's basis in the distributed portion of Asset 1 is $10. Because AX's basis in the distributed X stock immediately before the distribution ($50) does not exceed X's basis in its AX partnership interest immediately before the distribution ($60), X recognizes no gain under paragraph (e)(3) of this section.
(ii) The liquidation of AX causes X's interest in X stock to increase from $100 to $150 and its interest in Asset 1 to decrease from $100 to $50. Thus, AX's liquidating distributions of X stock and Asset 1 to X are
(iii)(A) X must recognize gain with respect to Asset 1 to prevent the circumvention of section 311(b) principles. Under paragraph (e)(1) of this section, paragraph (d) of this section is applied as if X and A amended the AX partnership agreement to allocate to X a 100 percent interest in the distributed portion of the X stock. X must recognize gain equal to the product of X's Gain Percentage and the gain from Asset 1 that X would have recognized (decreased, but not below zero, by any gain X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) if, immediately before the Section 337(d) Transaction, AX had sold all of its assets in a fully taxable transaction for cash in an amount equal to the fair market value of such property.
(B) If Asset 1 had been sold in a fully taxable transaction immediately before the amendment of the AX partnership agreement, X's allocable share of gain would have been $90, or the sum of X's $40 remaining gain under section 704(c) and $50 of the $100 post-contribution appreciation. X's Gain Percentage is 50 percent (equal to a fraction, the numerator of which is X's $50 interest in Asset 1 effectively exchanged for X stock, and the denominator of which is X's $100 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $45 of gain ($90 multiplied by 50 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraph (d)(4)(i) of this section, X's basis in its AX partnership interest increases from $60 to $105. Under paragraph (d)(4)(ii) of this section, AX's basis in Asset 1 increases from $60 to $105 because Asset 1 is the appreciated property treated as the subject of the exchange.
(iv)(A) Paragraph (e) of this section applies because the distributed X stock was the subject of a previous Section 337(d) Transaction and because section 732(f) does not apply. Under § 1.732–1(c)(1)(iii), AX is treated as first distributing the X stock to X before the distribution of 25 percent of Asset 1. For purposes of determining X's basis in Asset 1 and X's gain on distribution, the basis of the distributed X stock is treated as $100, the greater of $75 (75 percent of the stock's $100 basis in the hands of the partnership) or $100, the fair market value of the distributed X stock ($150) less X's allocable share of gain if the partnership had sold all of the X stock immediately before the distribution for cash in an amount equal to its fair market value ($50). Thus, X will reduce its basis in its partnership interest by $100 prior to the distribution of Asset 1. Accordingly, X's basis in the distributed portion of Asset 1 is $5. Because AX's basis in the distributed X stock immediately before the distribution as computed for purposes of this section ($100) does not exceed X's basis in its AX partnership interest immediately before the distribution ($105), X recognizes no additional gain under paragraph (e)(3) of this section.
(B) For purposes of determining A's basis in Asset 1 and A's gain on distribution, the basis of the distributed X stock is treated as $25, the greater of $25 (25 percent of the stock's $100 basis in the hands of the partnership) or $0, the fair market value of the distributed X stock ($50) less A's allocable share of gain if the partnership had sold all of the X stock immediately before the distribution for cash in an amount equal to its fair market value ($50). Thus, A will reduce its basis in its partnership interest by $25 prior to the distribution of Asset 1. Accordingly, A's basis in the distributed portion of Asset 1 is $75. Because AX's basis in the distributed X stock immediately before the distribution as computed for purposes of this section ($100) does not exceed A's basis in its AX partnership interest immediately before the distribution ($100), A recognizes no additional gain under paragraph (e)(3) of this section.
(ii) The amendment to the AX partnership agreement causes X's interest in its stock to increase from $100 (50 percent of the stock value immediately before the amendment of the agreement) to $160 (80 percent of stock value immediately following amendment of agreement) and its interest in Asset 1 to decrease from $100 to $40. Thus, the amendment of the partnership agreement is a Section 337(d) Transaction because the amendment has the effect of an exchange by X of $60 of Asset 1 for $60 of its stock.
(iii) X must recognize gain equal to the product of X's Gain Percentage and the gain from Asset 1 that X would have recognized (decreased, but not below zero, by any gain X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) if, immediately before the Section 337(d) Transaction, AX had sold all of its assets in a fully taxable transaction for cash in an amount equal to the fair market value of such property. If Asset 1 had been sold in a fully taxable transaction immediately before the amendment of the AX partnership agreement, X's allocable share of gain would have been $90, or the sum of X's $40 remaining gain under section 704(c) and 50 percent of the $100 post-contribution appreciation. X's Gain Percentage is 60 percent (equal to a fraction, the numerator of which is X's $60 interest in Asset 1 effectively exchanged for X stock, and the denominator of which is X's $100 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $54 of gain ($90 multiplied by 60 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraph (d)(4)(i) of this section, X's basis in its AX partnership interest increases from $60 to $114. Under paragraph (d)(4)(ii) of this section, AX's basis in Asset 1 increases from $60 to $114 because Asset 1 is the appreciated property treated as the subject of the exchange.
(ii) In Year 9, when the values of Asset 1 and the X stock have not changed, the partnership distributes $50 of cash and 50 percent of Asset 1 (valued at $50) to B in liquidation of B's interest. X and A are equal partners in all respects after the distribution. Upon the liquidation of B's interest, X's interest in Asset 1 decreases from $33.33 to $25, and its interest in X stock increases from $33.33 to $50. AX's liquidation of B's interest has the effect of an exchange by X of appreciated property for X stock, and thus, is a Section 337(d) Transaction.
(iii) Pursuant to paragraph (d)(2) of this section, X's interest in X stock and other appreciated property held by the partnership is determined based on all facts and circumstances, including allocation and distribution rights in the partnership agreement. However, paragraph (d)(2) of this section also requires that X's interest in its stock for purposes of paragraph (d) will never be less than the Corporate Partner's largest interest (by value) in those shares of Stock of the Corporate Partner taken into account when the partnership previously determined whether there had been a Section 337(d) Transaction (regardless of whether the Corporate Partner recognized gain in the earlier transaction). Although X's interest in X stock increases to $50 upon AX's liquidation of B's interest, X's largest interest previously taken into account under paragraph (d)(1) of this section was $50. Thus, X's interest in its stock is not considered to be increased, and X therefore recognizes no gain under paragraph (d) of
(ii) Pursuant to paragraph (d)(2) of this section, X's interest in X stock and other appreciated property held by the partnership is determined based on all facts and circumstances, including allocation and distribution rights in the partnership agreement. Generally, pursuant to paragraph (d)(2) of this section, X's interest in X stock for purposes of paragraph (d) of this section will never be less than the Corporate Partner's largest interest (by value) in those shares of Stock of the Corporate Partner taken into account when the partnership previously determined whether there had been a Section 337(d) Transaction (regardless of whether the Corporate Partner recognized gain in the earlier transaction). This limitation does not apply, however, if the reduction in X's interest in X's stock occurred as part of a plan or arrangement to circumvent the purpose of this section. Because the transactions described in this example are part of a plan or arrangement to circumvent the purpose of this section, the limitation in paragraph (d)(2) of this section does not apply. Accordingly, the deemed redemption rule under paragraph (d) of this section applies to the transactions with the consequences described in
(ii) Pursuant to paragraph (g) of this section, the rules of this section shall apply to tiered partnerships in a manner that is consistent with the purpose set forth in paragraph (a) of this section. Pursuant to paragraph (d)(1) of this section, if X is in a partnership that engages in a Section 337(d) Transaction, X must recognize gain at the time, and to the extent, that X's share of appreciated property is reduced in exchange for X stock. The formation of LTP causes X's interest in X stock to increase from $0 to $40 and its interest in Asset 1 to decrease from $64 to $32. Thus, LTP's formation is a Section 337(d) Transaction because the formation has the effect of an exchange by X of $32 of Asset 1 for $32 of X stock.
(iii) X must recognize gain with respect to Asset 1 to prevent the circumvention of section 311(b) principles. X must recognize gain equal to the product of X's Gain Percentage and the gain from Asset 1 (decreased, but not below zero, by any gain X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) that X would recognize if, immediately before the Section 337(d) Transaction, all assets were sold in a fully taxable transaction for cash in an amount equal to the fair market value of such property. If Asset 1 had been sold in a fully taxable transaction immediately before LTP's formation, X's allocable share of gain would have been $80 pursuant to section 704(c). X's Gain Percentage is 50 percent (equal to a fraction, the numerator of which is X's $32 interest in Asset 1 effectively exchanged for X stock, and the denominator of which is X's $64 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $40 of gain ($80 multiplied by 50 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraphs (d)(4)(i) and (ii) of this section, X's basis in its UTP partnership interest increases from $0 to $40, UTP's basis in its LTP partnership interest increases from $20 to $60, and LTP's basis in Asset 1 increases from $0 to $40 pursuant to paragraph (g) of this section.
(i)
(c) * * *
(1)
(ii)
(iii)
(5) * * *
(ii)
(a)
(b)
(1) Two or more of the corporate partners receive a distribution of stock in another corporation; and
(2) The corporation, the stock of which was distributed by the partnership, is or becomes a member of the distributee partners' consolidated group following the distribution.
(c)
(2)
(i)
(ii)
(iii)
(iv)
(v)
(A) The transferor of the Distributed Stock receives in exchange Stock or a partnership interest that is exchanged basis property (as defined in section 7701(a)(44)) with respect to the Distributed Stock; or
(B) A transferee corporation holds the Distributed Stock as transferred basis property (as defined in section 7701(a)(43)) with respect to the transferor corporation's gain. A Gain Elimination Transaction includes (without limitation) a reorganization under section 368(a) in which the Corporate Partner and the Distributed Corporation combine, and a distribution of the Distributed Stock by the Corporate Partner to which section 355(c)(1) or 361(c)(1) applies.
(d)
(e)
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Massachusetts Department of Transportation (Craigie) Bridge across Charles River, mile 1.0, at Boston, Massachusetts. This deviation is necessary to facilitate the Boston Pops Fireworks Spectacular on July 4, 2018, and allows the bridge to remain in the closed position for two hours.
This deviation is effective from 11 p.m. on July 4, 2018 through 1 a.m. on July 5, 2018.
The docket for this deviation, USCG–2018–0516 is available at
If you have questions on this temporary deviation, call or email Jeffrey Stieb, Bridge Management Specialist, First District Bridge Branch, U.S. Coast Guard; telephone 617–223–8364, email
The Massachusetts Department of Transportation (Craigie) Bridge across Charles River, mile 1.0, at Boston, Massachusetts, has a vertical clearance of 12 feet at normal pool in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.591(e).
The Massachusetts Department of Transportation requested a temporary deviation from the normal operating schedule. This temporary deviation will allow the bridge to remain closed from 11 p.m. on July 4, 2018 through 1 a.m. on July 5, 2018 to allow pedestrian traffic to exit the Boston Pops Fireworks Spectacular. The waterway is used extensively by recreational traffic during the fireworks display. A State Police Unit will be on-scene to direct vessel traffic. Vessels that can pass under the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies. There is no alternate route for vessels to pass. The Coast Guard will inform users of the waterway of the change in operating schedule through our Local and Broadcast Notices to Mariners 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.
National Park Service, Interior.
Final rule.
This rule removes criminal penalty provisions that are outdated and unnecessary under federal statute. The rule also clarifies—consistent with recent decisions by the U.S. Supreme Court—that, absent exigent circumstances, a search warrant is necessary to require a motor vehicle operator to submit to a blood test (rather than a breath or urine test) to measure blood alcohol and drug content.
This rule is effective June 8, 2018.
Jay Calhoun, NPS Regulations Program Specialist, 1849 C Street NW, Washington, DC 20240, (202) 513–7112,
Paragraph (a) of 36 CFR 1.3 describes the penalties for violating a provision of NPS regulations contained in parts 1 through 7, part 9 subpart B, and parts 12 and 13 of chapter I of title 36. These penalties are payment of a fine as provided by law or imprisonment not exceeding six months, or both, and payment of the costs of all proceedings. The authority to impose these penalties is found in the NPS Organic Act (54 U.S.C. 100751) and 18 U.S.C. 1865. The NPS has the authority to impose these penalties for a violation of any regulation relating to the use and management of the units of the National Park System.
Paragraphs (b), (c), and (d) of 36 CFR 1.3 describe lesser penalties that apply to violations of NPS regulations that occur within units of the National Park System that originated as military parks or national historic sites. These additional provisions are superfluous because the NPS has the authority to impose greater penalties under the NPS Organic Act for violations of NPS regulations that occur in any unit of the National Park System, including those units referred to in paragraphs (b), (c), and (d). This rule removes these unnecessary provisions to reduce the chance of confusion and clarify that a uniform penalty structure applies to the entire National Park System.
Existing NPS regulations at 36 CFR 4.23(c) state that a driver suspected of operating a motor vehicle while under the influence of alcohol or drugs must submit to a blood test (if requested) for the purpose of determining blood alcohol and drug content. This language could be misleading because it does not explicitly state that—absent exigent circumstances—a search warrant must be present in order to require a blood test. This is the Constitutional requirement under the Fourth Amendment following the U.S. Supreme Court decisions in
Consistent with
Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.
This rule is an E.O. 13771 deregulatory action because, once finalized, it will impose less than zero costs by removing unnecessary criminal penalty provisions and clarifying the current law regarding the valid use of blood tests to measure blood alcohol and drug content.
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This rule only affects use of federally-administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.
We recognize that under 5 U.S.C. 553(b) and (c), notice of proposed rules ordinarily must be published in the
We also recognize that rules ordinarily do not become effective until at least 30 days after their publication in the
This rule complies with the requirements of Executive Order 12988. This rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. The NPS has evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. The NPS may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. We have determined the rule is categorically excluded under 43 CFR 46.210(i) because it is administrative, legal, and technical in nature. We also have determined the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.
National parks, Penalties, Reporting and recordkeeping requirements, Signs and symbols.
National parks, Traffic regulations.
The National Park Service amends 36 CFR parts 1 and 4 as follows:
54 U.S.C. 100101, 100751, 320102.
(a) A person convicted of violating a provision of the regulations contained in parts 1 through 7, part 9 subpart B, and parts 12 and 13 of this chapter shall be subject to the criminal penalties provided under 18 U.S.C. 1865.
(b) [Reserved]
54 U.S.C. 100101, 100751, 320102.
(c)
(2) Refusal by an operator to submit to a test under paragraph (c)(1) is prohibited and proof of refusal may be admissible in any related judicial proceeding.
(3) Absent exigent circumstances, an operator cannot ordinarily be required to submit blood samples for the purpose of determining blood alcohol and drug content unless it occurs through a search warrant. An authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section shall get a search warrant, except when exigent circumstances exist, to obtain any blood samples from the operator for the purpose of determining blood alcohol and drug content.
(4) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.
(5) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final rulemaking action to approve, as part of the State Implementation Plan (SIP) for the State of Arizona, the second 10-year maintenance plan for the Douglas maintenance area for the 1971 National Ambient Air Quality Standards (“standards”) for sulfur dioxide (SO
This final rule is effective on July 9, 2018.
The EPA has established a docket for this action under Docket ID No. EPA–R09–OAR–2017–0537. All documents in the docket are listed on the
Ashley Graham, EPA Region IX, (415) 972–3877,
Throughout this document, the words “we,” “us,” or “our” refer to the EPA.
On February 16, 2018 (83 FR 6996), the EPA proposed to approve the second 10-year maintenance plan for the Douglas, Arizona SO
We proposed to approve the plan because we determined that it complied with the relevant Clean Air Act (CAA or “Act”) requirements. Our proposed action contains more information on the plan and our evaluation (83 FR 6996, February 16, 2018).
The EPA's proposed action provided for a 30-day public comment period. The EPA received eleven anonymous comment letters in response to the proposed action. All eleven comments concerned issues that are outside the scope of our proposed approval of the Douglas second 10-year SO
The EPA is taking final rulemaking action to approve the Douglas second 10-year SO
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 7, 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 the revision to the State of Arizona's SIP may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur dioxide.
42 U.S.C. 7401
Chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Notification of adequacy.
In this document, the Environmental Protection Agency (“EPA” or “Agency”) is notifying the public that the Agency has found that the 2017 motor vehicle emissions budgets (“budgets”) for volatile organic compounds (“VOCs”) and nitrogen oxides (“NO
This finding is effective June 25, 2018.
Hannah Greenberg, Environmental Protection Agency Region 2, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007–1866; (212) 637–3829,
Throughout this document, whenever “we,” “us,” or “our” is used, we mean the EPA.
This document is simply an announcement of a finding that we have already made. EPA Region 2 sent a letter to the New York State Department of Environmental Conservation on April 19, 2018, stating that the 2017 motor vehicle emissions budgets (“budgets”) in the submitted state implementation plan (“SIP”) for the 2008 national ambient air quality standard for ozone for the New York portions of the New York-Northern New Jersey-Long Island 8-hour ozone nonattainment area are adequate for transportation conformity purposes. These budgets are associated with the SIP's reasonable further progress milestone demonstration and must apply to future transportation conformity determinations conducted by the New York Metropolitan Transportation Council (“NYMTC”).
On November 10, 2017, the New York State Department of Environmental Conservation submitted a SIP revision for the New York portion of the New York-Northern New Jersey-Long Island, NY–NJ–CT, 2008 8-hour ozone nonattainment area. This revision to the SIP included 2017 summer day volatile organic compound (“VOC”) and nitrogen oxides (“NO
This finding will also be available at the EPA's conformity website:
The motor vehicle emissions budgets are provided in Table 1 below.
Transportation conformity is required by Clean Air Act section 176(c). The EPA's conformity rule requires that long-range transportation plans, transportation improvement programs, and transportation projects conform to a state's air quality SIP and establishes the criteria and procedures for determining whether or not they conform. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS.
The criteria the EPA uses to determine whether a SIP's motor vehicle emission budgets are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4). We have further described our process for determining the adequacy of submitted SIP budgets in 40 CFR 93.118(f), and we followed this rule in making our adequacy determination. Please note that an adequacy review is separate from the EPA's completeness review and should not be used to prejudge the EPA's ultimate action on the SIP. Even if we find a budget adequate, the SIP could later be disapproved.
Pursuant to 40 CFR 93.104(e), within 2 years of the effective date of this document, NYMTC and the U.S. Department of Transportation will need to demonstrate conformity to the new budgets. For demonstrating conformity to the budgets in this plan, the on-road motor vehicle emissions from implementation of the long-range transportation plan should be projected consistently with the budgets in this plan.
42 U.S.C. 7401–7671 q.
Environmental Protection Agency (EPA).
Notification of adequacy determination.
In this document, the EPA is notifying the public that the St. Louis area 2008 8-hour ozone redesignation request and maintenance plan motor vehicle emission budgets (MVEBs) for volatile organic compounds (VOCs) and nitrogen oxides (NO
This finding is effective June 22, 2018.
Heather Hamilton, at (913) 551–7039, by email at
Throughout this document “we,” “us,” or “our” refer to EPA. The word “budget(s)” refers to the motor vehicle emission budgets (MVEBs) for volatile organic compounds and nitrogen oxides. For the purposes of this document, “SIP” refers to the St. Louis Area 2008 8-Hour Ozone Redesignation Request and Maintenance State Implementation Plan, submitted by Missouri Department of Natural Resources to EPA as a SIP revision on September 12, 2016. The Plan was revised on February 16, 2018.
This document is an announcement of a finding that EPA has already made. EPA Region 7 sent a letter to Missouri Department of Natural Resources on May 15, 2018, stating that the MVEBs contained in the Redesignation Request and Maintenance Plan are adequate for transportation conformity purposes. As a result of EPA's finding, the State of Missouri must use the MVEBs from the February 16, 2018, Redesignation Request and Maintenance Plan for
Transportation conformity is required by section 176(c) of the Clean Air Act, as amended in 1990. EPA's conformity rule requires that transportation plans, programs and projects conform to state air quality implementation plans and establishes the criteria and procedure for determining whether or not they do. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.
The criteria by which we determine whether a SIP's motor vehicle emission budgets are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4). Please note that an adequacy review is separate from EPA's completeness review, and it should not be used to prejudge EPA's ultimate approval of the SIP. EPA plans to take action on the SIP at a later date. We have described our process for determining the adequacy of submitted SIP budgets in 40 CFR 93.118(f), and have followed this rule in making our adequacy determination.
42 U.S.C. 7401–7671q.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Iowa State Implementation Plan (SIP), the 111(d) plan, and the Operating Permits Program. These revisions update and clarify rules and make minor revisions and corrections. Approval of these revisions will ensure consistency between the state and federally-approved rules, and ensure Federal enforceability of the state's revised air program rules.
This final rule is effective on July 9, 2018.
EPA has established a docket for this action under Docket ID No. EPA–R07–OAR–2017–0470. All documents in the docket are listed on the
Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551–7039, or by email at
Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:
On September 15, 2017, EPA proposed to approve revisions to the Iowa State Implementation Plan (SIP), the 111(d) plan, and the Operating Permits Program.
EPA received three comments prior to the close of the comment period; one in support of the rule revisions and two of which were adverse. EPA withdrew the DFR on November 14, 2017.
EPA is taking final action to approve revisions to the Iowa SIP, the 111(d) plan, and the Operating Permits Program. These revisions update and clarify rules and make minor revisions and corrections. Approval of these revisions will ensure consistency between the state and federally-approved rules, and ensure Federal enforceability of the state's revised air program rules. Chapters with revisions are as follows:
* Title V Operating Permit Program rules are included in chapter 22 starting at 22.100.
The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the TSD which is part of this docket, these revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. These revisions are also consistent with applicable EPA requirements of the 111(d) plan submission and Title V of the CAA and 40 CFR part 70.
The public comment period for EPA's proposed rule opened September 15, 2017, the date of its publication in the
Below are adverse comments from the first commenter with EPA's responses:
While compliance with an actuals PAL may allow a source to avoid PSD applicability, it does not necessarily exempt a source from compliance with a state's minor NSR program. Therefore, a source with an actuals PAL in Iowa may still need obtain a permit when there is a physical change or change in method of operation under Iowa's minor NSR program in 567 IAC 22.1. The exclusion of PAL sources from the list of sources that cannot use the exemptions from 567 IAC 22.1 simply allows those PAL sources to use the same exemptions as other sources in order to avoid the permitting requirements of 567 IAC 22.1(1).
Furthermore, allowing PAL sources to use the exemptions in 567 IAC 22.1(2) does not require EPA to disapprove the SIP. The state performs technical reviews of construction permit exemptions to insure the minor sources will not cause or contribute to a violation of a NAAQS or increment. For example, on October 25, 2013, EPA approved a construction permit exemption for certain temporary diesel engines used in periodic testing and maintenance of natural gas pipelines in 567 IAC 22.1(2) paragraph “oo”.
On October 9, 2002, EPA approved modifications to 567 IAC 22.1(3), 567 IAC 22.1(3), paragraph “c”, subparagraph (3), and 567 IAC 22.3(2) to include new air construction permitting requirements for anaerobic lagoons at animal feeding operations.
Concerning the comment that Iowa's Chapter 65 regulations are not approved as part of the SIP, the EPA notes that in its October 9, 2002 approval of the modifications to 567 IAC 22.1(3), 567 IAC 22.1(3), paragraph “c”, subparagraph (3), and 567 IAC 22.3(2), the EPA stated that chapter 65 requirements have not been requested by Iowa to be approved into the SIP because chapter 65 includes requirements (for example, odor controls) not pertaining to the requirements of section 110 of the CAA.
To date, EPA has not promulgated a significant harm threshold for Priority 1 areas for PM
Because Iowa has not monitored and recorded 24-hour PM
EPA is taking final action to approve revisions to the Iowa State Implementation Plan, the 111(d) plan, and the Operating Permits Program. These revisions update and clarify rules and makes minor revisions and corrections. Approval of these revisions will ensure consistency between the state and federally-approved rules, and ensure Federal enforceability of the state's revised air program rules.
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Iowa Regulations described in the final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through
Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 August 7, 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, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Environmental protection, Air pollution control, Administrative practice and procedure, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, EPA amends 40 CFR parts 52, 62, and 70 as set forth below:
42 U.S.C. 7401
(c) * * *
42 U.S.C. 7401
(d)
(e)
42 U.S.C. 7401,
(r) The Iowa Department of Natural Resources submitted for program approval revisions to rules 567–22.100, 567–22.103, 567–22.105, and 567–22.108. The state effective date was March 22, 2017. This revision is effective August 7, 2018.
Centers for Medicare & Medicaid Services (CMS), HHS.
Final rule.
This final rule finalizes a policy that provides flexibility in the determination of episode spending for Comprehensive Care for Joint Replacement Payment Model (CJR) participant hospitals located in areas impacted by extreme and uncontrollable circumstances for performance years 3 through 5.
Effective July 9, 2018.
Heather Holsey, (410) 786–0028. For questions related to the CJR model:
In the Medicare Program; Cancellation of Advancing Care Coordination Through Episode Payment and Cardiac Rehabilitation Incentive Payment Models; Changes to Comprehensive Care for Joint Replacement Payment Model: Extreme and Uncontrollable Circumstances Policy for the Comprehensive Care for Joint Replacement Payment Model final rule and interim final rule with comment period published on December 1, 2017 (82 FR 57066 through 57104), we issued an interim final rule with comment period in conjunction with the final rule in order to address the need for a policy to provide some flexibility in the determination of episode costs for providers located in areas impacted by extreme and uncontrollable circumstances. Specifically, we finalized an extreme and uncontrollable events policy for the performance years 2 through 5 reconciliation and sought comment on potential refinements we might make to this policy for future performance year reconciliations after performance year 2. The 30-day comment period for that rule closed on January 30, 2018. We received 3 comments on our comment solicitation on potential refinements we might make to the extreme and uncontrollable circumstances policy for future performance year reconciliations after performance year 2. Those 3 comments and our responses are discussed in the following paragraphs. We also received 4 comments that did not relate to the extreme and uncontrollable circumstances policy comment solicitation.
In the interim final rule with comment period published on December 1, 2017, we established an extreme and uncontrollable circumstances policy for CJR performance years 2 through 5 reconciliation to provide some flexibility in determining episode spending for CJR participant hospitals located in areas impacted by extreme and uncontrollable circumstances. While this policy most notably addressed Hurricane Harvey, Hurricane Irma, Hurricane Nate, and the California wildfires of August, September, and October 2017, we noted that this policy could also include other similar events that occur within a given performance year, including performance year 2, if those events meet the requirements we set forth in this policy. While Hurricane Maria, which also occurred in the same timeframe, had and, as of the writing of this final rule, continues to have a significant and crippling effect on Puerto Rico and the U.S. Virgin Islands, Hurricane Maria was not part of the interim final rule with comment period as the CJR model is not in operation in the areas impacted by Hurricane Maria, and, therefore there are no CJR participant hospitals that have been impacted by Hurricane Maria. Hurricane Harvey, Hurricane Irma, Hurricane Nate, and the California wildfires of August, September, and October of 2017 affected large regions of the United States where the CJR model operates, leading to widespread destruction of infrastructure that impacted residents' ability to continue normal functions afterwards.
As we stated in the interim final rule with comment period, at least 101 CJR participant hospitals are located in the areas affected by Hurricane Irma and Hurricane Harvey, at least 22 CJR participant hospitals are located in areas impacted by the California wildfires and approximately 12 are in the areas affected by Hurricane Nate. Based on a review of news articles focusing on the hurricanes, at least 35 hospitals evacuated for Hurricane Irma
Under § 510.305(e), as of performance year 2, CJR participant hospitals who have episode costs as calculated under § 510.305(e)(1)(iii) (for example, episode costs that exceed the target price for the performance year) will owe CMS 5 percent of the loss. While the intent of this loss repayment policy is to incentivize providers to manage costs while improving the quality of CJR patient care, we noted in the interim final rule with comment period that in extreme and uncontrollable circumstances, prudent patient care management might involve potentially expensive air ambulance transport or prolonged inpatient stays when other alternatives are not practical due, for example, to state and local mandatory evacuation orders or compromised infrastructure. In addition to the news reports of disaster conditions that impacted several CJR participant hospitals, a number of research studies on natural disasters and rushed evacuations for hospitals supported our assumption that costs can rise during disaster situations.
Prior to January 1, 2018, the effective date of the interim final rule with comment period, CJR regulations at § 510.210 did not allow cancellation of episodes for extreme and uncontrollable circumstances. The CJR regulations at § 510.305 also did not permit an adjustment to account for episode spending that may have escalated significantly due to events driven by extreme and uncontrollable circumstances.
As discussed in the interim final rule with comment period, for purposes of developing a policy to identify hospitals affected by extreme and uncontrollable circumstances, we consulted section 1135 of the Social Security Act (the Act). That section allows the Secretary to temporarily waive or modify certain Medicare requirements to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in Social Security Act programs in the emergency area and emergency period. It also allows the Secretary to temporarily waive or modify certain Medicare requirements to ensure that providers who provide
In the interim final rule with comment period, we noted that the extreme and uncontrollable circumstance policy also should be tailored to the specific areas experiencing the extreme and uncontrollable circumstance. Section 1135 waivers typically are authorized for a geographic area that may encompass a greater region (that is, an entire state) than is directly and immediately affected by the relevant emergency. In addition, section 1135(g) of the Act defines the emergency area as that area covered by both a Secretarial and a Presidential declaration; consequently, the scope of the emergency area is not entirely in the Secretary's control.
Therefore, to narrow the scope of this policy to ensure it is applied to those providers most likely to have experienced the greatest adverse effects, we also required that the area be declared as a major disaster area under the Stafford Act. Once an area is declared as a major disaster area under the Stafford Act, the specific counties, municipalities, parishes, territories, and tribunals that are part of the major disaster area are identified and can be located on the Federal Emergency Management Agency (FEMA) website at
For this policy, only major disaster declarations under the Stafford Act in combination with issued section 1135 waivers are used to identify the specific counties, municipalities, parishes, territories, and tribunals where the extreme and uncontrollable circumstance took place. Using the major disaster declaration as a requirement for the extreme and uncontrollable event policy also ensures that the policy will apply only when the event is extreme, meriting the use of special authority, and targeting the specific area affected by the extreme and uncontrollable circumstance. As we noted in the interim final rule with comment period, we are not including emergency declarations under the Stafford Act or national emergency declarations under the National Emergencies Act in this policy, even if such a declaration serves as a basis for the Secretary's invoking the section 1135 waiver authority. This is because we believe it is appropriate for our extreme and uncontrollable circumstance policy to apply only in the narrow circumstance where the circumstance constitutes a major disaster, which are more catastrophic in nature and tend to have significant impacts to infrastructure, rather than the broader grounds for which an emergency could be declared.
In the policy we established to define extreme and uncontrollable circumstances for the CJR model, an area is identified as having experienced 'extreme and uncontrollable circumstances,' if it is within an “emergency area” and “emergency period” as defined in section 1135(g) of the Act, and also is within a county, parish, U.S. territory or tribal government designated in a major disaster declaration under the Stafford Act.
As we stated in the interim final rule with comment period, we believe Hurricanes Harvey, Irma, and Nate and the California wildfires in August, September, and October of 2017 triggered the automatic extreme and uncontrollable circumstance policy we adopted in the interim final rule with comment period. For the performance year 2 reconciliation conducted in March 2018, this extreme and uncontrollable circumstance policy applies to those CJR participant hospitals whose CMS Certification Number (CCN) has a primary address located in a state, U.S. territory, or tribal government that is within an “emergency area” and “emergency period,” as those terms are defined in section 1135(g) of the Act, for which the Secretary has issued a waiver under section 1135 of the Act and that is designated in a major disaster declaration under the Stafford Act. The states and territories for which section 1135 waivers were issued in response to Hurricanes Harvey, Irma, Nate, and the California wildfires (during the fall of 2017) are Alabama, California, Florida, Georgia, South Carolina, Texas, Louisiana, and Mississippi. Section 1135 waivers also were issued for Puerto Rico and the Virgin Islands as a result of Hurricane Maria, but, as we noted in the interim final rule with comment period, there are no CJR participant hospitals with CCNs with a primary address in either of these areas. To view the 1135 waiver documents and for additional information on section 1135 waivers see:
The counties, parishes, and tribal governments that met the criteria for the CJR policy on extreme and uncontrollable circumstances in performance year 2 are as follows:
• The following counties in Alabama: Autauga, Baldwin, Choctaw, Clarke, Dallas, Macon, Mobile, and Washington.
• The following counties in California: Butte, Lake, Mendocino, Napa, Nevada, Orange, Sonoma, and Yuba.
• All 67 counties
• All 159 counties in Georgia.
• All 46 counties, and the Catawba Indian Reservation in South Carolina.
• The following counties in Texas: Aransas, Austin, Bastrop, Bee, Bexar, Brazoria, Calhoun, Chambers, Colorado, Dallas, Dewitt, Fayette, Fort Bend, Galveston, Goliad, Gonzales, Hardin, Harris, Jackson, Jasper, Jefferson, Karnes, Kleberg, Lavaca, Lee, Liberty, Matagorda, Montgomery, Newton, Nueces, Orange, Polk, Refugio, Sabine, San Jacinto, San Patricio, Tarrant, Travis, Tyler, Victoria, Walker, Waller, and Wharton.
• The following parishes in Louisiana: Acadia, Allen, Assumption, Beauregard, Calcasieu, Cameron, De Soto, Iberia, Jefferson Davis, Lafayette, Lafourche, Natchitoches, Plaquemines, Rapides, Red River, Sabine, St. Charles, St. Mary, Vermilion, and Vernon.
Using these criteria, in the interim final rule with comment period, we stated that we were able to identify at least 101 CJR participant hospitals located in the areas affected by Hurricanes Harvey and Hurricane Irma, approximately 12 CJR participant hospitals in the areas affected by Hurricane Nate, and at least 22 CJR participant hospitals in areas impacted by the California wildfires. As there are no CJR model areas in Puerto Rico or the U.S. Virgin Islands, we again noted that no CJR participant hospitals were impacted by Hurricane Maria. CJR participant hospitals for whom this extreme and uncontrollable circumstances policy applies for performance year 2 (and subsequent performance years if and when the policy is invoked) receive notification via the initial reconciliation reports CMS delivers to providers upon completion of the reconciliation calculations, which under § 510.305(d) are initiated beginning 2 months after the close of the performance year.
Though the Hurricanes and California wildfires were the driving force for developing the extreme and uncontrollable circumstance policy, in the interim final rule with comment period, we stated that this policy is being implemented for the duration of the CJR model, and that we are amending the CJR regulations accordingly, as further outlined later in this final rule.
In the interim final rule with comment period, we noted that without a policy to provide CJR participant hospitals some flexibility in extreme and uncontrollable circumstances, we might inadvertently create an incentive to place cost considerations above patient safety, especially in the later years of the CJR model when the downside risk percentage increases. In considering policy alternatives to help ensure beneficiary protections by mitigating participant hospitals' financial liability for costs resulting from extreme and uncontrollable circumstances, we considered and rejected a blanket cancellation of all episodes occurring during the relevant period. As we stated in the interim final rule with comment period, we do not believe that a blanket cancellation would be in either beneficiaries' or CJR participant hospitals' best interests, as it is possible that hospitals can manage costs and earn a reconciliation payment despite these extreme and uncontrollable circumstances.
Furthermore, we would not want CJR participant hospitals to limit case management services for beneficiaries in CJR episodes during extreme and uncontrollable circumstances, when prudent care management could potentially involve using significantly more expensive transport or care settings. Therefore, we determined that capping the actual episode spending at the target amounts for those episodes would be the best way to protect beneficiaries from potential care stinting and hospitals from escalating costs. As we stated in the interim final rule with comment period, this will also ensure that those hospitals are still able to earn reconciliation payments on those eligible episodes where the disaster did not have a noticeable impact on cost.
In determining the start date of episodes to which this extreme and uncontrollable circumstances policy will apply, we determined that a window of 30 days prior to and including the date that the emergency period (as defined in section 1135(g) of the Act) begins should reasonably capture those beneficiaries whose high CJR episode costs could be attributed to extreme and uncontrollable circumstances. As we stated in the interim final rule with comment period, we believe this 30-day window is particularly appropriate due to the 90-day CJR model episode length. Including all episodes that begin within 30 days before the date the emergency period begins should enable us to include the majority of beneficiaries still in institutional settings and who are still within the first third of their episodes when the extreme and uncontrollable circumstance arises. We note that the average length of stay for DRG 469 is between 5 and 6 days and the average length of stay for DRG 470 is between 2 and 3 days (see
Under § 510.300(a)(1), we differentiated fracture and non-fracture CJR episodes and pricing, noting that lower extremity joint replacement procedures performed as a result of a hip fracture are typically emergent procedures. Fracture episodes typically occur for beneficiaries with more complex health issues and can involve higher episode spending. As we stated in the interim final rule with comment period, we do not expect a high volume of CJR non-fracture episodes to be initiated once extreme and uncontrollable circumstances arise, given that it is not prudent to conduct non-fracture major joint replacement surgeries, which generally are elective and non-emergent, until conditions stabilize and infrastructure is reasonably restored. Therefore, for non-fracture episodes, the extreme and uncontrollable circumstances policy we established in the interim final rule with comment period only applies to dates of admission to anchor hospitalization that occur between 30 days before and up to the date on which the emergency period (as defined in section 1135(g) of the Act) begins. We believe this policy empowers hospitals to decide whether they can safely and appropriately perform non-fracture THA and TKA procedures after the commencement of the emergency period and whether or not performing these procedures will subject their organization to undue financial risk resulting from increased costs that are beyond the organization's control.
However, for CJR fracture episodes, the extreme and uncontrollable circumstances policy we established in the interim final rule with comment period applies to dates of admission to the anchor hospitalization that occur within 30 days before, on, or up to 30 days after the date the emergency period (as defined in section 1135(g) of the Act) begins. As we stated in the interim final
In the interim final rule with comment period, we established that, for performance years 2 through 5, for participant hospitals that are located in an emergency area during an emergency period, as those terms are defined in section 1135(g) of the Act, for which the Secretary has issued a waiver under section 1135 of the Act, and in a county, parish, U.S. territory or tribal government designated in a major disaster declaration under the Stafford Act, the following conditions apply. For a non-fracture episode with a date of admission to the anchor hospitalization that is on or within 30 days before the date that the emergency period (as defined in section 1135(g) of the Act) begins, actual episode payments are capped at the target price determined for that episode under § 510.300. For a fracture episode with a date of admission to the anchor hospitalization that is on or within 30 days before or after the date that the emergency period (as defined in section 1135(g) of the Act) begins, actual episode payments are capped at the target price determined for that episode under § 510.300.
We codified this new extreme and uncontrollable circumstance policy at § 510.305(k). We sought comment on potential refinements to this policy for future performance year reconciliations after performance year 2.
When we originally finalized the CJR target amounts in the November 24, 2015 final rule (80 FR 73273), we distinguished between hip fracture and non-fracture CJR episodes and pricing in response to comments. Commenters on that rule noted that lower extremity joint replacement procedures performed as a result of a hip fracture are typically emergent procedures (80 FR 73301) which can be more clinically complex in nature and more costly to treat due to their emergent nature. Therefore, as we stated in the interim final rule with comment period, given the frequent emergent nature of fractures, we acknowledge that it may not be prudent to postpone major joint surgical procedures in many of those CJR cases. Consequently, we believe it is appropriate, as was established in the interim final rule with comment period, to extend coverage under the extreme and uncontrollable circumstances policy to fracture cases occurring on or within 30 days after the date of the disaster, and we thank the commenters for their support of this policy that covers fracture cases on or within 30 days of the emergency period in the extreme and uncontrollable events policy.
In considering the commenter's suggestion that we develop on-going specific, recovery-focused criteria, such as the number of patients remaining displaced from their homes, the proportion of health care services remaining unavailable and distance to comparable services for rural areas to determine the end date for episodes we note that it would be extremely difficult to establish general criteria that would apply broadly to all emergency periods that might trigger the extreme and uncontrollable circumstances policy; this type of criteria would likely need to be specific to each individual emergency period and would therefore be more subjective and less predictable
We note a technical correction to the preamble of the interim final rule with comment period. In several places we described our extreme and uncontrollable circumstances policy as applying when a major disaster declaration served as the condition precedent to an section 1135 waiver. However, this was incorrect, as in several of the events to which our policy applies, an emergency declaration under the Stafford Act was the condition precedent for the Secretary's exercise of the section 1135 waiver authority. For example, the section 1135 waiver for Hurricane Nate was based on an emergency declaration under the Stafford Act, but a major disaster declaration under the Stafford Act subsequently was made. The regulation text at 42 CFR 510.305(k), which we are finalizing without modification, accurately reflects the policy.
This final rule incorporates the provisions of the interim final rule with comment period without changes. Therefore, this extreme and uncontrollable circumstances policy, as codified at 42 CFR 510.305(k) will apply to CJR participant hospitals that are both located in an emergency area during an emergency period (as those terms are defined in section 1135(g) of the Act) for which the Secretary has issued a waiver under section 1135; and that are also located in a county, parish, or tribal government designated in a major disaster declaration under the Stafford Act.
As stated in section 1115A(d)(3) of the Act, Chapter 35 of title 44, United States Code, shall not apply to the testing and evaluation of models under section 1115A of the Act. As a result, the information collection requirements contained in this final rule need not be reviewed by the Office of Management and Budget. However, we have summarized the anticipated cost burden associated with the information collection requirements in section V. (Regulatory Impact Statement) of this final rule.
We have examined the impact of this 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) (September 19, 1980, Pub. L. 96–354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104–4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).
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). A Regulatory Impact Analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule does not reach the economic threshold and thus is not considered a major rule.
The RFA requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any 1 year. Individuals and states are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this final rule will not have a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare an RIA if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and the Secretary certifies, that this final rule will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2018, that threshold is approximately $150 million. This rule will have no consequential effect on state, local, or tribal governments or on the private sector.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Since this regulation does not impose any costs on state or local governments, the requirements of Executive Order 13132 are not applicable.
Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. It has been determined that this final rule is not a “significant regulatory action” and thus does not trigger the aforementioned requirements of Executive Order 13771.
In the December 1, 2017 interim final rule with comment period, we utilized 2016 CJR episode level data to approximate the impact to projected CJR model savings resulting from the extreme and uncontrollable circumstances policy for performance year 2 (82 FR 57096). Specifically, we first identified the CJR participant hospitals located in Alabama, California, Florida, Georgia, South Carolina, Mississippi, Texas, and Louisiana (those states for which 1135 waivers were issued) that were also located in the counties listed in section
For non-fracture episodes, we capped the actual episode payment at the target price determined for that episode if the date of admission to the anchor hospitalization was on or within 30 days before the date that the emergency period (as defined in section 1135(g) of the Act) begins. For fracture episodes, we capped the actual episode payment at the target price determined for that episode if the date of admission to the anchor hospitalization was on or within 30 days before or after the date that the emergency period (as defined in section 1135(g) of the Act) begins. Our analyses indicated that the impact of capping the actual episode payments at the episode target prices based on the 2017 extreme and uncontrollable circumstances policy could result in a decrease to the CJR model estimated savings ranging between $1.5 to $5.0 million for performance year 2, quantifying the dollar impact for that year based on a point estimate of $2 million. We also noted that this performance year 2 projected impact was mitigated by the 5 percent stop-loss/stop-gain levels applicable to performance year 2 and added that if these disasters had occurred in a future performance year with higher stop-loss/stop-gain levels then we would expect the projected impact to increase. The performance year 2 savings estimates did not assume any change in spending or volume due to these extreme and uncontrollable circumstances, neither before nor after the date of the disaster as listed on the FEMA website.
For purposes of assessing the impact of finalizing this policy for performance years 3 through 5, we note that we are unable to accurately or reasonably model an impact due to our inability to predict future disaster events. It is entirely possible future years could be completely free of major disasters and emergencies that might qualify as triggering events under the extreme and uncontrollable circumstances policy. Likewise, it is entirely possible that future years could have many more significant disaster events that might qualify as triggering events for the extreme and uncontrollable circumstances policy. In the absence of any future knowledge of potential disasters that might qualify as events that would invoke the extreme and uncontrollable circumstances policy, we are assuming that the performance year 2 extreme and uncontrollable circumstances $1.5 to $5 million range estimate, quantified using a 2 million dollar point estimate, can be extrapolated across the remaining 3 performance years of the CJR model since we modeled this using knowledge of actual 2017 events. Extrapolating the $2 million per year across performance years 3 through 5 results in an estimated cost of $6 million which could potentially net against savings predicted for the CJR model. We note that extrapolating the range estimate could make the impact of this policy for the remaining 3 years of the model as low as $4.5 million or as high as $15 million. However, we again reiterate that this assumption may be inaccurate as this $2 million per year figure was based on an estimate of known events in 2017 on modeled payments for performance year 2. Specifically, future years could be disaster free or could experience more frequent and destructive disasters, either of which could render this impact estimate incorrect. However, in absence of future knowledge we believe this extrapolation estimate can be used to approximate an impact for this extreme and uncontrollable circumstances policy for performance years 3 through 5 of the CJR model.
In accordance with the provisions of Executive Order 12866, this final rule was reviewed by the Office of Management and Budget.
Administrative practice and procedure, Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the interim final rule published in the December 1, 2017
Nuclear Regulatory Commission.
Draft regulatory issue summary; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) is seeking public comment on a draft regulatory issue summary (RIS) to clarify the reporting requirements for certain exports of nuclear facilities, equipment, and non-nuclear materials.
Submit comments by August 7, 2018. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.
You may submit comments by any of the following methods:
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•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Andrea Jones, Office of International Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–287–9072, email:
Please refer to Docket ID NRC–2018–0113 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Please include Docket ID NRC–2018–0113 in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
The RIS is intended for all persons that are required to report exports of nuclear materials, equipment, and non-nuclear materials under part 110 of title 10 of the
The NRC issues RISs to communicate with stakeholders on a broad range of matters. This may include communicating and clarifying NRC technical or policy positions on regulatory matters that have not been communicated to, or are not broadly understood by, the nuclear industry. As noted in 83 FR 20858 (May 8, 2018), this document is being published in the Proposed Rules section of the
The NRC is requesting public comments on the draft RIS. All comments that are to receive consideration in the final RIS must still be submitted electronically or in writing as indicated in the
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish 16 high altitude area navigation (RNAV) routes (Q-routes), and modify 7 existing Q-routes, in support of the Florida Metroplex Project. The proposed routes were developed to improve the efficiency of the National Airspace System (NAS) and reduce dependency on ground-based navigational systems that cause system inefficiencies due to their limitations.
Comments must be received on or before July 9, 2018.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12–140, Washington, DC 20590; telephone: 1(800) 647–5527 or (202) 366–9826. You must identify FAA Docket No. FAA–2018–0437; Airspace Docket No. 18–ASO–5 at the beginning of your comments. You may also submit comments through the internet at
FAA Order 7400.11B, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Paul Gallant, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267–8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of area navigation routes in the NAS, increase airspace capacity, and reduce complexity in high air traffic volume areas.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA–2018–0437; Airspace Docket No. 18–ASO–5) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA–2018–0437; Airspace Docket No. 18–ASO–5.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
This document proposes to amend FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017. FAA Order 7400.11B is publicly available as listed in the
The Florida Metroplex Project developed Performance Based Navigation (PBN) routes involving Jacksonville Air Route Traffic Control Center (ARTCC), Miami ARTCC, and San Juan Center Radar Approach
Taking advantage of the capabilities of the advanced flight management systems in modern aircraft, these Q-routes would serve to reduce air traffic control (ATC) sector complexity, increase NAS capacity, reduce pilot-to-air traffic controller communications, and allow aircraft to be cleared to their cruising altitude and flight planned route more expeditiously.
This NPRM includes a 30-day public comment period instead of the 45-day period generally provided for area navigation route proposals. The proposed Q-routes would support the FAA's Next Generation Air Transportation System (NextGen) efforts to modernize the NAS. The routes would be a critical part of that effort to improve NAS efficiency by increasing airspace capacity and reducing complexity in high air traffic volume areas. The 30-day comment period would provide the opportunity for public input on the proposal as well as an option for FAA to consider the possibility of synchronizing the implementation of the routes with other scheduled NextGen programs and equipment upgrades.
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish 16 new Q-routes, and amend 7 existing Q-routes, in the southeastern United States in support of the Florida Metroplex Project. The proposed new routes would be designated Q–75, Q–77, Q–79, Q–81, Q–83, Q–85, Q–87, Q–89, Q–93, Q–97, Q–99, Q–109, Q–113, Q–135, Q–172, and Q–409. In addition, amendments are proposed to the descriptions of Q–65, Q–69, Q–103, Q–104, Q–110, Q–116, and Q–118. The proposed new and amended route end points are listed below. Full route descriptions are in “The Proposed Amendment” section of this notice.
The proposed new Q-routes are as follows:
The proposed amended Q-routes are as follows:
RNAV routes are published in paragraph 2006 of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The RNAV routes listed in this document would be subsequently published in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
Food and Drug Administration, HHS.
Advance notice of proposed rulemaking; extension of comment period.
The Food and Drug Administration (FDA or the Agency) is extending the comment period for the advance notice of proposed rulemaking (ANPRM) that appeared in the
FDA is extending the comment period on the ANPRM published on March 26, 2018 (83 FR 12901). Submit either electronic or written comments by July 25, 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 25, 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
Deirdre Jurand or Nate Mease, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993, 1–877–287–1373,
In the
The Agency has received requests for a 90-day extension of the comment period for the ANPRM. FDA has considered the requests and is extending the comment period for the ANPRM for 30 days, until July 25, 2018. The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying any potential regulatory action on these important issues.
Food and Drug Administration, HHS.
Advance notice of proposed rulemaking; extension of comment period.
The Food and Drug Administration (FDA or Agency) is extending the comment period for the advance notice of proposed rulemaking (ANPRM) that appeared in the
FDA is extending the comment period on the ANPRM published on March 21, 2018 (83 FR 12294). Submit either electronic or written comments by July 19, 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 19, 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
Laura Rich or Katherine Collins, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993, 1–877–287–1373,
In the
The Agency has received a number of requests for a 90-day extension of the comment period for the ANPRM and one request for a 105-day extension. FDA has considered these requests and is extending the comment period for the ANPRM for 30 days, until July 19, 2018.
The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying any potential regulatory action on these important issues.
Food and Drug Administration, HHS.
Advance notice of proposed rulemaking; extension of comment period.
The Food and Drug Administration (FDA or the Agency) is extending the comment period for the advance notice of proposed rulemaking (ANPRM) that appeared in the
FDA is extending the comment period on the ANPRM published on March 16, 2018 (83 FR 11818). Submit either electronic or written comments by July 16, 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 16, 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
Gerie Voss, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993, 1–877–CTP–1373,
In the
The Agency has received a number of requests for a 90-day extension of the comment period for the ANPRM and one request for a 120-day extension. FDA has considered the requests and is extending the comment period for the ANPRM for an additional 30 days, until July 16, 2018. The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying any potential regulatory action on these important issues.
National Indian Gaming Commission, Department of the Interior.
Notice of proposed rulemaking.
The National Indian Gaming Commission (NIGC) proposes to amend its minimum internal control standards for Class II gaming under the Indian Gaming Regulatory Act to correct an erroneous deletion of the key control standards and to make other minor edits and additions for clarity.
Written comments on this proposed rule must be received on or before July 9, 2018.
You may submit comments by any one of the following methods, however, please note that comments sent by electronic mail are strongly encouraged.
Jennifer Lawson at (202) 632–7003 or by fax (202) 632–7066 (these numbers are not toll free).
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100–497, 25
The Commission recognized from their inception that the MICS would require periodic review and updates to keep pace with technology and has substantively amended them numerous times, most recently in late 2013 (78 FR 63873).
On September 21, 2012, the Commission concluded nearly two years of consultation and drafting with the publication of comprehensive amendments, additions, and updates to Part 543, the minimum internal control standards (MICS) for Class II gaming operations (77 FR 58708). The regulations require tribes to establish controls and implement procedures at least as stringent as those described in this part to maintain the integrity of the gaming operation. In late 2013, the Commission published a final rule, adding kiosk drop, count, fill, and surveillance standards to Part 543 (78 FR 63873).
Now, the Commission proposes additional revisions, largely technical in nature, that are meant to correct earlier editing oversights and to better clarify the intent of the provisions.
The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601,
The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions, nor will the proposed rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises, to compete with foreign based enterprises.
The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).
In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.
In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
The Commission has determined that the rule does not constitute a major federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321,
The information collection requirements contained in this rule were previously approved by the Office of Management and Budget as required by 44 U.S.C. 3501,
The National Indian Gaming Commission is committed to fulfilling its tribal consultation obligations—whether directed by statute or administrative action such as Executive Order (E.O.) 13175 (Consultation and Coordination with Indian Tribal Governments)—by adhering to the consultation framework described in its Consultation Policy published July 15, 2013. The NIGC's consultation policy specifies that it will consult with tribes on Commission Action with Tribal Implications, which is defined as: Any Commission regulation, rulemaking, policy, guidance, legislative proposal, or operational activity that may have a substantial direct effect on an Indian tribe on matters including, but not limited to the ability of an Indian tribe to regulate its Indian gaming; an Indian tribe's formal relationship with the Commission; or the consideration of the Commission's trust responsibilities to Indian tribes.
The key control language proposed here is the most substantive of all the changes and was the subject of extensive consultation in 2012 (77 FR 58708). The language proposed here has not changed since initially adopted. It was inadvertently written over with the addition of kiosk controls in 2013. The remaining changes are all technical in nature, correcting numbering and adding minor clarifications.
Accounting, Administrative practice and procedure, Gambling, Indian—Indian lands, Reporting and recordkeeping requirements.
For the reasons discussed in the Preamble, the Commission proposes to amend 25 CFR part 543 as follows:
25 U.S.C. 2702(2), 2706(b)(1–4), 2706(b)(10).
(e)
(1) Date;
(2) Shift;
(3) Table number (if applicable);
(4) Amount by denomination;
(5) Amount in total; and
(6) Signatures of both agents.
(d)
(1) Surveillance must be notified when the drop is to begin so that surveillance may monitor the activities.
(2) At least two agents must be involved in the removal of the drop box, at least one of whom is independent of the card games department.
(3) Once the drop is started, it must continue until finished.
(4) All drop boxes may be removed only at the time previously designated by the gaming operation and reported to the TGRA. If an emergency drop is required, surveillance must be notified before the drop is conducted and the TGRA must be informed within a timeframe approved by the TGRA.
(5) At the end of each shift:
(i) All locked card game drop boxes must be removed from the tables by an agent independent of the card game shift being dropped;
(ii) For any tables opened during the shift, a separate drop box must be placed on each table, or a gaming operation may utilize a single drop box with separate openings and compartments for each shift; and
(iii) Card game drop boxes must be transported directly to the count room or other equivalently secure area by a minimum of two agents, at least one of whom is independent of the card game shift being dropped, until the count takes place.
(6) All tables that were not open during a shift and therefore not part of the drop must be documented.
(7) All card game drop boxes must be posted with a number corresponding to a permanent number on the gaming table and marked to indicate game, table number, and shift, if applicable.
(i) * * *
(4) * * *
(i) The count of each box must be recorded in ink or other permanent form of recordation.
(j)
(1) Each of the following requires a separate and unique key lock or alternative secure access method:
(i) Drop cabinet;
(ii) Drop box release;
(iii) Drop box content; and
(iv) Storage racks and carts used for the drop.
(2) Access to and return of keys or equivalents must be documented with the date, time, and signature or other unique identifier of the agent accessing or returning the key(s).
(i) For Tier A and B operations, at least two (2) drop team agents are required to be present to access and return keys. For Tier C operations, at least three (3) drop team agents are required to be present to access and return keys.
(ii) For Tier A and B operations, at least two (2) count team agents are required to be present at the time count room and other count keys are issued for the count. For Tier C operations, at least three (two for card game drop box keys in operations with three tables or fewer) count team agents are required to be present at the time count room and other count keys are issued for the count.
(3) Documentation of all keys, including duplicates, must be maintained, including:
(i) Unique identifier for each individual key;
(ii) Key storage location;
(iii) Number of keys made, duplicated, and destroyed; and
(iv) Authorization and access.
(4) Custody of all keys involved in the drop and count must be maintained by a department independent of the count and the drop agents as well as those departments being dropped and counted.
(5) Other than the count team, no agent may have access to the drop box content keys while in possession of storage rack keys and/or release keys.
(6) Other than the count team, only agents authorized to remove drop boxes are allowed access to drop box release keys.
(7) Any use of keys at times other than the scheduled drop and count must be properly authorized and documented.
(8) Emergency manual keys, such as an override key, for computerized, electronic, and alternative key systems must be maintained in accordance with the following:
(i) Access to the emergency manual key(s) used to access the box containing the player interface drop and count keys requires the physical involvement of at least three agents from separate departments, including management. The date, time, and reason for access, must be documented with the signatures of all participating persons signing out/in the emergency manual key(s);
(ii) The custody of the emergency manual keys requires the presence of two agents from separate departments from the time of their issuance until the time of their return; and
(iii) Routine physical maintenance that requires access to the emergency manual key(s), and does not involve accessing the player interface drop and count keys, only requires the presence of two agents from separate departments. The date, time, and reason for access must be documented with the signatures of all participating agents signing out/in the emergency manual key(s).
(9) Controls must be established and procedures implemented to safeguard the use, access, and security of keys for kiosks.
(d) * *
(6) * * *
(v) Dollar amount per financial instrument redeemed;
(c) * * *
(1) * * *
(viii) Drop and count standards, including supervision, count room access, count team, card game drop standards, player interface and financial instrument drop standards, card game count standards, player interface financial instrument count standards, collecting currency cassettes and financial instrument storage components from kiosks, kiosk count standards, and controlled keys;
(a)
(d) * * *
(5)
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to remove the Colorado butterfly plant (
We will accept comments received or postmarked on or before August 7, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see
•
•
We request that you submit written comments only by the methods described above. We will post all comments on
Tyler A. Abbott, Field Supervisor, telephone: 307–772–2374. Direct all questions or requests for additional information to: COLORADO BUTTERFLY PLANT QUESTIONS, U.S. Fish and Wildlife Service; Wyoming Ecological Services Field Office; 5353 Yellowstone Road, Suite 308A, Cheyenne, WY 82009. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 800–877–8339.
We want any final action resulting from this proposal to be as accurate as possible. Therefore, we invite tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule. Comments should be as specific as possible. We particularly seek comments and new information concerning:
(1) Our analyses of the Colorado butterfly plant's abundance, distribution, and population trends;
(2) Potential impacts from disturbances, such as grazing and residential, urban, and energy development;
(3) Conservation activities within the plant's range;
(4) Potential impacts from the effects of climate change; and
(5) Input on considerations for post-delisting monitoring of the Colorado butterfly plant.
Please include sufficient supporting information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, may not meet the standard of information required by section 4(b)(1)(A) of the Act (16 U.S.C. 1531
To issue a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.
You may submit your comments and materials concerning the proposed rule by one of the methods listed in
We will post your entire comment––including your personal identifying information––on
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate and independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following its publication in the
On October 18, 2000, we published a rule in the
On May 25, 2010, we developed a recovery outline that laid out a preliminary course of action for the recovery of the Colorado butterfly plant. This recovery outline identified residential and urban development as the most immediate and severe threat to the species, with mowing and haying as an additional potential threat. A recovery plan has not been developed for this species, although a draft was assembled prior to the species' listing by the Service, the Nature Conservancy, and the Wyoming Natural Diversity Database in 1987 (USFWS 1987, entire).
On December 17, 2012, we completed a 5-year review of the Colorado butterfly plant. The review was revised in June 2016, to remove private information protected under wildlife extension agreements (WEAs) from the document. The 5-year review concluded that the species should remain listed as threatened but also stated that threats currently affecting the species were occurring at low levels overall for Colorado butterfly plant populations and recommended further actions and analyses prior to the next 5-year review to assist in determining whether the species could be delisted.
Detailed information regarding the Colorado butterfly plant's biology and life history can be found in the Species Biological Report for Colorado butterfly plant (USFWS 2017a, pp. 6–7), which was reviewed by recovery partners. The Species Biological Report is an in-depth review of the species' biology and threats, an evaluation of its biological status, and an assessment of the resources and conditions needed to maintain long-term viability. The Species Biological Report is an interim approach taken as we transition to using a Species Status Assessment (SSA) framework as the standard format that the Service uses to analyze species as we make decisions under the Act, and includes similar analyses of the species' viability in terms of its resiliency, redundancy, and representation (USFWS 2016b, entire). We summarize relevant information below.
The Colorado butterfly plant is a short-lived perennial herb that is monocarpic or semelparous, meaning that it flowers once, sets seed, and then dies. Flowering plants may, on rare occasions, flower a second year or become vegetative the year after flowering (Floyd 1995, pp. 10–15, 32). Pollinators for related species of
The Colorado butterfly plant is self-compatible; plants produce flowers capable of forming viable seed with pollen from the same plant (Floyd 1995, p. 4). During dispersal, many seeds fall to the ground around parent plants (Floyd and Ranker 1998, p. 854). Because the seed floats, it also may be dispersed downstream. Livestock and native ungulates could provide an important dispersal mechanism as well, through ingestion of the seeds (USFWS 2012, p. 27). Populations of this species show evidence of a seedbank, an adaptation that enables the species to take advantage of favorable growing seasons, particularly in flood-prone areas (Holzel and Otte 2004, p. 279).
The number of individuals in a population of Colorado butterfly plants appears to be influenced by rates of seedling establishment and survival of vegetative rosettes to reproductive maturity. These factors may be influenced by summer precipitation (Floyd and Ranker 1998, p. 858; Fertig 2000, p. 13). The combination of cool and moist spring months is important in germination, and germination levels influence the outcome of flowering plant population census in subsequent years. Additionally, summer conditions, and temperature in particular, appear to be an important mortality factor rather than influencing germination (Laursen and Heidel 2003, p. 6). Differences in soil moisture and vegetation cover may also influence recruitment success (Munk
The vegetative rosettes within a population may provide an important
The Colorado butterfly plant, a member of the evening primrose family (Onagraceae), was listed as
Throughout this proposed rule, we will use the current scientific name and rank,
The Colorado butterfly plant is a regional endemic riparian species known from 34 12-digit hydrologic unit code watersheds (watersheds) (28 extant and 6 extirpated), found from Boulder, Douglas, Larimer, and Weld Counties in Colorado, Laramie and Platte Counties in Wyoming, and western Kimball County in Nebraska (see figure below). Prior to 1984, few extensive searches for the plant had been conducted, and data taken from herbarium specimens were the primary basis of understanding the extent of the species' historical distribution. At that time, the plant was known from a few historical and presumably extirpated locations in southeastern Wyoming and several locations in northern Colorado, as well as from three extant occurrences in Laramie County in Wyoming and Weld County in Colorado. Prior to listing, extensive surveys were conducted in 1998, to document the status of the known occurrences, and all still contained Colorado butterfly plants (Fertig 1998a, entire).
The Colorado butterfly plant occurs on subirrigated (water reaches plant root zone from below the soil surface), alluvial soils derived from conglomerates, sandstones, and tuffaceous mudstones and siltstones of the Tertiary White River, Arikaree, and Oglalla Formations (Love and Christiansen 1985 in Fertig 2000, p. 6) on level or slightly sloping floodplains and drainage bottoms at elevations of 1,524–1,951 meters (m) (5,000–6,400 feet (ft)). Populations are typically found in habitats created and maintained by streams active within their floodplains, with vegetation that is relatively open and not overly dense or overgrown (65 FR 62302; October 18, 2000). Populations occur in a range of ecological settings, including streamside, outside of the stream channel but within the floodplain, and spring-fed wet meadows. The plant is often found in but not restricted to early- to mid-succession riparian habitat. Historically, flooding was probably the main cause of disturbances in the plant's habitat, although wildfire and grazing by native herbivores also may have been important. Although flowering and fruiting stems may exhibit increased dieback because of the abovementioned events, vegetative rosettes appear to be little affected (Mountain West Environmental Services 1985, pp. 2–3).
It commonly occurs in communities dominated by nonnative and disturbance-tolerant native species including:
Typically, Colorado butterfly plant habitat is open, without dense or woody vegetation. The establishment and survival of seedlings appears to be enhanced at sites where tall and dense vegetation has been removed by some form of disturbance. In the absence of occasional disturbance, the plant's habitat can become choked by dense growth of willows, grasses, and exotic plants (Fertig 1996, p. 12). This prevents new seedlings from becoming established and replacing plants that have died (Fertig 1996, pp. 12–14).
For the purposes of this analysis, we consider all occurrences of the Colorado
The Colorado butterfly plant occurred historically and persists in various ecological settings described above under Habitat Description including wet meadows, stream channels, stream floodplains, and spring-fed wetlands. A detailed summary of the status of the species between 1979 and 2016 is provided in the species' Biological Report (USFWS 2017a, pp. 13–22).
In 1998 and 1999, in preparation for listing the species, the rangewide census of flowering individuals was estimated at 47,300 to 50,300, with the majority of these occurring in Wyoming (Fertig 1998a, p. 5; Fertig 2000, pp. 8–13). However, a population was discovered in Colorado in 2005 that had a peak census of 26,000 plants in 2011, bringing the total rangewide population to approximately 73,300 to 76,300 plants over time. Another population was discovered upstream of known populations on Horse Creek in Laramie County, Wyoming, in 2016 with only 17 individuals, although the area had just been hayed and was likely an incomplete representation of the total number of plants in this population (USFWS 2016c, entire).
Average numbers may be a more appropriate way to represent populations than the minimum and maximum values, although all provide insight into the population's resiliency, or the ability to withstand stochastic events. The number of reproductive individuals in a population is somewhat driven by environmental factors and varies considerably, so understanding the variability in the number of individuals present in any given year is meaningful in assessing population resiliency. Population numbers have fluctuated five-fold over the course of the longest-running monitoring study (28 years) conducted on Warren AFB. There, the population peaked at over 11,000 flowering plants in 1999 and 2011, making it one of the largest populations rangewide, and then dropped to 1,916 plants in 2008 (Heidel
The final listing rule (65 FR 62302; October 18, 2000) defined large populations as those containing more than 3,000 reproductive individuals; moderate populations as those containing 500 to 2,500 reproductive individuals; and small populations having fewer than 500 reproductive individuals. At the time, the species was represented by 10 stable or increasing populations, 4 extant but declining populations, 3 likely small populations, and 9 likely extirpated populations. However, after monitoring roughly half the known populations annually for the past 13 years, we understand that population size fluctuates significantly from year to year; therefore, population size in any given year is not a good indicator of resiliency. Therefore, our estimates of resiliency are now based on averages of population censuses over multiple years and trends of populations in response to management and stressors. Based on this, we now have 15 highly resilient populations, 2 moderately resilient populations, 6 low resiliency populations, 2 populations with unknown resiliency, 3 introduced populations, and records of 6 extirpated populations.
In 2005, when critical habitat was designated for the Colorado butterfly plant, only a single population was known from Colorado. That population was not designated as critical habitat because it was protected under a WEA. Currently, the species is known to occur in Adams, Boulder, Douglas, Jefferson, Larimer, and Weld Counties in northern Colorado, spanning 12 watersheds (see figure above). Six historical occurrences have not been documented since 1984, and are presumed extirpated. Three of the eight records in Colorado are introduced and do not represent indigenous populations, and are either seeded into the wild or into a garden. These introduced sites were not designed specifically for species' conservation, and therefore are not the focus of this species status evaluation in Colorado.
The majority of Colorado butterfly plants in Colorado are located on lands managed by the City of Fort Collins Natural Areas Department (Ft. Collins or CFCNAD) in Weld and Larimer Counties. The plants are distributed among three distinct habitats on either side of Interstate 25 and have numbered between 3 to more than 26,000 reproductive individuals. These areas are being managed to maintain suitable habitat for the species (CFCNAD 2008, p. 1; CFCNAD 2010, p. 1; CFCNAD 2011a, entire; CFCNAD 2011b, entire; CFCNAD 2014, entire). Annual census information on flowering individuals at the Meadow Springs Ranch in Weld County indicates that the large fluctuations in population numbers are actually around a stable mean (434 flowering plant average, median of 205, range of 45−1,432 flowering plants). Other populations in Colorado have not been routinely monitored; consequently, no trend information is available (USFWS 2016c, entire). In summary, the species is represented in Colorado by two highly resilient, three low resiliency, and three introduced populations.
Populations of the Colorado butterfly plant in Nebraska are considered at the edge of the species' range and exist at higher elevations than we knew at the time we listed the species. Surveys conducted in 1985, along Lodgepole Creek near the Nebraska/Wyoming border in Kimball County, found just over 2,000 flowering plants (Rabbe 2016, pers. comm). A survey in 1992 found two populations of Colorado butterfly plant: One population (547 plants) along Lodgepole Creek and one population (43 plants) at Oliver Reservoir State Recreation Area (SRA) in the southwest panhandle of Nebraska in Kimball County (Fertig 2000a, p. 12).
Extant populations of Colorado butterfly plant in Wyoming occur throughout most of Laramie County and extend northward into Platte County (USFWS 2012, pp. 11–21), spanning 17 watersheds (see figure above). Over 90 percent of known occurrences in Wyoming are on private lands, with parts of two occurrences on State school trust lands, one occurrence on State lands, and one occurrence on Federal lands. Populations in Wyoming that are found partly or fully on State school trust lands are managed for agricultural uses. The population on Federal lands occurs on Warren AFB located adjacent to Cheyenne, provides information on species trends as it may have occurred prior to human settlement of the area (with wild grazers and natural streamflow), and represents the level of hydrological complexity of three different sizes of streams. The highest census numbers at Warren AFB totaled over 11,000 plants in 1998 and 2011, and the mean census numbers for all other years have remained at or above 50 percent of that peak, based on 1988–2016 numbers (Heidel
In terms of genetic representation, a study conducted on Colorado butterfly plants occupying three drainages at Warren AFB found that one of the drainages was genetically unique and more diverse than the other two drainages (Floyd 1995, pp. 73–81). Another study at Warren AFB found that plants in one of the drainages contained unique alleles, sharing genetic composition with only a small number of individuals from the second and no individuals of the third drainage, indicating fine-scale genetic variability within that portion of the species' range (Tuthill and Brown 2003, p. 251). Assuming similar genetic structure across the species' range, this result suggests a high degree of genetic representation at the species' level. This genetic information, however, does not provide sufficient strength in terms of sample size in discerning populations from each other.
The Service has agreements with 11 private landowners within six watersheds in Laramie County, Wyoming, and one watershed in Weld County, Colorado (described in detail under Conservation Efforts, below), since 2004 to conduct annual monitoring of the Colorado butterfly plant. We also provide management recommendations to help landowners maintain habitat for the species. Many of the landowners graze cattle or horses where the species occurs; others use the areas for haying operations. Populations at these locations may fluctuate by as much as 100-fold annually (USFWS 2012, pp. 11–21; USFWS 2016c, entire). For example, one population was heavily grazed for over a decade, leading to counts of fewer than 30 reproductive individuals for several years, but when the grazing pressure was relieved, the population rebounded within 1 year to more than 600 reproductive individuals (USFWS 2016c, entire). This may indicate that either a robust seedbank was present or vegetative rosettes avoided the intense grazing pressure and bolted after grazing diminished. The total number of plants counted in Wyoming under these agreements has varied from approximately 1,000 to over 21,000 reproductive individuals since 2004. Combining annual census numbers from all monitored populations in Wyoming, we have observed small to extreme population fluctuations (USFWS 2012, pp. 11–21; USFWS 2016c, entire). Wyoming is represented by 13 highly resilient populations, 2 moderately resilient populations, and 2 populations with unknown resiliency due to lack of information.
The listing decision (65 FR 62302, October 18, 2000, see p. 62308) stated that “[i]n order for a population to sustain itself, there must be enough reproducing individuals and sufficient habitat to ensure survival of the population. It is not known if the scattered populations of [the Colorado butterfly plant] contain sufficient individuals and diversity to ensure their continued existence over the long term.” Today, we understand that, regarding ecological representation, the species is characterized by having at least one population within each ecological setting and within all but the southern-most portions of the historical range. Furthermore, most extant populations have high resiliency (with more than 100 reproductive individuals in most years). Additionally, most populations contain individuals in more than one ecological setting, such as individuals along the creek bank and individuals outside of the creek bank and in the floodplain of the creek. While surveyors typically census the number of flowering individuals during surveys due to relative ease in counting, the number of flowering plants in a survey location in any given year does not represent the resiliency of the population. Resiliency is determined through a combination of number of flowering individuals, trends in this number, and response of the population to stochastic events.
The Service has worked with partners to protect existing populations. Much of this work has been accomplished through voluntary cooperative agreements. For example, beginning in 2004, the Service has entered into 11 WEAs with private landowners, representing six watersheds, to manage riparian habitat for Colorado butterfly plant (70 FR 1940; January 11, 2005). These 15-year WEAs cover a total of 1,038 hectares (ha) (2,564 acres (ac)) of the species' habitat along 59 km (37 mi) of stream. These agreements represent approximately one-third of the known populations of Colorado butterfly plant in Wyoming and Colorado, including some of the largest populations on private lands. All of the landowners have agreed to the following:
(1) Allow Service representatives or their designee access to the property for monitoring or fence installation;
(2) Coordinate hay cutting activities in areas managed primarily for hay production to consider the Colorado butterfly plant's seed production needs;
(3) Prevent application of herbicides closer than 30.5 m (100 ft) from known subpopulations of the Colorado butterfly plant; and
(4) Manage livestock grazing activities in conjunction with conservation needs of the Colorado butterfly plant.
One of the landowners signed a 10-year agreement instead of a 15-year agreement that was renewed for an additional 10 years in 2015. The remaining agreements expire in late 2019. We anticipate that participating landowners will continue to support the work being performed under the WEAs and will seek renewal of these agreements if the species remains listed under the Act. Based on the ongoing relationship that the Service has with these participating landowners, we anticipate that they would support the inclusions of their properties under the
One of the benefits of the WEAs for both the Service and private landowners is that we can review the population numbers annually and together develop management recommendations to improve growing conditions for the species. Populations occurring within designated critical habitat (see figure, above) have not been surveyed since 2004, and their trends, threats, and viabilities are uncertain. However, no projects potentially impacting critical habitat for this species have occurred. Additionally, we reviewed aerial imagery of the critical habitat units and found only two minimal changes between 2004 and 2015 (reflecting habitat conditions at the time of designation and the most recent aerial imagery available) throughout all critical habitat units; these changes affect only a few acres of designated critical habitat (USFWS 2017b, entire). Consequently, we determine that activities occurring on critical habitat are likely the same as they were at the time of designation. Furthermore, because many of the private lands included in the critical habitat designation are adjacent to lands under WEAs, we determine that the populations occurring within designated critical habitat are likely stable, and fluctuating similarly to populations on lands that we monitor under WEAs. We have no reason to believe that populations occurring on designated critical habitat are responding to stressors differently than those populations we monitor. Therefore, populations throughout the species' range on private, local, and Federal lands either have been observed to be, or are highly likely to be, fluctuating around a stable population size.
The Service and the U.S. Air Force signed a memorandum of agreement (MOA) on January 18, 1982 (updated in 1999 and 2004) to facilitate the preservation, conservation, and management of the Colorado butterfly plant (USFWS 1982, entire; USFWS 1999, entire; USFWS 2004, entire). In 2004, Warren AFB developed a conservation and management plan for the species (Warren AFB 2004, entire) that was added to their integrated natural resources management plan in 2014 (Warren AFB 2014, entire). Through these plans, the Service partners with the U.S. Air Force and Wyoming Natural Diversity Database to monitor and protect the population of the Colorado butterfly plant on the Warren AFB. This includes annual monitoring; nonnative, invasive species control and eradication; and maintenance of appropriate floodplain characteristics for the species. Based on 29 years of monitoring and management, the population of the Colorado butterfly plant on the Warren AFB is doing well, with some areas declining while others are increasing (Heidel
Three populations in Larimer and Weld Counties, Colorado, occur on properties owned by the City of Fort Collins, and two are among the largest across the species' range. The City of Fort Collins developed a 10-year master plan for the Natural Areas Department in 2014, which provides a framework for the conservation and preservation of natural areas, including the populations of the Colorado butterfly plant. The master plan prescribes conservation actions that allow for the persistence of the Colorado butterfly plant on the landscape (CFCNAD 2016a, entire), including prescribed burns to eliminate competition, managed grazing, and improved security of water flow to the species' habitat.
In summary, these agreements and plans have provided useful data, facilitated good management of nine of the largest and most resilient populations, and resulted in stable or increasing population trends. Because of the information we obtained through these agreements and plans, we are able to understand the resilience of individual plants and populations, the representation of the species within its ecological settings, and the redundancy of the plant population's numbers and potential for connectivity.
Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (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.
Determining whether the status of a species has improved to the point that it can be downlisted (
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 word “range” in the significant portion of its range phrase refers to the range in which the species currently exists, and the word “significant” refers to the value of that portion of the range being considered to the conservation of the species. We consider “foreseeable future” as that period of time within which a reliable prediction can be reasonably relied upon in making a determination about the future conservation status of a species, as described in the Solicitor's opinion dated January 16, 2009. We consider 15 to 20 years to be a reasonable period of time within which reliable predictions can be made for the Colorado butterfly plant. This time period includes at least five generations of the species, coincides with the duration of one renewal of the WEAs expiring in 2019, and aligns with the timeframes for predictions regarding municipal development and growth in the area. For the purposes of this analysis, we first evaluate the status of the species throughout all of its range, then consider whether the species is in danger of extinction or likely to become so in any significant portion of its range.
In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure to a factor and the species responds negatively, the factor
The Colorado butterfly plant is federally listed as threatened. Below, we present a summary of threats affecting the species and its habitats in the past, present, and predicted into the future. A detailed evaluation of factors affecting the species at the time of listing can be found in the listing determination (65 FR 62302; October 18, 2000) and designation of critical habitat (70 FR 1940; January 11, 2005). An evaluation of factors affecting the species after 2005 can be found in the 2012 5-year review (USFWS 2012, entire). The primary threats to the species identified at the time of listing include overgrazing by cattle or horses, haying or mowing at inappropriate times of the year, habitat degradation resulting from vegetation succession or urbanization of the habitat, habitat conversion to cropland or subdivision, water development, herbicide spraying, and competition with exotic plants (Marriott 1987, pp. 26–27; Fertig 1994, pp. 39–41, Fertig 2000a, pp. 16–17). Since the time of listing, oil and gas development and the effects of climate change have become potential threats to this species and are analyzed under Factor A and Factor E, respectively, below.
At the time of listing (65 FR 62302; October 18, 2000), residential and urban development around the cities of Cheyenne and Fort Collins were identified as past causes of habitat conversion and habitat loss to the Colorado butterfly plant; these types of development were not a concern in Nebraska at the time of listing nor are they now. Although difficult to quantify because land conversion was not tracked during the settlement of the West, likely a few hundred acres of formerly suitable habitat were converted to residential and urban sites, contributing to loss of habitat (Fertig 1994, p. 38; Fertig 2000a, pp. 16–17). Much of the species' range occurs along the northern Front Range of the Rocky Mountains in Colorado and Wyoming, which has experienced dramatic growth in the recent past and is predicted to grow considerably in the future (Regional Plan Association 2016, entire), particularly in Larimer and Weld Counties in Colorado (University of Colorado Boulder 2015, pp. 119–120). The demand that urban development places on water resources also has the ability to dewater the streams and lower groundwater levels required by the species to maintain self-sustaining populations, and is explored below.
The two large populations of the Colorado butterfly plant in Larimer and Weld Counties, Colorado, occur on lands managed as open space by Fort Collins, and are not directly subject to residential or urban development. Consequently, despite projected increases in human density and urban development along the northern Front Range, these lands are managed to allow for the persistence of these populations, with managed grazing or burning (CFCNAD 2016b, entire). Fort Collins does not own all mineral rights on these lands; therefore, sensitive areas within these boundaries may be impacted by mineral development. However, in light of this potential threat, the city completed a planning process in which they highlighted areas to be avoided by mineral development (The Nature Conservancy 2013, entire). While oil and gas development has increased in northern Colorado and southeastern Wyoming since the time of listing, no oil or gas wells have been proposed or likely will be proposed in areas that will directly or indirectly impact populations of the Colorado butterfly plant in Colorado or in Wyoming, particularly due to the species' occurrence in riparian and wetland habitats. Because the plant occurs in riparian and wetland habitats that routinely flood, it is likely that oil and gas wells will be sited outside of population boundaries. While there is potential for indirect effects through spills or sedimentation, we have no specific information about those effects on the species to date.
According to publicly available information, there are no current proposals for urban or residential development on lands containing populations of Colorado butterfly plant in Wyoming. Monitoring of lands under agreement (CFCNAD, WEAs, and Warren AFB) has also shown that neither urbanization nor conversion to intensive agricultural activities has occurred as predicted in the final listing rule (65 FR 62302, October 18, 2000; USFWS 2012, pp. 11–22; USFWS 2016c, entire). Populations at WAFB remained stable over the past 29 years without being managed for agricultural purposes, although numbers of reproductive individuals fluctuate during any given year (Heidel
Furthermore, chapters 3 and 4 of the Laramie County Land Use Regulations address floodplain management and require specific provisions and permits for construction within floodplains (Laramie County 2011, pp. 165–185), which encompass all Colorado butterfly plant habitat within the county; these regulations, therefore, extend some level of protection to the species and its habitat. These regulations are in place to “promote public health, safety, and general welfare and to minimize public and private losses due to flood conditions” (Laramie County 2011, p. 165), and protect many resources, including the Colorado butterfly plant and its habitat, by limiting development in the floodplains. These regulations are discussed in detail under Factor D, below.
The threats of residential and urban development, once considered significant threats to the Colorado butterfly plant, have been largely avoided because most development has occurred outside of the habitat in which this species occurs. Annual monitoring conducted by the Service since 2004 indicates that populations are stable and unaffected by any development that has occurred within the species' range. While human population growth and development are predicted for the Front Range of the Rocky Mountains in Colorado into the future, these areas are outside of the species' occupied habitat, and we do not anticipate development in the protected areas under management of Fort Collins, and do not anticipate development due to continued restrictions against
At the time of listing (65 FR 62302; October 18, 2000), conversion of grassland to farmlands, mowing grasslands, and grazing were considered threats to the Colorado butterfly plant. Prior to listing, the conversion of moist, native grasslands to commercial croplands was widespread throughout much of southeastern Wyoming and northeastern Colorado (Compton and Hugie 1993, p. 22), as well as in Nebraska. However, conversion from native grassland to cropland has slowed throughout the species' range since the time of listing, with no lands converted in Laramie County and just 12 ha (30 ac) converted in Platte County between 2011 and 2012 (FSA 2013, entire).
Mowing areas for hay production that are occupied by the Colorado butterfly plant was identified as a threat at the time of listing, if conducted at an inappropriate time of year (prior to seed maturation) (Fertig 1994, p. 40; USFWS 1997, p. 8). However, monitoring over the past 13 years indicates that mowing prior to seed maturation occurs infrequently. Even in areas where early season mowing has occurred, annual monitoring has shown high numbers of reproductive plants present in subsequent years, suggesting that mowing for hay production is not a threat to the species (USFWS 2016c, entire).
The agricultural practices of grazing and herbicide application threatened the Colorado butterfly plant at the time of listing. However, since then, the Service has made and continues to make recommendations to cooperating landowners on agricultural management that fosters resiliency in populations of the species. We believe that these measures have decreased the severity of these stressors. We also anticipate that landowners will continue their current agricultural practices into the future, based on the data we have collected from WEAs (USFWS 2016c, entire) and analysis of aerial imagery of designated critical habitat (USFWS 2017b, entire). Through these agreements, we also learned that the species is highly adapted to withstand stochastic events. The assessment that the species is highly resilient is based on the information obtained through the WEAs; we do not rely on the implementation of the WEAs to ensure that the species remains highly resilient. Instead, we believe the plant will continue to thrive even if protections are removed. Grazing is further explored under Factor C, below, and herbicide spraying is further explored under Factor E, below.
At the time of listing (65 FR 62302; October 18, 2000), water management (actions that moved water to croplands, such as irrigation canals, diversions, and center pivot irrigation development) was considered a threat that would remove moisture from Colorado butterfly plant habitat. The management of water resources for livestock production and domestic and commercial human consumption, coupled with increasing conversion of lands for agricultural production, often led to channelization and isolation of water resources; changes in seasonality of flow; and fragmentation, realignment, and reduction of riparian and moist lowland habitat (Compton and Hugie 1993, p. 22). All of these actions could negatively impact suitable habitat for the species.
Dewatering portions of Lodgepole Creek in Kimball County, Nebraska, has led to the extirpation of some of the species' known historical populations there, and low likelihood of long-term resiliency for the two extant populations last monitored in 2008 (Rabbe 2016, pers. comm.). Extant populations in Nebraska continue to experience dewatering and overgrazing on private land. However, when water was reintroduced to formerly occupied habitat after being absent for more than 10 years, a population was rediscovered (Wooten 2008, p. 4). While rediscovery of this population indicates persistence of a viable seedbank for at least 10 years, numbers of plants within the population declined from over 600 plants (Fertig 2000a, p. 12) to 12 plants (Wooten 2008, p. 4), and the application of water that allowed plants to grow was temporary, which suggests the population has a low likelihood of long-term resiliency.
In 2016, the Colorado Water Conservation Board on behalf of Fort Collins filed an instream flow right on Graves Creek, the stream that feeds the population of Colorado butterfly plants in Soapstone Prairie (CFCNAD 2016b, entire). While the water right has not yet been granted, we believe that this instream flow right will protect and maintain subirrigation of this large and important population through ensuring adequate water availability to the species throughout the year.
The entire range of the Colorado butterfly plant occurs within the Platte River Basin. Water usage in the Platte River system is managed collaboratively by the States of Colorado, Wyoming, and Nebraska, and the Department of the Interior, through the Platte River Recovery Implementation Program (PRRIP). The PRRIP, which began in 1997, provides a mechanism for existing and new water users and water-development activities in the Platte River Basin to operate in regulatory compliance with the Act regarding potential impacts to the five Platte River “target species” in Nebraska:
In summary, water management can directly and indirectly impact the Colorado butterfly plant. While management of water resources has negatively impacted the species on a localized scale in the past, there is no indication that water management throughout the majority of the species' range poses a current threat to the species because programs and policies currently in place, such as the PRRIP and Graves Creek instream flow right, provide substantial assurances that the hydrological component of currently occupied habitat will remain protected over the long term.
In the absence of periodic disturbance, natural succession of the plant community in areas occupied by the Colorado butterfly plant moves from open habitats to dense coverage of grasses and forbs, and then to willows and other woody species. The semi-open habitats preferred by this species can become choked by tall and dense growth of willows; grasses; and nonnative, invasive species (Fertig 1994, p. 19; Fertig 2000a, p. 17). Natural disturbances such as flooding, fire, and native ungulate grazing were sufficient
In the absence of natural disturbances today, managed disturbance may be necessary to maintain and create areas of suitable habitat (Fertig 1994, p. 22; Fertig 1996, pp. 12–14; Fertig 2000a, p. 15). However, populations can persist without natural disturbances such as fire and flooding through natural dieback of woody vegetation and native ungulate grazing (Heidel
The final listing rule (65 FR 62302; October 18, 2000) included competition with exotic plants and noxious weeds as a threat to the Colorado butterfly plant. Competition with exotic plants and noxious weeds, here referred to as nonnative, invasive species, may pose a threat to the Colorado butterfly plant, particularly given the species' adaptation to more open habitats. In areas of suitable habitat for Colorado butterfly plant, the following plants may become dominant: The native
Prior to listing, biological control agents were used to control nonnative, invasive species at Warren AFB and may have depressed numbers and extent of Canada thistle and leafy spurge. Introduced gall-forming flies have slowly become established on Warren AFB and have reduced the vigor, height, and reproductive ability of small patches of Canada thistle (Fertig 1997, p. 15), at least in some years (Heidel
Natural succession was considered a threat to the Colorado butterfly plant at the time of listing. However, we now understand that the altered flood regime of today, coupled with disturbance from fire and grazing, is sufficient to maintain suitable habitat throughout much of the species' range. Competition with nonnative, invasive species is an ongoing stressor for portions of populations, although these invasive species tend not to survive the regular disturbances that create habitat for the Colorado butterfly plant. Therefore, while individuals or populations may be out-competed by native or nonnative, invasive species at higher succession levels, periodic disturbance maintains or creates new habitats for the Colorado butterfly plant.
The following stressors warranted consideration as possible current or future threats to the Colorado butterfly plant habitat under Factor A: (1) Residential, urban, and energy development; (2) agricultural practices; (3) water management; and (4) natural succession and competition with nonnative, invasive species. However, these stressors are either being adequately managed, have not occurred to the extent anticipated at the time of listing, or new information indicates that the species is tolerant of the stressor as described above. While these stressors may be responsible for loss of historical populations (they have negatively affected population redundancy), and are currently negatively affecting the populations in Nebraska, we do not anticipate a rangewide increase in these stressors in the future, although they will continue at some level.
Factor B was not considered a threat to the species at the time of listing (65 FR 62302; October 18, 2000). We are aware of three unpermitted collections of seeds of the Colorado butterfly plant for scientific and/or commercial purposes since the publication of the final listing rule. These three collections were limited events that occurred at an introduction site in Colorado and from a large, robust population in Wyoming. Based on recent population data, these unpermitted collection events had no apparent impact on the number and distribution of plants within these populations or the species' habitat (based on Heidel
At the time of listing, Factor B was not considered a threat to the Colorado butterfly plant. We are aware of only three unpermitted collections of the seeds of the species since listing. These collection events had no apparent effect on the number and distribution of plants from which they were taken. Based on available information, we do not consider there to be threats now or
The listing of the Colorado butterfly plant (65 FR 62302; October 18, 2000) did not include threats from disease or predation, although livestock grazing was described as a potential threat if grazing pressures were high. No diseases are known to affect this species. In 2007, a precipitous decline in plant numbers was observed in many populations monitored in Colorado and Wyoming. The exact cause of the decline was not positively identified, but weather and insect herbivory were two potential contributing factors. Weather-related impacts included an early start to the growing season, lower than normal spring precipitation levels (which were magnitudes lower than in all previous years), and higher mean temperatures in late summer. Insect herbivory also was suspected, as virtually all reproductive plants were riddled with holes, flowering and fruit production was curtailed or greatly reduced on all plants, and some bolted plants died before flowering. Interestingly, no vegetative (
Insect herbivory may not be a severe or immediate threat to Colorado or Wyoming populations as the above-referenced impacted populations rebounded to pre-infestation numbers in 2009 and 2010 (Heidel
Colorado butterfly plant is highly palatable to a variety of insect and mammalian herbivores including Gaura moth (
Heavy grazing at key times of the year during the life cycle of the Colorado butterfly plant may be detrimental to populations by temporarily removing reproductive individuals and eliminating seed production for that year. However, even after many years of intensive grazing, populations rebounded upon relief (USFWS 2012, pp. 11–21; USFWS 2016c, entire). This response is likely due to survival of non-reproductive individuals and recruitment from the seedbank. Moderate grazing acts as a disturbance that keeps the habitat in an open or semi-open state suitable for this species, and light to medium grazing can provide benefits by reducing the competing vegetative cover and allowing seedlings to become established (USFWS 1997, p. 8).
In general, while disease or predation has had an occasional negative impact on individuals and localities, most of these impacts do not appear to affect entire populations, nor do these impacts persist for any extended period of time. Individuals are resilient to damage; vegetative plants (basal rosettes) appear to be resistant to damage from grazing activities and are capable of withstanding stochastic events, and reproductive plants send out additional flowering branches upon injury. Also, the lack of any known diseases affecting the species and the species' redundancy of many populations distributed across most of the historical range would likely provide a buffer to any type of catastrophic disease outbreak.
Under this factor, we examine whether the stressors identified within the other factors may be ameliorated or exacerbated by an existing regulatory mechanism. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws, regulations, and other such binding legal mechanisms that may ameliorate or exacerbate any of the threats we describe in threats analyses under the other four factors, or otherwise enhance conservation of the species. Our consideration of these mechanisms is described in detail within our analysis of each of the factors (see discussion under each of the other factors).
For currently listed species, we consider the adequacy of existing regulatory mechanisms to address threats to the species absent the protections of the Act. Therefore, we examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms will continue to help ensure that future threats will be reduced or minimized.
In our discussion 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. Presently, the Colorado butterfly plant is a Tier 1 species in the Plants of Greatest Conservation Need in Colorado (Colorado SWAP 2015, entire), and the species is listed on the State endangered species list for Nebraska, and will continue to be so designated due to the species' extreme rarity in Nebraska (Wooten 2008, p. 1).
When we listed the Colorado butterfly plant in 2000 (65 FR 62302; October 18, 2000), the majority of known populations occurred on private lands managed primarily for agriculture, with one population at Warren AFB, and a few other populations throughout the species' range under various local jurisdictions. The listing decision described the species' status as
Today, the population on Warren AFB represents one of the largest and most highly resilient populations of the species, is managed under an integrated natural resources management plan (Warren AFB 2014, entire) and a conservation and management plan under Air Force Information 32–7064 (Warren AFB 2004, entire). These plans call for annual monitoring, protection and maintenance, and research on threats and genetic variability of the population located there. Additionally, a Service employee stationed at Warren AFB manages its natural resources, including management of the Colorado butterfly plant and its habitat, such as directing the application of herbicide in the vicinity of the species' habitat. These plans would remain post-delisting. The population of the Colorado butterfly plant at Warren AFB has been monitored since before listing to determine population trends, detect any changes in its habitat, pursue viability assessment, and assess population response to different hydrological conditions. The results indicate that plant numbers fluctuate depending on climate and hydrology, and seem to be capable of rebounding after extreme stochastic events such as the flea beetle infestation of 2007 (Heidel
Discovery and subsequent protection of large populations of the Colorado butterfly plant on lands owned and managed by Fort Collins are an important addition to conservation of the species after it was listed in 2000. The regulatory protections that these two populations receive from occurring on municipal natural areas lands include indefinite protections of land and water and restoring and rehabilitating land and natural systems to build ecological diversity and permanence (City of Fort Collins 2014, pp. 1–2). Populations managed by Fort Collins are afforded protection from oil and gas development (The Nature Conservancy 2013, entire) and from water withdrawals (CFCNAD 2016b, entire), as discussed above under Factor A. Also, as mentioned in “Residential, Urban, and Energy Development” under Factor A, the Laramie County Land Use Regulations address floodplain management and require specific provisions and permits for construction within floodplains (Laramie County 2011, pp. 165–185), which encompass all Colorado butterfly plant habitat within the county; therefore, these regulations extend some level of protection to the species and its habitat. While protecting riparian and wetland species is not the intent of these regulations, plants growing within the floodplain receive the habitat protections outlined as part of the floodplain construction avoidance provisions.
Lands without specific regulatory mechanisms contain most populations of the Colorado butterfly plant. Over a decade of monitoring 11 occurrences on private lands in Wyoming has documented fluctuations in population size about a stable mean, apparently driven by changes in precipitation and disturbance regime (USFWS 2012, pp. 11–22; USFWS 2016c, entire). Management of lands under WEAs is discussed in Conservation Efforts, above.
Populations of Colorado butterfly plant are not known to occur on lands managed by the Bureau of Land Management (BLM) at this time, although there is potential for populations to be discovered on BLM lands in the future. Because of this possibility, the Service and BLM in Wyoming have developed conservation measures under a Statewide programmatic consultation under section 7 of the Act for the Colorado butterfly plant. These conservation measures are incorporated into BLM's 2008 Record of Decision and Approved Rawlins Resource Management Plan (RMP; BLM 2008, entire) and include, but are not limited to: (1) Buffering individuals and populations by 800 m (0.5 mi); (2) implementing standards for healthy rangelands and guidelines for livestock grazing management for the public lands administered by BLM in the State of Wyoming; (3) limiting the number of grazing animals within the permit area; and (4) protecting surface water through prohibiting surface development in the following areas: Within 400 m (0.25 mi) of the North Platte River; within 152 m (500 ft) of live streams, lakes, reservoirs, and canals and associated riparian habitat; and within 152 m (500 ft) of water wells, springs, or artesian and flowing wells (BLM 2005, pp. 4–2 through 4–4). The newly discovered population on Wild Horse Creek (WY–23) occurs within the agreement area that BLM developed with the landowners, and so the conservation measures included in the Rawlins RMP are applied to this population.
Water use is managed under the PRRIP, as described above under Factor A, which ensures that water use in the Platte River is conducted in a way to maintain volume at certain times of the year in the central and lower reaches of the Platte River in Nebraska. Because all of the watersheds in which the Colorado butterfly plant is found occur within the PRRIP, the water on which the species depends is managed under this program (PRRIP 2006). The water that this species requires would continue to be included under the PRRIP even if the Colorado butterfly plant is removed from the List of Threatened and Endangered Plants.
At the time of listing (65 FR 62302; October 18, 2000), no Federal or State laws or regulations specifically protected populations of the Colorado butterfly plant and its habitat. However, two of the three largest populations occur on Warren AFB and lands owned and managed for the species by Fort Collins where regulatory mechanisms now exist. Additionally, 13 years of annual monitoring of 11 survey areas on private lands under WEAs that has occurred since the species was listed has shown that land used for agricultural purposes can be compatible with the resilience of the species, even without any regulatory mechanism in place (see discussions under Factors A, C, and E). Consequently, we find that existing regulatory mechanisms, as discussed above, will continue to address stressors to the Colorado butterfly plant absent protections under the Act.
Factor E requires the Service to consider any other factors that may be affecting the Colorado butterfly plant. Under this factor, we discuss small population size and restricted range, herbicide spraying, and effects of climate change.
The final listing decision (65 FR 62302; October 18, 2000) included the limited range and the small population size of many populations to be a threat
We have evidence that populations throughout the range have persisted despite stochastic events that may have caused short-term declines in number of individuals. For example, a 100-year flood in August 1985 on the Warren AFB inundated the Crow Creek portion of the population, knocking down some plants and surrounding vegetation, and depositing sediments (Rocky Mountain Heritage Task Force 1987, as cited in Heidel
The historical range included populations farther south into Larimer and Weld Counties in Colorado that were lost prior to the listing of the species in 2000. No populations in Larimer and Weld Counties in Colorado have been extirpated since the species was listed, and we do not think that further range restriction has occurred in this portion of the species' range. In the future, species range restriction may occur through loss of peripheral populations in Nebraska where dewatering has removed formerly suitable habitat (Wooten 2008, entire). However, these populations are downstream of highly viable populations in Wyoming, and do not constitute a removal of the species from this drainage entirely. The resiliency and redundancy of populations across much of the species' range indicate that further range restriction is not likely.
At the time of listing (65 FR 62302; October 18, 2000), the non-selective use of broadleaf herbicides to control Canada thistle, leafy spurge, and other nonnative, invasive plants was considered a threat to the Colorado butterfly plant. Non-selective spraying has had negative effects on some Colorado butterfly plant populations (Fertig 2000a, p. 16). For example, in 1983, which was prior to listing, nearly one-half of the mapped population on Warren AFB was inadvertently destroyed when sprayed with Tordon®, a persistent herbicide (Miller 1987, as cited in 65 FR 62302, October 18, 2000, p. 62307). The status of that portion of the population is unknown due to a subsequent lack of clear record-keeping at that time, prior to a Service biologist being employed on site; all plant locations have been tracked in the time after the Service biologist and Wyoming Natural Diversity Database began working at Warren AFB. Herbicide use along road crossings in and adjacent to plant populations was also noted (65 FR 62302, October 18, 2000, p. 62307).
After the 2000 listing of the Colorado butterfly plant, the Service worked with Warren AFB and private landowners under WEAs to develop best management practices for applying herbicides within the vicinity of known occurrences to remove nonnative, invasive species while minimizing adverse effects to individual Colorado butterfly plants. For example, the WEAs require an herbicide-application buffer of 30.5 m (100 ft) from known locations of the Colorado butterfly plant. However, at one property, the landowner inadvertently sprayed individual plants in spring 2016. During subsequent monitoring, Service staff observed reddened plants with shriveled leaves, which likely reduced the vigor of those individuals (USFWS 2016c, entire). We presume that there will be no long-term effects on the population, and in fact, we found vigorous Colorado butterfly plants growing in this area during surveys in 2017. Furthermore, if the species is delisted, we anticipate that landowners will continue to maintain this buffer in accordance with requirements under the WEAs and that Warren AFB will continue to avoid spraying herbicide in the vicinity of the species' habitat as stipulated in their integrated natural resources management plan and conservation and management plan.
While herbicide application may continue to occasionally occur within Colorado butterfly habitat, we know that unsprayed individuals persist in the population and can repopulate Colorado butterfly plants in areas where plants were killed. The seedbank can play an additional role in restoring Colorado butterfly plants to areas that have been sprayed. Based on our records, herbicide application is a management tool used in conjunction with nonnative, invasive species removal in only four of the known occurrences of the species, and these are among our largest and most resilient populations of the species. Our records indicate that, in general, application of buffers has been successful at reducing the presence of invasive species and competition near the Colorado butterfly plant (USFWS 2012, pp. 24–25; USFWS 2016c, entire), and when conducted appropriately, herbicide application can help improve habitat for the Colorado butterfly plant by eliminating competition.
Impacts from climate change were not considered in the final rule to list the species (65 FR 62302; October 18, 2000) or in the critical habitat designation (70 FR 1940; January 11, 2005). Our current analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (
According to IPCC, “most plant species cannot naturally shift their geographical ranges sufficiently fast to keep up with current and high projected rates of climate change on most landscapes” (IPCC 2014, p. 13). Plant species with restricted ranges may experience population declines as a result of the effects of climate change. The concept of changing climate can be meaningfully assessed both by looking into the future and reviewing past changes. A review of Wyoming climate since 1895 indicates that there has been a significant increase in the frequency of warmer-than-normal years, an increase in temperatures throughout all regions of the State, and a decline in the frequency of “wet” winters (Shumann 2011). Data from the Cheyenne area over the past 30 years indicate a rise in spring temperatures (Heidel
Climate change may affect the timing and amount of precipitation as well as other factors linked to habitat conditions for the Colorado butterfly plant. For example, climate models predict that by 2050, watersheds containing the species will become warmer for all four seasons, precipitation will increase in the winter, and remain about the same in spring, summer, and fall (USGS 2016, pp. 1–3). Snow water equivalent will decrease in winter and spring, and soil water storage will decrease in all four seasons (USGS 2016, pp. 4–5). Modeling predicts an increase in winter precipitation, but decreases in soil water storage will mean less water for subirrigation of the species' habitat. This may mean a shorter window for seed germination, lower seed production, and potentially increased years at the rosette stage to obtain sufficient resources to bolt and flower. However, we also understand that C
Under this factor, we discussed the Colorado butterfly plant's small population size and restricted range, herbicide spraying, and climate change.
In 2000, when we listed the species, the stochastic extirpation of individual populations suggested that the range of the species might be declining. Despite the fact that some populations in Colorado, Wyoming, and Nebraska were extirpated prior to listing, and others in Nebraska were extirpated after listing, four additional populations have been discovered, two of which are protected, and there are still representative and redundant populations occurring throughout the range of the species. Further, individuals and populations are resilient to a single herbicide application, and have been shown to survive or bounce back from such events. Education of landowners has greatly reduced the indiscriminate application of herbicides near populations of the Colorado butterfly plant. Finally, while climate change presents a largely unknown potential stressor to the species, individual plants are capable of deferring the reproductive stage until suitable conditions are available, populations are made up of individuals found in a range of microhabitats, and populations are located within various ecological settings within the species' range. This indicates that the resiliency, redundancy, and representation of populations will maintain the species in the face of climate change.
Many of the stressors discussed in this analysis could work in concert with each other and result in a cumulative adverse effect to the Colorado butterfly plant,
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for determining whether a species is an endangered species or threatened species and should be included on the Federal Lists of Endangered and Threatened Wildlife and Plants (listed). The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered or threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; and/or (3) the original scientific data used at the time the species was classified were in error.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Colorado butterfly plant. We examined the status of the species based on the 2010 Colorado butterfly plant recovery outline (USFWS 2010, entire). We also consulted with species experts and land management staff with Fort Collins and Warren AFB who are actively managing for the conservation of the Colorado butterfly plant.
The 2010 Colorado butterfly plant recovery outline presented a recovery vision for the species in which the primary focus was protection of existing populations, threats abatement, and research (USFWS 2010, entire). The initial action plan focused on protection of existing populations through partnerships with Warren AFB, Fort Collins, and private landowners, followed by developing a recovery plan that would contain objective, measurable recovery criteria which, when met, would indicate that the species could be removed from the Federal List of Endangered and Threatened Plants. In 2016, the Service's Wyoming Ecological Services Field Office began development of a recovery plan for the Colorado butterfly plant. In reviewing information regarding population numbers and trends, as well as threats, it appeared that most monitored extant populations were doing well. Threats named at the time of listing were either affecting the species at low levels, likely due to management actions to recover the species, or not affecting the species at all, as was observed in preparing the 2012 5-year status review (USFWS 2012, entire). Therefore, the Service conducted an assessment of the status of the species and whether it should remain on the List of Endangered and Threatened Plants under the Act.
We carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Colorado butterfly plant. We considered all of the stressors identified at the time of listing in 2000, as well as newly identified potential stressors such as oil and gas energy development and the effects of climate change. The stressors considered in our five-factor analysis (discussed in detail above under Summary of Factors Affecting the Species) fall into one or more of the following categories:
•
•
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These conclusions are supported by the available information regarding the species' abundance, distribution, and trends, and are in agreement with conclusions presented in our 2010 recovery outline (USFWS 2010, entire) and in our 5-year review (USFWS 2012, entire). Thus, after assessing the best available information, we conclude that the Colorado butterfly plant is not in danger of extinction, nor is it likely to become so in the foreseeable future.
Under the Act and our implementing regulations, a species may warrant listing if it is an endangered or a threatened species throughout all or a significant portion of its range. The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” We published a final policy interpretating the phrase “Significant Portion of its Range” (SPR) (79 FR 37578). The final policy states that (1) if a species is found to be an endangered or a threatened species throughout a significant portion of its range, the entire species is listed as an endangered 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 an endangered or a threatened species 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 FWS or NMFS makes any particular status determination; and (4) if a vertebrate species is an endangered or a threatened species throughout an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.
The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all 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 will be required. If the species is neither an endangered nor a threatened species throughout all of its range, we determine whether the species is an endangered or a threatened species throughout a significant portion of its range. If it is, we list the species as an endangered or a threatened species, respectively; if it is not, we conclude that listing the species is not warranted.
When we conduct an SPR 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 to analyzing portions of the range that are not reasonably likely to be significant and either an endangered or a threatened species. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is an endangered or a threatened species throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is
If we identify any portions that may be both (1) significant and (2) endangered or threatened, 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 in that identified SPR is an endangered or a threatened species. We must go through a separate analysis to determine whether the species is an endangered or a threatened species in the SPR. To determine whether a species is an endangered or a threatened species throughout an SPR, we will use the same standards and methodology that we use to determine if a species is an endangered or a threatened species throughout its range.
Depending on the biology of the species, its range, and the threats it faces, it may be more efficient to address the “significant” question first, or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is an endangered or a threatened species there; if we determine that the species is not an endangered or a threatened species in a portion of its range, we do not need to determine if that portion is “significant.”
We evaluated the range of the Colorado butterfly plant to determine if any area could be considered a significant portion of its range. The only portion of the range where threats are geographically concentrated are the three populations in Nebraska. Grazing and water management, particularly the dewatering of Lodgepole Creek downstream of the Wyoming/Nebraska border in the three populations in Nebraska, has proven to impact populations in that portion of the species' range. This stressor has affected these populations to a level that the populations were presumed extirpated at the time we designated critical habitat for this species (70 FR 1940; January 11, 2005). However, after water was reintroduced to the creek by a landowner, Colorado butterfly plants were again observed in Lodgepole Creek (Wooten 2008, p. 4). It is possible that the species only occurs in this portion of its range during times of adequate subirrigation and surface flows, and that seeds either remain dormant at this location for several years or are transported from neighboring populations located upstream on Lodgepole Creek in Wyoming. Nevertheless, the removal of water from Lodgepole Creek impacts populations of the Colorado butterfly plant within this portion of the species' range.
Because we identified an area on the periphery of the species' current range as warranting further consideration due to the geographic concentration of threats from water management, we then evaluated whether this area may be significant to the Colorado butterfly plant such that, without the members in that portion, the entire species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range. We can accomplish this by considering the viability of the remainder of the range without the portion and the biological or conservation importance of the portion. The viability of the remainder of the range, should the three populations in Nebraska be lost, will remain high: All of the highly and moderately resilient populations occur in the remainder of the range, which is comprised of more than 20 populations distributed through a geographically connected area, and which contains all of the ecological settings this species is known to inhabit.
Additionally, to determine significance of this threatened portion of the range, we examined its contribution to the species' viability in terms of its resiliency, redundancy, and representation. Regarding redundancy, the populations within this portion of the range occur on the eastern extreme of the historical range of the species and represent a very small component of the total distribution of the species, occurring downstream of several highly viable populations. Therefore, these populations do not substantially increase redundancy at the species level. Regarding resiliency, individual plants in this portion of the range may be resilient to dewatering or other stressors, but populations contain few individuals and are, therefore, threatened by stochastic events. Regarding representation, we understand that there may be connectivity among the populations occurring in Nebraska and the populations upstream on Lodgepole Creek in Wyoming. However, this connectivity is likely only through limited pollinator movement among the few flowering plants at any location, and through seed dispersal downstream from Wyoming to Nebraska, considering the distance is too great (>1 km/0.6 mi) for most pollinators to travel (Heidel 2016, pers. comm.). Consequently, the populations in Nebraska are likely not contributing any genetic information upstream. We do not have genetic information on these populations, but we understand that the populations in this portion of the species' range do not occupy unique ecological settings, have unique morphology, or have differing phenology than other populations of the species on Lodgepole Creek or in the rest of the species' range.
After careful examination of the Colorado butterfly plant population in the context of our definition of “significant portion of its range,” we determine an area on the periphery of the range warranted further consideration because threats are geographically concentrated there. After identifying this area, we evaluate whether it is significant and determine that it is not significant because, even without Colorado butterfly plants in this area, the species would not be in danger of extinction, or likely to become so in the foreseeable future. This is because the remainder of the species is characterized by high levels of resiliency, redundancy, and representation; the remainder of the species contains all of the highly and moderately resilient populations (high resiliency), is comprised of more than 20 populations distributed through a geographically connected area (high redundancy), and includes all of the ecological settings this species is known to inhabit (high representation). Therefore, we did not need to determine if the species is in danger of extinction or likely to become so in the foreseeable future in this peripheral area in Nebraska.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Colorado butterfly plant. The threats that led to the species being listed under the Act (primarily loss of the species' habitat (Factor A) and small population size, restricted range, and herbicide spraying (Factor E)) have not occurred to the extent anticipated at the time of listing, or are being appropriately managed by the actions of multiple conservation partners over the past 18 years. These actions include habitat management,
This proposal, if made final, would revise 50 CFR 17.12(h) to remove the Colorado butterfly plant from the Federal List of Endangered and Threatened Plants. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the Colorado butterfly plant or its designated critical habitat. This proposal, if made final, would also remove the designation of critical habitat for the Colorado butterfly plant in Wyoming (codified at 50 CFR 17.96(a)).
Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been delisted due to recovery. The purpose of this requirement is to develop a program that detects 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.
We are proposing delisting for the Colorado butterfly plant based on recovery actions taken and new information we have received. Since delisting would be due in part to recovery actions taken by Warren AFB, Fort Collins, and BLM, we have prepared a draft post-delisting monitoring plan for the Colorado butterfly plant. The plan has been developed with input from these and other partners.
It is our intent to work with our partners towards maintaining the recovered status of the Colorado butterfly plant. While not required, we intend to seek peer review comments on the draft post-delisting monitoring plan (PDM plan), including its objectives and procedures. A copy of the draft PDM plan is available at
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribes will be affected by this rule.
A complete list of all references cited in this proposed rule is available at
The primary authors of this proposed rule are staff members of the Wyoming Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we hereby propose to 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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Withdrawal of notice of intent to prepare an environmental impact statement.
NMFS is issuing this notice to advise Federal, state, and local government agencies and the public that it is withdrawing its Notice of Intent (NOI) to prepare a draft Environmental Impact Statement (EIS) for the proposed action to revise regulations regarding the use and configuration of groundfish bottom trawl and midwater trawl gear in the Pacific Coast Groundfish Fishery's Trawl Catch Share Program, also called the Trawl Rationalization Program. After completion of the analysis, NMFS determined the impacts associated with this action would not reach a level necessitating an EIS, and is instead preparing an Environmental Assessment (EA).
The environmental impact statement for the proposed regulations is withdrawn as of June 8, 2018.
Colin Sayre, NMFS West Coast Regional Office, telephone: (206) 526–4656, or email:
NMFS Published a NOI in the
Upon completion of the analysis for the proposed action, NMFS determined that the impacts associated with the implementation of the proposed action would not be significant and, therefore, there is no need to complete the EIS. Instead, NMFS is completing an EA, in compliance with NEPA, for the proposed action. Therefore, NMFS is withdrawing the NOI to prepare an EIS. NMFS plans to circulate the draft EA for public review and comment concurrent with publication of the proposed rule for this action.
16 U.S.C. 1801
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by July 9, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the USDA Forest Service is seeking comments from all interested individuals and organizations on the information collection, Wild Food Collecting in Atlanta's Browns Mill Community, under the approved Forest Service Generic Information Collection on Non-Timber Forest Products.
Comments must be received in writing on or before July 9, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Cassandra Johnson Gaither, Forestry Sciences Lab, 320 Green St., Athens, GA 30602. Comments also may be submitted via facsimile to (706) 559–4266 or by email to:
Cassandra Johnson Gaither, USDA Forest Service, Southern Research Station, 706–559–4270. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1–800–877–8339 twenty-four hours a day, every day of the year, including holidays.
There is growing literature on urban foraging in the United States that
The data are intended to provide information on both urban foraging practices and the social acceptability of foraging by an urban minority group that is underserved from the perspective of having nearby, fresh produce sources. The survey will be conducted face-to-face at the household using paper copies of a survey instrument. Attempts will be made to conduct the survey face-to-face, but if that is not convenient for the householder, the survey will be left at the respondent's home and picked up at an agreed upon time. Trained neighborhood residents will help to administer the survey. Attempts will be made to have survey administrators from the Browns Mill or a nearby community. This is expected to increase response rates because of the familiarity of administrators with this part of the city. All administrators will receive training in appropriate data collection techniques from the USDA Forest Service or one of its partners.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility; (2) the accuracy of the agency's estimate of the burden of the 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 the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.
Forest Service, USDA.
Notice of intent to prepare an environmental impact statement.
The USDA Forest Service will prepare an environmental impact statement (EIS) on a proposed action to promote more resilient forest conditions closer to their historic range of variability, which would contribute to desirable recreation experiences, conserve and enhance wildlife habitat, and reduce impacts to streams and aquatic habitat within the 40,000 acres Twin project area. The project area is located south and southwest of Bend, Oregon and includes the areas surrounding Wickiup and Crane Prairie Reservoirs, North and South Twin Lakes, Browns Mountain and Round Mountain Late Successional Reserves. An analysis has been initiated that takes a landscape approach to managing the vegetation to meet objectives for resilient forests.
Comments concerning the scope of the analysis must be received by July 9, 2018. The draft EIS is expected September 2019 and the final EIS is expected August 2020.
Send written comments to Kevin Larkin, District Ranger, Bend-Fort Rock Ranger District, 63095 Deschutes Market Road, Bend, OR 97701. Comments may also be sent via email to
Alicia Underhill, Environmental Coordinator, Bend-Fort Rock Ranger District, 63095 Deschutes Market Road, Bend, OR 97701, phone 541–383–4012, between the hours of 8:00 a.m. and 4:30 p.m., Pacific Time, Monday through Friday or by email at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
There is a need to manage stand structure and composition to tolerate primary disturbance agents (
In summary, the Twin project intends to create more resilient forest conditions closer to their historic range of variability, which would contribute to desirable recreation experiences, conserve and enhance wildlife habitat, and reduce impacts to streams and aquatic habitat from high severity fires.
The Bend-Fort Rock Ranger District proposes the following actions to meet the purpose and need of the project area. Silviculture treatments (
To meet the need to improve fire management opportunities and provide for public and firefighter safety, this project proposes to treat approximately 16,800 acres of treatment to meet hazardous fuels reduction objectives.
The Twin projects also proposes to: (a) Rehab dispersed sites that are causing resource damage; (b) enhance spawning gravel, address boat ramp erosion and improve accessible trails; (c) establish a buffer between developed and dispersed campsites; (d) remove trees showing signs of future failure within developed sites; and (e) close and decommissioning system roads and decommission user-created roads.
The responsible official will be Kevin Larkin, District Ranger, Bend-Fort Rock Ranger District.
The responsible official will consider how the proposed action meets the project's purpose and need, how public comments have been considered, and what the short and long term effects and benefits are to other resource areas.
This notice of intent initiates the scoping process, which guides the development of the EIS. Public comments regading this proposal are requested in order to assist in identifying issues and opportunities associated with the proposal, how to best manage resources, and to focus the analysis. Those wishing to object must meet the requirements at 36 CFR 218.
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the EIS. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered.
United States Commission on Civil Rights.
Notice of Commission public business meeting.
Friday, June 15, 2018, 12:00 p.m. EST.
Place: National Place Building, 1331 Pennsylvania Ave. NW, 11th Floor, Suite 1150, Washington, DC 20425. (Entrance on F Street NW.)
Brian Walch: (202) 376–8371; TTY: (202) 376–8116;
This business meeting is open to the public.
There will also be a call-in line for individuals who desire to listen to the presentations: (888) 378–0320; Conference ID 7025358. The event will also live-stream at
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before August 7, 2018.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer,
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Robin A. Pennington, Rm. 2H465, U.S. Census Bureau, Decennial Census Management Division, Washington, DC 20233 or by email to
Article 1, Section 2 of the United States Constitution mandates that the U.S. House of Representatives be reapportioned every ten years after conducting a national census of all residents. In addition to the reapportionment of the U.S. Congress, Census data are used to draw legislative district boundaries. Census data also are used to determine funding allocations for the distribution of an estimated $675 billion of federal funds each year.
The goal of the 2020 Census is to count everyone once, only once, and in the right place. From the 2020 Census data, the Census Bureau will produce the basic population totals by state for congressional apportionment, as mandated by the U.S. Constitution and Title 13, U.S. Code. Title 13 also provides for the confidentiality of responses. Anyone who handles census data swears an oath for life to keep those data confidential. Under Title 13, it is against the law to disclose confidential information or any information that could identify an individual respondent. The information the Census Bureau collects cannot be used for any reason except to produce statistics, and violations of Title 13 are punishable by fines and up to five years in prison.
This clearance request covers the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, federally affiliated persons overseas, and the Island Areas of American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the United States Virgin Islands. The methods of data collection for the Federally Affiliated Count Overseas and the Island Areas Censuses are different from the data collections described throughout this document and will be described separately in sections specific to those operations.
In compliance with Public Law 94–171, the Census Bureau will tabulate for each state the total population counts by race and Hispanic origin. The Census Bureau will tabulate these counts for the total population and for the population of 18 years of age and over. The Census Bureau intends to work with the National Conference of State Legislatures and other stakeholders to solicit feedback as to how the states would prefer to receive tabulations of citizenship data. If stakeholders such as the National Conference of State Legislatures elect to receive tabulations of citizenship data, the Census Bureau will make require a design change to include citizenship as part of the Public Law 94–171 Redistricting Data File. That new design plan would then be published in the
The Census Bureau plans to conduct the most automated, modern, and dynamic decennial census in history. The 2020 Census includes design changes in four key areas:
(1) New methodologies to conduct the Address Canvassing operation.
(2) Innovative ways of optimizing self-response.
(3) The use of administrative records and third-party data to reduce the Nonresponse Followup (NRFU) operation workload.
(4) The use of technology to reduce the manual effort and improve the productivity of field operations, while decreasing the amount of physical space required to perform the field operations.
To the extent that these innovations influence the collection of data from respondents in the 2020 Census, these innovations will be described below.
A complete and accurate address list is the cornerstone of a successful census. In order to conduct the decennial census and enumerate in the census all people at a location, the Census Bureau needs the address and physical location of each place where someone is, or could be, living. In other words, all living quarters need to be identified. The Census Bureau maintains an address list and spatial data for the United States and Puerto Rico in its Master Address File (MAF)/Topologically Integrated Geographic Encoding and Referencing (TIGER) System database. This database was created using the address files from the 1990 Census and has been subsequently and regularly updated using:
• Information collected from decennial census operation updates, including address and spatial updates.
• The Delivery Sequence File of addresses from the United States Postal Service (USPS).
• Input from tribal, state, and local governments and third parties, including address and boundary updates.
• Information collected in other Census Bureau programs, such as the American Community Survey.
Prior to the census, it is necessary to delineate all geographic areas included in the 2020 Census into Type of Enumeration Areas (TEAs). These TEAs describe what methodology will be used for census material delivery and household enumeration in order to use the most cost-effective enumeration approach for achieving maximum accuracy and completeness. For the United States and Puerto Rico, TEAs are delineated at the block level based on the address and spatial data in the MAF/TIGER database.
The MAF/TIGER does not contain data for the Island Areas, so a separate TEA is designated for these areas. The
• TEA 1 = Self-Response.
• TEA 2 = Update Enumerate.
• TEA 3 = Island Areas.
• TEA 4 = Remote Alaska.
• TEA 5 = Military.
• TEA 6 = Update Leave.
The most common enumeration method by percentage of households is self-response (TEA 1), where materials will be delivered to each address through the mail, and enumeration data is expected to be returned or submitted by a respondent. After the initial self-response phase, nonresponding households will be enumerated in the NRFU operation. Puerto Rico is designated as entirely Update Leave. These TEAs, programs, and operations will be described throughout this notice.
Address Canvassing is the process of validating and updating addresses in the MAF and spatial data in TIGER before the census in order to create the initial list of addresses to be enumerated in the census. All housing units, group quarters, and transitory locations need to be identified and located correctly on the map as recorded in TIGER. Group quarters are living quarters where people who are typically unrelated have group living arrangements and frequently are receiving some type of service. College/university student housing and nursing/skilled-nursing facilities are examples of group quarters. Transitory locations include recreational vehicle parks, campgrounds, racetracks, circuses, carnivals, marinas, hotels, and motels. People residing at transitory locations during the census are recorded as living in housing units located at transitory locations. Address Canvassing will not occur in Island Areas.
For the 2020 Census, the Census Bureau is using In-Office Address Canvassing for the first time, in addition to In-Field Address Canvassing. This innovation involves the use of electronic sources for much of the validation and updating of MAF/TIGER. Since 2015, the Census Bureau has used analysis of satellite imagery to identify areas of the United States and Puerto Rico where changes in living quarters have occurred. In-Office Address Canvassing is the process of using empirical geographic evidence (
However, the Census Bureau will still need to conduct In-Field Address Canvassing in order to update the address and spatial data for an estimated 30 percent of housing units in TEA 1. The Census Bureau will make a final determination on which areas will be canvassed using In-Field Address Canvassing by March 2019. Some In-Office Address Canvassing activities will continue improving the address list until March 2020. In-Field Address Canvassing is the only stage of Address Canvassing that involves collecting information from the general public. The associated response burden is detailed later in this notice.
The goal of this innovation area is to communicate the importance of the 2020 Census to the entire population of the 50 states, the District of Columbia, and Puerto Rico, in order to generate the largest possible self-response. Self-response reduces the need to conduct in-person follow-up operations to complete the enumeration. To that end, the Census Bureau will motivate people to respond, as well as make it easy for people to respond, from any location at any time.
One major means of making it easier for people to respond is by providing an internet questionnaire and using mailings, questionnaire delivery, advertising, and publicity to tell the public about this option. Internet response represents a substantial innovation for the enterprise. The internet was not a response option in the 2010 Census. The internet response option has been included in multiple tests leading up to the 2020 Census: The 2014 Census Test; all three census tests performed in 2015; the 2016 Census Test; the 2017 Census Test; and the 2018 End-to-End Census Test.
Based on results from these tests, response rates from prior censuses, and data from the American Community Survey and other surveys, the Census Bureau estimates that 45 percent of U.S. households in areas that receive mailouts of materials from the Census Bureau will respond via the internet before the initial NRFU workload is created. At the same time, the Census Bureau recognizes the need for alternate response modes to allow respondents to complete their 2020 Census questionnaire, including paper questionnaires as used in the past. Details about the contact strategy for mailed materials in TEA 1 will be discussed below. The Census Questionnaire Assistance operation, also described below, will provide the third mode of self-response. Overall, the Census Bureau estimates that 60.5 percent of households that receive mailouts or hand delivery of materials from the Census Bureau will self-respond in one of these three modes (
For the 2020 Census, “administrative records” and “third-party data” are terms used to describe micro data records contained in files collected and maintained by Federal, state, and local government agencies (“administrative records”) and commercial entities (“third-party data”) for administering programs and providing services. For many decades, the Census Bureau has successfully and securely used administrative records and third-party data for statistical purposes. For the 2020 Census, the Census Bureau intends to use administrative records from both internal sources, such as data from prior decennial censuses and the American Community Survey, and from a range of other Federal agencies, including the Internal Revenue Service (IRS), the Social Security Administration, the Centers for Medicare and Medicaid Services, the Department of Housing and Urban Development, the Indian Health Service, the Selective Service, and the U.S. Postal Service. The Census Bureau is also working to acquire state government administrative records from enrollment in Federal block grant programs, such as the U.S. Department of Agriculture's Supplemental Nutrition Assistance Program and the Special Supplemental Nutrition Program for Women, Infants, and Children. Finally, the Census Bureau is also utilizing commercial third-party data from organizations such as CoreLogic and the Veterans Service Group of Illinois.
Throughout the decade, the Census Bureau continuously conducted analyses and assessments to verify that the proposed uses of administrative records and third-party data sources in the 2020 Census were appropriate in each instance. Based on this research, testing, and analyses, the Census Bureau announced its plans in November 2015 to utilize administrative records and third-party data in the 2020 Census. The 2020 Census Operational Plan calls for employing this information for the following purposes:
1. Consistent with previous decennial censuses, the Census Bureau will utilize administrative records from federal and
2. Also consistent with previous decennial censuses, the Census Bureau will utilize federal and state administrative records to edit or impute invalid, inconsistent, or missing responses.
3. The new use of administrative records for the 2020 Census is to use data exclusively from federal administrative records to improve the accuracy and efficiency of NRFU operations by:
a. Removing vacant housing units and nonresidential addresses from the NRFU workload.
b. enumerating households that do not self-respond and whom we were unable to contact after six mailings and one in-person field visit.
For each of the purposes listed in items 2, 3a and 3b, the Census Bureau uses or plans to use administrative data only when it can confirm empirically across multiple sources that the data are consistent, of high quality, and can be accurately applied to the addresses and households in question. The Census Bureau plans to enumerate households utilizing administrative records only from Federal government agencies, such as the Internal Revenue Service. Each of the nonresponding addresses will be evaluated under a strict set of Census Bureau rules throughout the process to ensure completeness and accuracy.
Based on the research and tests conducted, the Census Bureau estimates that under the current operational plan Federal administrative records will be used to enumerate up to 6.5 million households of the projected total of approximately 60 million addresses that are expected to be the NRFU workload for the 2020 Census. These 6.5 million households represent less than five percent of the approximately 145 million addresses in the Census master address file. Where the Census Bureau does not have confidence in the data, such as when the data are inconsistent or missing in the Federal administrative records, the household will remain in the NRFU workload.
The final innovation area, “Reengineering Field Operations,” has a goal of using technology to manage the 2020 Census fieldwork efficiently and effectively, and as a result, reduce the staffing, infrastructure, and brick and mortar footprint for the 2020 Census. These changes to census field operations will not be apparent to respondents to any of the data collection operations.
The set of 35 operations that constitute all processes that will occur in the course of the 2020 Census is described in the 2020 Census Operational Plan. In addition to the public-facing data collection operations, there are operations in the categories of support, Information Technology, infrastructure, data publication, and testing and evaluation. The sections below outline data collection operations in the 2020 Census along with some operations that directly support these data collection operations by producing materials for the 2020 Census.
Some data collection operations that are included in the 2020 Census Operational Plan are not described in this notice. These were or will be described in separate notices because of timing, type of work, or other considerations: Local Update of Census Addresses (Federal Register Notices: 81 FR 42686; 81 FR 78109), Redistricting Data Program (Federal Register Notices: 80 FR 40993; 80 FR 62015), Integrated Partnership and Communications (Federal Register Notice: 82 FR 38875), Evaluations and Experiments, and Count Question Resolution. In addition, all Coverage Measurement field operations, which result in an independent estimate of the coverage of the census, will be handled through separate Federal Register Notices.
Final plans for each of these operations could receive minor updates or other changes as a result of lessons learned during the 2018 End-to-End Census Test, further systems testing, or other input received from stakeholders after the date of this posting. Consistent with the Paperwork Reduction Act of 1995 procedures, shortly after the 60-day comment period for this Notice ends, a 30-day
The Content and Forms Design and the Language Services operations for the 2020 Census are essential to data collection because they involve the development and translation of materials used with respondents. These two operations are described below to set the stage for the discussion of the remaining 2020 Census data collection operations.
The Census Bureau submitted the subjects planned for the 2020 Census to Congress on March 28, 2017, and the questions planned for the 2020 Census on March 29, 2018. The proposed questions for the 2020 Census questionnaire include age, citizenship, Hispanic origin, race, relationship, sex, and tenure.
Individuals of Limited English Proficiency require language assistance in order to complete their census questionnaires. The Census Bureau has identified the largest Limited English Proficiency populations in the United States using American Community Survey data and has established a program for providing non-English materials for the decennial census. Internet Self-Response and Census Questionnaire Assistance will be available in 12 non-English languages. Paper questionnaires, mailing materials, field data collection instruments, and field data collection materials will be available in English and Spanish. There will be additional support materials in 59 non-English languages.
The purpose of address canvassing is (1) to deliver a complete and accurate address list and spatial database for enumeration and tabulation, and (2) to determine the type and address characteristics for each living quarter. Address canvassing consists of two major components: In-Office Address Canvassing and In-Field Address Canvassing. Only the latter component involves collection of information from residents at their living quarters.
For the 2010 Census, the Address Canvassing field staff, referred to as listers, traversed almost every block in the nation to compare what they observed on the ground with the contents of the Census Bureau's address list. Listers verified or corrected addresses that were on the list, added new addresses to the list, and deleted addresses that no longer existed. Listers also collected map spot locations (
The Census Bureau has determined that for the 2020 Census there will be a full Address Canvassing that will consist of In-Office Address Canvassing complemented with In-Field Address Canvassing. In-Office Address Canvassing is the process of using empirical geographic evidence (
Areas not resolved in the office become the universe of geographic areas worked during In-Field Address Canvassing. In the In-Field Address Canvassing, an extract of addresses from the MAF is created, and this address list is verified and updated, as needed. Listers will knock on doors at every structure in the assignment in an attempt to locate living quarters and classify each living quarter as a housing unit, group quarter, or transitory location. If someone answers, the lister will provide a Confidentiality Notice and ask about the address in order to verify or update the information, as appropriate. The listers will then ask if there are any additional living quarters in the structure or on the property. If there are additional living quarters, the listers will collect/update that information, as appropriate. In addition, there will be a check on the quality of the address listing work on approximately 20 percent of the housing unit workload.
The Forms Printing and Distribution operation involves the printing and distribution of the following paper forms:
• internet invitation letters.
• Reminder cards and letters.
• Questionnaire mailing packages.
• Materials for other special operations, as required.
The internet Self-Response operation performs the following functions:
• Maximize online response to the 2020 Census through contact strategies and improved access for respondents.
• Collect response data through the internet to reduce paper and the NRFU universe.
“Contact strategies for mailing materials” refers to all attempts by the Census Bureau to make direct contact with individual households by mail. Types of contact strategies include invitation letters, postcards, and questionnaires mailed to households.
A primary objective of the 2020 Census is for a majority of self-respondents to complete their census questionnaire online. To that end, the Census Bureau will use an approach called “Internet First,” in which the first mailing includes an invitation to respond to the census online.
In areas with low internet coverage or connectivity or other characteristics that may make it less likely that respondents will complete the census questionnaire online, the Census Bureau will employ an “internet Choice” contact strategy. In this approach, the first mailing includes both an invitation to complete the census online and a paper questionnaire. The Census Bureau anticipates about 20 percent of the households in TEA 1 will receive the internet Choice treatment. While all nonresponding households in the internet First areas will eventually receive a paper questionnaire—in the fourth mailing—households in internet Choice areas will receive a paper questionnaire in the first mailing, and again in the fourth mailing if they have not yet responded. Both mailing strategies have the objective of maximizing self-response to the 2020 Census, thereby minimizing NRFU.
The contact strategies for mailing materials in TEA 1 are outlined in table form:
The internet self-response instrument and all related support systems will be designed to handle the volume of responses that are expected to be received by internet in the 2020 Census. It is imperative that the application and systems service the scale of the operation in order to ensure that users do not experience delays while completing the survey or unavailability of the application. In addition, the internet application and other associated systems will be developed to adhere to the highest standards of data security in order to ensure that all respondent data are secure and confidential.
The Census Questionnaire Assistance operation has three primary functions:
• Answer respondent questions about specific items on the census questionnaire or other frequently asked questions about the census.
• Provide an option for respondents to complete a census interview over the telephone.
• Provide outbound calling in support of NRFU Reinterview and Coverage Improvement (discussed in the NRFU section below).
Respondents using the internet instrument will have the ability to contact Census Questionnaire Assistance by telephone when web-based self-service help tools cannot answer their questions. Each of the 13 supported languages, including English, will have its own toll-free number for callers. Respondents calling the English and Spanish language lines are presented with a self-service Interactive Voice Response system, offering an assortment of automated responses to Frequently Asked Questions information. At any time, respondents may opt to transfer to a customer service representative, who is prepared to further assist and enumerate them. All callers who need assistance in other languages will be connected directly to an appropriately-skilled Customer Service Representative fluent in the language, based on the toll-free number called.
The Update Leave operation is designed to occur in areas where the majority of housing units either do not have mail delivered to the physical location of the housing unit or the mail delivery information for the housing unit cannot be verified. Update Leave can occur in geographic areas that:
• Do not have city-style addresses.
• Do not receive mail through city-style addresses.
• Receive mail at post office boxes.
• Have been affected by major disasters.
These areas will not be included in the In-Field Address Canvassing but will be worked within the In-Office Address Canvassing. The purpose of the Update Leave operation is to update the address and feature data for the area assigned and to leave an internet Choice questionnaire package at every housing unit identified to allow the household to self-respond. Enumerators do not attempt to enumerate the household in person when they leave the questionnaire.
Occupants can respond online, using the ID printed on the questionnaire, or they can fill out and mail back the paper questionnaire. If they have questions or wish to respond on the telephone, they can call Census Questionnaire Assistance, using the contact information provided in the package.
The Update Leave operation includes mailing a reminder letter and a reminder postcard to addresses that are capable of receiving mail within the areas designated for Update Leave. These mailed materials include the ID for the given address and the website address for the household to use in order to respond online. As in TEA 1, any households that do not self-respond will be contacted during the NRFU operation.
Finally, the Update Leave operation performs a check on the quality of the address listing work (quality control [QC]) on approximately 5 percent of the production workload.
The Update Enumerate operation is designated to occur in areas where the initial visit requires enumerating at the living quarters while updating the address list. The majority of the operation will occur in remote geographic areas that have unique challenges associated with accessibility. Update Enumerate can occur in the following geographic areas:
• Remote Alaska.
• Areas that were a part of the 2010 Census Remote Update Enumerate operation, such as northern parts of Maine and southeast Alaska.
• Select American Indian areas that request to be enumerated in person during the initial visit.
Note that the areas included in the 2010 Census Remote Update Enumerate operation might be delineated into TEA 1 or TEA 6 for the 2020 Census, based on changes in address type or mailability.
In the Update Enumerate operation, field staff update the address and feature data and enumerate respondents in person. The address and feature data are updated on paper address registers and paper maps. The enumeration is collected on paper questionnaires. Field staff conducting Update Enumerate follow a specific contact strategy for the remote locations and conduct any needed follow-up. The Update Enumerate operation performs a check on the quality of the address work (listing QC) on approximately 10 percent of the listing workload and a check on the quality of the enumeration data through a telephone reinterview on approximately 5 percent of the enumeration workload.
All completed questionnaires, address registers, and maps are delivered or shipped back to the area census office and then sent to a processing center for data capture, keying, and digitizing.
The Paper Data Capture operation captures and converts data from 2020 Census paper questionnaires. Core workloads for the Paper Data Capture operation include self-response questionnaires mailed back by respondents and Group Quarters Individual Census Reports. The Census Bureau's in-house Integrated Computer Assisted Data Entry system is used to capture paper responses from questionnaires. Each write-in and checkbox data field is data-captured, and Optical Character Recognition and Optical Mark Recognition are performed. If Key From Image is needed for forms that cannot be processed through Optical Character Recognition or Optical Mark Recognition, staff are presented the image of the page and are able to clarify, correct, or add to what was captured. The Census Bureau maintains the data, images of the forms, and the paper forms themselves until confirmation that the data have been correctly captured, at which point the paper forms are sent to destruction while the data and images are retained. The Census Bureau maintains the images for archiving purposes until such time as the National Archiving and Records Administration takes possession of the images for permanent archiving.
For the 2020 Census, respondents will be encouraged, but not required, to use the Census Bureau's preassigned ID for the living quarters. Within the internet instrument, and, consequently, within Census Questionnaire Assistance, it will be possible for respondents to submit the census response without the preassigned ID. Non-ID Processing is the effort to associate census responses that lack a Census ID with records included on the Census Bureau's 2020 Census address frame. This processing can occur through automated or clerical procedures. With the internet Self-Response instrument collecting the response and address data, it will be possible to perform automated processing to determine whether the address was already included on the address frame and extracted from the MAF. For those Non-ID responses not matched during automated processing, a clerical operation will make a further attempt to match the address to the 2020 Census address frame and validate nonmatching addresses. Some of the clerical work may require contacting the respondent to help determine a match or to verify the existence and location of the address; this is known as Non-ID Processing Phone Followup. Any nonmatching address whose existence and location cannot be verified by the clerical Non-ID operation will become a Field Verification assignment, handled as a component of the NRFU operation. Notably, Field Verification is only an address verification effort and does not include collection of the census questionnaire data.
The 2020 Census NRFU operation will be different from the NRFU operation conducted in the 2010 Census. The Census Bureau will implement a NRFU operational design that utilizes a combination of the following:
• Administrative records and third-party data usage to reduce the workload.
• Reengineering of staffing and management of field operations.
• A Best-Time-to-Contact model to increase the likelihood of making contact attempts when an enumerator will find people at home.
• Automation to facilitate data collection.
The NRFU workload is comprised of addresses from a number of sources, including:
• Nonresponding addresses in the self-response and Update Leave TEAs.
• Blank mail returns or mail returns otherwise deemed to be too incomplete.
• Addresses considered to represent recently completed housing identified from the spring 2020 USPS Delivery Sequence File and other special efforts undertaken to identify new housing around the time of the census known as New Construction and Housing Unit Count Review; addresses upheld in the Local Update of Census Addresses appeals process; potentially other addresses determined to require follow-up after the initial enumeration universe is established.
• Addresses with a vacant status reported from internet Self-Response.
• Field Verification cases.
• Coverage Improvement cases (described below).
• Response Re-collect cases (described below).
After giving the population in the United States and Puerto Rico an opportunity to self-respond to the 2020 Census, the Census Bureau will use the most cost-effective strategy for contacting and counting people to ensure an accurate count. Once the households that did not respond through internet, telephone, or paper are known, administrative records will be used to identify vacant addresses and addresses that do not exist in order to reduce the workload of addresses that NRFU enumerators will visit. Undeliverable-as-Addressed information from the USPS will provide the primary administrative records source for the identification of vacant addresses and addresses that do not exist.
During the NRFU operation, enumerators will visit each housing unit designated for follow-up, determine the occupancy status of the unit on April 1, 2020, and complete an interview using an automated application on a smartphone. Various techniques will be used during NRFU to make the data collection as efficient as possible. The number of allowed attempts to contact is controlled within the automated instrument, and best-time-to-contact modeling is used in the creation of the daily assignments. Every case in the NRFU workload will have a maximum of six unique contact days and 12 proxy attempts. After a third attempt to contact a household does not yield a respondent, a case will become proxy-eligible. A proxy is a neighbor, landlord, real estate agent, or other knowledgeable person who can provide information about the unit and the people who live there. An enumerator should attempt three proxies after each noninterview for a proxy-eligible case. Addresses will also be removed from the workload throughout the course of the NRFU operation as self-responses are received.
If the initial in-person contact attempt is unsuccessful, the Census Bureau will use administrative records as the household response data when it: (1) Believes that the address is occupied, and (2) has high-quality administrative records. These include records such as from the Internal Revenue Service, the Social Security Administration, and the Centers for Medicare and Medicaid Services, as well as
Addresses found to be “administrative records vacant” or “administrative records nonexistent” will be removed from the NRFU workload and will immediately be mailed a final postcard that encourages occupants to self-respond to the 2020 Census. Addresses that are determined to be “administrative records occupied” and for which enumeration is incomplete after one in-person visit attempt will be mailed a final postcard encouraging self-response after seven days.
The NRFU Reinterview program will check the quality of the work done by enumerators in NRFU. A sample of approximately 5 percent of NRFU interviews will be selected for verification through NRFU Reinterview. All cases that are sampled for the program and have a valid phone number will initially be subject to a reinterview attempt by a Census Questionnaire Assistance customer service representative to verify that an enumerator conducted the interview and followed procedures. NRFU Reinterview cases that cannot be completed via telephone will be sent to the field for personal visit reinterviews. The customer service representative or enumerator working a NRFU Reinterview case always attempts to contact the respondent from the original interview, which may be a household member, neighbor, or some other proxy. If the original respondent confirms that he/she was contacted and an enumerator conducted the original interview, the customer service representative or enumerator collects roster names and ends the interview. If the respondent was not contacted or does not know if an enumerator conducted the original interview, the customer service representative or enumerator conducts a full interview with the respondent.
During the early weeks of NRFU, enumerators will conduct interviews with multiunit structure managers to determine the occupancy status of nonresponding units within the multiunit structure. This Manager Visit allows enumerators to identify several units as vacant or delete without having to attempt each unit individually. Enumerators have a maximum of two unique contact days to complete the Manager Visit cases. The Manager Visit Reinterview program will check the quality of work done by enumerators during the Manager Visit and will target enumerators with high numbers of vacant and delete unit statuses. During this Manager Visit Reinterview check, the enumerator will ask to speak to the manager from the original Manager Visit interview. If the respondent confirms that he/she was contacted and an enumerator conducted the original interview, the Manager Visit Reinterview enumerator asks about a subset of the list checked during the Manager Visit. If the respondent was not contacted or does not know if an enumerator conducted the original interview, the enumerator conducts a full interview and review the entire list of nonresponding units within the multiunit structure.
The NRFU universe also includes cases from Non-ID Processing that were not able to be matched to the address frame. As discussed in the Non-ID section, these are Field Verification cases, where the enumerators attempt to locate the address in question and collect its Global Positioning System (GPS) coordinates. A sample of the Field Verification cases is selected for verification through Field Verification Quality Control. Since Field Verification cases only require an enumerator to determine the existence of an address and will not require an interview with a respondent, this Field Verification Quality Control program will consist of an independent check of the production enumerator's work in the field. The Field Verification Quality Control enumerator will conduct the same procedures as the Field Verification enumerator. Field Verification cases, along with their quality control component, have a maximum of one field contact day.
The Coverage Improvement operation improves the enumeration count by resolving categories of erroneous enumerations (people counted in the
Response re-collect cases are generated as part of the quality assurance efforts for self-response and will be worked within NRFU.
The 2020 Census Group Quarters operation will enumerate people living or staying in group quarters and provide an opportunity for people experiencing homelessness and receiving service at a service-based location, such as a soup kitchen, to be counted in the census.
The 2020 Census Group Quarters operation consists of the following components:
• In-Office Group Quarters Advance Contact.
• Group Quarters Enumeration.
• Service-Based Enumeration.
• Military Enumeration.
• Maritime Vessel (Shipboard) Enumeration.
The In-Office Group Quarters Advance Contact is an in-office activity conducted in the area census offices in which the group quarters name, address, contact name, and phone number from the address list that results from Address Canvassing will be verified. Preferred dates, times, methods of enumeration, and expected population on Census Day will be collected as well. Special instructions or concerns related to privacy, confidentiality, and security will also be addressed.
The Group Quarters enumeration will cover all 50 states, the District of Columbia, and Puerto Rico. This enumeration at group quarters occurs in approximately the same timeframe as the household enumeration operations. An additional late group quarters enumeration phase allows for the stakeholder identification and enumeration of group quarters that may have been missed during the earlier timeframe. The primary method of conducting in-person enumeration of people residing in group quarters will be by using the Individual Census Questionnaire as the paper data collection instrument. In-person interviewing is planned for all group quarter types that are part of the field enumeration workload.
eResponse uses electronic data transfer from group quarter administrators to the Census Bureau. Client-level data from systems maintained by group quarter administrators can be transferred to a standardized Census Bureau system that will accept electronically submitted data in a standardized template. These data will be accepted in lieu of use of the Individual Census Questionnaire if data are deemed to be of sufficiently high quality and completeness.
The Service-Based Enumeration is specifically designed to approach people using service facilities because they may be missed during the traditional enumeration of housing units and group quarters. These service locations and outdoor locations include the following:
• Shelters: Shelters with sleeping facilities for people experiencing homelessness; shelters for children who are runaways, neglected, or experiencing homelessness.
• Soup kitchens.
• Regularly-scheduled mobile food vans: Stops where regularly scheduled mobile food vans distribute meals.
• Targeted non-sheltered outdoor locations.
For the 2020 Census, Service-Based Enumeration will be conducted over the three-day period that ends on April 1, 2020, Census Day. Service providers for shelters, soup kitchens, and regularly-scheduled mobile food vans will be given the flexibility for their facility to be enumerated on any one of the three days. Targeted non-sheltered outdoor locations will be enumerated April 1, 2020.
Domestic Violence Shelters are facilities for those seeking safety from domestic violence. As in previous censuses, the enumeration of individuals at Domestic Violence Shelters will be handled by personnel specially trained to protect the safety and security of respondents being enumerated at these locations.
Military Enumeration involves enumeration of people living in group quarters (or barracks) on domestic military installations or military vessels. Military installations are fenced, secured areas used for military purposes. An important feature of the military enumeration operation is that it includes both group quarters and housing units. Privatized housing on military installations will be enumerated as part of the housing unit data collection operations rather than through Military Enumeration. A military vessel is defined as a United States Navy or United States Coast Guard vessel assigned to a home port in the United States. In order to support the military's security requirements, military Group Quarters Enumeration will occur by means of electronic data transfer from the Defense Manpower Data Center to the Census Bureau.
The 2020 Census Enumeration at Transitory Locations operation enumerates those individuals in occupied units at transitory locations who do not have a usual home elsewhere. This operation will:
• Use automation, where possible, to facilitate data collection and streamline operations such as advance contact. However, data collection will be done using paper.
• Use reengineered staffing and management of the field operation.
• Use in-person enumeration as the primary mode of data collection.
The Federally Affiliated Count Overseas operation obtains counts by home state of United States military and federal civilian employees who are stationed or assigned overseas and their dependents living with them. For the 2020 Census, overseas is defined as anywhere outside the 50 states, the District of Columbia, Puerto Rico, and the Island Areas: American Samoa, Commonwealth of the Northern Mariana Islands, Guam, and the United States Virgin Islands. Counts are submitted from Federal agencies and the
The Census Bureau will conduct the 2020 Island Areas Censuses through partnerships with local government agencies in American Samoa, Commonwealth of the Northern Mariana Islands, Guam, and the United States Virgin Islands. The Census Bureau will provide the materials and guidance to the local government agencies that are then responsible for recruiting and hiring local staff to conduct the data collection phase through in-person enumeration.
The Island Areas Censuses questionnaire leverages the American Community Survey questionnaire with minor wording changes. These changes include accommodating time reference differences and incorporating the final 2020 Census questions while taking into account the Island Areas local governments' concerns, where possible. All data collection activities will rely on the use of paper questionnaires, paper maps, and paper address registers to record the physical addresses of housing units and group quarters. The MAF does not include addresses for the Island Areas, so the address registers become the address list for the Island Areas Censuses. Once the addresses have been listed, enumerators will visit every living quarter to conduct interviews with household members and follow up as necessary. The Census Offices conduct two quality control operations: (1) Reinterview for a sample of questionnaires, and (2) independent address check. The Census Offices also conduct a clerical review of all completed questionnaires for completeness and data consistency.
After the Island Areas Censuses collects the detailed demographic and housing data, the data will be processed through the Decennial Response Processing System. Data products will include counts of the population and housing units, data profiles, subject tables, ranking tables, and supplemental tables.
Data collection operations result in respondent burden from: (1) Contacts during the address frame-building process, and (2) contacts during enumeration for the 2020 Census.
The frame-building operation in the field that can result in respondent burden is In-Field Address Canvassing. In-Field Address Canvassing is the process of having listers visit specific geographic areas to identify every place where people could live or stay and compare what they see on the ground with the existing census address list and either verify or correct the address and location information. Listers will knock on doors at every structure in the assignment in an attempt to locate living quarters. The Census Bureau expects that listers will make contact with residents (
The second component of respondent burden is the census enumeration operations. This consists of multiple operations that in combination serve the purpose of reaching all residents for the purposes of the enumeration in the census. All attempts by the Census Bureau to make direct contact in TEAs 1 and 6 with individual households by mail for enumeration are referred to as “contact strategies for mailing materials.” Types of contact strategies for mailing materials include invitation letters, postcards, and questionnaires mailed to households.
The “Internet First” approach was developed to encourage respondents to use the internet. Currently, this model includes the mailing of a letter inviting respondents to complete the questionnaire online, two follow-up reminders and, if necessary, a mailed paper questionnaire followed by a final reminder (or two reminders to certain Administrative Records cases). All correspondence will contain a telephone number that respondents may use to complete the questionnaire over the telephone.
The “Internet Choice” contact strategy will be used for the estimated 20 percent of households that have low internet coverage or connectivity or other characteristics that may make it less likely the respondents will complete the census questionnaire online. This strategy includes both an invitation to complete the census online and a paper questionnaire as part of the first mailing.
For those housing unit addresses in TEAs 1 and 6 for which no self-response is received, the NRFU operation will be used to collect the household data. NRFU will use an automated instrument during data collection. Additional follow-up activities to improve and check quality will be included within the Census Questionnaire Assistance call center and NRFU workloads. All cases that are sampled for NRFU reinterview with a valid phone number will initially be subject to a reinterview attempt by a Census Questionnaire Assistance customer service representative. NRFU reinterview cases that cannot be completed via telephone will be sent to the field for personal visit reinterviews.
The NRFU reinterview program will check the quality of the work done by enumerators in NRFU. The NRFU reinterview program involves conducting an independent reinterview for selected cases to verify that an enumerator conducted the interview and followed procedures, as described above. During the early weeks of NRFU, enumerators will conduct interviews with multiunit structure managers to determine the occupancy status of nonresponding units within the multiunit structure, as described above. The NRFU universe also includes cases from Non-ID Processing that were not able to be matched to the address frame. As discussed above, these are Field Verification cases, where the enumerators attempt to locate the address in question and collect its GPS coordinates.
The Coverage Improvement operation resolves categories of erroneous enumerations (people counted in the wrong place or counted more than once) and omissions (people who were missed) identified through collected enumeration data. The Coverage Improvement operation will attempt to resolve these issues from both self-response and NRFU questionnaires.
In summary, a census address list is the basis for the census enumeration. Some of the work to create the address list will occur in In-Field Address Canvassing, which will incur respondent burden. Using a post-Address Canvassing extract of the MAF, census materials will be provided to or for all living quarters according the TEA designated for the area and the operation designated for the living quarters type. Self-response modes for housing units include internet, paper questionnaires, and telephone. Response modes for group quarters include paper questionnaires and electronic file transfers. Special operations will be implemented to collect data at identified transitory units and service-based locations. The various follow-up, QC, and coverage
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Bureau of the Census, Department of Commerce.
Notice of determination.
Notice is hereby given that the Bureau of the Census (Census Bureau) has determined that it is conducting the Annual Business Survey (ABS) of domestic nonfarm employer businesses in 2018. We have determined that data to be collected in this survey are needed to aid the efficient performance of essential governmental functions and have significant application to the needs of the public and industry. The ABS will provide the only comprehensive federal data on owner demographics and business characteristics, including financing research and development (for microbusinesses), and innovation. The data derived from this survey are not publicly available from nongovernmental or other governmental sources.
The Census Bureau will make the reporting instructions available to the organizations included in the survey. Additional copies are available upon written request to the Director, 4600 Silver Hill Road, U.S. Census Bureau, Washington, DC 20233–0101.
Nick Orsini, Assistant Director for Economic Programs, U.S. Census Bureau, 5H160, Washington, DC 20233, Telephone: 301–763–2558; Email:
In an effort to improve the measurement of business dynamics in the United States, the Census Bureau, with support from the National Science Foundation (NSF), plans to conduct the Annual Business Survey (ABS). The ABS is a new survey designed to combine Census Bureau firm-level survey collections to reduce respondent burden and simultaneously increase data quality and operational efficiencies. The ABS replaces the following collections: The five-year Survey of Business Owners (SBO) (Office of Management and Budget (OMB) control number 0607–0943) for employer businesses; the Annual Survey of Entrepreneurs (ASE) (OMB control number 0607–0986); and the Business Research and Development and Innovation for Microbusinesses (BRDI–M) form, a component of the Business Research and Development and Innovation Survey, BRDI–S (OMB control number 0607–0912). The ABS also replaces the innovation questions, formerly asked in the BRDI–S.
ABS estimates will include the number of employer firms and their sales/receipts, annual payroll, and employment by gender, ethnicity, race, and veteran status as well as research and development and innovation and various other relevant topics. The ABS will be conducted jointly by the Census Bureau and the National Center for Science and Engineering Statistics within the NSF. It is planned for five reference years (2017–2021). Title 13, United States Code (U.S.C.), Sections 8(b), 131, and 182, Title 42, U.S.C, Sections 1861–1875 (National Science Foundation Act of 1950, as amended), and Section 505 of the America COMPETES Reauthorization Act of 2010 (42 U.S.C. 1862p) authorize this collection. Sections 224 and 225 of Title 13, U.S.C., require responses from sampled firms.
The ABS covers all domestic nonfarm employer businesses filing Internal Revenue Service tax forms as individual proprietorships, partnerships, or any type of corporation, and with receipts of $1,000 or more. The ABS will sample approximately 850,000 employer businesses for the benchmark survey year 2017, with data collection taking place in 2018. Annually for survey years 2018 to 2021, the survey sample will be reduced to approximately 300,000 employer businesses to reduce the burden on the respondents. The Census Bureau will use administrative data to estimate the owner demographics such that each firm is placed into one of nine frames for sampling: American Indian, Asian, Black or African American, Hispanic, Non-Hispanic White Men, Native Hawaiian and Other Pacific Islander, Some Other Race, Publicly Owned Businesses, and Women Owned Businesses. The sample would be stratified by state, industry, and frame. The Census Bureau will select companies with certainty based on volume of sales, payroll, number of paid employees or industry classification. All certainty cases are sure to be selected and represent only themselves.
The ABS will provide continuing and timely national statistical data for the period between economic censuses. The data collected will be within the general scope and nature of those inquiries covered in the economic census. The next economic census is being conducted currently for the reference year 2017. Government program officials, industry organization leaders, economic and social analysts, business entrepreneurs, and domestic and foreign researcher in academia, business, and government will use statistics from the new ABS. More details on expected uses of the statistics from the new ABS are found in the Notice of Consideration for the ABS published in the
The Census Bureau published a Notice of Consideration for the ABS in the
(1) Determine the cost and benefits of the survey and consider whether the benefits outweigh the costs;
(2) If the benefits outweigh the cost, consider how to minimize the cost imposed on the businesses participating in the survey;
(3) If, after conducting the cost-benefit analysis and examining the means for minimizing the cost imposed on survey participants, the Census Bureau nevertheless wishes to proceed with the survey, publish a revised notice that includes a cost-benefit analysis and an explanation of steps taken to minimize the costs on businesses forced to participate in the survey; and
(4) Eliminate the survey discrimination based on gender, ethnicity, race, and age.
The Census Bureau agrees that costs and benefits should be analyzed and weighed, and has already carried out
Furthermore, the ABS will provide data required by Executive Order 11458 (March 5, 1969), “Prescribing Arrangements for Developing and Coordinating a National Program For Minority Business Enterprise” (
The Census Bureau has designed the ABS survey to collect the required data while balancing the burden on businesses. The ABS is designed to combine Census Bureau firm-level collections to reduce respondent burden, increase data quality, reduce operational costs, and operate more efficiently.
Notwithstanding any other provision of law, no person is 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 (PRA) (44 U.S.C., Chapter 45) unless that collection of information displays a currently valid OMB control number. In accordance with the PRA, OMB approved the ABS under OMB control number 0607–1004 on March 7, 2018.
Based upon the foregoing, I have directed that the current mandatory business surveys be conducted for the purpose of collecting these data.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On May 25, 2018, the United States Court of International Trade (the Court) entered final judgment sustaining the final results of the second remand redetermination by the Department of Commerce (Commerce) pertaining to the antidumping duty (AD) investigation of certain crystalline silicon photovoltaic products from the People's Republic of China (China). Commerce is notifying the public that the final judgment in this case is not in harmony with Commerce's final determination in the AD investigation of certain crystalline silicon photovoltaic products from China.
Applicable June 4, 2018.
Eli Lovely, AD/CVD Operations, Office IV, Enforcement and Compliance—International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482–1593.
Subsequent to the December 23, 2014, publication of the
In
On August 2, 2017, Commerce issued its First Remand Results, in which it determined that it would continue to value Trina's byproduct offset for scrapped solar modules with South African import data under HTS 8548.10 and explained its decision to do so.
On March 12, 2018, Commerce issued its Second Remand Results, wherein, considering the Court's order, and under respectful protest, Commerce selected Thai import data under HTS category 2804.69 to value Trina's byproduct offset for scrapped solar modules for purposes of its normal value calculations.
On May 25, 2018, the Court issued its decision in
In its decision in
This notice is issued and published in accordance with section 516A(e)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Mid-Atlantic Fishery Management Council's (Council) Mackerel-Squid-Butterfish (MSB) Monitoring Committee will meet via webinar to develop recommendations for future MSB specifications.
The meeting will be held Monday, June 25, 2018 at 9 a.m. and end by noon.
The meeting will be held via webinar with a telephone-only connection option:
Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526–5255. The Council's website,
The Council's MSB Monitoring Committee will develop recommendations for future MSB specifications. The MSB Monitoring Committee will meet jointly with the Fishery Management Action Team (FMAT), which is developing analyses for the Council's Atlantic mackerel rebuilding framework to set 2019–2021 Atlantic mackerel specifications. The Council will review previously-set 2019 longfin squid,
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526–5251, at least 5 days prior to the meeting date.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Under current regulations at 50 CFR 635.6, fishing vessels permitted for Atlantic HMS fisheries must display their official vessel numbers on their vessels. Flotation devices and high-flyers attached to certain fishing gears must also be marked with the vessel's number to identify the vessel to which the gear belongs. These requirements are necessary for identification, law enforcement, and monitoring purposes.
Specifically, all vessel owners that hold a valid Atlantic HMS permit under 50 CFR 635.4, other than an Atlantic HMS Angling permit, are required to display their vessel identification number. Numbers must be permanently affixed to, or painted on, the port and starboard sides of the deckhouse or hull and on an appropriate weather deck, so as to be clearly visible from an
Furthermore, the owner or operator of a vessel for which a permit has been issued under § 635.4 and that uses handline, buoy gear, harpoon, longline, or gillnet, must display the vessel's name, registration number or Atlantic Tunas, Atlantic HMS Angling, or Atlantic HMS Charter/Headboat permit number on each float attached to a handline, buoy gear, or harpoon, and on the terminal floats and high-flyers (if applicable) on a longline or gillnet used by the vessel. The vessel's name or number must be at least 1 inch (2.5 cm) in height in block letters or arabic numerals in a color that contrasts with the background color of the float or high-flyer.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The National Marine Fisheries Service (NMFS) proposes to conduct a census of small-scale fishermen operating in the United States (U.S.) Caribbean. The extension for the data collection applies only to the Commonwealth of Puerto Rico because the data collection was completed in the U.S. Virgin Islands. The proposed socio-economic study will collect information on demographics, capital investment in fishing gear and vessels, fishing and marketing practices, economic performance, and miscellaneous attitudinal questions. The data gathered will be used for the development of amendments to fishery management plans, which require descriptions of the human and economic environment and socio-economic analyses of regulatory proposals. The information collected will also be used to strengthen fishery management decision-making and satisfy various legal mandates under the Magnuson-Stevens Fishery Conservation and Management Act (U.S.C. 1801
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Advisory Panel will hold a public meeting, jointly with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Advisory Panel.
The meeting will be held on Tuesday, June 26, 2018, from 10 a.m. until 4:30 p.m.
The meeting will be held at the Hilton Garden Inn BWI Airport, 1516 Aero Dr., Linthicum, MD 21090; telephone: (410) 691–0500.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526–5255.
The Mid-Atlantic Fishery Management Council's (MAFMC's) Summer Flounder, Scup, and Black Sea Bass Advisory Panel will meet jointly with the Atlantic States Marine Fisheries Commission's (ASMFC's) Summer Flounder, Scup, and Black Sea Bass Advisory Panel. The purpose of this meeting is to discuss recent performance of the summer flounder, scup, and black sea bass commercial and recreational fisheries and develop Fishery Performance Reports. These reports will be considered by the Scientific and Statistical Committee, the Monitoring Committee, and the MAFMC and ASMFC when setting 2019 fishery specifications (
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526–5251, at least 5 days prior to the meeting date.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed additions to the Procurement List.
The Committee is proposing to add product(s) and service(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments must be received on or before: July 8, 2018.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202–4149.
For further information or to submit comments contact: Amy B. Jensen, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the product(s) and service(s) listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following product(s) and service(s) are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes product(s) and service(s) from the Procurement List that were previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202–4149.
Amy B. Jensen, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 5/4/2018 (83 FR 87), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the product(s) and service(s) listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the product(s) and service(s) deleted from the Procurement List.
Accordingly, the following product(s) and service(s) are deleted from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Addition to the Procurement List.
This action adds a service to the Procurement List that will be provided by a nonprofit agency employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202–4149.
Amy B. Jensen, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 3/16/2018 (83 FR 52), the Committee for Purchase From People Who Are Blind or Severely Disabled published a notice of proposed addition to the Procurement List.
After consideration of the material presented to it concerning capability of qualified nonprofit agency to provide the service and impact of the addition on the current or most recent contractors, the Committee has determined that the service listed below is suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will provide the service to the Government.
2. The action will result in authorizing small entities to provide the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the service proposed for addition to the Procurement List.
The Committee finds good cause to dispense with the 30-day delay in the effective date normally required by the Administrative Procedure Act. See 5 U.S.C. 553(d). This addition to the Committee's Procurement List is effectuated because of the expiration of the U.S. Navy NAVSUP Fleet Logistics Center Norfolk Warehouse Support Service contract. The Federal customer contacted, and has worked diligently with the AbilityOne Program to fulfill this service need under the AbilityOne Program. To avoid performance disruption, and the possibility that the U.S. Navy will refer its business elsewhere, this addition must be effective on June 17, 2018, ensuring timely execution for a June 18, 2018 start date while still allowing 8 days for comments. Pursuant to its own regulation 41 CFR 51–2.4, the Committee has been in contact with one of the affected parties, the incumbent of the expiring contract since May 2017, and determined that no severe adverse impact exists. The Committee also published a notice of proposed Procurement List addition in the
Accordingly, the following service is added to the Procurement List:
The U.S. AbilityOne Commission, whose mission is to provide employment opportunities for individuals who are blind or have significant disabilities in the manufacture and delivery of products and services to the Federal Government, received comments from one party with interests in the proposed addition to the Procurement List.
The Commenter objected to the addition of warehouse support service requirements at Navy Supply Warehouse, Annapolis, MD to the Procurement List for three reasons: suitability of the work for the AbilityOne Program, inability of a nonprofit agency to maintain the mandatory overall direct labor hour ratio while performing the warehouse support services requirement, and financial and business impact to the small business incumbent.
The Commenter questioned whether warehouse support services tasks, including inspecting, receiving and processing materials; utilizing material handling equipment (
The Commenter also questioned whether a nonprofit agency will be able to maintain the overall direct labor hour ratio requirement of performing 75% of the direct labor hours by people who are blind or significantly disabled. Pursuant to 41 U.S.C. 8501(6), a nonprofit agency in the AbilityOne Program must employ blind or significantly disabled individuals at a level no less than 75% of the agency's overall direct labor hour ratio. The Commission notes that several nonprofit agencies currently perform warehouse support service requirements, like Navy Supply Warehouse, Annapolis, MD, and maintain compliance with the overall 75% direct labor hour requirement.
Finally, the Commenter asserted adverse financial and business impact to its operations should the work requirement be added to the Procurement List. The Commission conducted an analysis of a possible severe adverse impact on the Commenter, the incumbent contractor, in accordance with 41 CFR 51–2.4(a)(4) and concluded there was no severe adverse impact.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice; correction.
DoD is making a correction to the notice published at 83 FR 19549 on May 3, 2018, which advised that the Defense Acquisition Regulations System submitted to OMB for clearance, a proposal for collection of information under the provisions of the Paperwork Reduction Act. The document contained an incorrect docket number.
Applicable June 8, 2018. Applicable beginning May 3, 2018.
Ms. Amy Williams, telephone 571–372–6106.
In the notice published at 83 FR 19549 on May 3, 2018, in the first column, the following correction is made to this notice. The docket number cited, DARS–2018–0003, is corrected to read DARS–2018–0006.
Defense Logistics Agency (DLA), Department of Defense.
Notice of availability (NOA).
On October 19, 2017, DLA published a NOA in the
Ira Silverberg at 571–767–0705 during normal business hours Monday through Friday, from 8:00 a.m. to 4:30 p.m. (EDT) or by email:
DLA completed an EA to address the potential environmental consequences associated with the Proposed Action at DLA Disposition Services Red River, which is on Red River Army Depot (RRAD). This FONSI incorporates the EA by reference, summarizes the results of the analyses in the EA, and documents DLA's decision to construct and operate the Disposition Services Complex at the installation. DLA has determined that the Proposed Action is not a major federal action that significantly affects the quality of the human environment within the context of NEPA, and that no significant impacts on the human environment are associated with this decision.
No public comments were received during the EA public comment period. Red River Army Depot (RRAD), the host installation, consulted with the Texas
The primary facility would be a 145,200-square foot (ft
A 14.9-acre (648,000-ft
Defense Logistics Agency (DLA), Department of Defense.
Notice of availability (NOA).
DLA announces the availability of an Environmental Assessment (EA) documenting the potential environmental effects associated with the Proposed Action to construct and operate a Fiscal Year 2019 General Purpose Warehouse at DLA Distribution Red River, Texas, which is on Red River Army Depot.
The public comment period will end on July 9, 2018.
You may submit comments, identified by DOD–2018–OS–0033, to one of the following:
•
•
Ira Silverberg at 571–767–0705 during normal business hours Monday through Friday, from 8:00 a.m. to 4:30 p.m. (EDT) or by email:
The EA has been prepared as required under the National Environmental Policy Act (NEPA), 32 Code of Federal Regulations part 651, Environmental Analysis of Army Actions, and DLA Regulation 1000.22, Environmental Considerations in Defense Logistics Agency Actions.
The environmental assessment posted to the docket provides additional information about the proposed action.
Office of the Under Secretary of Defense for Acquisition and Sustainment, 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 9, 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.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by August 7, 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 Office of the Under Secretary of Defense (Personnel and
This form is used by EFMP Family Support staff in collaboration with families who request assistance in navigating resources and systems of support. The DD Form X768 will be standardized across the four Services with the goal of facilitating a consistent Family Support experience for all military families. Form respondents include EFMP Family Support staff who complete the form in conjunction with families who are needing support services. The FNA will be stored and maintained internally at the Family Support Office. A family may request a copy of the form.
In notice document 2018–10586 appearing on pages 22967–22971 in the issue of May 17, 2018, make the following corrections:
1. On pages 22968–22969, table “Parents of Dependent Students” is corrected as set forth below:
2. On page 22969, table “Independent Students Without Dependents Other Than a Spouse” is corrected as set forth below:
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), “Air Stationary Source Compliance and Enforcement Information Reporting” (EPA ICR No. 0107.12, OMB Control No. 2060–0096) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through January 31, 2019. An Agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
We are also soliciting comment on several options for improving the reporting of Clean Air Act stationary source facility compliance information in order to improve the display, usability and accuracy of these data for presentation to the public through EPA's Enforcement Compliance History Online (ECHO) capability.
Comments must be submitted on or before August 7, 2018.
Submit your comments, referencing Docket ID No. EPA–HQ–OECA–2018–0248 online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
David A. Meredith, Enforcement Targeting and Data Division, Office of Compliance, (2222A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202–564–4152; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) 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; (ii) 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; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) 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,
ICIS-Air supports EPA and state and local agency efforts to ensure compliance with the nation's environmental laws pertaining to air, via the collection and management of important Clean Air Act (CAA or the “Act”) compliance and enforcement information. ICIS-Air is a sub-component of ICIS, which provides compliance and enforcement information on thousands of facilities regulated under numerous federal statutes. The information provided to EPA via ICIS-Air includes source characterization, compliance monitoring, and enforcement activities. EPA will use this information to assess progress toward meeting emission requirements developed under the authority of the CAA, and to protect and maintain air quality, public health, and the environment. Agencies receive delegation of the CAA through regulated grant authorities, and report compliance/enforcement activities undertaken at stationary sources pursuant to the Minimum Data Requirements (MDRs) as outlined in this ICR. The provisions of Section 114(a)(1) of the Clean Air Act, 42 U.S.C. Section 7414(a)(1) provide the broad authority for the reporting of compliance monitoring and enforcement information, along with Subpart Q—Reports in 40 CFR 51: Sections 51.324(a) and (b), and 51.327. This renewal requires the continuation of reporting of previously established MDRs via either direct, on-line entry or electronic data transfer (EDT) to ICIS-Air.
U.S. EPA and states are cooperating to improve the display, usability, and accuracy of EPA's Enforcement and Compliance History Online (ECHO). ECHO is a critical tool for accessing and analyzing information about facilities regulated under the Clean Air Act and other environmental statutes. As a first step, a team of state and EPA representatives has identified some changes to ECHO that will enhance the user experience and improve ECHO's display of facility compliance-related data. As such, EPA is soliciting state and local input on three options presented for the reporting of Federally Reportable Violation (FRV) dates. These options are presented in the 2/27/18 joint EPA-State paper written to identify improvements to the display, usability, and accuracy of EPA's ECHO. That
As suggested by the 2/27/18 joint EPA-State paper written to identify improvements to the display, usability, and accuracy of ECHO, we are asking commenters, if they would like, to indicate a preference for one of the three FRV date reporting options agencies may choose to display on ECHO: 1a.
The EPA-State paper expressed the authors' belief that EPA's ECHO could better display CAA violations if FRV dates are consistently reported. Several members of the workgroup that created the paper expressed the view that EPA should select an approach for FRV date reporting and request the entry of the necessary data, via this ICR renewal process. EPA encourages you to share the views of your organization on this topic.
EPA currently intends to continue the status quo with respect to the minimum data requirements associated with reporting FRVs. However, EPA is open to changing its viewpoint based upon the feedback received from stakeholders in response to this
Environmental Protection Agency.
Notice of proposed issuance of NPDES General Permit; extension of comment period.
The Environmental Protection Agency (EPA) Region 10 is extending the comment period for the proposed issuance of a National Pollutant Discharge Elimination System (NPDES) General Permit for Hydroelectric Facilities discharging to waters within the State of Idaho (Permit No. IDG360000). The agency is extending the comment period for 30 days in response to requests from Idaho Power Co. and Utility Water Act Group.
The comment period for the proposed General Permit published in the
Submit your comments on the draft General Permit to Director, Office of Water and Watersheds, USEPA Region 10, 1200 Sixth Avenue, Suite 155, OWW–191, Seattle, WA 98101. Your comments may also be submitted by fax to (206) 553–1280 or electronically to
Comments on the draft 401Certification should be sent to Loren Moore, Idaho Department of Environmental Quality, 1410 N Hilton, Boise, Idaho 83706 or electronically to
Dru Keenan, 206–553–1219,
On April 27, 2018 (83 FR 18555), the EPA Region 10 published the proposed general NPDES permit for hydroelectric facilities located in Idaho in the
Permit documents may be found on the EPA Region 10 website at:
Section 309(a) of the Clean Air Act requires that EPA, make public its comments on EISs issued by other, Federal agencies. EPA's comment letters on EISs are available at:
Revision to the
Environmental Protection Agency (EPA).
Notice of proposed action on petitions.
The Environmental Protection Agency (EPA) is proposing to deny four petitions submitted by the state of Delaware and one petition submitted by the state of Maryland under Clean Air Act (CAA or Act) section 126(b). The petitions were submitted between July and November 2016. Each of Delaware's four petitions requested that the EPA make a finding that emissions from individual sources in Pennsylvania or West Virginia are significantly contributing to Delaware's nonattainment of the 2008 and 2015 8-hour ozone national ambient air quality standards (NAAQS). Maryland's petition requested that the EPA make a finding that emissions from 36 electric generating units in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia are significantly contributing to ozone levels that exceed the 2008 8-hour ozone NAAQS in Maryland, and, therefore, are interfering with nonattainment and maintenance of the 2008 ozone NAAQS. The EPA proposes to deny all five petitions because Delaware and Maryland have not met their burden to demonstrate that the sources emit or would emit in violation of the CAA's “good neighbor” provision (
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2018–0295, at
Questions concerning this proposed notice should be directed to Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539–01, Research Triangle Park, NC 27711, telephone (919) 541–1496; email at
The information in this document is organized as follows:
Throughout this document, wherever “we,” “us,” or “our” is used, we mean the United States (U.S.) EPA.
The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2018–0295 (available at
In 2016, the states of Delaware and Maryland submitted a total of five petitions requesting that the EPA make findings pursuant to CAA section 126(b) that emissions from numerous upwind sources significantly contribute to nonattainment and/or interfere with maintenance of the ozone NAAQS in violation of CAA section 110(a)(2)(D)(i)(I), otherwise known as the good neighbor provision. Delaware submitted four petitions, each alleging good neighbor violations related to the 2008 and 2015 ozone NAAQS by individual sources located in Pennsylvania or West Virginia. Maryland submitted a single petition alleging good neighbor violations related to the 2008 ozone NAAQS by 36 electric generating units (EGUs) in five states.
The EPA is evaluating the petitions consistent with the same four-step regional analytic framework that the EPA has used in previous regulatory actions addressing regional interstate ozone transport problems. The EPA is therefore using this framework to evaluate whether the petitions meet the standard to demonstrate under CAA section 126(b) that the sources emit or would emit in violation of the good neighbor provision based on both current and anticipated future emissions levels. The EPA identifies two bases for denying the petitions. First, the agency's historical approach to evaluating CAA section 126(b) petitions looks to see whether a petition, standing alone, identifies or establishes an analytic basis for the requested CAA section 126(b) finding, and the agency identified several elements of the states' analysis that are considered insufficient to support the states' conclusions. Second, the EPA also can rely on its own independent analyses to evaluate the potential basis for the requested CAA section 126(b) finding. The EPA is, therefore, proposing to find, based on its own analysis, that there are no additional highly cost-effective emissions reductions available at the sources, and, thus, that none of the named sources currently emit or would emit in violation of the good neighbor provision with respect to the relevant ozone NAAQS.
Section III of this notice provides background information regarding the EPA's approach to addressing the interstate transport of ozone under CAA sections 110(a)(2)(D)(i) and 126(b), and provides a summary of the relevant issues raised in Delaware's and Maryland's CAA section 126(b) petitions. Section IV of this notice details the EPA's proposed action to deny these petitions, including explaining the EPA's approach for granting or denying CAA section 126(b) petitions regarding the 2008 and 2015 8-hour ozone NAAQS, identifying technical insufficiencies in the petitions, and explaining the EPA's own analysis evaluating whether the sources named in the petitions emit or would emit in violation of the good neighbor provision for the pertinent NAAQS.
Ground-level ozone is not emitted directly into the air, but is a secondary air pollutant created by chemical reactions between nitrogen oxides (NO
On March 12, 2008, the EPA promulgated a revision to the ozone NAAQS, lowering both the primary and secondary standards to 75 parts per billion (ppb).
The statutory authority for this action is provided by CAA sections 126 and 110(a)(2)(D)(i). Section 126(b) of the CAA provides, among other things, that any state or political subdivision may petition the Administrator of the EPA to find that any major source or group of stationary sources in an upwind state emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i).
CAA section 126(c) explains the effect of a CAA section 126(b) finding and establishes the conditions under which continued operation of a source subject to such a finding may be permitted. Specifically, CAA section 126(c) provides that it is a violation of section 126 of the Act and of the applicable state implementation plan (SIP): (1) For any major proposed new or modified source subject to a CAA section 126(b) finding to be constructed or operate in violation of the prohibition of CAA section 110(a)(2)(D)(i); or (2) for any major existing source for which such a finding has been made to stay in operation more than 3 months after the date of the finding. The statute, however, also gives the Administrator discretion to permit the continued operation of a source beyond 3 months if the source complies with emissions limitations and compliance schedules provided by the EPA to bring about compliance with the requirements contained in CAA sections 110(a)(2)(D)(i) and 126 as expeditiously as practicable, but in any event no later
Section 110(a)(2)(D)(i) of the CAA, referred to as the good neighbor provision of the Act, requires states to prohibit certain emissions from in-state sources if such emissions impact the air quality in downwind states. Specifically, CAA sections 110(a)(1) and 110(a)(2)(D)(i)(I) require all states, within 3 years of promulgation of a new or revised NAAQS, to submit SIPs that contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to that NAAQS. As described further in Section III.C, the EPA has developed a number of regional rulemakings to address CAA section 110(a)(2)(D)(i)(I) for the various ozone NAAQS. The EPA's most recent rulemaking, the CSAPR Update, was promulgated to address interstate transport under section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. 81 FR 74504 (October 26, 2016). The EPA notes that the petitions from both states were submitted before the implementation of the emissions budgets promulgated in the CSAPR Update.
Given that formation, atmospheric residence, and transport of ozone occur on a regional scale (
The EPA has promulgated four regional interstate transport rulemakings that have addressed the good neighbor provision with respect to various ozone NAAQS considering the regional nature of ozone transport. Each of these rulemakings essentially followed the same four-step framework to quantify and implement emissions reductions necessary to address the interstate transport requirements of the good neighbor provision. These steps are:
(1) Identifying downwind air quality problems relative to the ozone NAAQS. The EPA has identified downwind areas with air quality problems (referred to as “receptors”) considering monitored ozone data where appropriate and air quality modeling projections to a future compliance year. Pursuant to the opinion in
(2) determining which upwind states are linked to these identified downwind air quality problems and warrant further analysis to determine whether their emissions violate the good neighbor provision. In the EPA's most recent rulemakings, the EPA identified such upwind states to be those modeled to contribute at or above a threshold equivalent to one percent of the applicable NAAQS.
(3) for states linked to downwind air quality problems, identifying upwind emissions on a statewide basis that will significantly contribute to nonattainment or interfere with maintenance of a standard. In all four of the EPA's prior rulemakings, the EPA apportioned emissions reduction responsibility among multiple upwind states linked to downwind air quality problems using cost- and air quality-based criteria to quantify the amount of a linked upwind state's emissions that must be prohibited pursuant to the good neighbor provision; and
(4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind, implementing the necessary emissions reductions within the state. The EPA has done this for its federal implementation plans (FIPs) addressing the good neighbor provision for the ozone NAAQS by requiring affected sources in upwind states to participate in allowance trading programs to achieve the necessary emissions reductions.
The EPA's first such rulemaking, the NO
In coordination with the NO
The EPA next promulgated the Clean Air Interstate Rule (CAIR) to address interstate transport under the good neighbor provision with respect to the 1997 ozone NAAQS, as well as the 1997 fine particulate matter (PM
In conjunction with the second CAIR regulation promulgating FIPs, the EPA acted on a CAA section 126(b) petition received from the state of North Carolina on March 19, 2004, seeking a finding that large EGUs located in 13 states were significantly contributing to nonattainment and/or interfering with maintenance of the 1997 ozone NAAQS and the 1997 PM
The D.C. Circuit found that EPA's approach to section 110(a)(2)(D)(i)(I) in CAIR was “fundamentally flawed” in several respects, and the rule was remanded in July 2008 with the instruction that the EPA replace the rule “from the ground up.”
On August 8, 2011, the EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR. 76 FR 48208 (August 8, 2011). CSAPR addressed the same ozone and PM
Most recently, the EPA promulgated the CSAPR Update to address the good neighbor provision requirements for the 2008 ozone NAAQS. 81 FR 74504 (October 26, 2016). The final CSAPR Update built upon previous efforts to address the collective contributions of ozone pollution from 22 states in the eastern U.S. to widespread downwind air quality problems, including the NO
The CSAPR Update finalized enforceable measures necessary to achieve the emission reductions in each state by requiring power plants in covered states to participate in the CSAPR NO
In finalizing the CSAPR Update, the EPA determined the rule may only be a partial resolution of the good neighbor obligation for all but one of the states subject to that action, including those addressed in Delaware's and Maryland's petitions (Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia), and that the emissions reductions required by the rule “may not be all that is needed” to address transported emissions.
Of particular relevance to this action, the EPA determined in the CSAPR Update that emissions from the states identified in Maryland's petition were linked to maintenance concerns for the 2008 ozone NAAQS in Maryland based on air quality modeling projections to 2017. 81 FR 74538–39. With respect to Delaware, the EPA in the CSAPR Update did not identify any downwind air quality problems in Delaware with respect to the 2008 ozone NAAQS, and, therefore, did not determine that emissions from any of the states identified in the four petitions would be linked to Delaware. The CSAPR Update modeling indicated no monitors in Delaware with a projected average or maximum design value above the level of the 2008 ozone NAAQS in 2017.
For states linked to downwind air quality problems, the EPA in the CSAPR Update found there were cost-effective emissions reductions that could be achieved within upwind states at a marginal cost of $1,400 per ton, quantified an emissions budget for each state based on that level of control potential, and required EGUs located within the state, including the sources identified in Maryland and Delaware's petitions, to comply with the EPA's allowance trading program under the CSAPR Update beginning with the 2017 ozone season. The EPA found that these emissions budgets were necessary to achieve the required emissions reductions and mitigate impacts on downwind states' air quality in time for the July 2018 moderate area attainment date for the 2008 ozone NAAQS.
In 2016, the state of Delaware, through the Delaware Department of Natural Resources and Environmental Control (Delaware), submitted four petitions claiming that four individual sources in Pennsylvania and West Virginia significantly contribute to Delaware's nonattainment of the 2008 and 2015 8-hour ozone NAAQS. In particular, Delaware's petitions allege that emissions from the Harrison Power Station (Harrison), the Homer City Generating Station (Homer City), and the Brunner Island Steam Generating Station (Brunner Island) in Pennsylvania, and the Conemaugh Generating Station (Conemaugh) in West Virginia, significantly contribute to exceedances of the 2008 8-hour ozone NAAQS in the state of Delaware. The petitions identify a total of 59 exceedance days in the six ozone seasons between 2010 and 2015. Furthermore, Delaware contends that if the 2015 8-hour ozone NAAQS had been in effect during this period, Delaware would have experienced a total of 113 exceedance days in those ozone seasons. Notably, Harrison is equipped with low NO
Each of the Delaware petitions alleges that an individual source significantly contributes to nonattainment of the 2008 and 2015 8-hour ozone NAAQS in Delaware based on two common arguments. First, all four petitions allege that the EPA's modeling conducted in support of the CSAPR Update shows that the states in which these sources are located contribute one percent or more of the 2008 8-hour ozone NAAQS to ozone concentrations in Delaware. Second, all four petitions point to additional modeling for support. The Brunner Island and Harrison petitions cite an August 6, 2015, technical memorandum from Sonoma Technology, Inc. (STI), which describes contribution modeling conducted with respect to Brunner Island. The Conemaugh and Homer City petitions cite October 24, 2016, CAMx modeling documentation. Delaware did not provide the EPA with this documentation. Based on this modeling, the petitions claim that all four sources had modeled contributions above one percent of the 2008 8-hour ozone NAAQS to locations in Delaware on select days during the 2011 ozone season.
All four petitions also contend that the absence of short-term NO
Delaware's August 8, 2016 CAA section 126(b) petition addresses the Harrison Power Station,
Delaware indicates that the Harrison Power Station is subject to operating permit NO
According to Delaware, from the 2010 ozone season and beyond, the ozone season average NO
Delaware's November 10, 2016, CAA section 126(b) petition cites the Homer City Generating Station,
Delaware's November 28, 2016, CAA section 126(b) petition cites the Conemaugh Generating Station,
Delaware's July 7, 2016, CAA section 126(b) petition cites emissions from the Brunner Island Electric Steam Station,
According to Delaware, a modeling analysis conducted by STI estimated that during the 2011 ozone season the Brunner Island facility's NO
Subsequent to receiving the petitions, the EPA published final rules extending the statutory deadline for the agency to take final action on all four of Delaware's section 126(b) petitions. Section 126(b) of the Act requires the EPA to either make a finding or deny a petition within 60 days of receipt of the petition and after holding a public hearing. However, any action taken by the EPA under CAA section 126(b) is subject to the procedural requirements of CAA section 307(d).
On March 5, 2017, the Chesapeake Bay Foundation (CBF) submitted a letter in support of Delaware's petition regarding Brunner Island. The CBF supports Delaware's argument that emissions from the named coal-fired EGUs significantly contribute to nonattainment and interfere with maintenance of the ozone NAAQS in Delaware. On April 11, 2017, the CBF sent a second letter in support of Delaware's petition regarding Harrison. The CBF supports Delaware's argument that emissions data since 2011 demonstrate that Harrison's operators have either ceased to operate the SCR systems regularly or have chosen to operate them in a sub-optimal manner. In both letters, the CBF argued that the EPA should implement an emissions rate limit at both facilities based on short averaging periods and indicated that Delaware's proposed remedy would help reduce nitrogen deposition to the Chesapeake Bay watershed, with beneficial effects upon the health of the Bay.
On June 20, 2017, the Midwest Ozone Group (MOG) submitted a letter urging the EPA to deny the Conemaugh petition and asserted that Delaware does not have ozone nonattainment or maintenance problems upon which to base a CAA section 126(b) petition. The MOG contends that Delaware air quality currently meets the 2008 8-hour ozone NAAQS, was projected to attain the standard in 2017
The EPA acknowledges receipt of these letters and has made them available in the docket for this action. However, the EPA is not in this action responding directly to these letters. Rather, the EPA encourages interested parties to review this proposal and then submit relevant comments during the public comment period.
On November 16, 2016, the state of Maryland, through the Maryland Department of the Environment, submitted a CAA section 126(b) petition alleging that emissions from 36 EGUs significantly contribute to ozone levels that exceed the 2008 ozone NAAQS in Maryland and therefore interfere with both attainment and maintenance of the NAAQS.
The petition further alleges that Maryland's proposed remedy—discussed further below—will influence how areas in Maryland and other Mid-Atlantic states are designated under the new 2015 ozone NAAQS. According to Maryland, the proposed remedy, if implemented in 2017, would most likely allow the Baltimore area and the Washington, DC, multi-state area, which includes portions of Maryland, to both be designated attainment for the 2015 ozone NAAQS. The EPA notes that the cover letter of Maryland's petition specifically requests that EPA make a finding “that the 36 electric generating units (EGUs) . . . are emitting pollutants in violation of the provisions of Section 110(a)(2)(D)(i)(I) of the CAA with respect to the 2008 ozone National Ambient Air Quality Standards,” and the petition throughout refers only to the 2008 ozone NAAQS when identifying alleged air quality problems in Maryland and the impacts from upwind sources. Accordingly, while Maryland suggests that its requested remedy for 2008 ozone will assist in achieving attainment of the 2015 ozone NAAQS, the state has not specifically requested that EPA make a finding with respect to the 2015 ozone NAAQS, and, therefore, the EPA is not evaluating the petition for this standard.
Maryland alleges that, although the 36 EGUs have existing post-combustion control mechanisms that should prevent significant contribution, the facilities have either ceased to operate the controls regularly during the ozone season or have chosen to operate them in a sub-optimal manner. Maryland presents an analysis based on 2005–2015 ozone season data to support this contention.
Maryland also submitted a number of technical memoranda to support its argument. Maryland submitted analyses of control technology optimization for coal-fired EGUs in eastern states, which they contend demonstrate that NO
Maryland also submitted the following documents: A review of its own NO
Additionally, Maryland supplemented its petition with several further appendices submitted in 2017. Maryland submitted an additional optimization analysis comparing NO
Maryland's petition also requests a remedy that will compel the named units to optimize their SCR and SNCR. Maryland indicates that its petition is focused on ensuring controls are run at the units every day of the ozone season. According to Maryland, the CSAPR Update, earlier federal allowance trading programs, and many state regulations allow for longer term averaging, which means that controls do not necessarily need to be run effectively every day to comply with these requirements. Maryland claims that this has resulted in situations where sources in the five upwind states have not run their controls efficiently on many days with high ozone, and, therefore, these sources are impacting
Maryland contends that emissions at the 36 EGUs can be reduced at reasonable cost, or with potentially no actual new costs to the EGUs at all,
Consistent with CAA section 307(d), as discussed in Section III.D of this notice, the EPA determined that the 60-day period for responding to Maryland's petition is insufficient for the EPA to complete the necessary technical review, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing, on a proposed finding regarding whether the 36 EGUs identified in the petition significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in Maryland. On January 3, 2017, the EPA published a final rule extending the deadline for acting on Maryland's section 126(b) petition to July 15, 2017.
On May 17, 2017, the MOG submitted a letter asking the EPA to deny Maryland's section 126(b) petition. The MOG argues that all monitors in Maryland are either attaining the 2008 8-hour ozone NAAQS or are very close to attaining the standard, and that modeling indicates that all Maryland monitors will attain the 2008 8-hour ozone NAAQS in 2025. Furthermore, the MOG argues that the CSAPR Update moots Maryland's petition. Finally, the MOG argues that the EPA must assess the impact of international emissions when reviewing a section 126(b) petition. On May 18, 2017, the Indiana Energy Association submitted a letter making similar assertions, and urged the EPA to deny Maryland's section 126(b) petition.
The EPA acknowledges receipt of these letters, and has made them available in the docket for this action. However, the EPA is not responding directly to these letters in this action. Rather, the EPA encourages interested parties to review this proposal and then submit relevant comments during the public comment period.
As discussed in Section III.B of this notice, section 126(b) of the CAA provides a mechanism for states and other political subdivisions to seek abatement of pollution in other states that may affect their air quality. However, it does not identify specific criteria or a specific methodology for the Administrator to apply when deciding whether to make a CAA section 126(b) finding or deny a petition. Therefore, the EPA has discretion to identify relevant criteria and develop a reasonable methodology for determining whether a CAA section 126(b) finding should be made.
As an initial matter, the EPA's historical approach to evaluating CAA section 126(b) petitions looks first to see whether a petition establishes a sufficient basis for the requested CAA section 126(b) finding. The EPA first evaluates the technical analysis in the petition to see if that analysis, standing alone, is sufficient to support a CAA section 126(b) finding. The EPA focuses on the analysis in the petition because the statute does not require the EPA to conduct an independent technical analysis to evaluate claims made in CAA section 126(b) petitions. The petitioner, thus, bears the burden of establishing, as an initial matter, a technical basis for the specific finding requested. The EPA has no obligation to prepare an analysis to supplement a petition that fails, on its face, to include an initial technical demonstration. Such a petition, or a petition that fails to identify the specific finding requested, can be denied as insufficient. Nonetheless, the EPA has the discretion to conduct independent analyses when helpful in evaluating the basis for a potential CAA section 126(b) finding or developing a remedy if a finding is made.
With respect to the statutory requirements of both section 110(a)(2)(D)(i) and section 126 of the CAA, the EPA has consistently acknowledged that Congress created these provisions as two independent statutory tools to address the problem of interstate pollution transport.
Thus, in addressing a CAA section 126(b) petition that addresses ozone transport, the EPA believes it is appropriate to interpret these ambiguous terms consistent with the EPA's historical approach to evaluating interstate ozone pollution transport under the good neighbor provision, and its interpretation and application of that related provision of the statute. As described in Sections III.A and III.C of this notice, ozone is a regional pollutant and previous EPA analyses and regulatory actions have evaluated the regional interstate ozone transport problem using a four-step regional analytic framework. The EPA most recently applied this four-step framework in the promulgation of the CSAPR Update to address interstate transport with respect to the 2008 ozone NAAQS under CAA section 110(a)(2)(D)(i)(I). Given the specific cross-reference in CAA section 126(b) to the substantive prohibition in CAA section 110(a)(2)(D)(i), the EPA believes any prior findings made under the good neighbor provision are informative—if not determinative—for a CAA section 126(b) action, and thus the EPA's four-step approach under CAA section 110(a)(2)(D)(i)(I) is also appropriate for evaluating under CAA section 126(b) whether an upwind source or group of sources will significantly contribute to nonattainment or interfere with maintenance of the 2008 8-hour ozone NAAQS in a petitioning downwind state. Because the EPA interprets the statutory phrases “significantly contribute to nonattainment” and “interfere with maintenance,” which appear in both statutory provisions, to mean the same thing in both those contexts, the EPA's decision whether to grant or deny a CAA section 126(b) petition regarding both the 2008 8-hour ozone and 2015 ozone NAAQS depends on: (1) Whether there is a downwind air quality problem in the petitioning state (
Unlike the 2008 ozone NAAQS, the EPA has not to date engaged in a rulemaking action to apply the good neighbor provision for the 2015 ozone NAAQS. However, the EPA has recently released technical information intended to inform states' development of SIPs to address this standard.
The EPA notes that Congress did not specify how the EPA should determine that a major source or group of stationary sources “emits or would emit” any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I) under the terms of section 126(b). Thus, the EPA also believes it is reasonable and appropriate at each step to consider whether the facility “emits or would emit” in light of the facility's current operating conditions. Therefore, the EPA interprets the phrase “emits or would emit” in the context of acting on Delaware's and Maryland's petitions regarding the 2008 and 2015 ozone NAAQS to mean that a source may “emit” in violation of the good neighbor provision if, based on current emissions levels, the upwind state contributes to downwind air quality problems (
In interpreting the phrase “emits or would emit in violation of the prohibition of section [110(a)(2)(D)(i)],” if the EPA or a state has already adopted provisions that eliminate the significant contribution to nonattainment or interference with maintenance of the
Thus, for example, if the EPA has already approved a state's SIP as adequate to meet the requirements of CAA section 110(a)(2)(D)(i)(I), the EPA will not find that a source in that state was emitting in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I) absent new information demonstrating that the SIP is now insufficient to address the prohibition. Similarly, if the EPA has promulgated a FIP that fully addressed the deficiency, the FIP would eliminate emissions that significantly contribute to nonattainment or interfere with maintenance in a downwind state, and, hence, absent new information to the contrary, EPA will not find that sources in the upwind state are emitting or would emit in violation of the CAA section 110(a)(2)(D)(i)(I) prohibition.
The EPA notes that the approval of a SIP or promulgation of a FIP implementing section 110(a)(2)(D)(i)(I) means that a state's emissions are adequately prohibited for the particular set of facts analyzed under approval of a SIP or promulgation of a FIP. If a petitioner produces new data or information showing a different level of contribution or other facts not considered when the SIP or FIP was promulgated, compliance with a SIP or FIP may not be determinative regarding whether the upwind sources would emit in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I).
As an initial matter in reviewing a CAA section 126(b) petition, the EPA evaluates the technical analysis in the petition to see if that analysis, standing alone, is sufficient to support the requested CAA section 126(b) findings. In this regard, the EPA has determined that material elements of the analysis provided in Delaware's and Maryland's petitions are technically deficient and, thereby, proposes to deny the petitions, in part, on the basis that the conclusions that the petitions draw are not supported by the petitions' technical assessments.
As discussed in Section IV.A, the EPA interprets the good neighbor provision for purposes of the pending CAA section 126(b) petitions consistent with the EPA's historical four-step framework. With respect to step one of the four-step framework, the EPA began by evaluating Delaware's four petitions to determine if the state identified a downwind air quality problem (nonattainment or maintenance) that may be impacted by ozone transport from other states. EPA conducted this evaluation with regard to both the 2008 and 2015 ozone NAAQS.
Next, with respect to step two of the four-step framework, material elements of Delaware's analysis regarding the contributions from the Brunner Island, Harrison, Homer City, and Conemaugh EGUs to air quality in Delaware are deficient and, therefore, the conclusions that the petitions draw are not supported by the technical assessment. As noted earlier, all four petitions rely upon air quality modeling that uses 2011 emissions to quantify the contribution from each of the four named sources to locations in Delaware on individual days in 2011. However, 2011 emissions are generally higher than, and therefore not representative of, current or future projected emissions levels at these EGUs and in the rest of the region, which the EPA believes is most relevant to determining whether a source “emits or would emit” in violation of the good neighbor provision.
Further, the analyses provided by Delaware regarding the alleged impacts of the four sources on downwind air quality includes some information on the frequency and magnitude of ozone impacts, but the information is unclear as to the modeled and/or measured ozone levels on those days.
The EPA has also evaluated and determined that material elements of the analysis provided in Maryland's petition are technically deficient, and, thereby, proposes to deny the petition, in part based on the fact the conclusions that the petition draws are not supported by the technical assessment. As discussed in Section III.E of this notice, Maryland alleges that 36 named sources are operating their post-combustion controls sub-optimally based on a comparison of their lowest observed NO
The EPA believes that the petition's assumption about achievable operating rates presents a technical weakness because the lowest historical rate at any particular unit may not be a rate that can be consistently achieved on a continual operating basis for technical reasons. In the CSAPR Update, the EPA analyzed EGU NO
As discussed in Section IV.A of this notice, the EPA may decide to conduct independent analyses when helpful in evaluating the basis for a potential CAA section 126(b) finding or developing a remedy if a finding is made. In this
With regard to the Delaware petitions, while the EPA as discussed in Section IV.B believes that they do not adequately establish the presence of a current or future nonattainment or maintenance problem in Delaware,, the EPA also independently examined whether there is an air quality problem under the 2008 and 2015 ozone NAAQS (step one), and whether the states containing the named sources are linked to such a problem in Delaware (step two).
The EPA first looked to air quality modeling projecting ozone concentrations at air quality monitoring sites to 2017, which was conducted for purposes of evaluating the first and second steps of the four-step framework to interstate transport for the 2008 ozone NAAQS as part of the CSAPR Update.
Additionally, the EPA independently examined whether there is a downwind air quality problem in Delaware with regard to the 2015 ozone NAAQS. The modeling conducted in support of the CSAPR Update shows one monitor—monitor ID 100051003 in Sussex County—having a maximum 2017 projected design value above the 2015 ozone NAAQS, and the EPA further notes information indicating that two monitors may exceed the 2015 ozone NAAQS based on the 2014–2016 design values.
With respect to the Maryland petition, as the state noted in its petition, the EPA already conducted an analysis in the CSAPR Update regarding the impact of the five upwind states named in the state's petition on downwind air quality in Maryland with respect to the 2008 ozone NAAQS. In addition to using modeling to identify downwind air quality problems, the EPA also used air quality modeling to assess contributions from upwind states to these downwind receptors and evaluated these contributions relative to a screening threshold of one percent of the NAAQS. States with contributions that equal or exceed one percent of the NAAQS were identified as warranting further analysis to determine whether they significantly contribute to nonattainment or interfere with maintenance at the downwind receptors. States with contributions below one percent of the NAAQS were considered to not significantly contribute to nonattainment or interfere with maintenance of the NAAQS in downwind states. The EPA determined in the final CSAPR Update that, based on its 2017 modeling projections, statewide emissions from sources in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia were linked to monitor ID 240251001 in Harford County, Maryland; that monitor was expected to have nonattainment and maintenance problems for the 2008 NAAQS. However, as discussed in Section III.C of this notice, the conclusion that a state's emissions met or exceeded this threshold only indicate that further analysis is appropriate to determine whether any of the upwind state's emissions meet the statutory criteria of significantly contributing to nonattainment or interfering with
The EPA next evaluated whether there are further highly cost-effective NO
Three of Delaware's petitions identify EGUs (Conemaugh, Harrison, and Homer City) that are already equipped with SCRs. Similarly, 32 of the 36 EGUs identified in Maryland's petition are also equipped with SCRs.
Both Delaware and Maryland contend that, based on data available at the time the petitions were filed, the sources are operating their SCR NO
To the extent the petitions have alleged that short-term limits are necessary to prevent units from turning controls off intermittently on days with high ozone, the EPA examined the hourly NO
Moreover, to the extent that the petitions contend that the allowance
Maryland also alleges that two facilities operating SNCR post-combustion controls (SNCR)—Cambria Cogen in Pennsylvania and Grant Town Power Plant in West Virginia—emit or would emit in violation of the good neighbor provision and asks that the agency impose emissions limits or other requirements to ensure that the facilities operate their SNCR during the ozone season.
As discussed earlier in Section IV.C.2 of this notice, the EPA evaluated control strategies in the CSAPR Update that were considered feasible to implement by the 2017 ozone season and determined that EGU control strategies available at a marginal cost of $1,400 per ton of NO
While the EPA did not determine that fully operating SNCR across the region was cost effective with respect to addressing transport obligations for the 2008 ozone NAAQS, individual sources may nonetheless choose how to comply with the CSAPR ozone season NO
The remaining facility addressed in one of Delaware's petitions is the Brunner Island facility, which currently has neither SCR nor SNCR installed. As noted earlier, the EPA has already proposed to determine that Delaware's petitions should be denied based on the EPA's conclusions at steps one and two of the four-step framework. Nonetheless, the EPA has evaluated Brunner Island in this step three analysis because we believe it provides another independent basis for the proposed denial.
With respect to the question of whether there are feasible and highly cost-effective NO
Delaware's CAA section 126(b) petition first proposes that the operation of natural gas is an available highly cost-effective emissions reduction measure that could be implemented at Brunner Island. Brunner Island completed construction of a natural gas pipeline connection prior to the beginning of the 2017 ozone season (
Similarly, the EPA concludes that Delaware's petition does not demonstrate that Brunner Island would emit in violation of the good neighbor provision. The EPA believes that Brunner Island will continue to primarily use natural gas as fuel during future ozone seasons for several economic reasons. First, compliance with the CSAPR Update provides an economic incentive to cost-effectively reduce NO
Second, there are continuing fuel-market based economic incentives suggesting that Brunner Island will continue to primarily burn natural gas during the ozone season. Brunner Island elected to add the capability to primarily utilize natural gas by way of a large capital investment in a new natural gas pipeline capacity connection. Brunner Island's operators would have planned for and constructed this project during the recent period of relatively low natural gas prices. In the years preceding the completion of this natural gas pipeline connection project, average annual Henry Hub natural gas spot prices ranged from $2.52/mmBtu to $4.37/mmBtu (
The context in which Brunner Island installed natural gas-firing capability and burned natural gas is consistent with observed recent trends in natural gas utilization within the power sector, suggesting that Brunner Island's economic situation in which it primarily burns gas as fuel during the ozone season is not unique or limited. Comparing total heat input from 2014 with 2017 for all units that utilize natural gas and report to the EPA's Clean Air Markets Division, historical data showed an increased use of natural gas of 14 percent.
Considering the projected continued broader downward trends in NO
Based on the information discussed in this notice, the EPA is proposing to deny all four of Delaware's CAA section 126(b) petitions, as well as Maryland's CAA section 126(b) petition, on two bases.
Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if (i) the agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”
The EPA proposes to find that any final action regarding these pending section 126(b) petitions is “nationally applicable” or, in the alternative, is based on a determination of “nationwide scope and effect” within the meaning of section 307(b)(1). Through this rulemaking action, the EPA interprets sections 110 and 126 of the CAA, statutory provisions which apply to all states and territories in the United States. In addition, the proposed action addresses emissions impacts and sources located in seven States, which are located in multiple EPA Regions and federal circuits. The proposed action is also based on a common core of factual findings and analyses concerning the transport of pollutants between the different states. Furthermore, the EPA intends this interpretation and approach to be consistently implemented nationwide with respect to section 126(b) petitions for the 2008 and 2015 ozone NAAQS. Courts have found similar actions to be nationally applicable.
Thus, the EPA proposes that pursuant to section 307(b)(1) any petitions for review of any final actions regarding the rulemaking would be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date any final action is published in the
42 U.S.C. 7410, 7426, 7601.
Environmental Protection Agency (EPA).
Notice of public hearing.
The Environmental Protection Agency (EPA) is announcing that a public hearing will be held on the EPA's proposed response to petitions from Delaware and Maryland pursuant to section 126 of the Clean Air Act (CAA or Act). The EPA is proposing to deny four CAA section 126(b) petitions submitted by the state of Delaware and one CAA section 126(b) petition submitted by the state of Maryland between July and November 2016. The hearing will be held on June 22, 2018, in Washington, DC.
The public hearing will be held on June 22, 2018, in Washington, DC. Please refer to
If you would like to speak at the public hearing, please contact Ms. Pamela Long, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards (OAQPS), Air Quality Planning Division (C504–01), Research Triangle Park, NC 27711, telephone (919) 541–0641, fax number (919) 541–5509, email address
If you have questions concerning the petitions from Maryland and Delaware, please contact Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards (OAQPS), Air Quality Planning Division, (C539–01), Research Triangle Park, NC 27711, telephone (919) 541–1496, email address
The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning the EPA's proposed response to the petitions from Maryland and Delaware. The EPA may ask clarifying questions during the oral presentations, but will not respond to the presentations at that time. Written statements and supporting information that are submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at the public hearing. Written comments must be postmarked by the last day of the comment period.
The public hearing will convene at 9:00 a.m. and end at 6:00 p.m. Eastern Time (ET) or at least two hours after the last registered speaker has spoken. The EPA will make every effort to accommodate all individuals interested in providing oral testimony. A lunch break is scheduled from 12:00 p.m. until 1:00 p.m. Please note that this hearing will be held at a U.S. government facility. Individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. The REAL ID Act, passed by Congress in 2005, established new requirements for entering federal facilities. These requirements took effect on July 21, 2014. If your driver's license is issued by American Samoa, you must present an additional form of identification to enter the federal building where the public hearing will be held. Acceptable alternative forms of identification include: Federal employee badges, passports, enhanced driver's licenses and military identification cards. For additional information for the status of your state regarding REAL ID, go to
If you would like to present oral testimony at the hearing, please notify Ms. Pamela Long, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards (OAQPS), Air Quality Planning Division (C504–01), Research Triangle Park, NC 27711, telephone (919) 541–0641, fax number (919) 541–5509, email address
Oral testimony will be limited to 5 minutes for each commenter. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) or in hard copy form. Commenters should notify Ms. Long if they need specific translation services for non-English speaking commenters.
The hearing schedule, including the list of speakers, will be posted on the EPA's website at
The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2018–0295 (available at
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of Rhode Island's request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA approves the authorized program revisions/modifications as of June 8, 2018.
Devon Martin, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW, Washington, DC 20460, (202) 566–2603,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On May 2, 2018, the Rhode Island Department of Environmental Management (RI DEM) submitted an application titled “NPDES e-Reporting Tool” for revisions/modifications to its EPA-approved programs under title 40 CFR to allow new electronic reporting. EPA reviewed RI DEM's request to revise/modify its EPA-authorized
Part 123—EPA Administered Permit Programs: The National Pollutant Discharge Elimination System; and
Part 403—General Pretreatment Regulations for Existing and New Sources of Pollution.
RI DEM was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Export-Import Bank of the United States.
Submission for OMB review and comments request.
The Export-Import Bank of the United States (EXIM), as a part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal Agencies to comment on the proposed information collection, as required by the Paperwork Reduction Act of 1995.
This form will enable EXIM to identify the specific details of the proposed co-financing transaction between a U.S. exporter, EXIM, and a foreign export credit agency; the information collected includes vital facts such as the amount of U.S.-made content in the export, the amount of financing requested from EXIM, and the proposed financing amount from the foreign export credit agency. These details are necessary for approving this unique transaction structure and coordinating our support with that of the foreign export credit agency to ultimately complete the transaction and support U.S. exports—and U.S. jobs.
Comments should be received on or before July 9, 2018 to be assured of consideration.
Comments may be submitted electronically on
Farm Credit System Insurance Corporation.
Notice, regular meeting.
Notice is hereby given of the regular meeting of the Farm Credit System Insurance Corporation Board (Board).
The meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on June 14, 2018, from 2:00 p.m. until such time as the Board concludes its business.
Dale L. Aultman, Secretary to the Farm Credit System Insurance Corporation Board, (703) 883–4009, TTY (703) 883–4056,
Farm Credit System Insurance Corporation, 1501 Farm Credit Drive, McLean, Virginia 22102. Submit attendance requests via email to
Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. Please send an email to
Agency for Healthcare Research and Quality (AHRQ), Department of Health and Human Services.
Notice, correction.
The Agency for Healthcare Research and Quality published a correction document in the
Carla Ladner at 301–427–1205 or
In the correction to the
Agency for Healthcare Research and Quality (AHRQ), HHS.
Notice of request for nominations for public members.
The Council is to advise the Secretary of HHS (Secretary) and the Director of the Agency for Healthcare Research and Quality (AHRQ) on matters related to activities of the Agency to carry out its mission. AHRQ's mission is to produce evidence to make health care safer, higher quality, more accessible, equitable, and affordable, and to work within the U.S. Department of Health and Human Services and with other partners to make sure that the evidence is understood and used.
Nominations should be received on or before 60 days after date of publication.
Nominations should be sent to Jaime Zimmerman AHRQ, 5600 Fishers Lane, 06E37A, Rockville, Maryland 20857. Nominations may also be emailed to
Jaime Zimmerman, AHRQ, at (301) 427–1456.
42 U.S.C. 299c establishes a National Advisory Council for Healthcare Research and Quality (the Council). Seven current members' terms will expire in November 2018. To fill these positions, we are seeking individuals who are distinguished in: (1) The conduct of research, demonstration projects, and evaluations with respect to health care; (2) the fields of health care quality research or health care improvement; (3) the practice of medicine; (4) other health professions; (5) representing the private health care sector (including health plans, providers, and purchasers) or administrators of health care delivery systems; (6) the fields of health care economics, information systems, law, ethics, business, or public policy; and, (7) representing the interests of patients and consumers of health care. 42 U.S.C. 299c(c)(2).
Individuals are particularly sought with experience and success in activities specified in the summary above. 42 U.S.C. 299c provides that the Secretary shall appoint to the National Advisory Council for Healthcare Research and Quality twenty one appropriately qualified individuals. At least seventeen members shall be representatives of the public and at least one member shall be a specialist in the rural aspects of one or more of the professions or fields listed in the above summary. In addition, the Secretary designates, as ex officio members, representatives from other Federal agencies, principally agencies that conduct or support health care research, as well as Federal officials the Secretary may consider appropriate. 42 U.S.C. 299c(c)(3). Consistent with revised guidance regarding the ban on lobbyists serving as members of advisory boards and commissions, AHRQ will accept nominations for Federally-registered lobbyists to serve on the Council in a representative capacity.
The Council meets in the Washington, DC, metropolitan area, generally in Rockville, Maryland, approximately three times a year to provide broad guidance to the Secretary and AHRQ's Director on the direction of and programs undertaken by AHRQ.
Seven individuals will be selected by the Secretary to serve on the Council beginning with the meeting in the spring of 2019. Members generally serve 3-year terms. Appointments are staggered to permit an orderly rotation of membership.
Interested persons may nominate one or more qualified persons for membership on the Council. Self-nominations are accepted. Nominations shall include: (1) A copy of the nominee's resume or curriculum vitae; and (2) a statement that the nominee is willing to serve as a member of the Council. Selected candidates will be asked to provide detailed information concerning their financial interests, consultant positions and research grants and contracts, to permit evaluation of possible sources of conflict of interest. Please note that once a candidate is nominated, AHRQ may consider that nomination for future positions on the Council.
The Department seeks a broad geographic representation. In addition, AHRQ conducts and supports research concerning priority populations, which include: Low-income groups; minority groups; women; children; the elderly; and individuals with special health care needs, including individuals with disabilities and individuals who need chronic care or end-of-life health care. See 42 U.S.C. 299(c). Nominations of persons with expertise in health care for these priority populations are encouraged.
National Institute for Occupational Safety and Health (NIOSH) of the Centers for Disease Control and Prevention (CDC),
Request for comments.
The National Institute for Occupational Safety and Health of the Centers for Disease Control and Prevention announces the availability of three (3) draft Immediately Dangerous to Life or Health (IDLH) Value Profiles now available for public comment for the chemicals bromine trifluoride, chlorine trifluoride, and ethylene dibromide. To view the notice and related materials, visit
Electronic or written comments must be received by August 7, 2018.
You may submit comments, identified by CDC–2018–0055 and docket number NIOSH 156–D, by any of the following methods:
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R. Todd Niemeier, NIOSH, Robert A. Taft Laboratories, MS–C32, 1090 Tusculum, Cincinnati, OH 45226, telephone (513) 533–8166 (not a toll free number).
NIOSH is requesting technical reviews of the three (3) draft IDLH Value Profiles. To facilitate the review of these documents, NIOSH requests that the following questions be taken into consideration:
1. Does this document clearly outline the health hazards associated with acute (or short-term) exposures to the chemical? If not, what specific information is missing from the document?
2. Are the rationale and logic behind the derivation of an IDLH value for a specific chemical clearly explained? If not, what specific information is needed to clarify the basis of the IDLH value?
3. Are the conclusions supported by the data?
4. Are the tables clear and appropriate?
5. Is the document organized appropriately? If not, what improvements are needed?
6. Are you aware of any scientific data reported in governmental publications, databases, peer-reviewed journals, or other sources that should be included within this document?
NIOSH seeks comments on 3 draft IDLH values and IDLH Value Profiles. The draft IDLH Value Profiles were developed to provide the scientific rationale behind derivation of IDLH values for the following chemicals:
Each IDLH Value Profile provides a detailed summary of the health hazards of acute exposures to high airborne concentrations and the rationale for the proposed IDLH value with the chemical(s) of interest.
1. Provide a brief history of the development of IDLH values.
2. Update the scientific bases and risk assessment methodology used to derive IDLH values from quality data.
3. Provide transparency behind the rationale and derivation process for IDLH values.
4. Demonstrate how scientifically credible IDLH values can be derived from available data resources.
The IDLH methodology is based on a weight-of-evidence approach that applies scientific judgment for critical evaluation of the quality and consistency of scientific data and in extrapolation from the available data to the IDLH value. The weight-of-evidence approach refers to critical examination of all available data from diverse lines of evidence and the derivation of a scientific interpretation on the basis of the collective body of data, including its relevance, quality, and reported results. Conceptually, the derivation process for IDLH values is similar to that used in other risk-assessment applications, including these steps:
1. Hazard characterization.
2. Identification of critical adverse effects.
3. Identification of a POD.
4. Application of appropriate UFs, based on the study and POD.
5. Determination of the final risk value.
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 August 7, 2018.
You may submit comments, identified by Docket No. CDC–2018–0044 by any of the following methods:
•
•
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.
Monitoring Changes in Attitudes and Practices among Family Planning Providers and Clinics (OMB No. 0920–0969, exp. 5/31/2014)—Reinstatement with Change—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
The Division of Reproductive Health (DRH) at the Centers for Disease Control and Prevention (CDC) and the HHS Office of Population Affairs (OPA) develop and disseminate guidance to improve the use of contraception and the delivery of quality family planning services. The
To monitor changes in attitudes and practices regarding provision of contraception among family planning providers and clinics, we initiated a multi-phase assessment. In 2009–2010, CDC carried out the first phase of the assessment, collecting information before the release of the US MEC (OMB No. 0920–0008). In 2013–2014, CDC, in collaboration with OPA, carried out the second phase of the assessment, collecting information before the release of the US SPR and QFP (OMB No. 0920–0969). These information collections provided useful knowledge about attitudes and practices of family planning providers. CDC and OPA used the findings to develop educational materials and opportunities for health care providers.
In 2018, in collaboration with OPA, CDC plans to request a reinstatement of OMB No. 0920–0969, `Monitoring Changes in Attitudes and Practices among Family Planning Providers and Clinics' to carry out the third phase of the assessment. As in the previous phases, the information collection will allow CDC and OPA to improve family planning-related practice by: (1) Understanding the current use of contraception guidance in practice,
As in previous phases of data collection, CDC plans to administer surveys to private and public sector family planning providers and clinic administrators in the United States. The design, methodology, and analytic approach that CDC plans to implement are based on methods previously approved for the 2013–2014 survey, with different instruments being administered to providers and clinic administrators. Minor changes to survey content will be made to eliminate unnecessary questions, add new questions of interest, and improve formatting, usability, and data quality. OMB approval is requested for one year. The estimated burden per response for providers is 15 minutes and has not changed since the previous OMB approval. The estimated burden per response for administrators will be reduced from 40 minutes to 35 minutes. The total burden for participants is estimated at 1,916 hours. Participation is voluntary and there are no costs to respondents other than their time.
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 Undetermined cause of Serratia marcescens infections—Multiple States, 2018. The goal of this investigation is to identify potential risk factors leading to an outbreak of Serratia marcescens infections among U.S. healthcare patients. Data will be used to identify a cause of the infections and prevent additional events from occurring.
CDC must receive written comments on or before August 7, 2018.
You may submit comments, identified by Docket No. CDC–2018–0042 by any of the following methods:
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•
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.
Undetermined cause of Serratia marcescens infections—Multiple States, 2018—New—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Serratia marcescens is a Gram-negative bacillus that can be found in the environment and thrives in moist environments. In healthcare settings, it can be found on the hands of healthcare workers and as a contaminant of medical products and devices, particularly aqueous products. It is a known cause of healthcare-associated infections, particularly urinary tract infection, wound infections, and bloodstream infections, and it is an important opportunistic pathogen in neonatal and pediatric intensive care units. Serratia marcescens has been implicated previously in multistate outbreaks of bloodstream infections caused by intrinsic contamination of prefilled syringes of heparin and isotonic sodium chloride solution.
On March 27, 2018, the Colorado Department of Public Health and Environment (CDPHE) notified CDC of 4 cases of Serratia marcescens bacteremia among pediatric patients with central lines in an acute care hospital between January 20 and March 23, 2018. This cluster of cases was above the normal baseline of 1–3 cases per year at that facility. The facility examined exposures including common staff and medications and identified commonalities related to the maintenance and care of central lines as well as several medical products including prefilled normal saline syringes and prefilled heparin flushes.
On March 28, CDPHE issued a call for cases to other state and local health departments through the Epidemic Information Exchange (Epi-X) system. On March 29, the Tennessee Department of Health (TDH) notified CDC of 3 cases of Serratia marcescens bacteremia in pediatric patients with central lines in a pediatric hospital between March 6 and March 21, 2018; initial examination of medications and common products identified central venous catheter line products as a possible source of infections, including prefilled heparin and normal saline syringes.
CDC is currently conducting a multistate investigation to support state health departments. Currently, eight state health departments have reported a total of 26 cases to CDC. However, since more than nine states are ultimately expected to participate, CDC is pursuing emergency OMB clearance to collect patient-level information from ten or more state/local health departments.
Most identified patient infections are bloodstream infections, but other body sites (
Communications with the Food and Drug Administration (FDA) and product manufacturers indicate a nation-wide shortage of saline following disruption of manufacturing in Puerto Rico during Hurricane Maria in September 2017. FDA has stated that saline shortages in the U.S. mean that alternatives to prefilled saline are limited. In addition, the products are manufactured and subject to Current Good Manufacturing Practice regulations including terminal sterilization of many products using steam sterilization, which reduce opportunities for contamination.
This information is essential to the CDC's ability to identify a cause of these events and prevent additional events from occurring.
Nationwide case-finding has been implemented through the Epi-X system. The target audience of the case finding will include, but not be limited to, state and local health departments. They will be asked to report any potential cases to CDC. Information on each case will be collected using a data collection form that can be completed online or filled out and returned to CDC. Depending on the nature of each case, CDC may reach out to relevant healthcare facilities or healthcare staff for additional information and recommendation of any prevention measures.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Assessment of Occupational Injury among Fire Fighters Using a Follow-back Survey to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on February 13, 2018 to obtain comments from the public and affected agencies. CDC received one comment related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to
Assessment of Occupational Injury among Fire Fighters Using a Follow-back Survey—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
Studies have reported that fire fighters have high rates of non-fatal injuries and illnesses as compared to the general worker population. As fire fighters undertake many critical public safety activities and are tasked with protecting the safety and health of the public, it follows that understanding and preventing injuries and exposures among fire fighters will have a benefit reaching beyond the workers to the general public.
As mandated in the Occupational Safety and Health Act of 1970 (Pub. L. 91–596), the mission of NIOSH is to conduct research and investigations on occupational safety and health. Related to this mission, the purpose of this project is to conduct research that will provide a detailed description of non-fatal occupational injuries and exposures incurred by fire fighters. This information will offer detailed insight into events that lead to the largest number of nonfatal injuries and exposures among fire fighters. The project will use two related data sources. The first source is data abstracted from medical records of fire fighters treated in a nationally stratified sample of emergency departments. These data are routinely collected through the occupational supplement to the National Electronic Injury Surveillance System (NEISS-Work). The second data source, for which NIOSH is seeking OMB approval for three years, is responses to telephone interview surveys of the injured and exposed fire fighters identified within NEISS-Work.
The proposed telephone interview surveys will supplement NEISS-Work data with an extensive description of fire fighter injuries and exposures, including worker characteristics, injury types, injury circumstances, injury outcomes, and use of personal protective equipment. Previous reports describing occupational injuries and exposures to fire fighters provide limited details on specific regions or sub-segments of the population. As compared to these earlier studies, the scope of the telephone interview data will be broader as it includes sampled cases nationwide and has no limitations in regards to type of employment (
The sample size for the telephone interview survey is estimated to be approximately 240 fire fighters annually for the proposed three year duration of the study. This is based on the number of fire fighters identified in previous years of NEISS-Work data and a 30 to 40% response rate that is comparable to the rate of previously conducted National Electronic Injury Surveillance System telephone interview studies. Each telephone interview will take approximately 30 minutes to complete, resulting in an annualized burden estimate of 120 hours. Using the routine NEISS-Work data, an analysis of all identified EMS workers will be performed to determine if there are differences between the telephone interview responder and non-responder groups.
The Division of Safety Research (DSR) within NIOSH is conducting this project. DSR has a strong interest in improving surveillance of fire fighter injuries and exposures to provide the information necessary for effectively targeting and implementing prevention efforts and, consequently, reducing occupational injuries and exposures to fire fighters. The Consumer Product Safety Commission (CPSC) will also contribute to this project, as they are responsible for coordinating the collection of all NEISS-Work data and for overseeing the collection of all telephone interview data. The estimated annual Burden Hours are 120. There is no cost to respondents other than their time.
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (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 9, 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.
For CY2019 Reporting Requirements, the following 6 reporting sections will be reported and collected at the Contract-level or Plan-level: (1) Enrollment and Disenrollment—to evaluate sponsors' processing of enrollment, disenrollment, and reinstatement requests in accordance with CMS requirements. (2) Medication Therapy Management (MTM) Programs—to evaluate Part D MTM programs, and sponsors' adherence to CMS requirements. (3) Grievances—to assess sponsors' compliance with timely and appropriate resolution of grievances filed by their enrollees. (4) Improving Drug Utilization Review Controls—to determine the impact of formulary-level edits at point of sale in sponsors' processing of opioid prescriptions. (5) Coverage Determinations and Redeterminations—to assess sponsors' compliance with appropriate resolution of coverage determinations and redeterminations requested by their enrollees. (6) Employer/Union Sponsored Sponsors—to ensure PDPs and the employer groups that contract with the PDPs properly utilize appropriate waivers and modifications.
2.
The HITECH Act creates incentive programs for EPs and eligible hospitals, including CAHs, in the Medicare Fee-for-Service (FFS), MA, and Medicaid programs that successfully demonstrate meaningful use of certified EHR technology. In their first payment year, Medicaid EPs and eligible hospitals may adopt, implement or upgrade to certified EHR technology. It also, provides for payment adjustments in the Medicare FFS and MA programs starting in FY 2015 for EPs and eligible hospitals participating in Medicare that are not meaningful users of certified EHR technology. These payment adjustments do not pertain to Medicaid providers.
The first final rule for the Medicare and Medicaid EHR Incentive Program, which was published in the
The information collection requirements contained in this information collection request are needed to implement the HITECH Act. In order to avoid duplicate payments, all EPs are enumerated through their National Provider Identifier (NPI), while all eligible hospitals and CAHs are enumerated through their CMS Certification Number (CCN). State Medicaid agencies and CMS use the provider's tax identification number and NPI or CCN combination in order to make payment, validate payment eligibility and detect and prevent duplicate payments for EPs, eligible hospitals and CAHs.
3.
4.
The information required under this collection is requested by Medicare contractors to determine proper payment, or if there is a suspicion of fraud. Medicare contractors request the information from providers/suppliers submitting claims for payment when data analysis indicates aberrant billing patterns or other information which may present a vulnerability to the Medicare program. Extensive instructions to CMS contractors on medical review processes and procedures are contained in CMS' Program Integrity Manual, 100–08 which can be found at can be found at
5.
6.
Centers for Medicare & Medicaid Services, HHS.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by August 7, 2018.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' 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.
William Parham at (410) 786–4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
The 2017 MLR Reporting Form and Instructions reflect changes for the 2017 reporting year and beyond. The 2017 MLR Reporting Form and instructions are also modified to eliminate the reporting elements that were required under the risk corridors data submission requirements in 45 CFR 153.530 for the 2014 through 2016 benefit years. For 2017, it is expected that issuers will submit fewer reports and on average, send fewer notices and rebate checks in the mail to policyholders and subscribers, which will reduce burden on issuers. In addition, issuers of qualified health plans will no longer have to submit on the annual report the data for the risk corridors program established under section 1342 of the Patient Protection and Affordable Care Act.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by July 9, 2018.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202–395–7285, or emailed to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A–12M, 11601 Landsdown St., North Bethesda, MD 20852, 301–796–8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The information collection associated with 21 CFR part 803 is approved under OMB control number 0910–0437. We request revision of the information collection approval as described in this document.
In the
FDA believes that submission of voluntary summary reports in the format described in this document would provide the most compact and efficient reporting mechanism for streamlining malfunction reporting that still provides sufficient detail for FDA to monitor devices effectively. The proposed Voluntary Malfunction Summary Reporting Program is meant to streamline the process of reporting malfunctions. It does not change regulatory requirements for MDR-related investigations or recordkeeping by manufacturers. The proposed program would neither apply to importers or device user facilities, nor affect
In the
FDA disagrees with this comment. The estimation of time is the amount of time needed to submit a summary malfunction report. It is essentially the same amount of time needed to submit an individual report because the event narrative should be the same, with the exception of one additional line that is entered that indicates the number of adverse events represented by the report. It does not include the time needed to investigate the issue. Manufacturers have 120 calendar days from the date they become aware of a reportable malfunction to submit a summary malfunction report that is allowed as part of this voluntary reporting program.
For the convenience of the reader, we have noted below the information collection line-items (ICs) that we anticipate would be affected by the Voluntary Malfunction Summary Reporting Program. While the other ICs from OMB control number 0910–0437 are not affected by the Voluntary Malfunction Summary Reporting Program, for consistency and accuracy, we have adjusted the respondent estimates for the ICs using more recent data.
FDA estimates the burden of this collection of information as follows:
For consistency and accuracy, we have adjusted the respondent estimates for all the ICs from OMB control number 0910–0437, including those that are not affected by the Voluntary Malfunction Summary Reporting Program, to reflect more recent data from calendar year (CY) 2016 (the currently approved estimates are based on CY 2006–2009 data). This adjustment, along with the revisions for the Voluntary Malfunction Summary Reporting Program increases the estimated total burden of OMB control number 0910–0437 by 21,532 hours (currently approved for 46,446 hours; requesting 67,978 hours).
We have added the new burden estimate for the Voluntary Malfunction Summary Reporting Program. This increases the reporting burden estimate by 6,755 hours.
We have revised the burden estimates for “Manufacturer Reporting” and “Supplemental Reports” to update the respondent estimates using more recent data, as described above, and to reflect the revisions resulting from the availability of the Voluntary Malfunction Summary Reporting Program. We believe the availability of the summary reporting option for manufacturers of certain devices would cause a decrease in the number of individual manufacturer reports for malfunctions submitted under §§ 803.50 and 803.52. However, because we also adjusted the respondent estimates for the ICs using more recent data from CY 2016, the estimated burden for these ICs is an increase of 12,139 hours from the currently approved burden estimates (the previous estimate based on CY 2006–2008 data was 35,166 hours for these ICs only). We attribute the increase to the increase in the number of submissions we received in recent years, rather than the revisions related to the Voluntary Malfunction Summary Reporting Program.
Food and Drug Administration, HHS.
Notice of public workshop; request for comments.
The Food and Drug Administration (FDA, the Agency, or we) is announcing the following public workshop entitled “Development of Inhaled Antibacterial Drugs for Cystic Fibrosis and Non-Cystic Fibrosis Bronchiectasis.” The purpose of the public workshop is to discuss the clinical trial design challenges and future considerations for inhaled antibacterial products to treat cystic fibrosis (CF) and non-CF bronchiectasis.
The public workshop will be held on June 27, 2018, from 8:30 a.m. to 4:30 p.m. Submit either electronic or written comments on this public workshop by July 16, 2018. See the
The public workshop will be held at FDA's White Oak Campus, 10903 New Hampshire Ave., Building 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993. Entrance for the public workshop participants (non-FDA employees) is through Building 1 where routine security check procedures will be performed. For parking and security information, please refer to
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before July 16, 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.”
•
Lori Benner and/or Jessica Barnes, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, Rm. 6221, Silver Spring, MD 20993–0002, 301–796–1300.
FDA is announcing a public workshop regarding the development of inhaled antibacterial drugs for CF and non-CF bronchiectasis. As such, discussions will focus on challenges and potential paths forward for inhaled antibacterial drugs pertaining to CF and non-CF bronchiectasis.
FDA is particularly interested in discussing challenges and considerations regarding CF and non-CF bronchiectasis. Discussions are planned around the following topics for each of the disease areas:
The Agency encourages health care providers, other U.S. Government Agencies, academic experts, industry, and other stakeholders to attend this public workshop.
Early registration is recommended because seating is limited; therefore, FDA may limit the number of participants from each organization. Registrants will receive confirmation when they have been accepted. If time and space permit, onsite registration on the day of the public workshop will be provided beginning at 7:30 a.m. We will let registrants know if registration closes before the day of the public workshop.
If you need special accommodations due to a disability, please contact Jessica Barnes or Lori Benner (see
If you have never attended a Connect Pro event before, test your connection at
Food and Drug Administration, HHS.
Notice of availability; extension of comment period.
The Food and Drug Administration (FDA or the Agency) is extending the comment period for the notice of availability (NOA) that appeared in the
FDA is extending the comment period on the NOA published March 16, 2018 (83 FR 11754). Submit either electronic or written comments by July 16, 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 16, 2018. The
Submit electronic comments in the following way:
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• 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:
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• 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
Christopher Griffiths or Nate Mease, Center for Tobacco Products, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, 1–877–287–1373,
In the
FDA has considered the request and is extending the comment period for the NOA for 30 days, until July 16, 2018. The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without creating significant delay.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing a list of information collections that have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A–12M, 11601 Landsdown St., North Bethesda, MD 20852, 301–796–7726,
The following is a list of FDA information collections recently approved by OMB under section 3507 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The OMB control number and expiration date of OMB approval for each information collection are shown in table 1. Copies of the supporting statements for the information collections are available on the internet at
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 August 7, 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 August 7, 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
Ila S. Mizrachi, Office of Operations, Food and Drug Administration, Three White Flint North, 10A–12M, 11601 Landsdown St., North Bethesda, MD 20852, 301–796–7726,
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.
Under Section 243 of the Public Health Service Act (42 U.S.C. 243), FDA is required to cooperate with and aid State and local authorities in the enforcement of their health regulations and are authorized to assist States in the prevention and suppression of communicable diseases. Under this authority, FDA participates with State regulatory agencies, some foreign nations, and the molluscan shellfish industry in the National Shellfish Sanitation Program (NSSP).
NSSP is a voluntary, cooperative program to promote the safety of molluscan shellfish by providing for the classification and patrol of shellfish growing waters and for the inspection and certification of shellfish processors. Each participating State and foreign nation monitors its molluscan shellfish processors and issues certificates for those that meet the State or foreign shellfish control authority's criteria. Each participating State and nation provides a certificate of its certified shellfish processors to FDA on Form FDA 3038, “Interstate Shellfish Dealer's Certificate.” FDA uses this information to publish the “Interstate Certified Shellfish Shippers List,” a monthly comprehensive listing of all molluscan shellfish processors certified under the cooperative program. If FDA did not collect the information necessary to compile this list, participating States would not be able to identify and keep out shellfish processed by uncertified processors in other States and foreign nations. Consequently, NSSP would not be able to control the distribution of uncertified and possibly unsafe shellfish in interstate commerce, and its effectiveness would be nullified.
FDA estimates the burden of this collection of information as follows:
Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our burden estimate. We estimate that 40 respondents will submit 2,280 Interstate Shellfish Dealer's Certificates annually, for a total burden of 228 hours (2,280 submissions × 0.10 hours = 228 hours). This estimate is based on our experience with this information collection and the number of certificates received in the past 3 years, which has remained constant.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of a meeting of the Board of Scientific Counselors, National Institute of Neurological Disorders and Stroke.
The meeting will be closed to the public as indicated below in accordance with the provisions set forth in sections 552b(c)(6), Title 5 U.S.C., as amended for the review, discussion, and evaluation of individual intramural programs and projects conducted by the National Institute of Neurological Disorders and Stroke, including consideration of personnel qualifications and performance, and the competence of individual investigators, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant and/or contract applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with grant and/or contract applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Coast Guard, DHS.
Notification of issuance of a certificate of alternative compliance.
The Coast Guard announces that the Fifth District, Chief of Prevention Division has issued a certificate of alternative compliance from the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), for the North Carolina's Department of Transportation ferry RODANTHE, Official Number (O.N.) 1285078, Bollinger Hull Number: 693. We are issuing this notice because its publication is required by statute. Due to the construction and placement of the pilothouse offset to the starboard side of the vessel, the ferry RODANTHE cannot fully comply with the light, shape, or sound signal provisions of the 72 COLREGS without interfering with the vessel's design and construction. This notification of issuance of a certificate of alternative compliance promotes the Coast Guard's marine safety mission.
The Certificate of Alternative Compliance was issued on June 1, 2018.
For information or questions about this notice call or email LCDR Ronaydee M. Marquez, District Five, Chief, Inspections and Investigations, U.S. Coast Guard; telephone: 757–398–6682, email:
The United States is signatory to the International Maritime Organization's International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), as amended. The special construction or purpose of some vessels makes them
The owner, builder, operator, or agent of a special construction or purpose vessel may apply to the Coast Guard District Office in which the vessel is being built or operated for a determination that compliance with alternative requirements is justified,
The Fifth District, Chief of Prevention Division, U.S. Coast Guard, certifies that the RODANTHE, O.N. 1285078 is a vessel of special construction or purpose, and that, with respect to the position of the masthead light and sidelights, it is not possible to comply fully with the requirements of the provisions enumerated in the 72 COLREGS, without interfering with the normal operation, construction, or design of the vessel. The design and configuration of the pilothouse offset to the starboard side of the vessel allows an open deck to carry large vehicles. There are no structures on the fore and aft centerline or left of the centerline on which a masthead light or sidelights could be affixed. Instead, the masthead light is located on the top center of the pilothouse and the port sidelight is located on the port side of the pilothouse, which is offset to the starboard side of the vessel. The Fifth District, Chief of Prevention Division further finds and certifies that the masthead light and sidelights are in the closet possible compliance with the applicable provisions of the 72 COLREGS.
This notice is issued under authority of 33 U.S.C. 1605(c) and 33 CFR 81.18.
Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806, Email:
Anna P. Guido, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna P. Guido at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, have received applications for permits to conduct activities intended to enhance the propagation or survival of endangered or threatened species under the Endangered Species Act of 1973, as amended. We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing any of the requested permits, we will take into consideration any information that we receive during the public comment period.
We must receive your written comments by July 9, 2018.
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Kathy Konishi, Recovery Permits Coordinator, Ecological Services, 303–236–4224 (phone);
The ESA prohibits certain activities with endangered and threatened species unless authorized by a Federal permit. The ESA and our implementing regulations in part 17 of title 50 of the Code of Federal Regulations (CFR) provide for the issuance of such permits and require that we invite public comment before issuing permits for activities involving endangered species.
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to conduct activities with endangered species for scientific purposes that promote recovery or for enhancement of propagation or survival of the species. Our regulations implementing section 10(a)(1)(A) for these permits are found at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
We invite local, State, and Federal agencies, Tribes, and the public to comment on the following applications.
Written comments we receive become part of the administrative record associated with this
If we decide to issue permits to any of the applicants listed in this notice, we will publish a notice in the
We publish this notice under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Indian Affairs, Interior.
Notice.
The Shawnee Tribe and the State of Oklahoma entered into a compact governing class III gaming; this notice announces the approval of the Tribal Gaming Compact between the Shawnee Tribe and the State of Oklahoma.
This compact takes effect on June 8, 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, Interior.
Public Land Order.
This order withdraws 4,564.75 acres of public lands from location and entry under the United States Mining Laws, subject to valid existing rights, but not from leasing under the mineral or geothermal leasing laws, for a period of 20 years, for the protection of cultural and recreational resources associated with the Johnny Behind the Rocks Recreation Zone.
This Public Land Order takes effect on June 8, 2018.
Keesha Cary, Bureau of Land Management (BLM) Wyoming State Office, 5353 N Yellowstone Road, P.O. Box 1828, Cheyenne, Wyoming 82003, 307–775–6189. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The BLM will manage the lands to protect the cultural and recreational resources associated with the recreation area.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714, it is ordered as follows:
1. Subject to valid existing rights, the following-described public lands are hereby withdrawn from location and entry under the United States mining laws, but not from leasing under the mineral or geothermal leasing laws, to protect the cultural and recreational resources associated with the site:
The area described aggregates approximately 4,564.75 acres in Fremont County.
2. The withdrawal made by this Order does not alter the applicability of the public land laws other than the mining laws.
3. This withdrawal will expire 20 years from the effective date of this Order, unless, as a result of a review conducted before the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714(f), the Secretary determines that the withdrawal shall be extended.
Bureau of Ocean Energy Management, Interior.
Request for feedback, reopening of comment period.
The Bureau of Ocean Energy Management (BOEM) issued a Request for Feedback (RFF) in the
All comments submitted in response to this RFF and extension must be received by BOEM no later than 11:59 p.m. Eastern Time on July 5, 2018. BOEM will consider submissions sent by mail as long as they are postmarked by the last day of the comment period.
Comments should be submitted in one of the two following ways:
1.
2.
Jeffrey Browning, BOEM Office of Renewable Energy Programs, 45600 Woodland Road, VAM–OREP, Sterling, Virginia 20166, (703) 787–1577 or
BOEM will not treat as confidential any aggregate summaries or portions of comments not containing such information. Additionally, BOEM may not treat as confidential the legal title of the commenting entity (
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Planetary Science Advisory Committee (PAC). This Committee functions in an advisory capacity to the Director, Planetary Science Division, in the NASA Science Mission Directorate. The meeting will be held for the purpose of soliciting, from the planetary science community and other persons, scientific and technical information relevant to program planning.
Monday, July 2, 2018, 1:00 p.m. to 5:00 p.m., Eastern Time.
The meeting will be held telephonically and via WebEx. Any interested person may dial the USA toll free conference call number 1–800–779–9966 or toll number 1–517–645–6359, passcode 3954829, followed by the # sign, to participate in this meeting. The WebEx link is
Ms. KarShelia Henderson, Science Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–2355, fax (202) 358–2779, or
The agenda for the meeting includes the following topics:
It is imperative that the meeting be held on these dates to accommodate the scheduling priorities of the key participants.
Nuclear Regulatory Commission.
Environmental assessment and finding of no significant impact; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is considering renewal of Source Material License SUA–1350 issued to Kennecott Uranium Corporation (KUC) for continued operations at the Sweetwater Uranium Project (SUP) in Sweetwater County, Wyoming (Docket No. 40–8584). The NRC has prepared an environmental assessment (EA) and finding of no significant impact (FONSI) for this licensing action.
The EA and FONSI referenced in this document are available on June 8, 2018.
Please refer to Docket ID NRC–2015–0025 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Ashley Waldron, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–7317; email:
The NRC is considering renewal of Source Material License SUA–1350 issued to Kennecott Uranium Corporation (KUC) for continued operations at the SUP site located in Sweetwater County, Wyoming. As required by part 51 of title 10 of the
The proposed action would authorize KUC to operate a conventional uranium mill at the SUP for an additional ten years. The licensee's application dated July 24, 2014, is available at ADAMS Package Accession No. ML14251A113.
The proposed action would allow KUC to recover uranium at the SUP. The licensee would process the recovered uranium into yellowcake on site at the SUP. Yellowcake is a type of uranium concentrate powder obtained from leach solutions in an intermediate step in the processing of uranium ores that is used to produce various products, including fuel for commercially-operated nuclear power reactors.
The NRC staff has assessed the potential environmental impacts from operations and decommissioning at the SUP. The NRC staff assessed the impacts of the proposed action on land use; historical and cultural resources; visual and scenic resources; climatology, meteorology and air quality; geology, minerals, and soils; water resources; ecological resources; socioeconomics; noise; traffic and transportation; public and occupational health and safety; and waste management. The NRC staff concluded that the renewal of Source Material License SUA–1350 authorizing KUC to continue operations for ten years at the
As an alternative to the proposed action, the staff considered denial of the proposed action (
In accordance with its stated policy, on March 26, 2018, the NRC staff consulted with the U.S. Fish and Wildlife Service (FWS), the Wyoming State Historic Preservation Officer (SHPO), and the Wyoming Department of Environmental Quality (WDEQ) regarding the proposed action. The FWS stated that no federally listed or proposed endangered or threatened species occur within the area affected by the proposed action. The SHPO notified NRC that it had no comments related to the historic and cultural resources on the proposed license renewal. The WDEQ stated that it had no comments on the draft EA.
The NRC staff conducted an environmental review in accordance with 10 CFR part 51, which implements the requirements of the National Environmental Policy Act of 1969, as amended (NEPA). The results of the NRC's environmental review can be found in the final EA (ADAMS Accession No. ML18135A206). Based on the results of this environmental assessment, the NRC has determined not to prepare an EIS for license renewal of the SUP and is instead issuing a FONSI.
After weighing the impacts of the license renewal and comparing to the no-action alternative, the NRC staff, in accordance with 10 CFR 51.91(d), sets forth its NEPA recommendation regarding the proposed action (granting the request for renewal of license SUA–1350). Unless safety issues mandate otherwise, the NRC staff's recommendation related to the environmental aspects of the proposed action is that an NRC license renewal be issued.
Based on its review of the proposed action, and in accordance with the requirements in 10 CFR part 51, the NRC staff has determined that license renewal of SUP would not significantly affect the quality of the human environment. Based on the EA, the NRC staff determined that approval of the proposed action would not result in a significantly increased radiological risk to public health or the environment. The NRC staff has determined that pursuant to 10 CFR 51.31, preparation of an EIS is not required for the proposed action and, pursuant to 10 CFR 51.32, a FONSI is appropriate.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
License amendment application; opportunity to request a hearing and to petition for leave to intervene; order imposing procedures.
The U.S. Nuclear Regulatory Commission (NRC) received, and is considering approval of, an application from Tennessee Valley Authority (TVA or the licensee) for amendments to Facility Operating License Nos. NPF–90 and NPF–96, which authorizes the operation of Watts Bar Nuclear Plant (WBN), Unit Nos. 1 and 2, respectively. The amendments would allow the loading of tritium producing burnable absorber rods (TPBARs) in WBN, Unit 2 and would make associated technical specification changes for WBN, Unit Nos. 1 and 2. Because this amendment request contains sensitive unclassified non-safeguards information (SUNSI), an order imposes procedures to obtain access to SUNSI for contention preparation.
A request for a hearing or petition for leave to intervene must be filed by August 7, 2018. Any potential party as defined in § 2.4 of title 10 of the
Please refer to Docket ID NRC–2018–0107 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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John G. Lamb, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001; telephone: 301–415–3100, email:
The NRC is considering issuance of amendments to Facility Operating License Nos. NPF–90 and NPF–96, issued to TVA, for operation of the WBN, Unit Nos. 1 and 2, located in Rhea County, Tennessee.
The proposed amendments would revise the WBN, Unit 2 Technical Specification (TS) 4.2.1, “Fuel Assemblies,” to add a limit for the number of TPBARs that can be loaded in the WBN, Unit 2, core; the proposed limit would be 1,792 TPBARs. The proposed amendments would also revise TS 3.7.15, “Spent Fuel Assembly Storage”; TS 3.9.9, “Spent Fuel Boron Concentration”; and TS 4.3, “Fuel Storage,” and add TS 3.7.18, “Fuel Storage Pool Boron Concentration”; and
The proposed change to TS 3.7.15 is to revise the fuel storage limitations on fuel assemblies by eliminating the burnup-related criteria. The proposed change to TS 3.9.9 is to modify the minimum fuel storage pool boron concentration during refueling operations when fuel is stored in the pool. The proposed change to TS 4.3 is to replace the storage limitations on fuel assembly burnup and storage with a single requirement to maintain a specified boron concentration in the spent fuel pool. The proposed change would add TS 3.7.18 to revise the minimum storage pool boron concentration when fuel is stored in the pool. The proposed change would add a new program as TS 5.7.2.21 to monitor the condition of the neutron absorber material used in the spent fuel pool storage racks to ensure it will continue to perform its assumed design functions.
These proposed changes will support a planned increase in the TPBAR inventory in the WBN, Unit 2 reactor core to support national security needs.
Before any issuance of the proposed license amendments, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and NRC's regulations.
The amendments will not be issued prior to a hearing unless the staff makes a determination that the amendments involve no significant hazards considerations. If a request for a hearing is received, the NRC's staff may issue the amendments after it completes its technical review and prior to the completion of any required hearing if it publishes a further notice for public comment of its proposed finding of no significant hazards consideration in accordance with 10 CFR 50.91 and 50.92.
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to this action, see the application for license amendment dated December 20, 2017 (ADAMS Accession No. ML17354B282), as supplemented on February 15 and April 9, 2018 (ADAMS Accession Nos. ML18047A181 and ML18100A953, respectively). This amendment request contains SUNSI.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request access to SUNSI. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The email address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1); and
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention.
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requestor has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requestor satisfies both D.(1) and D.(2) above, the NRC staff will notify the requestor in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requestor may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requestor no later than 25 days after receipt of (or access to) that information. However, if more than 25 days remain between the petitioner's receipt of (or access to) the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff after a determination on standing and requisite need, the NRC staff shall immediately notify the requestor in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an Administrative Law Judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
(3) Further appeals of decisions under this paragraph must be made pursuant to 10 CFR 2.311.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed within 5 days of the notification by the NRC staff of its grant of access and must be filed with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an Administrative Law Judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR part 2. The attachment to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202–789–6820.
The Commission gives notice that the Postal Service has filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The requests(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
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This notice will be published in the
Notice is hereby given, pursuant to the provisions of the Government in Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission Investor Advisory Committee will hold a meeting in Atlanta, GA on Thursday, June 14, 2018 at 8:30 a.m. (ET).
The meeting will be held in the Knowles Conference Center at Georgia State University College of Law, 85 Park Place Northeast, Atlanta, GA 30303.
This meeting will begin at 8:30 a.m. (ET) and will be open to the public. Seating will be on a first-come, first-served basis. Doors will open at 8:00 a.m. The meeting will be webcast on the Commission's website at
On May 23, 2018, the Commission issued notice of the Committee meeting (Release No. 33–10499) indicating that the meeting is open to the public (except during that portion of the meeting reserved for an administrative work session during lunch), and inviting the public to submit written comments to the Committee. This Sunshine Act notice is being issued because a quorum of the Commission may attend the meeting.
The agenda for the meeting includes: Remarks from Commissioners; a discussion of the Commission's proposed Regulation Best Interest and the proposed restriction on the use of certain names or titles; a discussion regarding the Commission's proposed Form CRS Relationship Summary, including effective disclosure and design; a discussion regarding disclosure enhancements for municipal and corporate bonds (which may include a recommendation of the Market Structure Subcommittee); subcommittee reports; and a nonpublic administrative work session.
For further information and to ascertain what, if any, matters have been added, deleted or postponed; please contact Brent J. Fields from the Office of the Secretary at (202) 551–5400.
Notice is hereby given, pursuant to the provisions of the Government in Sunshine Act, Public Law 94–409, that the Securities and Exchange Commission will hold a public meeting on Wednesday, June 13, 2018 at 2:00 p.m. (ET).
The public meeting will be held in the Knowles Conference Center at Georgia State University College of Law, 85 Park Place Northeast, Atlanta, GA 30303.
This meeting will begin at 2:00 p.m. (ET) and will be open to the public. Doors will open at 1:30 p.m. Visitors will be subject to security checks. The public meeting will be webcast from 2:00 p.m. to 3:00 p.m. on the Commission's website at
This Sunshine Act notice is being issued because a quorum of the Commission may attend the meeting. The purpose of the meeting is to provide retail investors with an opportunity to engage with SEC officials, including the Commissioners.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact Brent J. Fields from the Office of the Secretary at (202) 551–5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend and reorganize Chapters II, IV, V, and VI of the MRX Schedule of Fees.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Chapters II, IV, V, and VI of the MRX Schedule of Fees to: (i) Eliminate the Table of Contents; (ii) remove the INET Port Fees from Chapter II, Part B; (iii) adopt a new Chapter IV, entitled “Ports and Other Services” and amend and reorganize the current port fees; (iv) adopt a new Chapter V, entitled “Market Data” and list all the market data feeds; and (v) renumber Chapter IV, entitled “Connectivity Fees.” Each change will be described in more detail below. The Exchange believes that the proposed amendments to the Schedule of Fees will provide more clarity as to the current fees. The Exchange notes that no fee changes are being introduced in this rule change. The Exchange is simply reorganizing its rules to conform to other Nasdaq affiliate markets by aligning the location and description of its rules on each market.
The Exchange proposes to eliminate the Table of Contents in the MRX Schedule of Fees. The Table of Contents are unnecessary. The website where the MRX rules are listed
The Exchange currently lists all INET Port Fees within Chapter II, Part C. The Exchange proposes to delete this rule text and relocate it to proposed new Chapter IV and entitle that chapter as “Ports and Other Services.” The Exchange believes that this title more accurately describes the types of fees contained in this chapter. The Exchange proposes to restructure the port fees. First, the Exchange proposes to add language at the beginning of this new chapter to state, “The below charges are assessed by MRX for connectivity to MRX.” The Exchange believes that this sentence makes clear that the fees apply to MRX. The Exchange proposes to define a port as “a logical connection or session that enables a market participant to send inbound messages and/or receive outbound messages from the Exchange using various communication protocols.” The Exchange believes this definition will assist members in distinguishing ports from other offerings.
The Exchange proposes to restructure the port fees into 4 categories. The Exchange proposes to list order and quote protocols first, order and execution offerings next, followed by data ports and other ports as the last section. The Exchange proposes to list data offerings that are offered at no cost. The Exchange believes that aligning its offerings, where relevant, with other affiliated markets
The Exchange proposes to add a new section (i) and include the following introductory sentence, “The following order and quote protocols are available on MRX.” The Exchange proposes to list the order entry protocol port fees for FIX, SQF, SQF Purge Port and OTTO in this section. The fees are not being amended, the existing fees are being relocated into new section (i).
The Exchange proposes to add a new section (ii) and include the following introductory sentence, “The following order and execution information is available to Members.” The Exchange intends to list other port or interface information into this section that are available to MRX Members. The Exchange is relocating the CTI and FIX DROP port fees. No changes are being made to those fees. The Exchange also proposes to list TradeInfo MRX Interface into this section. The Exchange has recently filed to establish this Interface within the MRX rules.
The Exchange proposes to add a new section (iii) and include the following language, “The following data port fees apply in connection with data subscriptions pursuant to MRX Rules at Chapter V. These ports are available to non-MRX Members and MRX Members.” Today, MRX does not assess a fee for these ports outlined in new section (iii). Similar to other Nasdaq Affiliated Markets the Exchange proposes to list all of the ports that Members and Non-Members obtain today at no cost. The Exchange believes that listing these ports in addition to the data subscriptions will bring more transparency to the Schedule of Fees.
The Exchange proposes to add a new section (iv) entitled “Other ports” and relocate the Disaster Recovery Ports into this section. The Exchange also proposes to make clear that a Disaster Recovery Port is available for any port listed in proposed sections (i)–(iii).
The Exchange proposes to adopt a new Chapter V and entitle this section Market Data. Today, MRX does not assess fees for Market Data. The
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange's proposal to remove the Table of Contents, relocate the INET Fees, retitle and restructure those fees and adopt a new Market Data section at Chapter V are administrative. These changes are consistent with the protection of investor and the public interest because the amendments are intended to bring greater clarity to the Rulebook. The Exchange's proposal to reorganize the port fees into sections and include pricing for ports that are offered at no cost is also consistent with the protection of investor and the public interest because it will bring greater transparency to the Exchange's current offerings. The Exchange's proposal to display the various market data within newly proposed Chapter V will also bring greater transparency to the Exchange's current offerings.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to memorialize its order and execution information into MRX Rule 718, entitled “Data Feeds.”
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to add order and execution information into MRX Rule 718, entitled “Data Feeds.” The Exchange proposes to rename this rule “Data Feeds and Trade Information.” The Exchange also proposes to amend Rule 100 to add definitions.
The Exchange proposes to amend the Nasdaq MRX Top Quote Feed. The Exchange stated in that description that this feed calculates and disseminates MRX's best bid and offer position, with aggregated size (including total size in aggregate, for Public Customer
The Exchange proposes to adopt a new MRX Rule 718(b) and memorialize the following order and execution information which was discussed in other rule filings by the Exchange: (i) Clearing Trade Information or “CTI”; and (ii) FIX DROP.
The Exchange notes that while CTI and FIX Drop information are accessible through a port, TradeInfo is an interface. The Exchange notes this distinction to make clear the manner of delivery for each of these information types.
The Exchange stated in its Prior Filing that “CTI is a real-time clearing trade message that is sent to a Member after an execution has occurred and contains trade details. The message containing the trade details is also simultaneously sent to The Options Clearing Corporation. The information includes, among other things, the following: (i) The Clearing Member Trade Agreement or “CMTA” or The Options Clearing Corporation or “OCC” number; (ii) Exchange badge or house number; (iii) the Exchange internal firm identifier; and (iv) an indicator which will distinguish electronic and non-electronically delivered orders; (v) liquidity indicators and transaction type for billing purposes; (vi) capacity.”
The Exchange is proposing to amend the CTI description and memorialize it within MRX Rule 718(b)(1). The Exchange proposes to eliminate the sentence which states, “The message containing the trade details is also simultaneously sent to The Options Clearing Corporation.” The Exchange's System sends clearing information to OCC for each transaction. This sentence does not add information that is useful or relevant and therefore the Exchange proposes to remove it. The Exchange also proposes to delete the words “an indicator which will distinguish electronic and non-electronically delivered orders.” The only method on MRX to deliver an order is electronically.
The Exchange proposes to adopt new definitions for “account number,”
The Exchange stated in its Prior Filing that “FIX DROP provides real-time order and execution update is a message that is sent to a Member after an order been received/modified or an execution has occurred and contains trade details. The information includes, among other things, the following: (1) Executions; (2) cancellations; (3) modifications to an existing order; and (4) busts or post-trade corrections.”
The Exchange proposes to memorialize FIX DROP within MRX Rule 718(b)(3). The Exchange notes that at the end of the first sentence of the description it is adding “specific to that Member” to make clear that FIX DROP only provides a Member its specific trade information. Also, an “and” is included before new (iv) as the numbers have been changed to roman numerals.
The Exchange proposes to establish its TradeInfo offering at MRX Rule 718(b)(2). TradeInfo, a user interface, permits a Member to: (i) Search all orders submitted in a particular security or all orders of a particular type, regardless of their status (open, canceled, executed, etc.); (ii) view orders and executions; and (iii) download orders and executions for recordkeeping purposes. TradeInfo users may also cancel open orders at the order, port or firm mnemonic level through TradeInfo. TradeInfo is offered today to Members on MRX at no cost.
The Exchange considers it appropriate to establish and memorialize the order and execution information available on MRX within a rule so that Members may understand the trade information which is available on the Exchange as it pertains to a firm's trading information. This data is available to all Members and is specific to a Member's transactions on MRX.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange's proposal to amend the Nasdaq MRX Top Quote Feed to specify that Professional Orders and Priority Customer Orders are segregated and aggregated is consistent with the protection of investors and the public interest because the Exchange is correcting the categories of orders, which are segregated and aggregated. The Public Customer definition is too broad because it includes a portion of Priority Customer, which was already specified within the description. The Exchange proposes to remove Public Customer and replace it with Professional Order to be more specific and amend Priority Customer to Priority Customer Order to reference the types of orders that are aggregated to conform the rule text. The Exchange believes that this amendment will bring more transparency to the information within the feed.
The Exchange believes that memorializing CTI and FIX DROP within a rule will provide Members with transparency as to the order and information offerings available on MRX specific to their trading on MRX. The Exchange's proposal to establish TradeInfo is consistent with the Act because the Exchange is detailing the contents of this offering as well as providing transparency as to the availability of TradeInfo. The Exchange believes that offering Members TradeInfo, which allows Members to view executions as well as other capabilities with respect to order management, enhances the ability of a Member to manage its orders. The Exchange believes that providing Members with tools to manage orders is consistent with the Act and serves to protect investors and the public interest. Further, the Exchange believes that this proposal is consistent with the Act because TradeInfo provides information regarding information available to market participants, specifically with respect to trades they execute on MRX. The information is available to all Members.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange proposes to adopt rules governing the trading of Complex Qualified Contingent Cross and Complex Customer Cross Orders. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing rules that will make existing functionality available to additional order types on BOX. Specifically, the Exchange is proposing rules to codify Complex Customer Cross Orders and Complex Qualified Contingent Cross (“QCC”) Orders on the Exchange.
First, the Exchange is proposing to add text related to Complex Customer Cross Orders. Proposed Rule 7240(b)(4)(iii) defines a Complex Customer Cross Order as a type of Complex Order which is comprised of one Public Customer Complex Order to buy and one Public Customer Complex Order to sell (the same strategy) at the same price and for the same quantity.
The Exchange uses the same crossing mechanism for the processing and execution of Complex Customer Cross Orders that is used for Customer Cross Orders in the regular market. Accordingly, proposed Rule 7110(c)(7) shall govern the trading of Complex Customer Cross Orders, as defined in Rule 7240(b)(4)(iii), on BOX. Proposed Rule 7110(c)(7) describes the execution price requirements that are specific to Complex Customer Cross Orders.
The system will reject a Complex Customer Cross Order if, at the time of receipt of the Complex Customer Cross Order, the strategy is subject to an ongoing auction (including COPIP, Facilitation, and Solicitation auctions) or there is an exposed order on the strategy pursuant to Rule 7240(b)(3)(B). The purpose of this provision is to maintain an orderly market by avoiding the execution of Complex Customer Cross Orders with components that are involved in other system functions that could affect the execution price of the Complex Customer Cross Order, and by avoiding concurrent processing on the Exchange involving the same strategy.
Proposed Rule 7110(c)(7)(i) states that Complex Customer Cross Orders will be automatically cancelled if they cannot be executed. Proposed Rule 7110(c)(7)(ii) provides that Complex Customer Cross Orders may only be entered in the minimum trading increments applicable to Complex Orders under Rule 7240(b)(1).
As a regulatory matter, proposed Rule 7110(c)(7)(iii) states that IM–7140–1 applies to the entry and execution of Complex Customer Cross Orders.
The following example illustrates the execution of a Complex Customer Cross Order:
The Complex Order Book contains a Public Customer order to sell the strategy at 3.20.
The Exchange receives a Complex Customer Cross Order representing Public Customers on both sides for the simultaneous purchase and sale of the strategy at a price of 3.19.
The order price is at least $0.01 better than (inside) the cBBO and the Public Customer Complex Order on the Complex Order Book. Additionally, the order price is at or between the cNBBO. Therefore, the Complex Customer Cross Order is automatically executed upon entry.
The Exchange notes that the proposed rules for Complex Customer Cross Orders are based on the rules of another exchange with certain minor differences.
Next, although both the proposed Rule and MIAX's Rule require the execution to be at least $0.01 better than best price based on orders on the regular books, MIAX includes non-displayed trading interest when determining the best price based on the regular books, which the Exchange is not proposing because the Exchange does not have non-displayed interest.
Lastly, MIAX rejects a Complex Customer Cross Order if, at the time of receipt, any component of the strategy is subject to a PRIME Auction, a Route Timer, or liquidity refresh pause. The Exchange is not proposing the same conditions.
Next, the Exchange is proposing to add text related to Complex QCC Orders. Pursuant to proposed Rule 7240(b)(4)(iv), a Complex QCC Order is comprised of an originating Complex Order to buy or sell where each component is at least 1,000 contracts that is identified as being part of a qualified contingent trade
The Exchange uses the same crossing mechanism for the processing and execution of Complex QCC Orders that is used for QCC Orders in the regular market.
The system does not consider the NBBO price for the stock component because the Exchange does not execute the stock component; the Exchange executes the option components at a net price and ensures that, among other things, the execution price of (i) the strategy is at least $0.01 better than the cBBO; and (ii) each option leg is at or between the NBBO.
The Exchange believes the proposed Complex QCC pricing methodology aligns with the Qualified Contingent Trade (“QCT”) Exemption, as defined below. The parties to a contingent trade are focused on the spread or ratio between the transaction prices for each of the component instruments (
The system will reject a Complex QCC Order if, at the time of receipt of the Complex QCC Order, the strategy is subject to an ongoing auction (including COPIP, Facilitation, and Solicitation
Proposed Rule 7110(c)(8)(i) states that Complex QCC Orders will be automatically cancelled if they cannot be executed. Proposed Rule 7110(c)(8)(ii) provides that Complex QCC Orders may only be entered in the minimum trading increments applicable to Complex Orders under Rule 7240(b)(1).
The following example illustrates the execution of a Complex QCC Order:
The Complex Order Book contains a broker-dealer order to sell the strategy at 3.29.
The Exchange receives a Complex QCC Order for the simultaneous purchase and sale of the strategy at a net price of 3.29, 1,000 times. Since the order can be executed at or between the NBBO for each leg of the strategy, is not at a worse price than the non-Public Customer Order on the Complex Order Book, is at least $0.01 better than the cBBO and the order size is met, the Complex QCC Order is automatically executed upon entry.
The proposed rules governing Complex QCC Orders are based on the rules of another exchange with certain differences.
To illustrate this, assume a Complex QCC Order at $2.01 is received by the system for strategy A+B. There is a Public Customer Order to buy leg A on the Book for $1.00 and a Public Customer Order to buy leg B on the Book for $1.00. Under the proposal, the Complex QCC Order would be accepted by the system because the execution price is at least $0.01 better than the cBBO.
The Exchange is proposing the additional requirements that the execution price is not at the same price as a Public Customer Complex Order and at or better than any non-Public Customer Complex Order on the Complex Order Book as compared to MIAX. The Exchange believes that these additional requirements are reasonable because the Exchange is respecting resting Complex Orders.
Lastly, MIAX rejects a Complex QCC Order if, at the time of receipt, any component of the strategy is subject to a PRIME Auction, a Route Timer, or liquidity refresh pause. The Exchange is not proposing the same conditions.
Lastly, the Exchange proposes to expand certain Complex Order protections to Complex QCC Orders and Complex Customer Cross Orders. Specifically, the Exchange proposes to amend Rule IM–7240–1(a)(5) and IM–7240(b)(5) to apply these price protection checks to Complex QCC Orders and Complex Customer Cross
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The proposal to amend Rules 7110 and 7240 to codify rules covering Complex Customer Cross and Complex QCC Orders is consistent with Section 6(b)(5) of the Act because this proposal promotes just and equitable principles of trade and protects investors and the public interest by providing increased opportunities for the execution of Complex Orders. The Exchange believes that the proposed Complex Customer Cross and Complex QCC Rules will benefit Participants and the marketplace as a whole by adopting rules that allow for the trading of these types of orders on the Exchange. The Exchange believes the proposed rules for Complex Customer Cross and Complex QCC Orders remove impediments to and perfects the mechanism of a free and open market and a national market system and will result in more efficient trading and enhance the likelihood of the Complex Orders executing at the best prices by providing additional order types resulting in potentially greater liquidity available for trading on the Exchange.
The proposed rule change will provide rules that make existing functionality available to additional order types. Providing rules that make Customer Cross and QCC available for Complex Orders removes impediments to and perfects the mechanisms of a free and open market and a national market system because Participants will be given additional ways in which they can execute Complex Orders.
The proposed rule change will protect investors and the public interest by assuring the existing priority and allocation rules applicable to the processing and execution of Customer Cross Orders, QCC Orders, and Complex Orders remains consistent with the processing and execution of these order types, unless otherwise specifically set forth in the rules.
The Exchange further believes that the proposed methodology for the execution of Complex QCC Orders without consideration of the NBBO of the stock component is consistent with the QCT Exemption. As stated above, the QCT Exemption provides an exception for the stock leg of qualified contingent trades from trade-through requirements. Therefore, the system considers the NBBO of the options legs of the Complex QCC Order, and not the NBBO for the stock component, in calculating the pricing requirement for Complex QCC Orders.
The system does not consider the NBBO price for the stock component because the Exchange does not execute the stock component; the Exchange executes the option components at a net price and ensures that the net execution price for the strategy (i) is at least $0.01 better than the cBBO; (ii) is not at the same price as a Public Customer Complex Order; (iii) is at or better than any non-Public Customer Complex Order on the Complex Order Book; and (iv) each leg is at or between the NBBO.
The Exchange believes that the proposal to reject a Complex Customer Cross or Complex QCC Order at the time of receipt of the order when the strategy is subject to an ongoing auction (including COPIP, Facilitation and Solicitation auctions), or there is an exposed order on the strategy, removes impediments to and perfects the mechanism of a free and open market by ensuring orderly markets involving multiple complex orders with common components.
The proposed rule change to implement a debit/credit check for Complex QCC and Complex Customer Cross Orders is consistent with the Act. With the use of debit/credit checks, the Exchange can further assist with the maintenance of a fair and orderly market by mitigating the potential risks associated with Complex Orders trading at prices that are inconsistent with their strategies (which may result in executions at prices that are extreme and potentially erroneous), which ultimately protects investors. This proposed implementation of the debit/credit check promotes just and equitable principles of trade, as it is based on the same general option and volatility pricing principles which the Exchange understands are used by market participants in their option pricing models.
Additionally, the Exchange also believes that calculating a maximum price for true butterfly spreads, vertical spreads, and box spreads will assist with the maintenance of fair and orderly markets by helping to mitigate the potential risks associated with Complex QCC and Complex Customer Cross Orders trading at extreme and potentially erroneous prices that are inconsistent with particular Complex Order strategies. Further, the Exchange notes that the maximum price is designed to mitigate the potential risks of executions at prices that are not within an acceptable price range, as a means to help mitigate the potential risks associated with Complex Orders trading at prices that are inconsistent with their strategies, in addition to the debit/credit check. As such, the proposed rule change is designed to protect investors and the public interest.
The Exchange does not believe that the proposed rule change to provide rules governing the trading of Complex Customer Cross and Complex QCC Orders will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as indicated above, the Exchange notes that the rule is being proposed as a competitive response to the rules of another exchange.
Further, the Exchange does not believe that the proposed Complex Order protections will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as indicated above, the Exchange notes that the rule change is being proposed as a competitive response to the rules of another exchange.
For the reasons stated, the Exchange does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, and the Exchange believes the proposed change will, in fact, enhance competition.
The Exchange has neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend and reorganize Chapter V of the ISE Schedule of Fees.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Chapter V of the ISE Schedule of Fees to: (i) Eliminate the Table of Contents; (ii) retitle Section V, currently titled “Trading Application;” (iii) retitle Parts A, B and C of Chapter V which are currently titled “Installation,” “Software License & Maintenance” and “Reserved” respectively; and (iv) eliminate the Part D title, “INET Port Fees” and amend and reorganize the current port fees. Each change will be described in more detail below. The Exchange believes that the proposed amendments to the Schedule of Fees will provide more clarity as to the current fees. The Exchange notes that no fee changes are being introduced with this rule change. The Exchange is simply reorganizing its rules to conform to other Nasdaq affiliate markets by aligning the location and description of its rules on each market.
The Exchange proposes to eliminate the Table of Contents in the ISE Schedule of Fees. The Table Contents are unnecessary. The website where the ISE rules are listed
The Exchange proposes to retitle Section V, currently titled “Trading Application” as “Connectivity Fees.” The Exchange believes that this title more accurately describes the types of fees contained in this chapter. No other changes are being made to this section.
The Exchange proposes to amend Chapter V, Part A to retitle this section from “Installation” to “Trading Application.” The Exchange propose to amend Chapter V, Part B to retitle this section from “Software License & Maintenance” to “Trading Application.” The Exchange proposes to retitle Chapter V, Part C, which is currently “Reserved” as “Ports and Other Services.” The Exchange believes that these titles more accurately describes the types of fees contained in Chapter V by section. The Exchange is not otherwise amending Parts A and B. The Exchange is proposing to relocate from current Part D, titled “INET Port Fees” into Part C.
The Exchange proposes to eliminate the title to Chapter V, Part D, titled “INET Port Fees.” The Exchange is proposing to restructure the port fees currently in Part D into newly retitled Part C.
The Exchange proposes to add language at the beginning of new Part C which provides, “The below charges are assessed by ISE for connectivity to ISE.” The Exchange believes that this sentence makes clear that the fees apply to ISE. The Exchange proposes to define a port as “a logical connection or session that enables a market participant to send inbound messages and/or receive outbound messages from the Exchange using various communication protocols.” The Exchange believes this definition will assist members in distinguishing ports from other offerings.
The Exchange proposes to relocate the current port fees within Part D to Part C and restructure the port fees into 4 categories. The Exchange proposes to list order and quote protocols first, order and execution offerings next, followed by data ports and other ports as the last section. The Exchange proposes to list data offerings that are offered at no cost. The Exchange believes that aligning its offerings, where relevant, with other affiliated markets
The Exchange proposes to add a new section (i) and include the following introductory sentence, “The following order and quote protocols are available on ISE.” The Exchange proposes to list the order entry protocol port fees for FIX, SQF and OTTO in this section. The fees are not being amended, the existing fees are being relocated into new section (i).
The Exchange proposes to add a new section (ii) and include the following introductory sentence, “The following order and execution information is available to Members.” The Exchange intends to list other port or interface information into this section that are available to ISE Members. The Exchange is relocating the CTI and FIX DROP port fees. No changes are being made to those fees. The Exchange also proposes to list TradeInfo ISE Interface into this section. The Exchange has recently filed to establish this Interface within the ISE rules.
The Exchange proposes to add a new section (iii) and include the following language, “The following data port fees apply in connection with data subscriptions pursuant to ISE Rules at Chapter VIII. These ports are available to non-ISE Members and ISE Members.” Today, ISE does not assess a fee for these ports outlined in new section (iii). Similar to other Nasdaq Affiliated Markets the Exchange proposes to list all of the ports that Members and Non-Members obtain today at no cost. The Exchange believes that listing these ports in addition to the data subscriptions will bring more transparency to the Schedule of Fees.
The Exchange proposes to add a new section (iv) entitled “Other ports” and relocate the Disaster Recovery Ports into this section. The Exchange also proposes to make clear that a Disaster Recovery Port is available for any port listed in proposed sections (i)–(iii).
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange's proposal to remove the Table of Contents and retitle the various parts of Chapter V are administrative. These changes are consistent with the protection of investor and the public interest because the amendments are intended to bring greater clarity to the Rulebook. The Exchange's proposal to reorganize the port fees into sections and include pricing for ports that are offered at no cost is also consistent with the protection of investor and the public interest because it will bring greater transparency to the Exchange's current offerings.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend and reorganize Chapter IV of the GEMX Schedule of Fees.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Chapters IV of the GEMX Schedule of Fees to: (i) Eliminate the Table of
The Exchange proposes to eliminate the Table of Contents in the GEMX Schedule of Fees. The Table Contents are unnecessary. The website where the GEMX rules are listed
The Exchange currently lists all Port Fees within Chapter IV, Part E. The Exchange proposes to relocate the Port Fees to Chapter VI, Part C, which is currently reserved, and retitle those fees as “Ports and Other Services.” The Exchange believes that this title more accurately describes the types of fees contained in this chapter. The Exchange proposes to restructure the port fees. First, the Exchange proposes to add language at the beginning of this new chapter to state, “The below charges are assessed by GEMX for connectivity to GEMX.” The Exchange believes that this sentence makes clear that the fees apply to GEMX. The Exchange proposes to define a port as “a logical connection or session that enables a market participant to send inbound messages and/or receive outbound messages from the Exchange using various communication protocols.” The Exchange believes this definition will assist members in distinguishing ports from other offerings.
The Exchange proposes to restructure the port fees into 4 categories. The Exchange proposes to list order and quote protocols first, order and execution offerings next, followed by data ports and other ports as the last section. The Exchange proposes to list data offerings that are offered at no cost. The Exchange believes that aligning its offerings, where relevant, with other affiliated markets
The Exchange proposes to add a new section (i) and include the following introductory sentence, “The following order and quote protocols are available on GEMX.” The Exchange proposes to list the order entry protocol port fees for FIX, SQF, SQF Purge Port and OTTO in this section. The fees are not being amended, the existing fees are being relocated into new section (i).
The Exchange proposes to add a new section (ii) and include the following introductory sentence, “The following order and execution information is available to Members.” The Exchange intends to list other port or interface information into this section that are available to GEMX Members. The Exchange is relocating the CTI and FIX DROP port fees. No changes are being made to those fees. The Exchange also proposes to list TradeInfo GEMX Interface into this section. The Exchange has recently filed to establish this Interface within the GEMX rules.
The Exchange proposes to add a new section (iii) and include the following language, “The following data port fees apply in connection with data subscriptions pursuant to GEMX Rules at Chapter V. These ports are available to non-GEMX Members and GEMX Members.” Today, GEMX does not assess a fee for these ports outlined in new section (iii). Similar to other Nasdaq Affiliated Markets the Exchange proposes to list all of the ports that Members and Non-Members obtain today at no cost. The Exchange believes that listing these ports in addition to the data subscriptions will bring more transparency to the Schedule of Fees.
The Exchange proposes to add a new section (iv) entitled “Other ports” and relocate the Disaster Recovery Ports into this section. The Exchange also proposes to make clear that a Disaster Recovery Port is available for any port listed in proposed sections (i)–(iii).
The Exchange proposes to reserve current Chapter IV, Part E.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange's proposal to remove the Table of Contents, relocate the Port Fees, retitle and restructure those fees and reserve Chapter IV, Part E are administrative. These changes are consistent with the protection of investor and the public interest because the amendments are intended to bring greater clarity to the Rulebook. The Exchange's proposal to reorganize the port fees into sections and include pricing for ports that are offered at no cost is also consistent with the protection of investor and the public interest because it will bring greater transparency to the Exchange's current offerings.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to memorialize its order and execution information into GEMX Rule 718, entitled “Data Feeds.”
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to add order and execution information into GEMX
The Exchange proposes to amend the Nasdaq GEMX Top Quote Feed. The Exchange stated in that description that this feed calculates and disseminates GEMX's best bid and offer position, with aggregated size (including total size in aggregate, for Public Customer
The Exchange proposes to add its order and execution information into GEMX Rule 718, entitled “Data Feeds.” The Exchange proposes to rename this rule “Data Feeds and Trade Information.” The Exchange also proposes to amend Rule 100 to add definitions.
The Exchange proposes to adopt a new GEMX Rule 718(b) and memorialize the following order and execution information which was discussed in other rule filings by the Exchange: (i) Clearing Trade Information or “CTI”; and (ii) FIX DROP.
The Exchange notes that while CTI and FIX Drop information are accessible through a port, TradeInfo is an interface. The Exchange notes this distinction to make clear the manner of delivery for each of these information types.
The Exchange stated in its Prior Filing that “CTI is a real-time clearing trade message that is sent to a Member after an execution has occurred and contains trade details. The message containing the trade details is also simultaneously sent to The Options Clearing Corporation. The information includes, among other things, the following: (i) The Clearing Member Trade Agreement or “CMTA” or The Options Clearing Corporation or “OCC” number; (ii) Exchange badge or house number; (iii) the Exchange internal firm identifier; and (iv) an indicator which will distinguish electronic and non-electronically delivered orders; (v) liquidity indicators and transaction type for billing purposes; (vi) capacity.”
The Exchange is proposing to amend the CTI description and memorialize it within GEMX Rule 718(b)(1). The Exchange proposes to eliminate the sentence which states, “The message containing the trade details is also simultaneously sent to The Options Clearing Corporation.” The Exchange's System sends clearing information to OCC for each transaction. This sentence does not add information that is useful or relevant and therefore the Exchange proposes to remove it. The Exchange also proposes to delete the words “an indicator which will distinguish electronic and non-electronically delivered orders.” The only method on GEMX to deliver an order is electronically.
The Exchange is also adopting definitions for “account number,”
The Exchange stated in its Prior Filing that “FIX DROP provides real-time order and execution update is a message that is sent to a Member after an order been received/modified or an execution has occurred and contains trade details. The information includes, among other things, the following: (1) Executions; (2) cancellations; (3) modifications to an existing order; and (4) busts or post-trade corrections.”
The Exchange proposes to memorialize FIX DROP within GEMX Rule 718(b)(3). The Exchange notes that at the end of the first sentence of the description it is adding “specific to that Member” to make clear that FIX DROP only provides a Member its specific trade information. Also, an “and” is included before new (iv) as the numbers have been changed to roman numerals.
The Exchange proposes to establish its TradeInfo offering at GEMX Rule 718(b)(2). TradeInfo, a user interface, permits a Member to: (i) Search all orders submitted in a particular security
The Exchange considers it appropriate to establish and memorialize the order and execution information available on GEMX within a rule so that Members may understand the trade information which is available on the Exchange as it pertains to a firm's trading information. This data is available to all Members and is specific to a Member's transactions on GEMX.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange's proposal to amend the Nasdaq GEMX Top Quote Feed to specify that Professional Orders and Priority Customer Orders are segregated and aggregated is consistent with the protection of investors and the public interest because the Exchange is correcting the categories of orders, which are segregated and aggregated. The Public Customer definition is too broad because it includes a portion of Priority Customer, which was already specified within the description. The Exchange proposes to remove Public Customer and replace it with Professional Order to be more specific and amend Priority Customer to Priority Customer Order to reference the types of orders that are aggregated to conform the rule text. The Exchange believes that this amendment will bring more transparency to the information within the feed.
The Exchange believes that memorializing CTI and FIX DROP within a rule will provide Members with transparency as to the order and information offerings available on GEMX specific to their trading on GEMX. The Exchange's proposal to establish TradeInfo is consistent with the Act because the Exchange is detailing the contents of this offering as well as providing transparency as to the availability of TradeInfo. The Exchange believes that offering Members TradeInfo, which allows Members to view executions as well as other capabilities with respect to order management, enhances the ability of a Member to manage its orders. The Exchange believes that providing Members with tools to manage orders is consistent with the Act and serves to protect investors and the public interest. Further, the Exchange believes that this proposal is consistent with the Act because TradeInfo provides information regarding information available to market participants, specifically with respect to trades they execute on GEMX. The information is available to all Members.
In accordance with Section 6(b)(8) of the Act,
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The principal purpose of the proposed amendments is for ICE Clear Europe to amend its Delivery Procedures (the “Delivery Procedures”)
In its filing with the Commission, ICE Clear Europe included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICE Clear Europe has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
ICE Clear Europe is amending its Delivery Procedures to make certain modifications and clarifications to the delivery terms relating to the IFEU Robusta Coffee Futures Contract. The amendments also remove outdated references, correct typographical errors, insert references to current ICE systems and align naming conventions used throughout the Delivery Procedures.
The changes are intended to be consistent with changes made to the IFEU contract specifications for the Robusta Coffee Futures Contract. In particular, the amendments to the Delivery Procedures will shorten the delivery period from the delivery notice to the final settlement day from 14 calendar days to 4 calendar days to reflect suggestions from market participants that the current period was unnecessarily long. A shorter period also more closely aligns with other similar futures contracts, including the ICE Futures US Coffee Futures Contract.
As a result of this change, the amendments also remove the existing “Early Take Up” concept as this is no longer necessary given the shorter settlement period.
The changes also remove the Delivery Documentation Summary section, because this simply repeats what is set out in the Delivery Procedures above and is therefore, unnecessary.
Section 17A(b)(3)(F) of the Act
In addition, Rule 17Ad–22(e)(10)
ICE Clear Europe does not believe the proposed rule changes would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purposes of the Act. The changes are being proposed in order to update the Delivery Procedures for the IFEU Robusta Coffee Futures Contract specifications, as discussed above. ICE Clear Europe does not believe the amendments would adversely affect Clearing Members, materially affect the cost of clearing, adversely affect access to clearing in Robusta Coffee Futures Contract for Clearing Members or their customers, or otherwise adversely affect competition in clearing services. Accordingly, ICE Clear Europe does not believe that the amendments would impose any impact or burden on competition that is not appropriate in furtherance of the purpose of the Act.
Written comments relating to the proposed amendments have not been solicited or received by ICE Clear Europe. ICE Clear Europe will notify the Commission of any comments received with respect to the proposed amendments.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, security-based swap submission or advance notice is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions, and extensions, of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than August 7, 2018. Individuals can obtain copies of the collection instruments by writing to the above email address.
II. SSA submitted the information collection below to OMB for clearance. Your comments regarding this information collection would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than July 9, 2018. Individuals can obtain copies of the OMB clearance packages by writing to
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104–13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions, and one extension, of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
I. The information collections below are pending at SSA. SSA will submit them to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than August 7, 2018. Individuals can obtain copies of the collection instruments by writing to the above email address.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding these information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than July 9, 2018. Individuals can obtain copies of the OMB clearance packages by writing to
Social Security Administration (SSA).
Notice of a new matching program.
In accordance with the provisions of the Privacy Act, as amended, this notice announces a new matching program with the Railroad Retirement Board (RRB). This matching agreement sets forth the terms, safeguards, and procedures under which RRB, as the source agency, will disclose RRB annuity payment data to SSA, the recipient agency. SSA will use the information to verify Supplemental Security Income (SSI) and Special Veterans Benefits (SVB) eligibility and benefit payment amounts. SSA will also record the railroad annuity amounts RRB paid to SSI and SVB recipients in the Supplemental Security Income Record (SSR).
The deadline to submit comments on the proposed matching program is 30 days from the date of publication in the
Interested parties may comment on this notice by either telefaxing to (410) 966–0869, writing to Mary Ann Zimmerman, Acting Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, Social Security Administration, G–401WHR Building, 6401 Security Boulevard, Baltimore, MD 21235–6401, or email at
Interested parties may submit general questions about the matching program to Mary Ann Zimmerman, Acting Executive Director, Office of Privacy and Disclosure, Office of the General Counsel, by any of the means shown above.
Notice of request for public comment.
The Department of State is seeking Office of Management and Budget (OMB) approval for the information collection described below. In accordance with the Paperwork Reduction Act of 1995, we are requesting comments on this collection from all interested individuals and organizations. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
The Department will accept comments from the public up to August 7, 2018.
You may submit comments by any of the following methods:
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You must include the DS form number (if applicable), information collection title, and the OMB control number in any correspondence.
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The Tom Lantos Block Burmese Jade Junta's Anti-Democratic Efforts (JADE) Act of 2008, Public Law 110–286, renders certain individuals involved in specified Burmese organizations or activities ineligible for U.S. visas, including: leaders of the State Peace and Development Council (SPDC), the Burmese military, or the Union Solidarity Development Association (USDA); officials of the SPDC, the Burmese military, or the USDA involved in human rights violations and impeding democracy in Burma; and Burmese persons who provided substantial economic or political support to the SPDC, Burmese military, or USDA. Immediate family members of these individuals are also ineligible for United States visas. Department of State consular officers will use the information provided to evaluate and adjudicate the individual applicant's eligibility for a visa consistent with these requirements.
Visa applicants from Burma will fill out and submit the supplemental form and provide it to consular officers. Consular officers will use the form to screen for potential visa ineligibility under the JADE Act.
Surface Transportation Board.
Notice.
The Board is publishing, and providing the public an opportunity to comment on, the 2017 weighted average state tax rates for each Class I railroad, as calculated by the Association of American Railroads (AAR), for use in the Revenue Shortfall Allocation Method (RSAM).
Comments are due by July 9, 2018. If any comment opposing AAR's calculation is filed, AAR's reply will be due by July 30, 2018. If no comments are filed by the due date, AAR's calculation of the 2017 weighted average state tax rates will be automatically adopted by the Board, effective July 10, 2018.
Comments may be submitted either via the Board's e-filing format or in traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's website at
Sarah Fancher, (202) 245–0355. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at (800) 877–8339.
The RSAM figure is one of three benchmarks that together are used to determine the reasonableness of a challenged rate under the Board's
In
Any party wishing to comment on AAR's calculation of the 2017 weighted average state tax rates should file a comment by July 9, 2018.
By the Board, Scott M. Zimmerman, Acting Director, Office of Proceedings.
Federal Highway Administration (FHWA), DOT.
Notice of limitation of claims for judicial review of actions by FHWA and other Federal agencies.
This notice announces actions taken by FWHA that are final. The actions relate to the proposed Sterling Highway Milepost 45–60 Project in the Kenai Peninsula Borough in the State of Alaska. Those actions grant approvals for the project.
By this notice, FHWA is advising the public of final agency actions subject to 23 U.S.C. 139(l). A claim seeking judicial review of FHWA actions on the highway project will be barred unless the claim is filed on or before November 5, 2018. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such claim, then that shorter time period applies.
John Lohrey, Planner, Federal Highway Administration, Alaska Division, 709 West 9th Street, Room 851, Juneau, AK 99802, telephone (907) 586–7418; email:
Notice is hereby given that FHWA has taken final agency action subject to 23 U.S.C. 139(l) by issuing approvals for the Sterling Highway Milepost 45 to 60 Project in the State of Alaska, project number F–021–2(15)/53014. The selected route is the Juneau Creek Alternative. The route passes north of the community of Cooper Landing and remains north of the Kenai River throughout. From Quartz Creek Road near MP 45, the alternative will result in reconstruction of the existing Sterling Highway for approximately two miles, will diverge and will result in a newly constructed highway for approximately 10 miles (with a new bridge over Juneau Creek Canyon), and will join and reconstruct the existing alignment again for approximately 2.5 miles to an intersection with Skilak Loop Rd. near MP 58.
The actions by the Federal agencies, and the law under which such actions were taken, are described in the Final Environmental Impact Statement and Final Section 4(f) Evaluation (Final EIS) for the project, approved March 7, 2018, and in the FHWA Record of Decision (ROD) issued on May 31, 2018. The Final EIS and ROD approved by FHWA are available on the project website:
This Notice applies to all Federal Agency decisions as of the issuance date of this notice and to all laws under which such actions were taken, including but not limited to:
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23 U.S.C. 139(l)
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of advisory committee meeting.
FMCSA announces a meeting of its Medical Review Board (MRB) on Monday and Tuesday, June 25–26, 2018.
The meeting will be held on Monday and Tuesday, June 25–26, 2018, from 9:15 a.m. to 4:30 p.m., Eastern Daylight Time (EDT).
The meeting will be held at the FMCSA National Training Center, 1310 N Courthouse Road, Arlington, VA, 6th floor. Copies of the task statement and an agenda for the entire meeting will be made available in advance of the meeting at
Ms. Shannon L. Watson, Senior Advisor to the Associate Administrator for Policy, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366–5221,
The MRB is composed of five medical experts who each serve 2-year terms. Section 4116 of SAFETEA–LU requires the Secretary of Transportation, with the advice of the MRB and the chief medical examiner, to establish, review, and revise “medical standards for operators of commercial motor vehicles that will ensure that the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely.” The MRB operates in accordance with FACA under the terms of its charter, filed November 25, 2017.
The MRB will finalize its Task 17–1 recommendations to the Agency that it began at its July 2017 meeting on the revision of the Agency's handbook for medical examiners (ME) on the National Registry of Certified Medical Examiners (National Registry), for their use in evaluating interstate commercial motor vehicle (CMV) drivers for a medical qualification determination.
The meeting is open to the public for its entirety. Oral comments from the public will be heard during the meeting, at the discretion of the MRB Chairman. Members of the public may submit written comments on the topics to be considered during the meeting by Wednesday, June 13, to Federal Docket Management System (FDMC) Docket Number FMCSA–2008–0362 for the MRB using any of the following methods:
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Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of application for exemption; request for comments.
The American Pyrotechnics Association (APA) has requested an exemption for three member companies—Artisan Pyrotechnics Inc., Montana Display Fireworks, Inc., and ZY Pyrotechnics, LLC dba Skyshooter Displays, Inc.—from the prohibition on driving commercial motor vehicles (CMVs) after the 14th hour after the driver comes on duty. Fifty APA members currently hold such an exemption during the Independence Day period each year, terminating on July 8, 2020. If granted, this exemption would terminate at the same time as the other 50 exempted carriers. The APA maintains that the terms and conditions of the limited exemption would ensure a level of safety equivalent to, or greater than, the level of safety achieved without the exemption.
Comments are due no later than July 9, 2018.
You may submit comments bearing the Federal Docket Management System (FDMS) Docket ID FMCSA–2007–28043 using any of the following methods:
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Each submission must include the Agency name and the docket number for this notice. Note that DOT posts all comments received without change to
Ms. Pearlie Robinson, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202–366–4225. Email:
FMCSA encourages you to participate by submitting comments and related materials.
If you submit a comment, please include the docket number for this notice (FMCSA–2007–28043), indicate the specific section of this document to which the comment applies, and provide a reason for suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by compliance with the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The HOS rule in 49 CFR 395.3(a)(2) prohibits the driver of a property-carrying CMV from driving after the 14th hour after coming on duty following 10 consecutive hours off duty. In 2016, the APA, a trade association representing the domestic fireworks industry was granted exemptions for 51 member companies through the annual Independence Day periods ending on July 8, 2020 [81 FR 43701, July 5, 2016]. One of the 51 APA member companies, Island Fireworks, DOT #414583, no longer requires the exemption, leaving the total at 50. APA has requested an exemption for Artisan Pyrotechnics Inc., DOT #1898096, Montana Display Fireworks, Inc., DOT #1030231, and ZY Pyrotechnics, LLC dba Skyshooter Displays, Inc., DOT #2149202, which would increase the total to 53. The exemption for these APA carriers, if granted, would expire on July 8, 2020. Although this is less than the 5-year exemption period authorized by 49 U.S.C. 31315(b)(2), as amended by section 5206(a)(3) of the Fixing America's Surface Transportation (FAST) Act (Pub. L. 114–94, 129 Stat. 1312, 1537, Dec. 4, 3015), FMCSA believes that the interests of the APA members and the Agency would best be served by harmonizing, as far as possible, the expiration dates of all such fireworks-related exemptions. Like the other 50 member companies, the three new member companies would be subject to all of the terms and conditions of the exemption.
The initial APA application for relief from the 14-hour rule was submitted in 2004; a copy is in the docket. That application fully describes the nature of the pyrotechnic operations of CMV
As stated in the 2004 request, the CMV drivers employed by APA member companies are trained pyro-technicians who hold commercial driver's licenses (CDLs) with hazardous materials (HM) endorsements. They transport fireworks and related equipment by CMVs on a very demanding schedule during a brief Independence Day period, often to remote locations. After they arrive, the drivers are responsible for set-up and staging of the fireworks shows.
The APA states that it is seeking an additional exemption for the three new member companies because compliance with the current 14-hour rule in 49 CFR 395.3(a)(2) would impose a substantial economic hardship on numerous cities, towns and municipalities, as well as its member companies. To meet the demand for fireworks without the exemptions, APA states that its member companies would be required to hire a second driver for most trips. The APA advises that the result would be a substantial increase in the cost of the fireworks shows—beyond the means of many of its members' customers—and that many Americans would be denied this important component of the celebration of Independence Day.
The APA believes that the exemption would not adversely affect the safety of the fireworks transportation provided by this motor carrier. According to APA, its member companies have operated under this exemption for 11 previous Independence Day periods without a reported motor carrier safety incident. Moreover, it asserts, without the extra time provided by the exemption, safety would decline because APA drivers would be unable to return to their home base after each show. They would be forced to park the CMVs carrying HM 1.1G, 1.3G and 1.4G products in areas less secure than the motor carrier's home base. As a condition of holding the exemption, each motor carrier is required to notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5) involving the operation of any its CMVs while under this exemption. To date, FMCSA has received no accident notifications, nor is the Agency aware of any accidents reportable under terms of the prior APA exemptions.
In its exemption request, APA asserts that the operational demands of this unique industry minimize the risks of CMV crashes. In the last few days before July 4, these drivers transport fireworks over relatively short routes from distribution points to the site of the fireworks display, and normally do so in the early morning when traffic is light. At the site, they spend considerable time installing, wiring, and safety-checking the fireworks displays, followed by several hours off duty in the late afternoon and early evening prior to the event. During this time, the drivers are able to rest and nap, thereby reducing or eliminating the fatigue accumulated during the day. Before beginning another duty day, these drivers must take 10 consecutive hours off duty, the same as other CMV drivers.
The requested exemption from 49 CFR 395.3(a)(2) would be effective from June 28 through July 8, at 11:59 p.m. local time, each year through 2020.
During the 2018 Independence Day period, the exemption from 49 CFR 395.3(a)(2) would be limited to drivers employed by the 50 motor carriers already covered by the exemption, plus (if approved) the three carriers now seeking an exemption. Section 395.3(a)(2) prohibits a driver from driving a CMV after the 14th hour after coming on duty and does not permit off-duty periods to extend the 14-hour limit. Drivers covered by this exemption would be able to exclude off-duty and sleeper-berth time of any length from the calculation of the 14-hour limit. This exemption would be contingent on each driver driving no more than 11 hours in the 14-hour period after coming on duty, as extended by any off-duty or sleeper-berth time in accordance with this exception. The exemption would be further contingent on each driver having a full 10 consecutive hours off duty following 14 hours on duty prior to beginning a new driving period. The carriers and drivers must comply with all other requirements of the Federal Motor Carrier Safety Regulations (49 CFR parts 350–399) and Hazardous Materials Regulations (49 CFR parts 105–180).
In accordance with 49 U.S.C. 31315(d), as implemented by 49 CFR 381.600, during the period this exemption is in effect, no State shall enforce any law or regulation applicable to interstate commerce that conflicts with or is inconsistent with this exemption with respect to a firm or person operating under the exemption. States may, but are not required to, adopt the same exemption with respect to operations in intrastate commerce.
Exempt motor carriers would be required to notify FMCSA within 5 business days of any accidents (as defined by 49 CFR 390.5) involving the operation of any of their CMVs while under this exemption. The notification must be by email to
a. Name of the Exemption: “APA”,
b. Date of the accident,
c. City or town, and State, in which the accident occurred, or which is closest to the scene of the accident,
d. Driver's name and driver's license State, number, and class,
e. Co-Driver's name and driver's license State, number, and class,
f. Vehicle company number and power unit license plate State and number,
g. Number of individuals suffering physical injury,
h. Number of fatalities,
i. The police-reported cause of the accident,
j. Whether the driver was cited for violation of any traffic laws, or motor carrier safety regulations, and
k. The total driving time and the total on-duty time of the CMV driver at the time of the accident.
In addition, if there are any injuries or fatalities, the carrier must forward the police accident report to
The FMCSA does not believe the motor carriers and drivers covered by this exemption, if granted, would experience any deterioration of their safety record.
However, should this occur, FMCSA would take all steps necessary to protect the public interest, including revocation of the exemption. The FMCSA will immediately revoke the exemption for failure to comply with its terms and conditions. Exempt motor carriers and drivers would be subject to FMCSA monitoring while operating under this exemption.
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other federal agencies to take this opportunity to comment on a continuing information collection as required by the Paperwork Reduction Act of 1995 (PRA).
In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.
Currently, the OCC is soliciting comment concerning the renewal of an existing collection titled “Bank Appeals Follow-Up Questionnaire.” The OCC also is giving notice that it has submitted the collection to OMB for review.
You should submit written comments by July 9, 2018.
Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods:
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Additionally, please send a copy of your comments by mail to: OCC Desk Officer, 1557–0332, U.S. Office of Management and Budget, 725 17th Street NW, #10235, Washington, DC 20503 or by email to
You may review comments and other related materials that pertain to this information collection
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OCC Clearance Officer, (202) 649–5490, for persons who are deaf or hearing impaired, TTY, (202) 649–5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW, Suite 3E–218, Washington, DC 20219.
Under the PRA (44 U.S.C. 3501–3520), federal agencies must obtain approval from OMB for each collection of information that they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. The OCC asks that OMB extend its approval of the following collection.
The OCC issued a notice for 60 days of comment on February 26, 2018, 83 FR 8316. No comments were received.
Comments continue to be on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the OCC, including whether the information shall have practical utility;
(b) The accuracy of the OCC's estimate of the burden of the collection of information;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of the collection on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Guidance regarding Charitable Remainder Trusts and Special Valuation Rules for Transfers of Interests and Trusts.
Written comments should be received on or before August 7, 2018 to be assured of consideration.
Direct all written comments to Roberto Mora-Figueroa, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of this regulation should be directed to Sara Covington, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or at (202)317–6038 or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service (IRS), as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning Application for Extension of Time for Payment of Tax Due to Undue Hardship.
Written comments should be received on or before August 7, 2018 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Martha R. Brinson, at (202) 317–5753, or at Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 7, 2018.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Cynthia Harvey-Pryor at (202) 461–5870.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration (VBA), Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden; it includes the actual data collection instrument.
Comments must be submitted on or before July 9, 2018.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Office of Quality, Privacy and Risk (OQPR), Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461–5870 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
Veterans Benefits Administrations, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Cynthia Harvey-Pryor at (202) 461–5870.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VBA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VBA's functions, including whether the information will have practical utility; (2) the accuracy of VBA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before July 9, 2018.
Submit written comments on the collection of information through
Cynthia Harvey-Pryor, Enterprise Records Service (005R1B), Department of Veterans Affairs, 811 Vermont Avenue NW, Washington, DC 20420, (202) 461–5870 or email
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Environmental Protection Agency (EPA).
Proposed action.
Based on the Environmental Protection Agency's (EPA's) review of the air quality criteria addressing human health effects and the primary national ambient air quality standard (NAAQS) for sulfur oxides (SO
Comments must be received on or before July 23, 2018.
If, by June 15, 2018, the EPA receives a request from a member of the public to speak at a public hearing concerning the proposed decision (see
You may submit comments, identified by Docket ID No. EPA–HQ–OAR–2013–0566, to the Federal eRulemaking Portal:
If a public hearing is to be held on this proposed action (see
Dr. Nicole Hagan, Health and Environmental Impacts Division, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C504–06, Research Triangle Park, NC 27711; telephone: (919) 541–3153; fax: (919) 541–0237; email:
Do not submit this information to the EPA through
When submitting comments, remember to:
• Identify the action by docket number and other identifying information (subject heading,
• Follow directions—the agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.
• Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• Provide specific examples to illustrate your concerns, and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
A number of the documents that are relevant to this proposed decision are available through the EPA's website at
The following topics are discussed in this preamble:
This document presents the Administrator's proposed decision in the current review of the primary (health-based) NAAQS for SO
This review of the primary SO
The last review of the primary SO
Emissions of SO
In this review, as in past reviews of the primary NAAQS for SO
The proposed decision to retain the current primary NAAQS for SO
The health effects evidence newly available in this review, as critically assessed in the ISA in conjunction with the full body of evidence, reaffirms the conclusions from the last review. The health effects evidence continues to support the conclusion that respiratory effects are causally related to short-term SO
The quantitative analyses of population exposure and risk also inform the proposed decision. These analyses expand and improve upon the quantitative analyses available in the last review. Unlike the REA available in the last review, which analyzed single-year air quality scenarios for potential standard levels bracketing the now current level, the current REA assesses an air quality scenario for three years of air quality conditions that just meet the now-current standard, considering all of its elements, including its 3-year form. Other ways in which the current REA analyses are improved and expanded include improvements to models, model inputs and underlying databases, including the vastly expanded ambient air monitoring dataset for 5-minute concentrations, available as a result of changes in the last review to data reporting requirements.
Based on this evidence and quantitative information, as well as CASAC advice and public comment thus far in this review, the Administrator proposes to conclude that the current primary SO
This review focuses on the presence in ambient air of SO
Two sections of the Clean Air Act (CAA or the Act) govern the establishment and revision of the NAAQS. Section 108 (42 U.S.C. 7408) directs the Administrator to identify and list certain air pollutants and then to issue air quality criteria for those pollutants. The Administrator is to list those air pollutants that in his “judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare;” “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources;” and “for which . . . [the Administrator] plans to issue air quality criteria . . . .” Air quality criteria are intended to “accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected from the presence of [a] pollutant in the ambient air . . . .” 42 U.S.C. 7408(b). Section 109 (42 U.S.C. 7409) directs the Administrator to propose and promulgate “primary” and “secondary” NAAQS for pollutants for which air quality criteria are issued. Section 109(b)(1) defines a primary standard as one “the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, [is] requisite to protect the public health.”
The requirement that primary standards provide an adequate margin of safety was intended to address uncertainties associated with inconclusive scientific and technical information available at the time of standard setting. It was also intended to provide a reasonable degree of protection against hazards that research has not yet identified.
In addressing the requirement for an adequate margin of safety, the EPA considers such factors as the nature and severity of the health effects involved, the size of sensitive population(s) at risk,
In setting primary and secondary standards that are “requisite” to protect public health and welfare, respectively, as provided in section 109(b), the EPA's task is to establish standards that are neither more nor less stringent than necessary for these purposes. In so doing, the EPA may not consider the costs of implementing the standards.
Section 109(d)(1) requires that “not later than December 31, 1980, and at 5-year intervals thereafter, the Administrator shall complete a thorough review of the criteria published under section 108 and the national ambient air quality standards . . . and shall make such revisions in such criteria and standards and promulgate such new standards as may be appropriate. . . .” Section 109(d)(2) requires that an independent scientific review committee “shall complete a review of the criteria . . . and the national primary and secondary ambient air quality standards . . . and shall recommend to the Administrator any new . . . standards and revisions of existing criteria and standards as may be appropriate. . . .” Since the early 1980s, this independent review function has been performed by the Clean Air Scientific Advisory Committee (CASAC).
States are primarily responsible for ensuring attainment and maintenance of ambient air quality standards once the EPA has established them. Under section 110 of the Act, 42 U.S.C. 7410, and related provisions, states are to submit, for EPA approval, state implementation plans (SIPs) that provide for the attainment and maintenance of such standards through control programs directed to sources of the pollutants involved. The states, in conjunction with the EPA, also administer the prevention of significant deterioration program that covers these pollutants.
The initial air quality criteria for SO
The first review of the air quality criteria and primary standards for SO
This remand was addressed in the most recent review, which was completed in 2010. In that review, the EPA promulgated a new 1-hour standard and also promulgated
In May 2013, the EPA initiated the current review by issuing a call for information in the
As an early step in development of the Integrated Science Assessment (ISA) for this review, the EPA's National Center for Environmental Assessment (NCEA) hosted a public workshop at which preliminary drafts of key ISA chapters were reviewed by subject matter experts (79 FR 33750, June 12, 2014). Comments received from this review as well as comments from the public and the CASAC on the draft IRP were considered in preparation of the first draft ISA (U.S. EPA, 2015), released in November 2015 (80 FR 73183, November 24, 2015). The first draft ISA was reviewed by the CASAC at a public meeting in January 2016 and a public teleconference in April 2016 (80 FR 79330, December 21, 2015; 80 FR 79330, December 21, 2015; Diez Roux, 2016). The EPA released the second draft ISA in December 2016 (U.S. EPA, 2016b; 81 FR 89097, December 9, 2016), which was reviewed by the CASAC at a public meeting in March 2017 and a public teleconference in June 2017 (82 FR 11449, February 23, 2017; 82 FR 23563, May 23, 2017; Diez Roux, 2017a). The final ISA was released in December 2017 (U.S. EPA, 2017a; 82 FR 58600, December 13, 2017).
In considering the need for quantitative exposure and risk analyses in this review, the EPA completed the Risk and Exposure Assessment (REA) Planning Document in February 2017 (U.S. EPA, 2017c; 82 FR 11356, February 22, 2017), and held a consultation with the CASAC at a public meeting in March 2017 (82 FR 11449, February 23, 2017; Diez Roux, 2017b). In consideration of the CASAC's comments at that consultation and public comments, the EPA developed the draft REA and draft Policy Assessment (PA), which were released on August 24, 2017 (U.S. EPA, 2017d,e; 82 FR 43756, September 19, 2017). The draft REA and draft PA were reviewed by the CASAC on September 18–19, 2017 (82 FR 37213, August 9, 2017; Cox and Diez Roux, 2018a,b). The EPA considered the advice and comments from the CASAC on the draft REA and draft PA as well as public comments, in developing the final REA and final PA, which were released in early May 2018 (U.S. EPA, 2018a,b).
The schedule for completion of this review is governed by a consent decree resolving a lawsuit filed in July 2016 by a group of plaintiffs which included a claim that the EPA had failed to complete its review of the primary SO
This section presents information on sources and emissions of SO
Sulfur oxides are emitted into air from specific sources (
Fossil fuel combustion is the main anthropogenic source of SO
National average SO
Ambient air concentrations of SO
As a result of the reporting requirements promulgated in 2010 (as summarized in section I.C above) maximum hourly five-minute concentrations of SO
Concentrations of SO
Analyses in the ISA of data for 2013–2015 in six areas indicate that 1-hour daily maximum SO
This section presents the rationale for the Administrator's proposed decision to retain the current primary SO
In presenting the rationale for the Administrator's proposed decision and its foundations, section II.A provides background on the general approach for review of the primary SO
The past and current approaches described below are both based, most fundamentally, on using the EPA's assessments of the current scientific evidence and associated quantitative analyses to inform the Administrator's judgment regarding a primary standard for SO
We note that in drawing conclusions with regard to the primary standard, the final decision on the adequacy of the current standard is largely a public health policy judgment to be made by the Administrator. The Administrator's final decision will draw upon scientific information and analyses about health effects, population exposure and risks, as well as judgments about how to consider the range and magnitude of uncertainties that are inherent in the scientific evidence and analyses. This approach is based on the recognition that the available health effects evidence generally reflects a continuum, consisting of levels at which scientists generally agree that health effects are likely to occur, through lower levels at which the likelihood and magnitude of the response become increasingly uncertain. This approach is consistent with the requirements of the NAAQS provisions of the Clean Air Act and with how the EPA and the courts have historically interpreted the Act. These provisions require the Administrator to establish primary standards that, in the judgment of the Administrator, are requisite to protect public health with an adequate margin of safety. In so doing, the Administrator seeks to establish standards that are neither more or less stringent than necessary for this purpose. The Act does not require that primary standards be set at a zero-risk level, but rather at a level that avoids unacceptable risks to public health, including the health of sensitive groups.
The last review of the primary NAAQS for SO
Thus, the 2010 decision focused on the effects most pertinent to SO
The conclusions reached in the last review were based primarily on interpretation of the short-term health effects evidence, particularly the interpretation of the evidence from controlled human exposure studies within the context of the quantitative exposure and risk analyses. The epidemiologic evidence also provided support for various aspects of the decision. In making judgments on the public health significance of health effects related to ambient air-related SO
In reaching her conclusion on the adequacy of the then-existing primary standards, the Administrator gave particular attention to the exposure and risk estimates from the 2009 REA for air quality conditions just meeting the then-existing (24-hour and annual) standards. In so doing, the Administrator also noted epidemiologic study findings of associations with respiratory outcomes in studies of locations where maximum 24-hour average SO
Based on consideration of the entire body of evidence and information available in the review, as well as the advice from the CASAC and public comments, the Administrator concluded that the appropriate approach to revising the standards was to replace the then-existing 24-hour standard with a new, short-term standard set to provide requisite protection with an adequate margin of safety to people with asthma and afford protection from the adverse health effects of 5-minute to 24-hour SO
With regard to the indicator for the new short-term standard, the EPA continued to focus on SO
With regard to the averaging time for the new standard, the Administrator judged that the requisite protection from 5- to 10-minute exposure events could be provided without having a standard with a 5-minute averaging time (75 FR 35539, June 22, 2010). She further judged that a standard with a 5-minute averaging time would result in significant and unnecessary instability in public health protection (75 FR 35539, June 22, 2010).
Results of air quality analyses in the REA suggested that a standard based on 24-hour average SO
The Administrator additionally took note of advice from the CASAC. The CASAC stated that the REA had presented a “convincing rationale” for a 1-hour standard and that “a one-hour standard is the preferred averaging time” (Samet, 2009, pp. 15, 16). The CASAC further stated that it was “in agreement with having a short-term standard” and found that “the REA supports a one-hour standard as protective of public health” (Samet, 2009, p. 1). Thus, in consideration of the available information summarized here and the CASAC's advice, the Administrator concluded that a 1-hour standard (given the appropriate level and form) was an appropriate means of controlling short-term exposures to SO
With regard to the statistical form for the new 1-hour standard, the Administrator judged that the form of the standard should reflect the health effects evidence presented in the ISA that indicated that the percentage of people with asthma affected and the severity of the response increased with increasing SO
In selecting a specific concentration-based form, the Administrator considered health evidence from the ISA as well as air quality, exposure, and risk information from the REA. In so doing, the Administrator concluded that the form of a new 1-hour standard should be especially focused on limiting the upper end of the distribution of ambient SO
Lastly, based on the body of scientific evidence and information available, as well as CASAC recommendations and public comment, the Administrator decided on a standard level that, in combination with the specified choice of indicator, averaging time and form, would be requisite to protect public health, including the health of at-risk populations, with an adequate margin of safety. In reaching the decision on a level for the new 1-hour standard, the Administrator gave primary emphasis to the body of health effects evidence assessed in the ISA. In so doing, she noted that the controlled human exposure studies provided the most direct evidence of respiratory effects from exposure to SO
In light of judgments regarding the health effects evidence, the Administrator considered what the findings of the 2009 REA exposure analyses indicated with regard to varying degrees of protection that different 1-hour standard levels might be expected to provide against 5-minute exposures to concentrations of 200 ppb and 400 ppb, given the specified choice of indicator, averaging time, and form.
Given the above considerations and the comments received on the proposal, the Administrator judged, based on the entire body of evidence and information available in that review (concluded in 2010), and the related uncertainties,
To evaluate whether it is appropriate to consider retaining the now current primary SO
Similarly, in this review, we draw on the current evidence and quantitative assessments of exposure pertaining to the public health risk of SO
The information summarized here is based on our scientific assessment of the health effects evidence available in this review; this assessment is documented in the ISA and its policy implications are further discussed in the PA. More than 400 studies are newly available and considered in the ISA, including more than 200 health studies. They are consistent with the evidence that was available in the last review. As in the last review, the key evidence comes from the body of controlled human exposure studies that document effects in people with asthma. Policy implications of the currently available evidence are discussed in the PA (as summarized in section II.D.1 below). The subsections below briefly summarize the following aspects of the evidence: The nature of SO
In this review, as in past reviews, the health effects evidence evaluated in the ISA for SO
Sulfur dioxide is a highly reactive and water-soluble gas that once inhaled is absorbed almost entirely in the upper respiratory tract
Based on assessment of the currently available evidence, as in the last review, the ISA concludes that there is a causal relationship between short-term SO
The evidence base of controlled human exposure studies for people with asthma
The epidemiologic evidence, some of which is newly available since the time of the last review, includes studies reporting positive associations for asthma-related hospital admissions of children or emergency department visits by children with short-term SO
The evidence base for long-term
For effects other than respiratory effects, the current evidence is generally similar to the evidence available in the last review, and leads to similar conclusions. With regard to a relationship between short-term SO
For other categories of health effects,
Thus, the current health effects evidence supports the primary conclusion that short-term exposure to SO
In this document, we use the term “at-risk populations”
The information newly available in this review has not substantially altered our previous understanding of at-risk populations for SO
Children with asthma, however, may be particularly at risk compared to adults with asthma (ISA, section 6.3.1). This conclusion reflects several characteristics of children as compared to adults, which include their greater responsiveness to methacholine,
Additionally, some individuals with asthma have a greater response to SO
The current evidence for factors evaluated in the ISA other than asthma status and lifestage is inadequate to determine whether they (
Our understanding of exposure duration and concentrations associated with SO
The controlled human exposure study findings
The lowest exposure concentration for which individual study subject data are available in terms of the sRaw and FEV
With regard to exposure concentrations below 200 ppb, the very limited available evidence is for
Specific exposure concentrations that may be eliciting respiratory responses are not available from the epidemiological studies that find associations with outcomes such as asthma-related emergency department visits and hospitalizations. For example, in noting limitations of epidemiologic studies with regard to uncertainties in SO
In general, the magnitude and implications of potential impacts on public health are dependent upon the type and severity of the effect, as well as the size and other features of the population affected (ISA, section 1.7.4; PA, 3.2.1.5). With regard to SO
As summarized in section II.B.2 above, people with asthma are the population at risk for SO
The Administrator's judgment is informed by statements by the ATS on what constitutes an adverse health effect of air pollution. Building on the earlier statement by the ATS that was considered in the last review (ATS, 2000), the recent policy statement by the ATS on what constitutes an adverse health effect of air pollution provides a general framework for interpreting evidence that proposes a “set of considerations that can be applied in forming judgments” for this context (Thurston et al., 2017). The earlier ATS statement, in addition to emphasizing clinically relevant effects (
Such concepts are routinely considered by the Agency in weighing public health implications for decisions on primary NAAQS, as summarized in section I.A above. For example, in deliberations on a standard that provides the requisite public health protection under the Act, the EPA traditionally recognizes the nature and severity of the health effects involved, recognizing the greater public health significance of more severe health effects, including, for example, effects that have been documented to be accompanied by symptoms, and of the risk of repeated occurrences of effects (76 FR 54308, August 31, 2011; 80 FR 65292, October 26, 2015). Another area of consideration is characterization of the population at risk, including its size and, as pertinent, the exposure/risk estimates in this regard. Such factors related to public health significance, and the kind and degree of associated uncertainties, are considered by the EPA in addressing the CAA requirement that the primary NAAQS are requisite to protect public health, including a margin of safety, as summarized in section I.A above.
Ambient air concentrations of SO
With regard to the size of the U.S. population at risk of SO
Relatively greater population-level SO
The information on which to base estimates of asthma prevalence in other subgroups of children is much more limited (
With regard to the potential for exposure of the populations at risk from exposures to SO
The information discussed in this section indicates the potential for exposures to SO
Our consideration of the scientific evidence available in the current review (summarized in section II.B above), as at the time of the last review, is informed by results from a quantitative analysis of estimated population exposure and associated risk of bronchoconstriction-related effects that the evidence indicates to be elicited in some portion of exercising people with asthma by short exposures to elevated SO
The following subsections summarize key aspects of the design and methods of the quantitative assessment (section II.C.1) and the important uncertainties associated with these analyses (section II.C.2). The results of the analyses are summarized in section II.C.3.
In this section, we provide an overview of key aspects of the quantitative exposure and risk assessment conducted for this review, including the study areas, air quality adjustment approach, modeling tools, at-risk populations simulated, and benchmark concentrations assessed. The assessment is described in detail in the REA and summarized in section 3.2.2 of the PA.
Given the primary overarching consideration in this review of whether the currently available information calls into question the adequacy of protection provided by the current standard, the air quality scenario analyzed in the REA focuses on air quality conditions that just meet the current standard. With this focus, the analyses estimate exposure and risk for at-risk populations in three urban study areas in: (1) Fall River, MA; (2) Indianapolis, IN; and (3) Tulsa, OK. The three study areas present a variety of circumstances related to population exposure to short-term peak concentrations of SO
As indicated by this case study approach to assessing exposure and risk, the analyses in the REA are intended to provide assessments of an air quality scenario just meeting the current standard for a small, diverse set of study areas and associated exposed at-risk populations that will be informative to the EPA's consideration of potential exposures and risks that may be associated with the air quality conditions occurring under the current SO
A broad variety of spatial and temporal patterns of SO
In this regard, the REA presents results from two different approaches to adjusting air quality. The first approach uses the highest design value across all modeled air quality receptors to adjust the air quality concentrations in each area to just meet the standard (REA, section 3.4). This is done by estimating the amount of SO
Consistent with the health effects evidence summarized in section II.B above, the focus of the REA is on short-term (5-minute) exposures of individuals in the population with asthma during times when they are breathing at an elevated rate. Five-minute concentrations in ambient air were estimated for the current standard scenario using a combination of 1-hour concentrations from the EPA's preferred near-field dispersion model, the American Meteorological Society/EPA regulatory model (AERMOD), with adjustment such that they just meet the current standard, and relationships between 1-hour and 5-minute concentrations occurring in the local ambient air monitoring data. Air quality modeling with AERMOD is used to capture the spatial variation in ambient SO
The estimated 5-minute concentrations in ambient air across each study area were then used together with the Air Pollutants Exposure (APEX) model, a probabilistic human exposure model that simulates the activity of individuals in the population, including their exertion levels and movement through time and space, to estimate concentrations of 5-minute exposure events of the individuals in indoor, outdoor, and in-vehicle microenvironments. The use of APEX for estimating exposures allows for consideration of factors that affect exposures that are not addressed by consideration of ambient air concentrations alone. These factors include: (1) Attenuation in SO
The APEX model has a history of application, evaluation, and progressive model development in estimating human exposure and dose for review of
As used in the current assessment, the APEX model probabilistically generates a sample of hypothetical individuals based on sampling from an actual population database, and simulates each individual's movements through time and space (
Based on minute-by-minute activity levels and physiological characteristics of the simulated person, APEX estimates an equivalent ventilation rate (EVR) based on normalizing the simulated individuals' activity-specific ventilation rate to their body surface area; the EVR is used to identify exposure periods during which an individual is at or above a specified ventilation level (REA, section 4.1). The level specified is based on the ventilation rates of subjects in the controlled human exposure studies of exercising people with asthma (ISA, Table 5–2). The APEX simulations performed for this review have focused on exposures to SO
The at-risk populations for which exposure and risk are estimated (people with asthma) comprise 8.0 to 8.7% of the populations in the exposure modeling domains for the three study areas (REA, section 5.1). The percent of children with asthma in the simulated populations ranges from 9.7 to 11.2% across the three study areas (REA, section 5.1). Within each study area the percent varies with age, sex and whether family income is above or below the poverty level (REA, section 4.1.2, Appendix E).
As in the last review, the REA for this review uses the APEX model estimates of 5-minute exposure concentrations for simulated individuals with asthma while breathing at elevated rates to characterize health risk in two ways (REA, section 4.5). The first is the percentage of the simulated at-risk populations expected to experience days with 5-minute exposures, while breathing at elevated rates, that are at or above a range of benchmark levels. The second is the percentage of these populations expected to experience days with an occurrence of a doubling or tripling of sRaw. The benchmark concentrations were identified based on consideration of the evidence discussed in section II.B above.
For the benchmark metric, the REA uses benchmark concentrations of 400 ppb, 300 ppb, 200 ppb based on concentrations included in the well-documented controlled human exposure studies summarized in section II.B above, and also 100 ppb in consideration of uncertainties with regard to lower concentrations and population groups with more limited data, as discussed in section II.B above (REA, section 4.5.1). At the upper end of this range, 400 ppb represents the lowest concentration in free-breathing controlled human exposure studies of exercising people with asthma where moderate or greater lung function decrements occurred that were often statistically significant at the group mean level and were frequently accompanied by respiratory symptoms, with some increases in these symptoms also being statistically significant at the group level (ISA, Section 5.2.1.2 and Table 5–2). At 300 ppb, statistically significant increases in lung function decrements (specifically reduced FEV
The E–R function for estimating risk of lung function decrements was developed from the individual subject results for sRaw from the controlled exposure studies of exercising freely breathing people with asthma exposed to SO
While the general approach and methodology for the exposure-based assessment in this review is similar to that used in the last review, there are a number of ways in which the current analyses differ and incorporate improvements. For example, in addition to an expansion in the number and type of study areas assessed, input data and modeling approaches have improved in a number of ways, including the availability of continuous 5-minute air monitoring data at monitors within the three study areas. The REA for the current review extends the time period of simulation to a 3-year simulation period, consistent with the form established for the now-current standard. Further, the years simulated reflect more recent emissions and circumstances subsequent to the 2010 decision.
In characterizing uncertainty associated with the risk and exposure estimates in this review, the REA used an approach intended to identify and compare the relative impact that important sources of uncertainty may have (REA, section 6.2). This approach is a qualitative uncertainty characterization approach adapted from the World Health Organization (WHO) approach for characterizing uncertainty in exposure assessment (WHO, 2008) accompanied by quantitative sensitivity analyses of key aspects of the assessment approach (REA, chapter 6).
Several areas of uncertainty are identified as particularly important, with some similarities to those in the last review. Generally, these areas of uncertainty include estimation of the spatial distribution of SO
With regard to the spatial distribution of SO
Another important area of uncertainty, particular to interpretation of the lung function risk estimates, concerns estimates derived for exposure concentrations below those represented in the evidence base (REA, Table 6–3). The E–R function on which the risk estimates are based generates non-zero predictions of the percentage of the at-risk population expected to experience a day with at least a doubling of sRaw for all exposures experienced while breathing at an elevated rate. The uncertainty in the response estimates increases substantially with decreasing exposure concentrations below those well represented in the data from the controlled human exposure studies (
Additionally, the assessment focuses on the daily maximum 5-minute exposure during a period of elevated breathing rate, summarizing results in terms of the days on which the magnitude of such exposure exceeds a benchmark or contributes to a doubling or tripling of sRaw. Although there is some uncertainty associated with the potential for additional, uncounted events in the same day, the health effects evidence indicates a lack of a cumulative effect of multiple exposures over several hours or a day (ISA, section 5.2.1.2) and a reduced response to repeated exercising exposure events over an hour (Kehrl et al., 1987). Further, information is somewhat limited with regard to the length of time after recovery from one exposure by which a repeat exposure would elicit a similar effect as that of the initial exposure event (REA, Table 6–3). Another area of uncertainty concerns the potential influence of co-occurring pollutants on the relationship between short-term SO
Another area of uncertainty, which remains from the last review and is important to our consideration of the REA results, concerns the extent to which the quantitative results represent the populations at greatest risk of effects associated with exposures to SO
In summary, among the multiple uncertainties and limitations in data and tools that affect the quantitative estimates of exposure and risk and their interpretation in the context of considering the current standard, several are particularly important. These include uncertainties related to estimation of 5-minute concentrations in ambient air; the lack of information from controlled human exposure studies for the lower, more prevalent, concentrations of SO
The REA provides estimates for two simulated at-risk populations: Adults with asthma and school-aged children
Table 1 presents the results for the benchmark-based risk metric in terms of the percent of the simulated populations of children with asthma estimated to experience at least one daily maximum 5-minute exposure per year at or above the different benchmark concentrations while breathing at elevated rates under air quality conditions just meeting the current standard (REA, Tables 6–8 and 6–9). These estimates for the Tulsa study area are much lower than those for the other two areas (Table 1). No individuals of the simulated at-risk population in that study area were estimated to experience exposures at or above 200 ppb and less than 0.5% are estimated to experience an exposure at or above the 100 ppb benchmark.
In the other two study areas (Indianapolis and Fall River), approximately 20% to just over 25% of a study area's simulated children with
As with the comparison-to-benchmark results, the estimates for risk of lung function decrements in terms of a doubling or more in sRaw are also lower in the Tulsa study area than the other two areas (Table 2; REA, Tables 6–10 and 6–11). Under conditions just meeting the current standard in the Indianapolis and Fall River study areas, as many as 1.3% and 1.1%, respectively, of children with asthma, on average across the 3-year period, were estimated to experience at least one day per year with a SO
In reaching proposed conclusions on the current SO
Building on the discussions of the scientific and technical assessments presented in the ISA and the REA, and summarized in sections II.B and II.C above, section II.D.1 below summarizes evidence- and exposure/risk-based considerations discussed in the PA and associated conclusions reached in the PA. Section II.D.2 describes advice received from the CASAC. The Administrator's proposed conclusions on the current standard are presented in section II.D.3.
As in previous NAAQS reviews, the role of the PA in this review is to help “bridge the gap” between the Agency's scientific and quantitative assessments presented in the ISA and REA, and the judgments required of the Administrator in determining whether it is appropriate to retain or revise the NAAQS. Evaluations in the PA focus on the policy-relevant aspects of the assessment and integrative synthesis of the currently available health effects evidence in the ISA, the exposure and risk assessments in the REA, and comments and advice of the CASAC, with consideration of public comment on drafts of the ISA, REA, and PA. The PA describes evidence- and exposure/risk-based considerations and presents conclusions for consideration by the Administrator in reaching his proposed decision on the current standard. The main focus of the PA conclusions is consideration of the question: Does the currently available scientific evidence and exposure/risk information, as reflected in the ISA and REA, support or call into question the adequacy of the protection afforded by the current standard?
In considering this question, the PA recognizes as an initial matter that, as is the case in NAAQS reviews in general, the Administrator's conclusions regarding whether the current primary SO
The PA response to the overarching question above takes into consideration the discussions that address the specific policy-relevant questions for this review, focusing first on consideration of the evidence, as evaluated in the ISA, including that newly available in this review, and the extent to which it alters key conclusions supporting the current standard. The PA also considers the quantitative exposure and risk estimates drawn from the REA, including associated limitations and uncertainties, and the extent to which they may indicate different conclusions from those in the last review regarding the magnitude of risk, as well as level of protection from adverse effects, associated with the current standard. The PA additionally considers the key aspects of the evidence and exposure/risk estimates that were emphasized in establishing the now-current standard, as well as the associated public health policy judgments and judgments about the uncertainties inherent in the scientific evidence and quantitative analyses that are integral to consideration of whether the currently available information supports or calls into question the adequacy of the current primary SO
With regard to the support in the current evidence for SO
As described in the PA and summarized in section II.A.1 above, selection of the averaging time for the current standard was based on the need for control of peak SO
With regard to form and level of the standard, as described in the PA and summarized in section II.A.1 above, the 99th percentile daily maximum 1-hour concentration and the level of 75 ppb were chosen for the new standard in 2010 as providing the appropriate degree of public health protection from adverse effects associated with short-term SO
In considering the currently available health effects evidence base, augmented in some aspects since the last review, that provides the foundation of our understanding of the health effects of SO
This strong evidence base continues to demonstrate a causal relationship between short-term SO
The health effects evidence newly available in this review also does not extend our understanding of the range of 5-minute exposure concentrations that elicit effects in people with asthma exposed while breathing at an elevated rate beyond what was understood in the last review (PA, section 3.2.1.3). As in the last review, 200 ppb remains the lowest concentration tested in exposure studies where study subjects are freely breathing in exposure chambers (ISA, section 5.2.1.2). At that exposure concentration, approximately 8 to 9% of study subjects with asthma, breathing at an elevated rate, experienced moderate or greater lung function decrements following 5- to 10-minute controlled exposures (ISA, Table 5–2). The limited information available for exposure concentrations below 200 ppb is from mouthpiece exposure studies in which subjects were exposed to a concentration of 100 ppb, with only a few of these studies including an exposure to clean air while exercising that would have allowed for determining the effect of SO
In this review, as in the last review, there is uncertainty with regard to exposure levels eliciting effects in some population groups for which data are limited or not available from the controlled human exposure studies, such as individuals with severe asthma and children younger than 12 years old, as well as uncertainty in the extent of effects at exposure levels below those studied (PA, section 3.2.1; ISA, p. 5–22). Collectively, these aspects of the evidence and associated uncertainties contribute to a recognition that for SO
As at the time of the last review, the exposure and risk estimates developed from modeling exposures to SO
As at the time of the last review, people with asthma are the population at risk of respiratory effects related to SO
As can be seen by the variation in exposure estimates, the three study areas in the REA represent an array of emissions sources and associated exposure circumstances, including those contributing to relatively higher and relatively lower exposures and associated risk (PA, section 3.2.2; REA, section 5.4).
With regard to the REA representation of air quality conditions associated with just meeting the current standard, the PA notes reduced uncertainty (compared to the 2009 REA) in a few aspects of the approach for developing this air quality scenario, while additionally recognizing the uncertainty associated with the application of air quality adjustments to estimate conditions just meeting the current standard (PA, sections 3.2.2.2 and 3.2.2.3; REA, section 6.2.2). Given the importance of this aspect of the REA to consideration of the level of protection provided by the current standard, the PA considers the results for each study area in terms of a range that reflects variation associated with the two different methodologies for the first air quality adjustment approach (REA, section 6.2.2.2).
In this context, the PA notes that across all three study areas, which provide an array of SO
With regard to exposures compared to benchmark concentrations, the PA notes that less than 1% of children with asthma are estimated to experience, while breathing at an elevated rate, a daily maximum 5-minute exposure per year at or above 200 ppb, on average across the 3-year period, with a maximum for the study area with the highest estimates just over 2% in the highest single year (PA, section 3.2.4; PA, Table 3–3; REA, Table 6–8). Further, the percentage for at least one day with such an exposure at or above 400 ppb is 0.1% or less, as an average across the 3-year period, and 0.3% or less in each of the three years simulated across the three study areas (PA, section 3.2.4; PA, Table 3–3; REA, Table 6–8). No simulated at-risk individuals were estimated to experience multiple such days (PA, section 3.2.4; REA, Table 6–9).
In considering the public health implications of the REA estimated occurrences of exposures of different magnitudes, the PA takes note of guidance from the ATS (Thurston et al., 2017; ATS, 2000),
In so doing, the PA finds the REA exposure and risk estimates to indicate that the current standard is likely to provide a high level of protection from SO
The PA additionally reflects on the key aspects of the 2010 decision that established the current standard, such as considerations of adversity of SO
Further, while recognizing the differences between the current REA analyses and the 2009 REA analyses,
Additionally, the 2010 decision also took note of the magnitude of the SO
In considering potential public health implications of the current REA exposure and risk estimates for the three case studies, the PA recognizes the importance of these estimates to consideration of whether the currently available information calls into question the adequacy of public health protection afforded by the current standard. In so doing, the PA notes that the REA estimates for conditions associated with just meeting the current standard, are of particular importance to consideration of exposures and risks in areas still existing across the U.S. that have source and population characteristics similar to the study areas assessed, and with ambient concentrations of SO
The PA additionally takes note of the uncertainties or limitations of the current evidence base with regard to the exposure levels at which effects may be elicited in some population groups (
The PA further recognizes that the EPA's conclusions regarding the adequacy of the current standard depend in part on public health policy judgments identified above and judgments by the Administrator about the level of public health protection that is appropriate, allowing for an adequate margin of safety. In so doing, the PA takes note of the long-standing health effects evidence that documents the effects of SO
Overall, the PA recognizes that the newly available health effects evidence, critically assessed in the ISA as part of the full body of evidence, reaffirms conclusions on the respiratory effects recognized for SO
Collectively, the PA finds that the evidence and exposure/risk based considerations provide the basis for its conclusion that consideration should be given to retaining the current standard, without revision (PA, section 3.2.4). Accordingly, and in light of this conclusion that it is appropriate to consider the current standard to be adequate, the PA did not identify any potential alternative standards for consideration in this review (PA, section 3.2.4).
In the current review of the primary standard for SO
In their comments on the draft PA, the CASAC concurred with staff's overall preliminary conclusions that “the current scientific literature does not support revision of the primary NAAQS for SO
The CASAC notes that the new scientific information in the current review does not lead to different conclusions from the previous review. Thus, based on review of the current state of the science, the CASAC supports retaining the current standard, and specifically notes that all four elements (indicator, averaging time, form, and level) should remain the same.
The CASAC further stated the following (Cox and Diez Roux, 2018b, p. 3 of letter).
With regard to indicator, SO
The choice of level is driven by scientific evidence from the controlled human exposure studies used in the previous NAAQS review, which show a causal effect of SO
The comments from the CASAC also took note of the uncertainties that remain in this review. In so doing, it stated that the “CASAC notes that there are many susceptible subpopulations that have not been studied and which could plausibly be more affected by SO
The CASAC comments additionally state that the draft PA “clearly identifies most of the key uncertainties, including uncertainties in dose-response” and that “[t]here are also some additional uncertainties that should be mentioned” (Cox and Diez Roux, 2018b, pp. 6–7 of Consensus Responses to Charge Questions). These are in a variety of areas including risk for various population groups, personal exposures to SO
Based on the large body of evidence concerning the health effects and potential public health impacts of exposure to SO
In the discussion below, the Administrator considers first the evidence base on health effects associated with short-term exposure to SO
With regard to the evidence base for SO
With regard to the health effects evidence newly available in this review, the Administrator takes note of the PA finding that, while the health effects evidence, as assessed in the ISA, has been augmented with additional studies since the time of the last review, including more than 200 new health studies, the newly available evidence does not lead to different conclusions regarding the primary health effects of SO
With regard to exposure concentrations of interest in this review, the Administrator takes particular note of the evidence from controlled human exposure studies that demonstrate the occurrence of lung function decrements, at times accompanied by respiratory symptoms, in subjects with asthma exposed for very short periods of time while breathing at elevated rates, focusing primarily on such study findings for which exposure concentration-specific data are available to the EPA for individual subjects (ISA, Table 5–2 and Figure 5–1, summarized in Table 3–1 of the PA).
In considering the potential public health significance of effects associated with SO
As at the time of the last review, the Administrator considers the health effects evidence in the context of the exposure and risk modeling, including key limitations and uncertainties, as summarized in the PA and section II.C.1 above (described in detail in the REA). In so doing, he recognizes such a context to be critical for SO
In considering the exposure and risk estimates, the Administrator recognizes that unlike the REA available in the last review, which analyzed single-year air quality scenarios for potential standard levels bracketing the now current level, the current REA assesses an air quality scenario for three years of air quality conditions that just meet the current standard, including its 3-year form. The other ways in which the current REA analyses are improved and expanded from those in the REA for the last review relate to improvements that have been made to models, model inputs and underlying databases. These improvements include the database, vastly expanded since the last review, of ambient air monitoring data for 5-minute concentrations. These data are available as a result of the monitoring data reporting requirement established in the last review to inform subsequent primary NAAQS reviews for SO
In considering the REA results for the benchmark comparisons for the three years analyzed in each of the three study areas, the Administrator notes the estimates of as many as 0.7% of children with asthma to experience a single day per year (on average across the 3-year period) with a 5-minute exposure at or above 200 ppb in a single year, while breathing at elevated rates, and as many as 2.2% in a single year. He additionally takes note of the REA findings that also estimate somewhat less than 0.1% of children with asthma to experience multiple days with such exposures in any one year. In turning to consideration of the REA estimates of lung function risk, the Administrator notes that as many as 1.9% of children with asthma are estimated to experience a day in a single year with an SO
In considering the level of protection indicated by these estimates of exposure and risk under air quality conditions that just meet the current standard, the Administrator additionally recognizes the limitations in the available evidence base that contribute to uncertainties with regard to the risk estimates for lung function decrements in young children with asthma and in individuals of any age with severe asthma. While health effects study data are limited or lacking for these population groups, the ISA indicates a potential for these groups to experience somewhat greater health impacts than the populations studied (as summarized in section II.B above). In light of these limitations of the evidence and the potential articulated in the ISA for the risk to be greater for these groups for which the evidence is limited or lacking, the Administrator notes that the CAA requirement that primary standards provide an adequate margin of safety, as summarized in section I.A above, is intended to address uncertainties associated with inconclusive scientific and technical information, as well as to provide a reasonable degree of protection against hazards that research has not yet identified.
The Administrator additionally notes the PA consideration of the sizeable number of at-risk individuals living in locations near large SO
In considering the adequacy of the protection provided by the current standard, the Administrator notes the findings of the REA in light of considerations recognized above regarding the significance associated with different exposure benchmark concentrations and severity of lung function decrements, as well as the estimated frequency of occurrence of such concentrations and decrements under air quality conditions just meeting the current standard. Given the clear concentration-response relationship documented in the evidence for the key effects in people with asthma across the range of exposure concentrations studied, higher SO
Turning to consideration of the adequacy of protection provided by the current standard from effects associated with lower exposures, including those at or below 200 ppb, the Administrator considers the public health significance of the REA estimates for such effects, and of single (
In considering the point at which health effects associated with lower levels of SO
Thus, in considering the evidence and quantitative exposure and risk estimates available in this review with regard to the adequacy of public health protection provided by the current primary standard from respiratory effects associated with the lowest SO
In this light, the Administrator takes note of PA considerations regarding the REA results and the associated uncertainties (summarized in section II.C above), as well as the nature and magnitude of the uncertainties inherent in the scientific evidence upon which the REA is based. The Administrator finds such considerations collectively to be important to judgments such as the extent to which the exposure and risk estimates for air quality conditions that just meet the current standard in the three study areas indicate exposures and risks that are important from a public health perspective.
The Administrator additionally considers the PA findings regarding the REA estimates of lung function risk in terms of lung function decrements as assessed using doubling and tripling of sRaw. The Administrator finds the REA estimates to indicate a high level of protection for children with asthma against the risk of lung function decrements, and particularly against the larger decrements (
Taking the REA estimates of exposure and risk together, while recognizing the uncertainties associated with such estimates for the scenarios of air quality developed to represent conditions just meeting the current standard, the Administrator considers the current standard to provide a high degree of protection to at-risk populations from SO
With regard to key aspects of the specific elements of the standard, the Administrator recognizes first the support in the current evidence base for
Thus, based on consideration of the evidence and exposure/risk information available in this review with its attendant uncertainties and limitations and information that might inform public health policy judgments, as well as advice from the CASAC, including their concurrence with the PA conclusions that the current evidence does not support revision of the primary SO
Having reached the proposed decision described here based on interpretation of the health effects evidence, as assessed in the ISA, and the quantitative analyses in the REA; the evaluation of policy-relevant aspects of the evidence and quantitative analyses in the PA; the advice and recommendations from the CASAC; public comments received to date in this review; and the public health policy judgments described above, the Administrator recognizes that other interpretations, assessments and judgments might be possible. Therefore, the Administrator solicits comment on the array of issues associated with review of this standard, including public health and science policy judgments inherent in the proposed decision, as described above. The EPA also solicits comment on the four basic elements of the current NAAQS (indicator, averaging time, level, and form), including whether there are appropriate alternative approaches for the averaging time or statistical form that provide comparable public health protection, and the rationale upon which such views are based.
Additional information about these statutes and Executive Orders can be found at
The Office of Management and Budget (OMB) determined that this action is a significant regulatory action and it was submitted to OMB for review. Any changes made in response to OMB recommendations have been documented in the docket. Because this action does not propose to change the existing primary NAAQS for SO
This action is not expected to be an E.O. 13771 regulatory action. There are no quantified cost estimates for this proposed action because EPA is proposing to retain the current standard.
This action does not impose an information collection burden under the PRA. There are no information collection requirements directly associated with a decision to retain a NAAQS without any revision under section 109 of the CAA and this action proposes to retain the current primary SO
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. Rather, this action proposes to retain, without revision, existing national standards for allowable concentrations of SO
This action does not contain any unfunded mandate as described in the UMRA, 2 U.S.C. 1531–1538, and does not significantly or uniquely affect small
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes. This action does not change existing regulations; it proposes to retain the current primary NAAQS for SO
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866. The health effects evidence and risk assessment information for this action, which focuses on children with asthma as a key at-risk population, is summarized in sections II.B and II.C above and described in the ISA and PA, copies of which are in the public docket for this action.
This action is not subject to Executive Order 13211, because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The purpose of this document is to propose to retain the current primary SO
This action does not involve technical standards.
The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation related to this is contained in section II above. The action proposed in this notice is to retain without revision the existing primary NAAQS for SO
Section 307(d)(1)(V) of the CAA provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” Pursuant to section 307(d)(1)(V), the Administrator determines that this action is subject to the provisions of section 307(d).
Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.
Securities and Exchange Commission.
Proposed rules.
As directed by Congress pursuant to the Fair Access to Investment Research Act of 2017, the Commission is proposing a new rule under the Securities Act of 1933. If adopted, the proposal would establish a safe harbor for an unaffiliated broker or dealer participating in a securities offering of a “covered investment fund” to publish or distribute a “covered investment fund research report.” If the conditions for the safe harbor are satisfied, this publication or distribution would be deemed
Comments should be received by July 9, 2018.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment forms (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street, NE, Washington, DC 20549–1090.
Studies, memoranda or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the Commission's website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Asaf Barouk, Attorney-Adviser, John Lee, Senior Counsel; Amanda Hollander Wagner, Branch Chief; or Brian McLaughlin Johnson, Assistant Director, at (202) 551–6792, Investment Company Regulation Office, Division of Investment Management; Steven G. Hearne, Senior Special Counsel, at (202) 551–3430, Division of Corporation Finance; Laura Gold or Samuel Litz, Attorney-Advisers; or John Guidroz, Branch Chief, at (202) 551–5777, Office of Trading Practices, Division of Trading and Markets, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549–8549.
The Commission is proposing for comment new rule 139b [17 CFR 230.139b] under the Securities Act of 1933 [15 U.S.C. 77a
As directed by the Fair Access to Investment Research Act of 2017,
We are also proposing new rule 24b–4 under the Investment Company Act of 1940 (the “Investment Company Act”),
Additionally, in light of the proposal of rule 139b, we are proposing a conforming amendment to rule 101 of Regulation M. This amendment would permit distribution participants, such as brokers or dealers, to publish or disseminate any information, opinion, or recommendation relating to a covered security if the conditions of proposed rule 139b (or, alternatively, the conditions of rule 138
Rule 139 currently provides a safe harbor for the publication or distribution of research reports concerning one or more issuers by a broker-dealer participating in a registered offering of one of the covered issuers' securities.
There are differences in how other rules and regulations define the term “research report,” including Regulation Analyst Certification (“Regulation AC”) under the Securities Act and the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. 78a
However, covered investment funds that are registered investment companies and business development companies are not able to register their securities offerings on Form S–3 or Form F–3. Registered investment companies register their securities offerings on forms such as Forms N–1A, N–2, N–3, N–4, and N–6. Publicly-traded business development companies register their securities offerings on Form N–2. However, section 2(a)(3) of the Securities Act provides a safe harbor for broker-dealers with respect to research reports about “emerging growth companies,” as defined in section 2(a)(19) of the Securities Act. Broker-dealers may therefore currently rely on the section (2)(a)(3) safe harbor with respect to research reports about business development companies that are emerging growth companies.
The FAIR Act directs us to propose and adopt rule amendments that would extend the current safe harbor available under rule 139 to a “covered investment fund research report.”
Under the FAIR Act, a “covered investment fund research report” is generally a research report published or distributed by a broker-dealer about a covered investment fund or any of the covered investment fund's securities.
The FAIR Act includes a definition for the term “affiliated person,” but not “affiliate.” Because the FAIR Act directs the Commission to revise rule 139 under the Securities Act, we interpret the reference to the term “affiliate” in the definition of “covered investment fund research report” to refer to the term “affiliate” as it would be interpreted under rule 139, which we believe is by reference to rule 405 under the Securities Act. (We believe this to be the case because, for example, rule 139 is available for research reports regarding issuers that register their securities on Form S–3 or F–3 (or that meet the registrant requirements to register their securities offerings on Form S–3 or Form F–3) and that meet the minimum float provisions of General Instruction I.B.1 of such forms.
The FAIR Act directs us to address the application of certain aspects of current rule 139 to covered investment fund research reports. For example, one of the conditions for using the rule 139 safe harbor for research reports about a specific issuer is that the broker-dealer's publication or distribution of the research report must “not represent the initiation of publication of research reports about such issuer or its securities or reinitiation of such publication following discontinuation of publication of such research reports.”
The FAIR Act also permits us to impose conditions on covered investment fund research reports that are similar to the conditions imposed under rule 139.
Finally, the FAIR Act includes provisions concerning the ability of SROs to impose requirements on the use and filing of covered investment fund research reports.
In the sections that follow, we discuss in detail the scope and conditions of proposed rule 139b, the operation and effect of proposed rule 24b–4,
Proposed rule 139b's framework is modeled after and generally tracks rule 139. However, proposed rule 139b differs from rule 139 in certain respects. Some of these differences are specifically directed or contemplated by the FAIR Act.
Proposed rule 139b would establish a safe harbor for the publication or distribution of “covered investment fund research reports” by unaffiliated broker-dealers (as described below) participating in a securities offering of a “covered investment fund.” Under the safe harbor, such publication or distribution would be deemed not to constitute an offer for sale or offer to sell the covered investment fund's securities for purposes of sections 2(a)(10) and 5(c) of the Securities Act. The safe harbor would be available even if the broker-dealer is participating or may participate in a registered offering of the covered investment fund's securities. We are proposing to define the term “covered investment fund research report,” as well as the “covered investment fund” and “research report” components of this definition.
Under the FAIR Act, the term “covered investment fund research report” means a research report published or distributed by a broker or dealer about a covered investment fund or any securities issued by the covered investment fund, but does not include a research report to the extent that the research report is published or distributed by the covered investment fund or any affiliate of the covered investment fund, or any research report published or distributed by any broker or dealer that is an investment adviser (or an affiliated person of an investment adviser) for the covered investment fund (the “affiliate exclusion”).
The FAIR Act's affiliate exclusion prohibits two separate categories of research reports from being deemed to be “covered investment fund research reports” that a broker-dealer may publish or distribute under the contemplated safe harbor. The first category covers research reports published or distributed by the covered investment fund or any affiliate of the covered investment fund. We believe this exclusion would prevent such persons from indirectly using the safe harbor to avoid the applicability of the Securities Act prospectus requirements and other provisions applicable to written offers by such persons.
The second category covers research reports published or distributed by any broker or dealer that is an investment adviser (or an affiliated person of an investment adviser) for the covered investment fund. This second exclusion addresses the concern that a broker-dealer that is a fund's adviser or an affiliated person of a fund's adviser may have financial incentives that could give rise to a conflict of interest. For example, a broker-dealer that is an affiliated person of a fund's adviser may have an incentive to promote the covered investment fund's securities relative to other securities because sales of the covered investment fund's securities would benefit not only the fund, but also could benefit the broker-dealer.
We believe that it would be inappropriate for any person covered by the affiliate exclusion, or for any person acting on its behalf, to publish or distribute a research report indirectly that the person could not publish or distribute directly under the proposed rule.
We request comment on the proposed definition of “covered investment fund research report.”
• Should we define “covered investment fund research report” as specified in the FAIR Act, as proposed? Why or why not? What modifications, if any, to this definition do commenters recommend? Solely for purposes of the proposed affiliate exclusion, should we use a definition of “affiliate” that differs from the definition of this term in rule 405 under the Securities Act? If so, should we interpret the term “affiliate” in this context to mean an “affiliated person” as defined in the Investment Company Act? If not, what other definition should we use?
• Should we include a provision in rule 139b specifying that the affiliate exclusion would make the safe harbor unavailable if a broker-dealer were to publish or distribute a research report that includes materials that were specifically authorized or approved by a person covered by the affiliate exclusion (or a person acting on its behalf) for purposes of inclusion in a research report? Why or why not? If not, is the guidance discussed above on this point
• Broker-dealers may have incentives—in particular, arising from the compensation arrangements between registered investment companies and their distributing broker-dealers—to recommend certain covered investment funds to clients even when the broker-dealer is not the fund's investment adviser (or an affiliated person of the investment adviser).
• Alternatively, should we require broker-dealers that rely on proposed rule 139b to maintain policies and procedures designed to mitigate conflicts that are raised by the distribution of covered investment funds (in particular, covered investment funds that are registered investment companies) and not addressed by the Commission's rules or SRO rules (such as FINRA rules 2241 and 2242)? To the extent that Commission and SRO rules do not require disclosure of conflicts of interest in covered investment fund research reports, should we require broker-dealers that rely on the proposed rule 139b safe harbor to disclose conflicts of interest in a salient way in covered investment fund research reports? If so, what should the content and format requirements be with respect to such disclosure?
We are proposing to define the term “research report” in rule 139b as a written communication, as defined in rule 405 under the Securities Act, that includes information, opinions, or recommendations with respect to securities of an issuer or an analysis of a security or an issuer, whether or not it provides information reasonably sufficient upon which to base an investment decision.
Rule 405 defines “written communication” to mean that “[e]xcept as otherwise specifically provided or the context otherwise requires, a written communication is any communication that is written, printed, a radio or television broadcast, or a graphic communication as defined in [rule 405].” 17 CFR 230.405.
The FAIR Act defines the term “research report” as having the meaning given to that term under section 2(a)(3) of the Securities Act but specifies that the term “shall not include an oral communication.”
The proposed rule 139b definition of “research report” tracks the FAIR Act definition of “research report,” except that while it does include “electronic communications,” it does not expressly reference that term. For the following reasons, we believe that this difference would have no effect on the types of communications that would qualify as research reports under the proposed safe harbor. Current Commission rules make clear that all electronic communications (other than telephone and other live communications) are graphic and, therefore, written communications for purposes of the Securities Act.
As the Commission noted in the Securities Offering Reform Adopting Release, the intention of addressing electronic communications under the Securities Act is “to encompass new technologies . . . [and] promote consistent understanding of what constitutes such a communication in view of the technological developments.”
By using the same definition of “research report” in rule 139 and proposed rule 139b we avoid creating ambiguity that may result if market participants are unable to understand, based on the text of the rules, that the term “research report,” though defined in two different ways, would be interpreted identically.
We request comment on the proposed definition of “research report.”
• Should we use the definition of “research report” in rule 139 as we have proposed rather than as specified in the FAIR Act? Is our proposed approach appropriate? Is defining “research report” as proposed consistent with section 2(f)(6) of the FAIR Act? Would the proposed definition of “research report” have the intended result of assuring that the definitions of “research report” under the FAIR Act and rule 139b would be interpreted identically? Why or why not?
• Instead of using the rule 139 definition of “research report,” as proposed, would it be preferable for the Commission to incorporate the FAIR Act definition of “research report” into proposed rule 139b? If so, why?
• What, if any, additional modifications to the proposed definition of “research report” would promote clarity? Should we incorporate any additional modifications to the proposed definition for any other purpose?
The FAIR Act defines the term “covered investment fund” to include registered investment companies, business development companies, and certain commodity- or currency-based trusts or funds.
We request comment on the proposed definition of “covered investment fund.”
• Should we define “covered investment fund” substantially the same as this term is defined in the FAIR Act as proposed? Why or why not? Should we specify in the definition, as proposed, that the term “investment company” includes a “series or class thereof”? What modifications, if any, to this definition do commenters recommend?
• Are there any types of funds, trusts, or other pooled investment vehicles that would not be included within the proposed definition of “covered investment fund” that we should consider including in the definition? If so, why?
Broker-dealers publishing or distributing research reports for some covered investment funds, such as commodity- or currency-based trusts or funds that have a class of securities registered under the Exchange Act, may be able to rely on existing rule 139.
We request comment on the non-exclusivity provision in proposed rule 139b.
• Should other exemptions, exclusions, or safe harbors from sections 2(a)(10) or 5(c) of the Securities Act for research reports, such as rules 137, 138, or 139, continue to be available to broker-dealers as proposed? Why or why not? Should we make any additional clarifications? If so, what clarifications should we make?
The Commission has previously acknowledged the value of research reports in providing the market and investors with information about reporting issuers.
For example, the Commission has recognized that, for companies that are well-followed, the research-report-related rules “enhance the efficiency of the markets by allowing a greater number of research reports to provide a continuous flow of essential corporate information into the marketplace.”
Consistent with the FAIR Act's directive to revise rule 139 to extend the rule's safe harbor to covered investment fund research reports, proposed rule 139b seeks to address concerns that could accompany broker-dealers' publication or distribution of these research reports. Rule 139b proposes conditions for both issuer-specific reports and industry research reports that must be satisfied in order for a broker-dealer to rely on the safe harbor.
In order for a broker-dealer to include a covered investment fund in a research report published or distributed in reliance on the proposed safe harbor, we propose that the fund must meet certain reporting history requirements. Specifically, we are proposing that any such covered investment fund must have been subject to relevant requirements under the Investment Company Act and/or the Exchange Act to file certain periodic reports for at least 12 calendar months prior to a broker-dealer's reliance on proposed rule 139b.
As the Commission has previously recognized in the context of Form S–3 and F–3 issuers, satisfaction of the applicable reporting history and public float requirements suggests the presence of a sufficiently broad market following for the issuer's securities and, consequently, an adequate mix of information to inform investors as to material risks.
The reporting history period required under rule 139(a)(1)(i)(A)(
In addition, rule 139(a)(1)(i)(A)(
We recognize, however, that in the context of covered investment funds that are open-end registered investment companies, use of a reporting history of only 12 months could result in certain performance and other information that may be relevant to investors not yet being available in the fund's prospectus at the time the broker-dealer publishes or distributes a research report on that fund. This is because the disclosure requirements for a registered investment company, or a series thereof, are based in part on how long the fund has been operational. For example, for a newly-registered covered investment fund that is an open-end registered investment company, a bar chart pursuant to Item 4 of Form N–1A is not required to be included in the fund's prospectus until the fund has been operational for one full calendar year.
We request comment on the proposed reporting history and timeliness requirements.
• Are the proposed reporting requirements an appropriate condition for issuer-specific covered investment fund research reports whose publication or distribution would be covered under the rule 139b safe harbor?
• Should the proposed reporting requirements for issuer-specific covered investment fund research reports track the existing reporting requirements for issuer-specific reports under rule 139 (
In order for broker-dealers to use the proposed rule 139b safe harbor to publish or distribute issuer-specific research reports, we also are proposing that the covered investment fund that is the subject of a report must satisfy a minimum public market value threshold at the date of reliance on the proposed rule (the “minimum public market value requirement”). Specifically, we are proposing that the aggregate market value of a covered investment fund,
For a registered open-end investment company other than an ETF, net asset value would be computed using the investment company's current net asset value, as used in determining its share price.
For covered investment funds that are not actively traded (such as non-traded closed-end funds and non-traded business development companies), we anticipate that, for purposes of proposed rule 139b, net asset value and aggregate market value would be calculated based on the fund's last publicly-disclosed share price (for non-traded business development companies, this would be the common equity share price).
This requirement tracks the minimum public float requirement under rule 139, as discussed below.
Historically, the Commission has used public float as an approximate measure of a security's market following, through which the market absorbs information that is reflected in the price of the security.
We request comment on the proposed minimum public market value requirement.
• Is the proposed minimum public market value requirement an appropriate restriction for issuer-specific covered investment fund research reports whose publication or distribution would be covered under the proposed rule 139b safe harbor?
• Should the proposed minimum public market value requirement track the minimum float requirements under rule 139? Why or why not? If so, is tying the proposed minimum public market value requirement to the Form S–3 General Instruction I.B.1 appropriate, as in rule 139? Why or why not? Should the aggregate market value threshold be lower? Are there other requirements we should consider? Why or why not?
• Is it appropriate for the proposed requirement to refer to “aggregate market value” for covered investment funds, and “net asset value” in the case of a registered open-end investment company (other than an ETF)? Should the proposed requirement instead refer to “net asset value” for ETFs? Is there another measure of market value that is more appropriately tailored for covered investment fund research reports?
• Should we include different or more specific instructions about how covered investment funds would compute aggregate market value and net asset value? For example, should we specify that an ETF's aggregate market value be calculated with reference to the definition of “market price” in Form N–1A rather than General Instruction I.B.1 of Form S–3?
• Would the proposed minimum public market value requirement promote the dissemination into the market of an appropriate amount of research about covered investment funds? Conversely, would it unduly impede analyst coverage of covered investment fund issuers, and could this in turn affect the market following for these issuers? Is the approach we are proposing consistent with section 2(b)(2)(B) of the FAIR Act?
The proposed rule also would condition eligibility for the safe harbor on a broker-dealer's publication or distribution of research reports “in the regular course of its business”
Although the proposed regular-course-of-business requirement is generally similar to the existing provisions of rule 139, it differs in one
Since rule 139 was first adopted, the regular-course-of-business requirement has been a condition for a broker-dealer's publication or distribution of research reports in reliance on the rule.
Investors, particularly retail investors, may be unaware of the differences in regulatory status and purpose among the various types of communications regarding registered investment companies and business development companies. This may result in investors not being able to readily discern what constitutes a research report and what constitutes an advertisement about these issuers. Context helps investors evaluate and weigh the information presented to them. For example, investors likely know that advertising directly promotes sales of a particular product. A broker-dealer publishing or distributing a research report, on the other hand, may do so with multiple purposes for multiple audiences. While a research report may have the effect of promoting sales of the securities of the issuer that the research report features, it may serve a number of market functions as well, such as promoting market trading, educating a particular audience, or providing a service to clients.
We believe that broker-dealers that publish or distribute research reports in the regular course of business are more likely to publish analysis that investors recognize as research. For example, these broker-dealers are more likely to have compliance structures in place, with relevant policies and procedures, governing their publication of research and (as applicable) their distribution of registered investment company advertisements. Similarly, if a broker-dealer were to publish or distribute research reports in the regular course of its business, the broker-dealer may be more likely to have a research department with research analysts who regularly cover particular issuers or industries. This commitment in resources and infrastructure makes it more likely that the market recognizes the broker-dealer as a provider of research-related communications. A research report published or distributed by a research analyst in the research department at a broker-dealer that regularly covers that issuer or industry would therefore be a factor indicating that the regular-course-of-business requirement has been satisfied for purposes of proposed rule 139b.
We request comment on the proposed regular-course-of-business requirement.
• Is the proposed regular-course-of-business requirement appropriate in the context of covered investment fund research reports?
• Would the proposed regular-course-of-business requirement allow an appropriate flow of analyst-generated information to the market?
• Should we define “regular course of business” in proposed rule 139b more specifically in the context of research reports on registered investment companies or business development companies? Today, due to the unavailability of rule 139, we understand that broker-dealers are generally not in the business of publishing and distributing what we consider issuer-specific research reports on registered investment companies or business development companies (although some broker-dealers have
• What facts and circumstances suggest that a covered investment fund has a class of securities in “substantially continuous distribution”? Are there any types of covered investment funds that raise specific questions about whether or not they have a class of securities in substantially continuous distribution, either generally or in particular circumstances? For example, do all open-end management investment companies, and those closed-end interval funds that make periodic repurchase offers pursuant to rule 23c–3, have a class of securities in substantially continuous distribution, while other closed-end investment companies do not? Why or why not? Are there other types of funds with a class of securities in substantially continuous distribution, or are there specific circumstances that should definitively constitute substantially continuous distribution? Would market participants benefit from Commission guidance as to how one would make a determination that a covered investment fund has a class of securities in substantially continuous distribution?
• Alternatively, should we define the term “substantially continuous distribution” in rule 139b, and if so, how? Should this definition include certain types of funds (
• Because a safe harbor is generally not currently available for broker-dealers' publication or distribution of covered investment fund research reports,
• Should the proposed regular-course-of-business requirement incorporate any more specific requirements regarding the person(s) preparing a covered investment fund research report (
Our proposed conditions for industry research reports parallel those set forth in rule 139 and are intended to provide appropriate parameters to address the risk of circumvention of the prospectus requirements of the Securities Act.
Under the proposed safe harbor, each covered investment fund included in an industry research report must be subject to the reporting requirements of section 30 of the Investment Company Act (or, for covered investment funds that are not registered investment companies under the Investment Company Act, the reporting requirements of section 13 or section 15(d) of the Exchange Act). This proposed reporting requirement generally tracks an existing requirement for industry research reports under rule 139
We request comment on the reporting requirement in proposed rule 139b.
• Is the proposed reporting requirement appropriate? Why or why not?
• As discussed above, proposed rule 139b's framework, including its scope and conditions, generally tracks rule 139.
We are also proposing that a broker-dealer be required to publish or distribute research reports in the regular course of its business in order to rely on the proposed safe harbor.
Like the parallel provision in rule 139, the proposed regular-course-of-business requirement for industry research reports includes a “similar information” requirement. To satisfy this requirement, at the time a broker-dealer publishes or distributes an industry research report, the broker-dealer would have to include similar information, in similar reports, about the issuer covered in the industry report (or its securities).
As discussed above, we believe that the proposed regular-course-of-business requirement could reduce the possibility that broker-dealers' publication or distribution of covered investment fund research reports may be used to circumvent the prospectus requirements of the Securities Act. We also believe that broker-dealers that publish or distribute research reports in the regular course of business are more likely to publish reports incorporating analysis that investors recognize as research and to have appropriate compliance structures in place governing their publication of research.
We request comment on the proposed regular-course-of-business requirement.
• Is the proposed regular-course-of-business requirement appropriate? Why or why not?
• In the context of covered investment fund research reports, would the proposed “similar information” requirement unduly restrict broker-dealers' ability to rely on the proposed safe harbor? Why or why not?
• Would any of the questions, concerns, or issues discussed above with respect to the proposed regular-course-of-business requirement in the context of issuer-specific research reports be equally applicable in the context of industry research reports? Why or why not?
The proposed rule would also condition eligibility for the safe harbor for industry research reports on certain content requirements. Specifically, under the proposed rule, industry research reports either must include similar information about a substantial number of covered investment fund issuers of the same type or investment focus (the “industry representation requirement”),
The proposed industry representation requirement imposes a requirement similar to one contained in rule 139 to covered investment fund research reports.
We note that, in some cases, concerns about market conditioning in the context of research reports about covered investment funds may be substantially similar to these concerns in the context of operating company issuers. For example, for covered investment funds that are not in continuous distribution, “gun-jumping” concerns,
Accordingly, we are proposing to replicate the language from rule 139's industry representation requirement in rule 139b, with modifications designed to apply the language to the covered investment fund context. Under rule 139's corresponding requirement, an industry research report must include “similar information with respect to a substantial number of issuers in the issuer's industry or sub-industry.”
Under the proposed rule, a broker-dealer's publication or distribution of an industry research report that conforms to the comprehensive list requirement, rather than the industry representation requirement, also would be eligible for the rule's safe harbor.
Like the proposed industry representation requirement, the proposed comprehensive list requirement is designed to result in industry research reports that cover a broad range of investment companies or securities.
We request comment on the proposed content requirements for industry research reports.
• Are the proposed industry representation requirement and the proposed comprehensive list requirement appropriate? Why or why not?
• How would the publication or distribution of industry research reports help investors, and do commenters anticipate that industry research reports would be published or distributed more or less frequently than issuer-specific research reports? Do commenters anticipate that broker-dealers would be more likely to publish or distribute industry research reports that comply with the industry representation requirement, or alternatively the comprehensive list requirement, or both, in relying on the proposed rule 139b safe harbor?
• Are there other conditions that we should consider in addition to the proposed industry representation requirement and the proposed comprehensive list requirement? For example, should we require that there must be a minimum number of funds included in an industry research report for it to qualify under the industry representation requirement, particularly in light of the fact that there may be only a few funds that track a particular sub-industry or geographic region or country? If so, what should that minimum number be? Is there another approach to industry research report content requirements that would be more appropriately tailored to covered investment fund research reports?
• The proposed industry representation requirement would be based on the “type” or “investment focus” of the issuers covered in the research report. Are these the appropriate terms to achieve comparisons of similar entities in industry research reports? Why or why not? Are there other more appropriate terms that could be used to specify subsets of covered investment funds that would be included in industry research reports (
• The proposed comprehensive list requirement would require the research report to contain a list of covered investment funds that are “currently recommended” by the broker-dealer. Is it clear what is meant by the terms “comprehensive list” and “currently recommended” under proposed rule 139b? Would broker-dealers seeking to rely on the proposed safe harbor understand that we interpret these terms in the context of rule 139b to have the same meaning as they do in the context of rule 139? For example, would the term “currently recommended” be interpreted as meaning “available for sale by the broker-dealer,” “given a `buy' recommendation by the broker-dealer,” or something else? Should we further define either of the terms “comprehensive list” or “currently
• Do commenters anticipate that, if a broker-dealer were to rely on the proposed rule 139b safe harbor to publish or distribute research reports that meet the proposed comprehensive list requirement, there would be a sufficient number of “currently recommended” covered investment funds to produce an appropriately broad array of funds included in the report given the affiliate exclusion?
• We are proposing that a comprehensive list could not include any covered investment fund issuer that is an affiliate of the broker-dealer, or for which the broker-dealer serves as investment adviser (or is an affiliated person of the investment adviser), as this could implicate the proposed affiliate exclusion. Should rule 139b instead provide that a comprehensive list of recommended issuers could include issuers that are affiliates of the broker-dealer that is publishing or distributing the research report under certain circumstances? If so, what information, if any, should a broker-dealer be permitted to include about affiliated issuers such that the list can be described as “comprehensive” while continuing to address the goals of the affiliate exclusion? For example, should the rule provide that these issuers could be included in a comprehensive list if the research report were to identify which issuers in the list, if any, were affiliated with the broker-dealer? In addition, or in the alternative, should we permit these issuers to be included in a comprehensive list if disclosure about the affiliated issuers were limited, for example, to basic identifying information such as the name of the covered investment fund, its type and investment focus, and its ticker symbol (if applicable)? As another example, should the rule require that if a comprehensive list includes affiliated issuers and includes performance information, the performance information must be presented in accordance with rule 482 in order to address the concern that the broker-dealer may be incentivized to present more favorably the performance of its affiliated covered investment funds?
Proposed rule 139b also would condition the safe harbor for industry research reports on a presentation requirement. Under the proposed rule, analysis of any covered investment fund issuer or its securities included in an industry research report could not be given materially greater space or prominence in the publication than that given to any other covered investment fund issuer or its securities.
The proposed presentation requirement tracks a parallel “no greater space or prominence” requirement in rule 139.
We request comment on the proposed presentation requirement for industry research reports.
• Is the proposed presentation requirement appropriate for covered investment fund industry research reports? Why or why not?
• Is the proposed presentation requirement sufficiently clear? Should we provide guidance as to what compliance with this requirement would entail?
• Would this requirement unduly restrict design flexibility for research reports, or impede broker-dealers' ability to provide material information in research reports?
• Should we consider additional presentation requirements for covered investment fund research reports? Is there another approach that would be more appropriately tailored?
Specific statutory provisions and rules apply to advertising the performance of registered investment companies.
Given the breadth of the definition of “research report” under the FAIR Act (and the definition of “research report” that we propose under rule 139b), certain communications by broker-dealers that historically have been treated as advertisements for registered investment companies under rule 482 now could be considered covered investment fund research reports subject to the proposed rule 139b safe harbor.
Research reports published under rule 139 are not required to present performance information in any particular fashion. To the extent the rules we are proposing today diverge from rule 139, these differences are designed to implement the FAIR Act or tailor existing provisions of rule 139 to the context of covered investment fund research reports. Therefore, unlike registered open-end investment company advertisements that must comply with the requirements of Securities Act rule 482, covered investment fund research reports would not be required to present investment performance data in a standardized manner.
In addition, all covered investment fund research reports under the proposed safe harbor would remain subject to the antifraud provisions of the federal securities laws.
For example, rule 156(b)(2) provides guidance on whether investment performance representations may be misleading by highlighting the following situations: (1) Portrayals of past income, gain, or growth of assets convey an impression of the net investment results achieved by an actual or hypothetical investment which would not be justified under the circumstances, including portrayals that omit explanations, qualifications, limitations, or other statements necessary or appropriate to make the portrayals not misleading; and (2) representations, whether express or implied, about future investment performance, including: (i) Representations, as to security of capital, possible future gains or income, or expenses associated with an investment; (ii) representations implying that future gain or income may be inferred from or predicted based on past investment performance; or (iii) portrayals of past performance, made in a manner which would imply that gains or income realized in the past would be repeated in the future.
Rule 139 includes an instruction on the use of projections of an issuer's sales and earnings.
We request comment on whether we should adopt any additional conditions in rule 139b or issue guidance to help mitigate the potential for investor confusion regarding research reports about registered investment companies.
• Do commenters anticipate that certain issuer-specific covered investment fund research reports could be confused with registered investment company advertisements and sales materials? If so, what additional conditions could prevent investor confusion, including, for example, legends?
• If commenters anticipate that certain covered investment fund research reports could be confused with registered investment company advertisements and sales materials, what additional conditions or guidance factors would help mitigate investor confusion? For example, should we incorporate any of the rule 156 guidance factors, which are weighed in considering whether statements in investment company sales literature could be misleading? Why or why not? Alternatively, should we provide any additional guidance regarding considerations to be weighed in considering whether research reports about registered investment companies (including any performance information presented in these research reports) could be misleading? Should any additional guidance be limited either to issuer-specific research reports or to industry research reports?
• Do commenters anticipate that broker-dealers would include performance information in covered investment fund research reports about registered open-investment investment companies in a manner inconsistent with the requirements for the presentation of total return or yield in rule 482 (“non-482 performance information”)?
• What, if any, risks could result from including non-482 performance information in covered investment fund research reports about registered open-end investment companies? For example, would the variability of non-482 performance information result in investor confusion? Would the inclusion of non-482 performance information result in any of the concerns that the provisions of rule 482 are meant to address, such as disclosing performance without providing adequate disclosure of unusual circumstances that have contributed to performance; without providing adequate disclosure of the performance period (including information about current performance); or without disclosing important context that would permit an investor to evaluate performance (such as the fact that the performance is based on selective dates or time periods)?
• If we were to permit non-482 performance information to appear in covered investment fund research reports about registered open-end investment companies, as proposed, what benefits could result? Would any benefits of the ability to include the non-482 performance information be diminished if the broker-dealer were also required to include the standardized information required by rule 482?
• If commenters anticipate that the potential risks of including non-482 performance information in covered investment fund research reports would outweigh the benefits, what action should we take to mitigate these risks? Would these risks be mitigated if we were to incorporate any of the requirements of rule 482 directly into rule 139b?
• Should we incorporate a requirement in rule 139b relating to the timeliness of performance data about registered investment companies, similar to timeliness of performance requirements for advertising prospectuses under rule 482
• Alternatively, should we incorporate a provision in rule 139b requiring that a research report must include certain disclosures or disclaimers when performance information about registered open-end investment companies is presented as non-482 performance information? For example, should we require that a research report about a registered investment company must incorporate disclosure stating that the document is a research report and is not subject to the Commission's regulations applicable to sales and advertising? If a covered investment fund research report about a registered open-end investment company includes non-482 performance information, should we require that the research report must disclose the website address for that registered open-end investment company (including a hyperlink for research reports in electronic format), to facilitate investor access to total return or yield disclosure that is presented in a manner consistent with the requirements in rule 482? Should we require that the methodology used to calculate the registered open-end investment company's total return or yield be disclosed, if the research report includes non-482 performance information?
• Should we include an instruction in rule 139b on the use of projections that is similar to the instruction on the use of projections in rule 139? Why or why not? If we were to include such an instruction, would the instruction in rule 139 be appropriate to include in rule 139b, or should it be modified in any way? As discussed above, we recognize that the guidance factors set forth under rule 156 of the Securities Act address future investment performance, and similarly, certain SRO rules that would apply to covered investment fund research reports prohibit the prediction or projection of performance.
The FAIR Act contemplates that SRO content standards applicable to research reports would apply to covered investment fund research reports.
This provision is relevant only to covered investment funds that are investment companies subject to section 24(b) of the Investment Company Act. For example, registered closed-end investment companies, business development companies, and commodity- or currency-based trusts or funds are covered investment funds that are not subject to section 24(b) of the Investment Company Act. A covered investment fund that is not subject to section 24(b) of the Investment Company Act would have no obligations under that section even if research reports concerning the covered investment fund were not subject to the content standards in the rules of any self-regulatory organization related to research reports.
Currently, the SRO content standards relevant to communications that would be considered covered investment fund research reports under proposed rule 139b include the applicable content standards of FINRA rules 2210, 2241(c)(1), and 2242(c)(1).
The FAIR Act does not explicitly refer to specific content standards in SRO rules. It refers more generally to “the content standards in the rules of any self-regulatory organization related to research reports, including those contained in the rules governing communications with the public regarding investment companies or substantially similar standards.”
Additional FINRA content-related requirements include the content standards of FINRA rule 2210 that apply only to retail communications (or retail communications and correspondence, as those terms are defined in FINRA rule 2210(a)).
These additional requirements also include the content standards incorporated in FINRA rules 2241 and 2242, which apply to certain research reports defined in these FINRA rules. The scope of FINRA rules 2241 and 2242 only includes research reports or debt research reports as defined in these rules, and the definitions of “research report” and “debt research report” in these rules are different than the definitions of “research report” set forth in rule 139 and proposed rule 139b. Under FINRA rule 2241, “research report” is defined as any written (including electronic) communication that includes an analysis of equity securities of individual companies or industries (other than an open-end registered investment company that is not listed or traded on an exchange) and that provides information reasonably sufficient upon which to base an investment decision; similarly, under FINRA rule 2242, “debt research report” is defined as any written (including electronic) communication that includes an analysis of a debt security or an issuer of a debt security and that provides information reasonably sufficient upon which to base an investment decision, excluding communications that solely constitute an equity research report as defined in [FINRA] rule 2241(a)(11).”
The FAIR Act, as implemented by proposed rule 24b–4, would modify the filing requirements that currently apply to certain broker-dealer communications regarding registered investment companies. As discussed above, research reports about registered investment companies have historically not been included within the scope of rule 139.
As discussed in the Economic Analysis below, we anticipate that certain communications that historically have been treated as investment company sales literature, including rule 482 “omitting prospectus” advertisements, would be published or distributed by a broker-dealer as covered investment fund research reports pursuant to the rule 139b safe harbor.
A communication that previously had been subject to the filing requirements of rule 497 also would no longer be subject to the rule 497 filing requirements if it were published or distributed by a broker-dealer as a covered investment fund research report, because it would no longer be considered to be a section 10(b) prospectus.
FINRA rule 2210 requires the filing of certain communications, including retail communications that promote or recommend a specific registered investment company or family of registered investment companies.
We note, however, that the FAIR Act's rules of construction provide that the Act shall not be construed as limiting the authority of an SRO to require the filing of communications with the public if the purpose of such communications “is not to provide research and analysis of covered investment funds.”
We request comment on issues relating to SRO content standards for covered investment fund research reports.
• Should we implement FAIR Act section 2(b)(4) through proposed rule 24b–4? Are there any modifications to the proposed rule that we should consider?
• Do commenters believe that we should incorporate any of the SRO content standards currently applicable to research reports into rule 139b? If so, which ones and why?
The FAIR Act directs us to provide that SROs may not maintain or enforce any rule that would (i) prohibit the ability of a member to publish or distribute a covered investment fund research report solely because the member is also participating in a registered offering or other distribution of any securities of such covered investment fund; or (ii) prohibit the ability of a member to participate in a registered offering or other distribution of securities of a covered investment fund solely because the member has published or distributed a covered investment fund research report about such covered investment fund or its securities.
Rule 101 of Regulation M under the Exchange Act
In the absence of the conforming amendment, rule 101 could prevent the publication or dissemination of a covered investment fund research report under the proposed rule 139b safe harbor by a broker-dealer that is participating in a distribution that is covered by Regulation M. We believe that such a result would be contrary to the mandate of the FAIR Act. As such, the proposed conforming amendment is intended to harmonize treatment of research under the Securities Act and Exchange Act rules.
We request comment on the proposed conforming amendment to Regulation M.
• Is the proposed conforming amendment appropriate?
• Are there other conforming amendments to Regulation M or any of our other rules appropriate for consideration based on the FAIR Act? If so, what rules should be amended and why?
We are mindful of the costs and benefits of our rules. Section 2(b) of the Securities Act, section 3(f) of the Exchange Act, and section 2(c) of the Investment Company Act state that when the Commission is engaging in rulemaking under such titles and is required to consider or determine whether an action is necessary or appropriate in (or, with respect to the Investment Company Act, consistent with) the public interest, the Commission shall consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.
The economic analysis proceeds as follows. We begin with a discussion of the baseline used in the analysis. We then discuss the proposed rules' costs and benefits, as well as their effects on efficiency, competition, and capital formation compared to the baseline. Where possible, we attempt to quantify the economic effects we discuss. However, we cannot produce reasonable estimates for most of the effects. In such cases we instead provide qualitative economic assessments.
The Commission's economic analysis evaluates the costs and benefits of the proposed rule relative to a baseline that represents the best assessment of relevant markets and market participants in the absence of the proposed rule. In this section, we begin by characterizing the relevant market structure and participants.
The proposed rules would directly affect broker-dealers, but their indirect effects would extend to covered investment funds, other producers of research on covered investment funds, and consumers of information about covered investment funds.
The “covered investment fund” definition in the FAIR Act and proposed rule 139b has the effect of capturing five common types of investment vehicles: Mutual funds, ETFs, certain currency and commodity exchanged traded products (“ETPs”),
Covered investment fund shares represent a significant fraction of investment assets held by U.S. residents. Approximately one-third of U.S. corporate equity issues, one-quarter of U.S. municipal securities, one-fifth of corporate debt, one-fifth of U.S. commercial paper, and one-tenth of U.S. treasury and agency securities are held through covered investment funds.
As depicted in Figure 3, the covered investment fund market is dynamic. In
We are requesting comments on our characterization of the covered investment fund market and data to help us further describe this market and current market practices.
• Do commenters agree with our characterization of the covered investment fund market? Do commenters agree with our characterization of ownership patterns? Are there ways to improve our estimates?
• Do commenters believe that our estimates of institutional ownership of covered investment funds are accurate? If not, are there ways to improve our estimates? Do commenters believe that our estimates of institutional ownership of different types of covered investment fund shares (
• Do commenters believe that our estimates of institutional holdings of covered investment funds represent securities held for investment or securities held for other purposes (
The broker-dealers directly affected by the proposed rules are those who participate in registered offerings of covered investment funds while at the same time publishing or distributing information about those funds. The Commission does not have comprehensive data on the number or characteristics of broker-dealers currently publishing and distributing communications about covered investment funds, the extent of their communications, and their distribution arrangements with covered investment funds. Therefore we rely on inferences based on the data that are available
We believe that broker-dealers that do not derive revenues from the distribution of covered investment funds are less likely to be directly
We are seeking comment on our assumptions used in characterizing this market.
• Do commenters agree with our estimates of the immediately-affected broker-dealers based on revenue from sales of investment company shares? If not, what other proxy would be more appropriate?
The Commission does not have comprehensive data on broker-dealers that publish or distribute research reports on entities that would be included within the definition of “covered investment fund” under proposed rule 139b.
As discussed above, “research reports” pertaining to most covered investment funds are not specifically addressed in existing Commission or SRO rules.
Of the 47,707 filings subject to rule 482, 229 were also subject to rule 34b–1. These 229 are not included in the 8,528 figure. Statistics provided by FINRA.
We have also analyzed the number of “research reports” as defined under FINRA rules 2241 and 2242 that FINRA staff reviewed in 2017. However, for reasons discussed below, we also believe that these data have limited value in assessing the number of covered investment fund research reports whose publication or distribution could be eligible for the safe harbor under proposed rule 139b. FINRA reviewed 354 filings in 2017 that were identified as “research reports” as defined in FINRA rules 2241 and 2242. However, the definitions of “research report” and “debt research report” under FINRA rules 2241 and 2242, respectively, do not correspond in every respect to the term “research report” as defined in the FAIR Act and proposed rule 139b.
Under FINRA rule 2241, the term “research report” includes any written communication that includes an analysis of equity securities (other than mutual fund securities) and that provides information reasonably sufficient upon which to base an investment decision.
In addition to broker-dealers, various firms that are independent of the offering process currently provide data and analysis on different subsets of the covered investment fund universe (
We are seeking comment on our characterization of the market for research reports on covered investment funds.
• What other data are available on broker-dealers' current publication or distribution of research reports on entities that would be included within the definition of “covered investment fund” under proposed rule 139b? On the scope of their coverage? On their consumers?
• Do commenters agree with our characterization of the data and analysis on covered investment funds that is provided by independent (non-broker-dealer) research firms? Are there significant gaps or limitations to the information and analysis on covered investment funds provided by such firms?
As discussed above, the rule 139 safe harbor is currently not available for broker-dealers that publish or distribute research reports about most covered investment funds.
Additionally, certain SRO rules governing content standards may apply to communications that would be considered covered investment fund research reports under proposed rule 139b or advertisements styled as “research reports” under rule 482. These include FINRA rule 2210 which contains general content standards that apply broadly to member communications.
Exposure to liability under section 12(a)(2) of the Securities Act, rule 482 requirements on the standardized presentation of performance information, and the various aforementioned FINRA rules impose costs on broker-dealers. These include conduct costs resulting from additional liability (
• What do commenters view as the most significant costs associated with distributing and publishing research reports on covered investment funds under existing regulation? Can commenters quantify these costs?
As discussed above, the rule 139 safe harbor currently is not available for broker-dealers' publication and distribution of research reports about specific registered investment companies and BDCs.
In this section, we first consider the overarching costs and benefits associated with the FAIR Act's statutory mandates. Second, we evaluate the costs and benefits of the specific proposed provisions and their relation to the overarching considerations resulting from the statutory mandate. Next, we discuss the effects on efficiency, competition, and capital formation of the proposed rules. We conclude with a discussion of alternatives considered.
We believe that the proposed expansion of the rule 139 safe harbor (as mandated by the FAIR Act) will generally reduce broker-dealers' costs of publishing and distributing research reports about covered investment funds. These cost reductions are expected because under the proposed rules a broker-dealer could publish or distribute covered investment fund
Because there is limited historical experience dealing specifically with broker-dealers' research reports on covered investment funds, there is little in the way of direct empirical evidence on the value of such reports to investors. Prior research on the informativeness of broker-dealers' research on operating companies suggests that broker-dealers can produce research that positively contributes to the information content of market prices,
We are cautious in drawing implications from these findings to broker-dealers' research on covered investment funds. While analysts researching operating companies generally endeavor to identify mispricing—to forecast the idiosyncratic component of firms' future returns—covered investment funds represent portfolios of securities, and many covered investment funds are priced at net asset value (“NAV”).
We believe that the quantity of information available to potential investors of covered investment funds would increase as a result of broker-dealers' increased publication and distribution of covered investment fund research reports. The proposed rules will also allow for greater flexibility in the type of information that broker-dealers may communicate to customers.
We request comment generally on the benefits that we anticipate may arise
• Do commenters generally agree with our assessment of the cost reductions that we expect to result from the proposed rules?
• To what extent would broker-dealers rely on the proposed rule 139b safe harbor to publish or distribute communications that are currently structured as rule 482 advertising prospectuses or rule 34b–1 supplemental sales literature? What would motivate broker-dealers to instead use the proposed rule 139b safe harbor? For example, would broker-dealers expect to incur significantly lower legal and compliance costs and lower costs related to potential litigation due to covered investment fund research reports' lack of prospectus liability under section 12(a)(2) of the Securities Act under the safe harbor? Alternatively, would the primary cost savings arise in other ways (for example, because covered investment fund research reports would not be subject to section 24(b) filing requirements, including filing and review by FINRA, and would not be subject to the content requirements of rule 482 or rule 34b–1)? What other factors could determine whether a broker-dealer that is currently publishing or distributing communications under rule 482 or rule 34b–1 might continue to do so, even if these communications could fall within the definition of a “covered investment fund research report”?
• Have we appropriately captured the potential benefits that the proposed rule could generate for investors?
Prior experience and academic research suggests that, unchecked, broker-dealers' conflicts of interest can lead to bias in research reports,
The potential for conflicts of interest to lead to actions that impose costs on investors depends in large part on the strength of the underlying incentives. In the context of broker-dealers' research on covered investment funds, the greatest conflicts of interest are faced by broker-dealers serving as investment advisers to covered investment funds, who—due to asset-based management fees—have strong incentives to increase demand for the funds that they advise. Because the FAIR Act by its terms,
Other conflicts of interest may nevertheless arise from incentives in fund distribution arrangements.
Rule 12b–1(h)(1) prohibits funds from compensating a broker-dealer for promoting or selling funds shares by directing brokerage transactions to that broker.
It is difficult for us to quantify the aforementioned costs in the context of this proposal. We are not aware of any studies directly examining the role that conflicts of interest play in broker-dealers' research reports on covered investment funds in U.S. markets, or of any data that would support a quantitative analysis of an expanded safe harbor in this context.
Rules and regulations have been implemented to address potential conflicts of interest that may arise with broker-dealers specifically in the context of research reports.
Additionally, as described above, FINRA rule 2210 contains general content standards that apply broadly to member communications, including broker-dealer research reports. These general content standards require, among other things, that all member communications “must be based on principles of fair dealing and good faith, must be fair and balanced, and must provide a sound basis for evaluating the facts in regard to any particular security or type of security, industry or service.”
If a broker-dealer recommends
We believe that by facilitating production of information on covered investment funds, the FAIR Act's mandates will contribute to competition among information providers,
We also acknowledge that bias resulting from conflicts of interest need not adversely impact investors if investors disregard,
We request comment generally on the costs that we anticipate may arise from proposed rule 139b and proposed rule 24b–4 as a result of the FAIR Act's statutory mandate.
• Do commenters generally agree with our assessment of the costs that we expect to result from the proposed rules?
• Do commenters expect conflicts of interest to materially affect research reports on covered investment funds? If so, in what way? If not, why not?
As discussed above, proposed rule 139b conditions eligibility for the safe harbor on satisfaction of several conditions.
Under the affiliate exclusion proposed in rule 139b,
We expect covered investment funds and their investment advisers to engage in a broad range of marketing activities to support the distribution of fund shares (particularly in the case of redeemable securities such as those issued by mutual funds), and that funds and their advisers prepare and distribute materials to distributing broker-dealers intended to increase sales. As discussed in section II.A.1, we note that, if a broker-dealer were to publish or distribute a research report that were to include pre-publication materials that were specifically authorized or approved by a person covered by the affiliate exclusion for purposes of inclusion in a research report, this could inappropriately circumvent the affiliate exclusion. This guidance reduces the potential for retail investors to receive research reports containing materials from persons whose financial incentives create the greatest conflicts of interest.
The proposed affiliate exclusion is also likely to limit the benefits of the proposed rule for certain broker-dealers. Many broker-dealers distributing covered investment fund securities do not have sizeable research departments, and we understand that very few broker-dealers operate at a scale that would allow for comprehensive coverage of the covered investment funds that they distribute. The proposed affiliate exclusion could have the effect of limiting broker-dealers' ability and willingness to publish and distribute research reports about the funds they distribute: in order to rely on the rule to publish or distribute a covered investment fund research report, these broker-dealers would need to conduct their own research in-house or to rely on independent third-party service providers for their information.
We are also seeking commenters' views on our analysis:
• Will the proposed affiliate exclusion reduce the potential for investors to receive research reports that were affected by significant conflicts of interest?
• Will smaller broker-dealers, or broker-dealers without significant research departments, be most impacted by the proposed affiliate exclusion (and our guidance on the proposed affiliate exclusion)? If not, which broker-dealers would be most affected, and why?
• Are there additional benefits associated with the content and presentation standards that we have not considered?
• Are there additional costs associated with content and presentation requirements that we have not considered?
Under proposed rule 139b, research reports (both issuer-specific research reports and industry research reports) would need to be published or distributed by the broker-dealer in the “regular course of its business” in order to rely on the safe harbor.
Given the breadth of the definition of “research report” under the FAIR Act (and the definition of “research report” that we propose under rule 139b), certain communications that are currently treated as covered investment fund advertisements under Securities Act rule 482 could fall under the proposed rule 139b definition of “research report.”
First, in the context of covered investment funds, the distinction between communications intended as sales materials and those intended as research could be difficult to discern. Research reports about debt and equity securities have traditionally been provided to institutional customers as part of the broker-dealer's collection of services.
In contrast, we expect covered investment fund research reports to be produced by broker-dealers that distribute covered investment funds to retail customers.
Second, we note that the information environment surrounding covered investment funds further complicates establishing whether publishing research reports about covered investment funds is undertaken in the regular course of business. In the context of research reports about operating companies, a research analyst “following” an operating company continually monitors that company so as to provide timely forecasts and recommendations. Because of differences in the nature of covered investment funds and operating companies, we believe that the same is less likely to hold for a research analyst “following” a covered investment fund.
Due to the aforementioned distinctions in the information environment and business rationale, we believe that the regular-course-of-business requirement in the context of proposed rule 139b may be more challenging to apply in practice than the regular-course-of-business requirement in the context of rule 139. Accordingly, the potential benefits of this requirement in proposed rule 139b may be limited. The effects of the regular-course-of-business requirement would be clearer in cases where, in the case of issuer-specific research reports, the proposed bright-line “initiation or reinitiation” requirement applies (
We are also seeking commenters' views on our analysis:
• Is our assessment of the difficulties associated with establishing whether research reports about covered investment funds are published in the regular course of business accurate? If not, what factors will be indicative of the regular-course-of-business requirement having been satisfied?
• Are there additional benefits associated with this requirement that we have not considered?
• Are there additional costs associated with this requirement that we have not considered?
Under proposed rule 139b, a broker-dealer's publication or distribution of issuer-specific research reports would not qualify for the safe harbor unless the covered investment fund included in the report satisfies a minimum public market value threshold of $75 million.
The covered investment funds market is dynamic.
We believe that in the context of covered investment funds, where we expect limited market discipline from institutional investors and where large numbers of new funds are created each year, the information available to investors could be sparse. In such an environment, a single “research report” about a covered investment fund could have a disproportionate effect on retail investors' beliefs about the fund and—in the case of a biased research reports—have a negative effect on investor welfare. We believe that conditioning the availability of the safe harbor on the aforementioned reporting history and market valuation requirements would help restrict the availability of the safe harbor in situations where we expect the information environment to be most limited: for new funds and for funds with niche markets. Moreover, we believe modeling the reporting history and minimum public market valuation requirements on those in rule 139 reduces regulatory complexity and opportunities for investor confusion.
Because young and small covered investment funds are relatively common, the costs associated with these conditions on the availability of a safe harbor may be significant. In particular, as shown in Table 1, the $75 million minimum public market valuation condition would limit the availability of the safe harbor with respect to broker-dealers' publication or distribution of research reports for approximately one-third of all covered investment funds.
Although young and small funds represent a very small fraction of covered investment fund assets, they are relatively large in number.
We are also seeking commenters' views on our analysis:
• Are there additional benefits associated with these requirements that we have not considered?
• Are there additional costs associated with these requirements that we have not considered?
Under proposed rule 139b an industry research report could only include covered investment funds that are required to file reports pursuant to section 30 of the Investment Company Act (or, for covered investment funds that are not registered investment companies under the Investment Company Act, required to file reports pursuant to section 13 or section 15(d) of the Exchange Act).
We are also seeking commenters' views on our analysis:
• Are there additional benefits associated with these requirements that we have not considered?
• Are there additional costs associated with these requirements that we have not considered?
Under proposed rule 139b, the content and presentation standards for industry research reports of rule 139 would be tailored to the context of covered investment funds. Under proposed rule 139b (and rule 139), issuers appearing in industry research reports are subject to fewer conditions than issuers that are subjects of issuer-specific research reports.
We believe the compliance costs imposed by these requirements on the production of industry research reports would be low, particularly as broker-dealers are already familiar with similar conditions in rule 139, making implementation of presentation conditions for industry research reports on covered investment funds less burdensome.
We are also seeking commenters' views on our analysis:
• Do commenters believe that there are there additional benefits associated with the content and presentation standards that we have not considered?
• Do commenters believe that there additional costs associated with content and presentation requirements that we have not considered?
• Do commenters agree with our assessment of the compliance costs? Are there certain types of broker-dealers for which these compliance costs will be higher (or lower)?
Proposed rule 24b–4 would exclude a covered investment fund research report from the coverage of section 24(b) of the Investment Company Act and the rules and regulations thereunder, except to the extent that such report is not subject to the content provisions of SRO rules related to research reports, including those contained in the rules governing communications with the public regarding investment companies or substantially similar standards. As discussed above, this proposed rule is meant to implement section 2(b)(4) of the FAIR Act, which we interpret to exclude covered investment fund research reports from section 24(b) of the Investment Company Act so long as they continue to be subject to the general content standards in FINRA rule 2210(d)(1).
As discussed above, where covered investment fund research reports would no longer be required to be filed with the Commission pursuant to section 24(b), proposed rule 24b–4 could have the effect of narrowing the types of communications regarding registered investment companies that would be filed with FINRA (under current FINRA rule 2210).
We are seeking comments on the costs and benefits of proposed rule 24b–4:
• Do commenters agree with our characterization of the costs and benefits? Are there additional costs and benefits that we should consider?
• Do commenters expect non-FINRA member firms to publish or distribute covered investment fund research reports that would not be subject to the content standards of FINRA rule 2210(d)(1)?
As discussed above, rule 101 of Regulation M prohibits a person who participates in a distribution from attempting to induce others to purchase securities covered by the rule during a specified period.
The primary effects on economic efficiency and capital formation resulting from proposed rules 139b and 24b–4 obtain from the statutory mandates of the FAIR Act. Because financial intermediaries such as broker-dealers are generally assumed to possess some comparative advantage in the production of information about securities, efficiency considerations would—in the absence of significant market imperfections—dictate that broker-dealers should be active in the production of such information. To the extent that the increase in broker-dealers' production of research reports about covered investment funds—that we expect to occur as a result of the FAIR Act's statutory mandates
Beyond the aforementioned broader effects on efficiency and capital formation resulting from the FAIR Act's statutory mandates, we believe that the specific conditions on the availability of the safe harbor in proposed rule 139b
With respect to competition, we believe that expansion of the rule 139 safe harbor will increase competition in the market for research reports on covered investment funds. Under the baseline, the market for research reports on covered investment funds is dominated by a small number of independent research firms, with few broker-dealers producing original research about such funds.
We are seeking comments on our analysis of the proposed rules' effects on efficiency, competition, and capital formation:
• Are there other significant effects on efficiency, competition, or capital formation that we have not considered?
• What competitive effects, if any, would the proposed reporting history and minimum market value requirements have on smaller covered investment funds? Do commenters believe these requirements would adversely affect the type and amount of analysis available to investors on these funds?
We considered several alternative approaches to implementing the FAIR Act mandates that could satisfy the requirements of the FAIR Act. We summarize these here.
As discussed above, we believe that conditioning the availability of the safe harbor on the proposed $75 million minimum public market value requirement would promote investor protection by limiting research reports to issuers that have a demonstrated market following.
Depending on the distribution of covered investment funds' public market values, a somewhat lower threshold could significantly increase the number of covered investment funds that qualify for inclusion in research reports without materially increasing the number of qualifying funds without a demonstrated market following and thus undermining investor protection. Conversely, a significantly higher threshold could further promote investor protection without significantly decreasing the number of qualifying funds (however, as discussed below, we did not consider this alternative because the FAIR Act prevents us from conditioning the availability of the safe harbor on a minimum public market value requirement that is greater than what is required under rule 139).
We have considered a range of alternative minimum public market values thresholds. Figure 5 plots the percentage of covered investment funds whose public market valuations would fall under each alternative threshold. As shown in the figure, material increases in the availability of the safe harbor are only achievable through large reductions to the threshold. This is due to large numbers of funds being very small: as shown in Figure 6, over 600 covered investment funds have a public market valuation of $5 million or less. However, we do not believe that a significantly lower threshold would be effective at promoting investor protection because, as discussed above in section III.C.2.c, we expect the information environment to be more limited for smaller funds than for larger funds.
The FAIR Act prevents us from conditioning the availability of the safe harbor on a minimum public market value requirement that is greater than what is required under rule 139.
• Would a public float threshold of less than $75 million for covered investment funds appropriately exclude those funds with a market following that is too small to permit investors to evaluate covered investment fund research reports? What factors should govern such an alternative threshold and where should it be set?
With respect to conditions affecting the availability of the safe harbor for industry research reports, we considered applying to industry research reports the same requirements as would apply to issuer-specific research reports. As with the restrictions on issuer-specific research reports, similarly restricting industry research reports could help ensure that funds included in research reports are well-followed, and could restrict the availability of the safe harbor in situations where we expect the information environment to be most limited: for new funds and for funds with niche markets.
In the context of research reports about covered investment funds, cost-benefit considerations for including additional conditions on industry reports differ slightly from those that apply in the context of traditional research reports about equity and debt securities. In the context of research reports about equity and debt securities, analysis of an industry, in the case of operating companies, may require the discussion of specific firms within that industry. For example, a discussion about a mature industry (
In the context of covered investment funds, a similar rationale would not apply as broadly. The proposed rule 139b content requirements for industry research reports would reference covered investment fund issuers of the same “type or investment focus,” rather than the issuers' “industry or sub-industry” (
We considered providing that a comprehensive list of recommended issuers may include issuers that are affiliates of the broker-dealer that is publishing or distributing the research report under certain circumstances, including: If affiliates were identified; if disclosure about the affiliated issuers were limited; or if any performance information included in a list that includes affiliated issuers were presented in accordance with rule 482.
In proposed rule 139b, we have chosen not to incorporate these alternative conditions on issuers appearing in industry research reports. As discussed above, we are proposing that a comprehensive list of recommended issuers appearing in an industry research report could not include any covered investment fund that is an affiliate of the broker-dealer, or for which the broker-dealer serves as investment adviser (or is an affiliated person of the investment adviser), as this could implicate the proposed affiliate exclusion.
• Do commenters believe that the value of industry research reports about covered investment funds would be adversely affected if discussion of funds not satisfying the conditions applicable to issuer-specific research reports was precluded? If so, under what circumstances?
• Do commenters believe that the value of industry research reports about covered investment funds would be improved if different conditions were applied to issuers appearing in such reports? If so, which conditions?
• Do commenters believe that allowing affiliated funds to appear in comprehensive lists of recommended issuers would have additional costs or benefits?
• Do commenters believe that conflicts of interests resulting from an advisory relationship would be likely to affect industry research reports featuring a comprehensive list?
• Do commenters believe that allowing the inclusion of affiliated funds in industry research reports featuring a comprehensive list, when proposed rule 139b would not permit a broker-dealer relying on the safe harbor to publish or distribute an issuer-specific research report about an affiliated fund, would result in investor confusion?
As discussed in section III.B.3.b, in principle we expect a regular-course-of-business requirement to reduce opportunities for the safe harbor to be used in ways that lead to investor confusion. However, we also believe that in the context of covered investment funds, establishing whether a report is published in the “regular course of business” could present more challenges than in the rule 139 context of research reports about the securities of operating companies.
Conditioning availability of the safe harbor on a broker-dealer's having published research reports for a given period of time, or on the broker-dealer having operated for some amount of time, could lead to the publication of reports that are more likely to be recognized as research.
In proposed rule 139b, we have chosen not to incorporate these alternative approaches to the regular-course-of-business requirement. While we note the potential benefits of the approaches outlined above in enhancing the value that covered investment fund research reports may provide investors, we also understand that these alternatives may restrict the flow of relevant information to investors, and we are not proposing more prescriptive approaches to the regular-course-of-business requirement at this time. However, we are seeking comment on the economic effects of such alternative conditions.
• Do commenters believe that these alternative approaches to the regular-course-of-business requirement would result in additional costs and benefits that we have not considered? What is the magnitude of these costs and benefits?
Given the definition of “research report” under the FAIR Act (and the definition of “research report” that we propose under rule 139b), certain communications by broker-dealers that historically have been treated as advertisements for registered investment companies under rule 482 now could be distributed as covered investment fund research reports under the proposed rule 139b safe harbor.
Research reports that are published or distributed as rule 34b–1 supplemental sales literature also would be subject to requirements relating to the standardized presentation of performance information, because rule 34b–1 incorporates many of the rule 482 requirements relating to performance disclosure.
The above shift in the regulatory treatment of communications about registered investment companies could result in investors receiving communications about covered investment funds where the character of the communication (
While proposed rule 139b does not require that the performance of issuers included in covered investment fund research reports be presented in any particular fashion, we believe that certain guidance factors would assist a broker-dealer in evaluating whether any presentation of registered investment company performance in research reports could be misleading.
We have also considered the alternative approach of incorporating certain performance presentation standards of rule 482 and/or the guidance factors of rule 156 (concerning misleading statements in investment company sales literature) in the text of rule 139b.
We also considered a requirement in proposed rule 139b to incorporate general narrative disclosure into a research report about a registered investment company, aimed at reducing potential investor confusion. For example, we could have required such research reports to incorporate a legend stating that the document is a research report and is not subject to the Commission's regulations applicable to sales and advertising. We also could have required such a research report to incorporate similar disclosure without requiring that it be structured as a legend (which would require the disclosure of similar concepts but would not require any particular wording).
A main benefit associated with an alternative incorporating some or all of the aforementioned provisions into proposed rule 139b is reduced potential for confusion between (i) registered investment company advertisements and selling materials covered by rule 482 and (ii) advertisements or selling materials being recast as research reports.
Because fees can represent a significant drag on investment returns,
If opportunities for selective performance disclosure were limited, this also could reduce investor confusion, because there would be fewer opportunities for the performance disclosure in registered investment company advertisements and research reports to diverge. There also could be less potential for investor confusion when comparing research reports about different covered investment funds, or obtained from different broker-dealers. These results would benefit investors. The extent of the benefit would depend on these measures' effectiveness in ensuring consistent disclosure and/or alerting investors to factors that could influence their understanding of the disclosure in a research report. The extent of the benefit also would depend on the audience who will be reading research reports about registered investment companies. As discussed above, we assume that retail investors would generally be less likely to be able to identify sources of bias (and disregard or discount bias) in communications about covered investment funds than institutional investors and therefore could benefit from limitations on selective performance disclosure.
The most significant costs associated with this alternative would likely result from its effect on the content of broker-dealers' research reports. An alternative that limits the prominence afforded to performance measures that are calculated using a methodology that differs from that required under rule 482 could adversely affect broker-dealers' ability to provide valuable analysis. For example, a broker-dealer who wishes to center its analysis on a fund's risk-adjusted returns would be limited in how such information could be presented in the report even though certain audiences for research reports could consider this information to be particularly relevant. Investors' access to potentially relevant and useful analysis could be limited by alternatives such as those discussed in this section.
We believe that broker-dealers' direct compliance costs under these alternative provisions would generally be minimal. For example, if we were to incorporate rule 482's requirements on the presentation of performance data into proposed rule 139b, we expect that broker-dealers that publish research reports would have processes and systems that could produce charts and tables of the rule-specified performance measures using timely data.
In proposed rule 139b, we have chosen not to incorporate additional provisions relating to the presentation of performance data, as this approach promotes flexibility for broker-dealers to make different types of information and analysis available to investors. We are seeking commenters' views on these alternative provisions.
• Do commenters believe that the safe harbor under proposed rule 139b would be used to publish or distribute communications that have traditionally been considered registered investment company advertisements or sales materials subject to rule 482? To what extent? If not, why not? Would this practice to be more prevalent for certain types of broker-dealers or research reports about certain types of registered investment companies? Do commenters believe that imposing additional requirements on the presentation of performance information in research reports that are published or distributed in reliance on the proposed rule 139b safe harbor would result in additional costs and benefits that we have not considered? What is the magnitude of these costs and benefits? If we were to issue guidance relating to the presentation of performance in research reports about registered investment companies that are published or distributed in reliance on the proposed rule 139b safe harbor, would this result in additional costs and benefits that we have not considered? What is the magnitude of these costs and benefits?
We do not believe that the proposed rules would impose any new “collections of information” as defined by the Paperwork Reduction Act of 1995 (“PRA”), 44 U.S.C. 3501
This Initial Regulatory Flexibility Act Analysis has been prepared in accordance with section 3 of the Regulatory Flexibility Act (“RFA”).
Proposed rule 139b provides that, if certain conditions are satisfied, a broker-dealer's publication or distribution of a covered investment fund research report would be deemed for purposes of sections 2(a)(10) and 5(c) of the Securities Act not to constitute an offer for sale or offer to sell a security that is the subject of an offering of the covered investment fund, even if the broker-dealer is participating or may participate in a registered offering of the covered investment fund's securities. Proposed rule 24b–4 provides that a covered investment fund research report about a registered investment company will not be subject to section 24(b) of the Investment Company Act (or the rules and regulations thereunder), except to the extent the research report is otherwise not subject to the content standards in SRO rules related to research reports, including those contained in the rules governing communications with the public regarding investment companies or substantially similar standards. The
We are proposing the rules contained in this document under the authority set forth in the Securities Act, particularly sections 6, 7, 8, 10, 17(a), 19(a), and 28 thereof [15 U.S.C.
The proposed rules would affect broker-dealers that publish or distribute covered investment fund research reports. As such, broker-dealers that are small entities would be affected by the proposed rules. A broker-dealer is a small entity if it has total capital (net worth plus subordinated liabilities) of less than $500,000 on the date in the prior fiscal year as of which its audited financial statements were prepared pursuant to § 240.17a-5(d),
We believe that there are no reporting, recordkeeping and other compliance requirements with respect to proposed rule 139b and the proposed revision to Regulation M. As such, we believe that there are no attendant costs and administrative burdens for small entities associated with these activities, as they relate to proposed rule 139b and the proposed revision to Regulation M.
Proposed rule 139b would extend the safe harbor under current rule 139 to broker-dealers' publication or distribution of covered investment fund research reports. As discussed above, rule 139 currently is not available for a broker-dealer's publication or distribution of research reports about registered investment companies and business development companies.
As discussed above, section 24(b) of the Investment Company Act requires registered open-end investment companies to file sales literature addressed to or intended for distribution to prospective investors with the Commission.
We encourage written comments regarding this analysis. We solicit comments as to whether the proposed regulation could have an effect that we have not considered. We request that commenters describe the nature of any impact on small entities and provide empirical data to support the extent of the impact.
Although broker-dealers would be unable to rely on the rule 139 safe harbor in publishing or distributing certain communications that could be considered covered investment fund research reports,
The RFA directs us to consider significant alternatives that would accomplish the Commission's stated objectives, while minimizing any significant adverse impact on small entities. In connection with the proposals, we considered the following alternatives: (i) Establishing different compliance or reporting requirements that take into account the resources available to small entities; (ii) exempting broker-dealers that are small entities from certain proposed conditions that must be satisfied in order for the proposed rule 139b safe harbor to be available (
We do not believe that establishing different compliance and reporting requirements or timetables for broker-dealers that are small entities, or exempting broker-dealers that are small entities from certain proposed conditions, would permit us to achieve our stated objectives. We have considered a variety of approaches to achieve our regulatory objectives and the directives of the FAIR Act. We do not believe that the proposed rules would impose any significant new compliance obligations, because the proposed rules generally reduce the restrictions regarding communications that would be considered covered investment fund research reports.
As discussed above, the FAIR Act directs us to extend the current safe harbor available under rule 139 to broker-dealers' publication or distribution of covered investment fund research reports, and thus proposed rule 139b's framework, including its scope and conditions, is modeled after and generally tracks rule 139.
Nor do we believe that clarifying, consolidating, or simplifying the proposed amendments for small entities would satisfy those objectives. Because proposed rule 139b's framework (including its scope and conditions) is modeled after and generally tracks rule 139, proposed rule 139b like rule 139 does not treat small broker-dealers differently than large broker-dealers, including by clarifying, consolidating, or simplifying any conditions. Our proposal includes specific requests for comment on whether clarifications to certain proposed rule provisions are necessary or appropriate, and the comments we receive in response could, in certain circumstances, indirectly affect our approach to small entities.
Further, with respect to using performance rather than design standards, the proposed rule generally uses performance standards for all broker-dealers relying on the proposed rule, regardless of size. We believe that providing broker-dealers with the flexibility with respect to the design of covered investment fund research reports that they may publish or distribute in reliance on the proposed safe harbor is appropriate in light of the diversity of entities included in the universe of covered investment funds. We also believe that this approach is appropriate in light of the diverse methodologies that might be taken with respect to research about these entities (particularly because the term “research report” in the FAIR Act and the proposed rule is defined broadly, as discussed above
As we consider the comments we receive on our proposal, we will consider the available information to determine whether greater flexibility is warranted, consistent with investor protections.
The Commission requests comments regarding this analysis. We request comment on the number of small entities that would be subject to the proposed rules and whether the proposed rules would have any effects that have not been discussed. We request that commenters describe the nature of any effects on small entities subject to the proposed rules and provide empirical data to support the nature and extent of such effects.
For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”),
• An annual effect on the economy of $100 million or more;
• A major increase in costs or prices for consumers or individual industries; or
• Significant adverse effects on competition, investment, or innovation.
We request comment on whether our proposal would be a “major rule” for purposes of SBREFA. We solicit comment and empirical data on:
• The potential effect on the U.S. economy on an annual basis;
• Any potential increase in costs or prices for consumers or individual industries; and
• Any potential effect on competition, investment, or innovation.
Commenters are requested to provide empirical data and other factual support for their views to the extent possible.
We are proposing the rules contained in this document under the authority set forth in the Securities Act, particularly sections 6, 7, 8, 10, 17(a), 19(a), and 28 thereof [15 U.S.C.
Advertising, Confidential business information, Investment companies, Reporting and recordkeeping requirements, Securities.
Brokers, Fraud, Reporting and recordkeeping requirements, Securities.
Confidential business information, Fraud, Investment companies, Life insurance, Reporting and recordkeeping requirements, Securities.
For the reasons set out in the preamble, title 17, chapter II of the Code of the Federal Regulations is proposed to be amended as follows.
15 U.S.C. 77b, 77b note, 77c, 77d, 77f, 77g, 77h, 77j, 77r, 77s, 77z–3, 77sss, 78c, 78d, 78j, 78
(a)
(a)
(1)
(A) The covered investment fund:
(
(
(B) The aggregate market value of voting and non-voting common equity held by non-affiliates of the covered investment fund, or, in the case of a registered open-end investment company (other than an exchange-traded fund) its net asset value (subtracting the value of shares held by affiliates), equals or exceeds the aggregate market value specified in General Instruction I.B.1 of Form S–3; and
(ii) The broker or dealer publishes or distributes research reports in the regular course of its business and, in the case of a research report regarding a covered investment fund that does not have a class of securities in substantially continuous distribution, such publication or distribution does not represent the initiation of publication of research reports about such covered investment fund or its securities or reinitiation of such publication following discontinuation of publication of such research reports.
(2)
(ii) The research report:
(A) Includes similar information with respect to a substantial number of covered investment fund issuers of the issuer's type (
(B) Contains a comprehensive list of covered investment fund securities currently recommended by the broker or dealer (other than securities of a covered investment fund that is an affiliate of the broker or dealer, or for which the broker or dealer serves as investment adviser (or for which the broker or dealer is an affiliated person of the investment adviser));
(iii) The analysis regarding the covered investment fund issuer or its securities is given no materially greater space or prominence in the publication than that given to other covered investment fund issuers or securities; and
(iv) The broker or dealer publishes or distributes research reports in the regular course of its business and, at the time of the publication or distribution of the research report (in the case of a research report regarding a covered investment fund that does not have a class of securities in substantially continuous distribution), is including similar information about the issuer or its securities in similar reports.
(b)
(c)
(1) “Affiliated person” has the meaning given the term in section 2(a) of the Investment Company Act.
(2) “Covered investment fund” means:
(i) An investment company (or a series or class thereof) registered under, or that has filed an election to be treated as a business development company under, the Investment Company Act and that has filed a registration statement under the Act for the public offering of a class of its securities, which registration statement has been declared effective by the Commission; or
(ii) A trust or other person:
(A) Issuing securities in an offering registered under the Act and which class of securities is listed for trading on a national securities exchange;
(B) The assets of which consist primarily of commodities, currencies, or derivative instruments that reference commodities or currencies, or interests in the foregoing; and
(C) That provides in its registration statement under the Act that a class of its securities are purchased or redeemed, subject to conditions or limitations, for a ratable share of its assets.
(3) “Covered investment fund research report” means a research report published or distributed by a broker or dealer about a covered investment fund or any securities issued by the covered investment fund, but does not include a research report to the extent that the research report is published or distributed by the covered investment
(4) “Exchange-traded fund” has the meaning given the term in General Instruction A to Form N–1A (§§ 239.15A and 274.11A of this chapter).
(5) “Investment adviser” has the meaning given the term in section 2(a) of the Investment Company Act.
(6) “Research report” means a written communication, as defined in § 230.405 that includes information, opinions, or recommendations with respect to securities of an issuer or an analysis of a security or an issuer, whether or not it provides information reasonably sufficient upon which to base an investment decision.
15 U.S.C. 77g, 77q(a), 77s(a), 78b, 78c, 78g(c)(2), 78i(a), 78j, 78k–1(c), 78
(b) * * *
(1)
15 U.S.C. 80a–1
A covered investment fund research report, as defined in paragraph (c)(3) of § 230.139b of this chapter under the Securities Act of 1933 (15 U.S.C. 77a
By the Commission.