[Federal Register: September 10, 2010 (Volume 75, Number 175)]
[Notices]
[Page 55394-55401]
[DOCID:fr10se10-113]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

Program for Capital Grants for Rail Line Relocation and
Improvement Projects

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Notice of funding availability.

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SUMMARY: Under this Notice, the FRA encourages eligible applicants to
submit applications for grants to fund eligible rail line relocation
and improvement projects. This Notice of Funds Availability (NOFA) does
not apply to the 27 projects specifically enumerated in the
Consolidated Appropriations Act, 2010 (Pub. L. 111-117 (December 16,
2009)) or the 23 projects specifically enumerated in the Omnibus
Appropriations Act, 2009 (Pub. L. 111-8 (March 11, 2009)).

DATES: Applications for funding under this solicitation are due no
later than 5 p.m. EDT, October 29, 2010 and must

be submitted via Grants.gov. See Section 3 for additional information
regarding the application process. FRA reserves the right to modify
this deadline.

FOR FURTHER INFORMATION CONTACT: For further information regarding this
notice and the grants program, please contact John Winkle via e-mail at
<EMAIL_ADDRESS>or by mail: U.S. Department of Transportation,
Federal Railroad Administration, 1200 New Jersey Avenue, SE., MS-20,
Washington, DC 20590 Att'n: John Winkle.

Table of Contents

1. Financial Assistance Description
2. Eligibility Information
3. Application and Submission Information
4. Application Review Information
5. Award Administration Information
Appendix 1: Administrative and National Policy Requirements
Appendix 2: Additional Information on Award Administrations and
Grant Conditions
Appendix 3: Additional Information on Applicant Budgets

Section 1: Financial Assistance Description

1.1 Authority

    The authority for the Program can be found in 49 U.S.C. 20154 and
at 49 CFR Part 262.

1.2 Program Description and Legislative History

    To assist State and local governments, Congress in the Safe,
Accountable, Flexible, Efficient Transportation Act: A Legacy for Users
(SAFETEA-LU) (Public Law 109-59, August 10, 2005) authorized the
Program for Capital Grants for Rail Line Relocation and Improvement
Projects (Program). Section 9002 of SAFETEA-LU amended chapter 201 of
Title 49 of the United States Code by adding Sec.  20154, which
authorized, but did not appropriate, $350,000,000 per year for each of
the fiscal years 2006 through 2009 for the purpose of funding the
Program (Catalog of Federal Domestic Assistance (CFDA) Program Number
20.320). SAFETEA-LU also directed FRA to promulgate a regulation that
establishes the Program. That final rule was published on July 11, 2008
and can be found at 73 FR 39875 (49 CFR Part 262).
    In Fiscal Year (FY) 2009, Congress appropriated $25,000,000 and
directed that $17,100,000 be awarded to 23 specific projects, with
$7,900,000 left over for discretionary grants. Subsequently, in FY
2010, Congress appropriated $34,532,000 for the Program, and directed
that $24,519,200 go to 27 specifically enumerated projects. The
remaining $10,012,800 will be combined with the $589,700 remaining from
the FY 2008 competition, $2,000,000 that was awarded to one of the FY
2008 projects but which the project sponsors ultimately turned down,
and the $7,900,000 in FY 2009 discretionary funding. As a result, FRA
has a total of $20,502,500 available for the FY 2010 competition. This
NOFA does not apply to the 23 specific projects identified in FY 2009
or the 27 specific projects identified in FY 2010.

1.3 Funding Approach

    The Omnibus Appropriations Act, 2009, provided $7,900,000 for
discretionary grants. Likewise, the Transportation, Housing and Urban
Development, and Related Agencies Appropriations Act, 2010, provided
$10,012,800. As discussed above, FRA is combining these amounts with
$589,700 remaining from the FY 2008 competition and $2,000,000 that was
awarded under the FY 2008 competition to a project that ultimately was
declined by the project sponsors, and will award up to $20,502,500 in
discretionary grants. The funding provided under these grants will be
made available to grantees on a reimbursement basis. As in FY 2008, FRA
expects that the available funding will support multiple project
applications. FRA may choose to award a grant or grants within the
available funds in any amount.
    An approved applicant, or other non-Federal party, must pay at
least 10 percent of the costs of any project funded by a grant awarded
through the Program. Applicants should indicate whether funding made
available through grants provided under this Program, together with
committed funding from other sources, including the required match,
will be sufficient to complete the overall project or a discrete
portion of the project. FRA expects to award grants to multiple
eligible participants.

Section 2: Eligibility Information

    Applications for rail line relocation and improvement projects will
be required to meet minimum requirements related to applicant
eligibility, project eligibility, and the fulfillment of other
prerequisites. To the extent that an application's substance exceeds
the minimum eligibility requirements described below, such
qualifications will be considered in evaluating the merits of an
application.

2.1 Eligible Applicant Types

    Only States, political subdivisions of States, and the District of
Columbia are eligible for grants under the Program (see 49 CFR 262.3
and 262.7). FRA considers political subdivisions of States to be
entities such as cities, counties, townships, boroughs, and villages.
If an applicant is not one of these traditional political subdivisions,
then the applicant must prove to FRA's satisfaction that, under the
applicable State law, the applicant is a political subdivision of the
State.
    In making this determination, FRA will look primarily to the intent
of the State legislature when creating the entity. Thus, FRA will
likely find persuasive enabling legislation establishing the entity if
the legislation states clearly that the entity is a political
subdivision of the State. Similarly, FRA will also consider State
appellate court opinions where the court finds that the entity is a
political subdivision of the State. Opinions from the State Attorney
General also may be used to bolster the above authorities. If nothing
conclusively states that the entity is a political subdivision of the
State, FRA will review all submitted information and attempt to
determine legislative intent. If applicant eligibility is a potential
issue, the applicant is encouraged to contact FRA before submitting an
application and FRA will make an eligibility determination.

2.2 Cost Sharing and Matching

    An approved applicant, or other non-Federal party, must pay at
least 10 percent of the costs of any project funded by a grant awarded
through the Program. Applicants must specify the match amount in their
application.

2.3 Eligible Projects

    In accordance with SAFETEA-LU, eligible projects are construction
projects undertaken for the improvement of the route or structure of a
rail line that either: (1) Are carried out for the purpose of
mitigating the adverse effects of rail traffic on safety, motor vehicle
traffic flow, community quality of life, or economic development; or
(2) involve a lateral or vertical relocation of any portion of the rail
line (see 49 CFR 262.7).
    FRA wants to emphasize that in order for the project to be
eligible, the rail line must be the element that is moved or improved.
Grade separation projects that involve raising or lowering the road,
for example are not eligible. Similarly, quiet zone and stand-alone
grade crossing improvement projects are not eligible. Likewise, station
improvement projects where there is little or no related track work are
not eligible. As explained in the Final Rule, if station or grade
crossing improvements are part of

an otherwise eligible rail line relocation or improvement project, then
the costs associated with the grade crossing or station work may be
eligible (see 73 FR 39879). The majority of the work must involve
relocating or improving a rail line. Finally, if an applicant is
undertaking a larger project that would be eligible, but is applying to
FRA for funding for a small portion that is not eligible (e.g., an
applicant is undertaking a large rail improvement involving upgrading
grade crossing equipment and applies to FRA for funds to cover the
grade crossing improvements), the fact that the larger project would be
eligible does not mean that FRA can fund the smaller, ineligible
project. If project eligibility is a potential issue, applicants are
encouraged to contact FRA before submitting an application and FRA will
make an eligibility determination.
    Pre-construction activities, such as preliminary engineering and
design work and project-level environmental compliance, are considered
part of the overall construction project (see 49 CFR 262.3(6)). Because
section 9002 of SAFETEA-LU directs that only construction costs are
eligible costs, activities such as planning studies and feasibility
analyses are not eligible costs.

Section 3: Application and Submission Information

3.1 Applying Online

    Applications for these funds must be submitted through Grants.gov
by 5 p.m. EDT on October 29, 2010. Applicants are strongly encouraged
to apply early to ensure that all materials are received before this
deadline.
    To apply for funding through Grants.gov, applicants must be
properly registered. Complete instructions on how to register and
submit an application can be found at Grants.gov.
    Registering with Grants.gov is a one-time process; however, it can
take up to several weeks for first-time registrants to receive
confirmation and a user password. FRA recommends that applicants start
the registration process as early as possible to prevent delays that
may preclude submitting an application package by the application
deadline. Applications will not be accepted after the due date. Delayed
registration is not an acceptable justification for an application
extension.
    In order to apply for funding under this announcement and to apply
for funding through Grants.gov, all applicants are required to complete
the following:
    1. Acquire a DUNS Number. A Data Universal Numbering System (DUNS)
number is required for Grants.gov registration. The Office of
Management and Budget requires that all businesses and nonprofit
applicants for Federal funds include a DUNS number in their
applications for a new award or renewal of an existing award. A DUNS
number is a unique nine-digit sequence recognized as the universal
standard for identifying and keeping track of entities receiving
federal funds. The identifier is used for tracking purposes and to
validate address and point of contact information for Federal
assistance applicants, recipients, and sub recipients. The DUNS number
will be used throughout the grant life cycle. Obtaining a DUNS number
is a free, one-time activity. Applicants may obtain a DUNS number by
calling 1-866-705-5711 or by applying online at http://www.dnb.com/us.
    2. Acquire or Renew Registration with the Central Contractor
Registration (CCR) Database. All applicants for Federal financial
assistance maintain current registrations in the Central Contractor
Registration (CCR) database. An applicant must be registered in the CCR
to successfully register in Grants.gov. The CCR database is the
repository for standard information about Federal financial assistance
applicants, recipients, and sub recipients. Organizations that have
previously submitted applications via Grants.gov are already registered
with CCR, as it is a requirement for Grants.gov registration. Please
note, however, that applicants must update or renew their CCR
registration at least once per year to maintain an active status, so it
is critical to check registration status well in advance of the
application deadline. Information about CCR registration procedures can
be accessed at http://www.ccr.gov.
    3. Acquire an Authorized Organization Representative (AOR) and a
Grants.gov Username and Password. Applicants must complete an AOR
profile on Grants.gov and create a username and password. Applicants
must use the organization's DUNS number to complete this step.
Additional information about the registration process is available at
http://www.grants.gov/applicants/get_registered.jsp.
    4. Acquire Authorization for your AOR from the E-Business Point of
Contact (E-Biz POC). The Applicant's E-Biz POC must log in to
Grants.gov to confirm a representative as an AOR. Please note that
there can be more than one AOR at an organization.
    5. Search for the Funding Opportunity on Grants.gov. The Catalog of
Federal Domestic Assistance (CFDA) number for this opportunity is
20.320. It is titled ``Rail Line Relocation and Improvement.''
    6. Submit an Application Addressing All of the Requirements
Outlined in this Funding Availability Announcement. Within 24 to 48
hours after submitting an electronic application, an applicant should
receive an e-mail validation message from Grants.gov. The validation
message will explain whether the application has been received and
validated or rejected, with an explanation. Applicants are urged to
submit an application at least 72 hours prior to the due date of the
application to allow time to receive the validation message and to
correct any problems that may have caused a rejection notification.
    If you experience difficulties at any point during this process,
please call the Grants.gov Customer Center Hotline at 1-800-518-4726,
24 hours a day, 7 days a week (closed on Federal holidays).

    Note:  Please use generally accepted formats such as .pdf, .doc,
.docx, .xls, .xlsx and .ppt, when uploading attachments. While
applicants may imbed picture files, such as .jpg, .gif, and .bmp, in
document files, please do not submit attachments in these formats.
Additionally, the following formats will not be accepted: .com,
.bat, .exe, .vbs, .cfg, .dat, .db, .dbf, .dll, .ini, .log, .ora,
.sys, and .zip.

3.2 Address To Request/Submit Application Package

    To request a hard copy of the application package, please contact
John Winkle, Office of Railroad Policy and Development (RPD-11),
Federal Railroad Administration, 1200 New Jersey Avenue, SE., Room W38-
311, Washington, DC 20590. Phone:<PHONE_NUMBER>; Fax:<PHONE_NUMBER>;
E-mail<EMAIL_ADDRESS>    Any additional required attachments that an applicant is unable to
submit via Grants.gov, such as oversized engineering drawings, may be
submitted to the above address. Applicants should submit one original
and two (2) copies of the material. However, due to delays caused by
enhanced screening of mail delivered via the U.S. Postal Service,
applicants are advised to use other means of conveyance (such as
courier service) to assure timely receipt of materials.

3.3 Content of Application

3.3.1 On-Line Application
    The on-line application must be completed and submitted using
Grants.gov after Central Contractor

Registry (CCR) registration is confirmed. The on-line application
includes the following required forms and submissions:
    Construction Projects:
     Standard Form 424, Application for Federal Assistance
     Standard Form 424C, Budget Information--Construction
     Standard Form 424D, Assurances--Construction Programs
     FRA's Additional Assurance and Certifications, available
at http://www.fra.dot.gov/downloads/admin/
assurancesandcertifications.pdf
     Project Narrative/Statement of Work (described in 3.4.1
below)
     Detailed Budget (described in 3.4.2 below)
     NEPA Documentation, as applicable
    Non-Construction Projects:
     Standard Form 424, Application for Federal Assistance
     Standard Form 424A, Budget Information--Non-Construction
Programs
     Standard Form 424B, Assurances--Non-Construction Programs
     FRA's Additional Assurance and Certifications, available
at http://www.fra.dot.gov/downloads/admin/
assurancesandcertifications.pdf
     Project Narrative/Statement of Work (described in 3.4.1
below)
     Detailed Budget (described in 3.4.2 below)
    Any additional required attachments (for application materials that
an applicant is unable to submit via Grants.gov), such as oversized
engineering drawings, applicants may submit an original and two (2)
copies to the Federal Railroad Administration, Attention: John Winkle,
Office of Railroad Policy and Development (RPD-11), Room W38-311, 1200
New Jersey Avenue, SE., Washington, DC 20590.

3.4 Detailed Application Requirements

3.4.1 Project Narrative/Statement of Work
    The following points describe the minimum content which will be
required in the project narrative/statement of work elements of grant
applications. These requirements may be satisfied through a narrative
statement submitted by the applicant, supported by spreadsheet
documents, tables, drawings, and other materials, as appropriate. FRA
recommends that applicants read this section carefully and submit all
required information. If an application does not address each of these
requirements to FRA's satisfaction, the application will be considered
incomplete and will not be scored. Applicants should send an e-mail
message to<EMAIL_ADDRESS>confirming that an application was
submitted. Each grant application must:
    1. Designate a point of contact for the applicant and provide his
or her name and contact information, including phone number, mailing
address and e-mail address. The point of contact must be an employee of
an eligible applicant (i.e., a State employee, or an employee of a
political subdivision of a State, or an employee of the District of
Columbia).
    2. Include a detailed project description with an explanation of
how the project is an eligible project.
    3. Include a thorough discussion of how the project meets all of
the selection criteria. Applicants should note that FRA evaluates
applications based upon the selection criteria. If an application does
not sufficiently address the selection criteria, FRA will have little
or no basis on which to evaluate the application; thus, it will likely
not be a competitive application. The selection criteria are described
in detail in Section 4.1, below.
    4. Explain how the applicant is an eligible applicant. For a full
discussion of how an applicant can meet this burden, see Eligible
Participants, above.
    5. Provide a detailed scope of work for the proposed project and
include the anticipated project schedule. Describe the proposed
project's physical location (as applicable), and include any drawings,
plans, or schematics that have been prepared relating to the proposed
project. If the funding from the Program is only going to be a
component of the overall funding for the project, describe the complete
project and specify which component will involve FRA funding.
Applications should include feasibility determinations and cost
estimates, if completed. FRA will more favorably consider applications
that include these types of studies, as they demonstrate that an
applicant has a definite understanding of the scope and cost of the
project. In submitting applications, applicants should be mindful that
the Program, as created by Congress and, as further described in the
Final Rule, is focused upon construction projects (see 49 CFR
Sec. Sec.  262.3 and 262.7). If FRA approves a project for funding,
allowable costs (i.e., costs that can qualify for reimbursement from
Federal funds or as part of the required non-Federal match) will have
to directly support project construction. Section 262.3 identifies the
types of activities that are associated with ``construction'' and thus
are potentially allowable. In terms of project development, FRA will
consider as potentially allowable any costs associated with the
preparation of architectural and engineering plans, project cost
estimates, and project-specific construction-related costs (including
costs associated with securing environmental clearance as described in
Sec.  262.15 of the Final Rule). As discussed above under ``Eligible
Projects,'' FRA will not consider as potentially allowable any costs
associated with planning studies and similar analyses. For approved
projects, construction-related expenditures may qualify as allowable,
even if they are incurred in advance of the execution of the grant
agreement between the applicant and FRA, provided they otherwise
satisfy eligibility standards.
    6. Describe proposed project implementation and project management
arrangements. Include descriptions of expected arrangements for project
contracting, contract oversight, change-order management, risk
management, and conformance to Federal requirements for project
progress reporting.
    7. Describe the anticipated public and private benefits associated
with the proposed project and the applicant's assessment of how those
benefits outweigh the costs of the proposed project (see 49 CFR
262.11(b)). Identify any financial contributions or commitments the
applicant has secured from private entities that are expected to
benefit from the project. Although FRA will weigh all of the selection
criteria, potential applicants should be aware that FRA is seeking the
maximum public benefit from these limited funds. Moreover, in directing
FRA to establish the Program, Congress instructed FRA to consider the
feasibility of seeking financial contributions or commitments from
private entities involved with projects in proportion to the expected
benefits that would accrue to those entities. As FRA explained in the
preamble to the Final Rule, however, FRA will apply all the selection
criteria and will not disfavor one application over another because of
the amount requested.
    8. Describe anticipated environmental or historic preservation
impacts associated with the proposed project, any environmental or
historic preservation analyses that have been prepared, and progress
toward completing any environmental documentation or clearance required
for the proposed project under the National Environmental Policy Act
(NEPA), the National Historic Preservation Act (NHPA), section 4(f) of
the DOT Act, the Clean Water Act, or other applicable Federal or State
laws. Refer to 49 CFR Sec.  262.15 for further guidance.

    Generally, grant recipients may not expend any of the funds
provided in an award on construction or other activities that represent
an irretrievable commitment of resources to a particular course of
action affecting the environment until after all environmental and
historic preservation analyses required by the NEPA, the NHPA (16
U.S.C. 470(f)), and related laws and regulations have been completed
and FRA has provided the grant recipient with a written notice
authorizing them to proceed.
    In instances where NEPA approval has not been secured at the time
of grant award, grant recipients are required to assist FRA in its
compliance with the provisions of NEPA, the Council on Environmental
Quality's regulations implementing NEPA (40 CFR part 1500 et seq.),
FRA's ``Procedures for Considering Environmental Impacts'' (45 FR
40854, June 16, 1980, as revised May 26, 1999, 64 FR 28545), Section
106 of the NHPA, and related environmental and historic preservation
statutes and regulations. As a condition of receiving financial
assistance under an award, grant recipients may be required to conduct
certain environmental analyses and to prepare and submit to FRA draft
documents required under NEPA, NHPA, and related statutes and
regulations.
    No publicly-owned land from a park, recreational area, or wildlife
or waterfowl refuge of national, State, or local significance as
determined by the Federal, State, or local officials having
jurisdiction thereof, or any land from an historic site of national,
State, or local significance as so determined by such officials shall
be used by grant recipients without the prior written concurrence of
FRA. Grant recipients shall assist FRA in complying with these
requirements of 49 U.S.C. 303(c).
    Applicants are advised to consult with the FRA's Office of Railroad
Policy and Development before initiating any NEPA, NHPA or Section 4(f)
environmental or historic preservation reviews.
    9. Format: Excluding spreadsheets, drawings, and tables, the
Project Narrative/Statement of Work for grant applications may not
exceed 35 pages in length. FRA will not consider any application that
includes a narrative that exceeds 35 pages. With the exclusion of
oversized engineering drawings (which may be submitted in hard copy to
the FRA at the address above), all application materials should be
submitted as attachments through Grants.Gov. Spreadsheets consisting of
budget or financial information should be submitted via Grants.Gov as
Microsoft Excel (or compatible) documents.
3.4.2 Detailed Budget
    Applicants must present a detailed budget for the proposed project
that includes both Federal funds and matching funds. Items of cost
included in the budget must be reasonable, allocable and necessary for
the project.
    For a construction project, at a minimum, the budget should
separate total cost of the project into the following categories, if
applicable: (1) Administrative and legal expenses; (2) Land,
structures, rights-of-way, and appraisals; (3) Relocation expenses and
payments; (4) Architectural and engineering fees; (5) Project
inspection fees; (6) Site work; (7) Demolition and removal; (8)
Construction labor, supervision, and management; (9) Materials, by type
(e.g. ties, rail, signals, switches); (10) Miscellaneous; and (11)
Contingencies.
    For a non-construction project, at a minimum, the budget should
separate total cost of the project into the following categories, if
applicable: (1) Personnel; (2) Fringe Benefits; (3) Travel; (4)
Equipment; (5) Supplies; (6) Consultants/Contracts; (7) Other; and (8)
Indirect Costs.
    See Appendix 3 of this solicitation for more information on project
budgets.
3.4.3 Submission Dates and Times
    Complete applications must be submitted to Grants.gov (as specified
in Section 3.1) no later than 5 p.m. EDT, October 29, 2010. Grants.gov
will send the applicant an automated e-mail confirming receipt of the
application. Supporting documentation that cannot be submitted
electronically may be sent by courier service with a waybill receipt
stamped no later than 5 p.m. EDT, October 29, 2010. FRA will e-mail the
applicant to confirm receipt of supporting documentation sent by
courier service.
    Subject to demonstration of unanticipated extenuating
circumstances, FRA may, but is not obligated to, consider application
materials submitted after the deadlines prescribed above.
    FRA reserves the right to contact applicants with any concerns,
questions, or comments related to applications.
3.4.4 Intergovernmental Review
    Executive Order 12372 requires applicants from State and local
units of government or other organizations providing services within a
State to submit a copy of the application to the State Single Point of
Contact (SPOC), if one exists, and if this program has been selected
for review by the State. Applicants must contact their State SPOC to
determine if the program has been selected for State review. Executive
Order 12372 can be referenced at http://www.fws.gov/policy/library/
rgeo12372.pdf. The names and addresses of the SPOCs are listed on OMB's
home page available at http://www.whitehouse.gov/omb/grants/spoc.html.

Section 4: Application Review Information

4.1 Selection Criteria

    FRA will consider the following selection factors in evaluating
applications for grants under this program (see 49 CFR 262.9):
    1. The capability of the applicant to fund the project without
Federal grant funding;
    2. The effects of the rail line, relocated or improved as proposed,
on motor vehicle and pedestrian traffic, safety, community quality of
life, and area commerce;
    3. The effects of the rail line, relocated, or improved as
proposed, on the freight rail and passenger rail operations on the
line;
    4. Equitable treatment of the various regions of the United States;
    5. Any other factors FRA determines to be relevant in assessing the
effectiveness and/or efficiency of the grant application, including the
cost-effectiveness of the proposed project in terms of benefits
achieved in relation to the funds expended. In the preamble to the
Final Rule, FRA provided an extensive, but not exhaustive, list of
possible data items that could be used to support a cost-effectiveness
determination. That list can be found at 73 FR 39875.

Section 5: Award Administration Information

5.1 Award Notices

    Should FRA select a project for funding, notification of
application approval is made through the GrantSolutions (GS) system.
Selectees should follow the directions in the notification and log into
GS to access the award document. The authorized grantee official should
carefully read the award and terms/conditions documents. The grantee
must either accept or decline the award in GS.
    The period of performance for this grant program is dependent on
the project. However, any unobligated funds will be deobligated at the
end of the 90 day close-out period, provided for in Appendix 2.4.
Extensions to the period

of performance will be considered only through written requests to FRA
with specific and compelling justifications why an extension is
required.

5.2 Administrative and National Policy Requirements

    The grantee and any subgrantee shall comply with all applicable
laws and regulations. For a non-exclusive list of regulations commonly
applicable to FRA grants refer to Appendix 1.

5.3 General Requirements

    Grant recipients must comply with reporting requirements. All post-
award information pertaining to reporting, auditing, monitoring, and
the close-out process is detailed in Appendix 2.

Appendix 1: Administrative and National Policy Requirements

Appendix 1.1 Standard Financial Requirements

Administrative Requirements

     49 CFR Part 18, Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments
     49 CFR Part 19, Uniform Administrative Requirements for
Grants and Cooperative Agreements with Institutions of Higher
Education, Hospitals, and Other Non-Profit Organizations (OMB
Circular A-110)

Cost Principles

     2 CFR Part 225, Cost Principles for State, Local, and
Indian Tribal Governments (OMB Circular A-87)
     2 CFR Part 220, Cost Principles for Educational
Institutions (OMB Circular A-21)
     2 CFR Part 230, Cost Principles for Non-Profit
Organizations (OMB A-122)
     Federal Acquisition Regulations (FAR), Part 31.2
Contract Cost Principles and Procedures, Contracts with Commercial
Organizations

Audit Requirements

     OMB Circular A-133, Audits of States, Local
Governments, and Non-Profit Organizations

Appendix 1.2 Administrative and National Policy Requirements

    Grant recipients must follow all administrative and national
policy requirements including: procurement standards, compliance
with Federal civil rights laws and regulations, disadvantaged
business enterprises (DBE), debarment and suspension, drug-free
workplace, FRA's and OMB's Assurances and Certifications, Americans
with Disabilities Act (ADA), Buy America, environmental protection,
National Environmental Policy Act (NEPA), and environmental justice.

Appendix 1.3 Freedom of Information Act (FOIA)

    As a Federal agency, FRA is subject to the Freedom of
Information Act (FOIA) (5 U.S.C. 552), which generally provides that
any person has a right, enforceable in court, to obtain access to
Federal agency records, except to the extent that such records (or
portions of them) are protected from public disclosure by one of
nine exemptions or by one of three special law enforcement record
exclusions. Grant applications and related materials submitted by
applicants pursuant to this guidance will become agency records, and
thus are subject to the FOIA and to public release through
individual FOIA requests. FRA also recognizes that certain
information submitted in support of an application for funding in
accordance with this guidance could be exempt from public release
under FOIA as a result of the application of one of the FOIA
exemptions, most particularly Exemption 4, which protects trade
secrets and commercial or financial information obtained from a
person that is privileged or confidential (5 U.S.C. 552(b)(4)). In
the context of this grant program, commercial or financial
information obtained from a person could be confidential if
disclosure is likely to cause substantial harm to the competitive
position of the person from whom the information was obtained (see
National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 770
(D.C. Cir. 1974)). Entities seeking exempt treatment must provide a
detailed statement supporting and justifying the request and should
follow FRA's existing procedures for requesting confidential
treatment in the railroad safety context found at 49 CFR 209.11. As
noted in the Department's FOIA implementing regulation (49 CFR part
7), the burden is on the entity requesting confidential treatment to
identify all information for which exempt treatment is sought and to
persuade the agency that the information should not be disclosed
(see 49 CFR 7.17). The final decision as to whether the information
meets the standards of Exemption 4 rests with FRA.

Appendix 2: Additional Information on Award Administration and Grant
Conditions

Appendix 2.1 Reporting Requirements

    Reporting requirements must be met throughout the life of the
grant (refer to the program guidance and the special/general
provisions found in the award package for a full explanation of
these requirements).
     Progress Reports--Progress reports are to be submitted
quarterly. These reports must relate the state of completion of
items in the Statement of Work to expenditures of the relevant
budget elements. The grant recipient must furnish the quarterly
progress report to the FRA on or before the 30th calendar day of the
month following the end of the quarter being reported. Grantees must
submit reports for the periods: January 1-March 31, April 1-June 30,
July 1-September 30, and October 1-December 31. Each quarterly
report must set forth concise statements concerning activities
relevant to the project, and should include, but not be limited to,
the following: (a) An account of significant progress (findings,
events, trends, etc.) made during the reporting period; (b) a
description of any technical and/or cost problem(s) encountered or
anticipated that will affect completion of the grant within the time
and fiscal constraints as set forth in the agreement, together with
recommended solutions or corrective action plans (with dates) to
such problems, or identification of specific action that is required
by the FRA, or a statement that no problems were encountered; and
(c) an outline of work and activities planned for the next reporting
period.
     Quarterly Federal Financial Report (SF-425)--The
Grantee must submit a quarterly Federal financial report
electronically in the GrantSolutions system, on or before the
thirtieth (30th) calendar day of the month following the end of the
quarter being reported (e.g., for quarter ending March 31, the SF-
425 is due no later than April 30). A report must be submitted for
every quarter of the period of performance, including partial
calendar quarters, as well as for periods where no grant activity
occurs. The Grantee must use SF-425, Federal Financial Report, in
accordance with the instructions accompanying the form, to report
all transactions, including Federal cash, Federal expenditures and
unobligated balance, recipient share, and program income.
     Interim Report(s)--If required, interim reports will be
due at intervals specified in the Statement of Work and must be
submitted to FRA.
     Final Report(s)--Within 90 days of the Project
completion date or termination by FRA, the Grantee must submit a
Summary Project Report in the GrantSolutions system. This report
should detail the results and benefits of the Grantee's improvement
efforts.
     Reports, Presentations and Other Deliverables--Whether
for technical examination, administrative review, or publication,
all submittals shall be of a professional quality and suitable for
their intended purpose. Due dates for submittals shall be based on
the specified intervals or days from the effective date of the
agreement.

Appendix 2.2 Audit Requirements

    Grant recipients that expend $500,000 or more of Federal funds
during their fiscal year, combined from all sources, are required to
submit an organization-wide financial and compliance audit report.
The audit must be performed in accordance with U.S. General
Accountability Office, Government Auditing Standards, located at
http://www.gao.gov/govaud/ybk01.htm, and OMB Circular A-133, Audits
of States, Local Governments, and Non-Profit Organizations, located
at http://www.whitehouse.gov/omb/circulars/a133/a133.html.
Currently, audit reports must be submitted to the Federal Audit
Clearinghouse no later than nine months after the end of the
recipient's fiscal year. In addition, FRA and the Comptroller
General of the United States must have access to any books,
documents, and records of grant recipients for audit and examination
purposes. The grant recipient will also give FRA or the Comptroller,
through any authorized representative, access to, and the right to
examine all records, books, papers or documents related to the
grant. Grant recipients must require that sub-grantees comply with
the audit requirements set forth in OMB Circular A-133. Grant
recipients are responsible for ensuring that sub-recipient audit
reports are received and for resolving any audit findings.

Appendix 2.3 Monitoring Requirements

    Grant recipients will be monitored periodically by FRA to ensure
that the project goals, objectives, performance requirements,
timelines, milestones, budgets, and other related program criteria
are being met. FRA will conduct monitoring activities through a
combination of office-based reviews and onsite monitoring visits.
Monitoring will involve the review and analysis of the financial,
programmatic, and administrative issues relative to each program and
will identify areas where technical assistance and other support may
be needed. The recipient is responsible for monitoring award
activities, including sub-awards and sub-grantees, to provide
reasonable assurance that the award is being administered in
compliance with Federal requirements. Financial monitoring
responsibilities include the accounting of recipients and
expenditures, cash management, maintaining of adequate financial
records, and refunding expenditures disallowed by audits.

Appendix 2.4 Closeout Process

    Project closeout occurs when all required project work and all
administrative procedures described in 49 CFR section 262.19, as
applicable, have been completed, and when FRA notifies the grant
recipient and forwards the final Federal assistance payment, or when
FRA acknowledges the grant recipient's remittance of the proper
refund. Project closeout should not invalidate any continuing
obligations imposed on the Grantee by an award or by the FRA's final
notification or acknowledgment. Within 90 days of the Project
completion date or termination by FRA, grantees agree to submit a
final Federal Financial Report (SF-425), a certification or summary
of project expenses, a final report, and third party audit reports,
as applicable.

Appendix 3: Additional Information on Applicant Budgets

    The information contained in this appendix is intended to assist
applicants with developing the SOW budget and OMB Standard Forms
424A: Budget Information--Non-Construction Programs and 424C: Budget
Information--Construction Programs, as described in Section 3.3.1.

Appendix 3.1 Non-Construction Project Budgets

    Applicants must present a detailed budget for the proposed
project that includes both Federal funds and matching funds. Items
of cost included in the budget must be reasonable, allocable, and
necessary for the project. At a minimum, the budget should separate
total cost of the project into the following categories and provide
a basis of computation for each cost:
     Personnel: List each position by title and name of
employee, if available, and show the annual salary rate and the
percentage of time to be devoted to the project. Compensation paid
for employees engaged in grant activities must be consistent with
that paid for similar work within the applicant organization.
     Fringe Benefits: Fringe benefits should be based on
actual known costs or an established formula. Fringe benefits are
for personnel listed in the ``Personnel'' budget category and only
for the percentage of time devoted to the project.
     Travel: Itemize travel expenses of project personnel by
purpose (training, interviews, and meetings). Show the basis of
computation (e.g., X people to Y-day training at $A airfare, $B
lodging, $C subsistence).
     Equipment: List non-expendable items that are to be
purchased. Nonexpendable equipment is tangible property having a
useful life of more than two years and an acquisition cost of $5,000
or more per unit. (Note: Organization's own capitalization policy
may be used for items costing less than $5,000.) Expendable items
should be included either in the ``Supplies'' category or in the
``Other'' category. Applicants should analyze the cost benefits of
purchasing versus leasing equipment, especially high cost items and
those subject to rapid technical advances. Rented or leased
equipment should be listed in the ``Contractual'' category. Explain
how the equipment is necessary for the success of the project.
Attach a narrative describing the procurement method to be used.
     Supplies: List items by type (office supplies, postage,
training materials, copying paper, and expendable equipment items
costing less than $5,000) and show the basis for computation. (Note:
Organization's own capitalization policy may be used for items
costing less than $5,000). Generally, supplies include any materials
that are expendable or consumed during the course of the project.
     Consultants/Contracts: Indicate whether applicant's
written procurement policy (see 49 CFR 18.36) or the Federal
Acquisition Regulations (FAR) are followed. Consultant Fees: For
each consultant enter the name, if known, service to be provided,
hourly or daily fee (8-hour day), and the estimated time on the
project. Consultant Expenses: List all expenses to be paid from the
grant to the individual consultants in addition to their fees
(travel, meals, and lodging). Contracts: Provide a description of
the product or service to be procured by contract and an estimate of
the cost. Applicants are encouraged to promote free and open
competition in awarding contracts. A separate justification must be
provided for sole source contracts in excess of $100,000.
     Other: List items (rent, reproduction, telephone,
janitorial or security services) by major type and the basis of the
computation. For example, provide the square footage and the cost
per square foot for rent, or provide the monthly rental cost and how
many months to rent.
     Indirect Costs: Indirect costs are allowed only if the
applicant has a Federally-approved indirect cost rate. A copy of the
rate approval (a fully executed, negotiated agreement) must be
attached. If the applicant does not have an approved rate, one can
be requested by contacting the applicant's cognizant Federal agency,
which will review all documentation and approve a rate for the
applicant organization.

Appendix 3.2 Construction Project Budgets

    Applicants must present a detailed budget for the proposed
project that includes both Federal funds and matching funds. Items
of cost included in the budget must be reasonable, allocable, and
necessary for the project. At a minimum, the budget should separate
total cost of the project into the following categories and provide
a basis of computation for each cost:
     Administrative and Legal Expenses: List the estimated
amounts needed to cover administrative expenses. Do not include
costs which are related to the normal functions of government.
Allowable legal costs are generally only those associated with the
purchases of land which is allowable for Federal participation and
certain services in support of construction of the project. This may
include:
    [cir] Hours/Rate and total cost of local government staff
    [cir] Hours/Rate and total cost of outside counsel fees
    [cir] Hours/Rate and total cost of consultants
     Land, structures, rights-of-way, appraisals, and
related items: List the estimate site and right(s)-of-way
acquisition costs (this includes purchase, lease, and/or easements).
If possible, include details of number of acres, acre cost, square-
footage, and square footage cost.
     Relocation expenses and payments: List the estimated
costs relation to relocation advisory assistance, replacement of
housing, relocation payments to displaced persons and businesses,
etc. This may include:
    [cir] The gross salaries and wages of employees for the grantee
who will be directly engaged in performing demolition or removal of
structures from developed land
     Architectural and engineering fees: List the estimated
basic engineering fees related to construction (this includes start-
up services and preparation of project performance work plan).
     Other architectural and engineering fees: List the
estimated engineering costs, such as surveys, tests, soil borings,
etc.
     Project inspection fees: List the estimated engineering
inspection costs. This may include:
    [cir] Rate of project inspector
    [cir] Construction monitoring
    [cir] Audit or construction programs
     Site Work: List the estimated costs of site preparation
and restoration which are not included in the basic construction
contract. This may include:
    [cir] Clearing
    [cir] Erosion control
    [cir] Reseeding
     Demolition and removal: List the estimated costs
related to demolition activities.
     Construction: List the estimated cost of the
construction contract. This may include costs for:
    [cir] Labor costs, e.g., associated with site preparation and
installation of grade crossings, highway warning signs, etc.
    [cir] Equipment rental/purchase, e.g., an excavator or bulldozer
    [cir] Materials, e.g., Rail anchors, retaining walls, etc.
     Equipment: List the estimated cost of office, shop,
laboratory, safety equipment, etc. to be used at the facility, if
such costs are not included in the construction contract.

     Miscellaneous: List the estimated miscellaneous costs.
     Contingencies: List the estimated contingency costs.

    Issued in Washington, DC on September 7, 2010.
Mark Yachmetz,
Associate Administrator.

[FR Doc. 2010-22652 Filed 9-9-10; 8:45 am]
BILLING CODE 4910-06-P


RULE 105.	APPLICABILITY       (Adopted 7/30/1991, revised 8/25/2016)

These Rules and Regulations shall apply to all sources within the County of Santa Barbara.  These Rules and Regulations shall also apply to sources located on the Outer Continental Shelf, offshore of Santa Barbara County, for which the District is the corresponding onshore area, as authorized in Title VIII, Section 801, of the 1990 Federal Clean Air Act Amendments.

Unless otherwise stated, any District rule that references sections of the California Health and Safety Code, California Government Code, California Public Resources Code, California Vehicle Code, or the California Code of Regulations shall incorporate the referenced sections as they exist on the date of adoption or most recent amendment of the aforementioned District rule.


[Federal Register Volume 88, Number 27 (Thursday, February 9, 2023)]
[Rules and Regulations]
[Page 8368]
[FR Doc No: 2023-02799]

=======================================================================
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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2023-0072]

Security Zone; Lower Mississippi River, Mile Marker 94 to 97
Above Head of Passes, New Orleans, LA

AGENCY: Coast Guard, DHS.

ACTION: Notification of enforcement of regulation.

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SUMMARY: The Coast Guard will enforce a security zone for all navigable
waters within 400 yards of the Left Descending Bank (LDB) of the Lower
Mississippi River (LMR) Mile Marker (MM) 94.4 to MM 95.1, Above Head of
Passes (AHP), New Orleans, LA. This security zone is necessary to
provide security and protection for visiting personnel during the
events related to the Mardi Gras celebration. No person or vessel may
enter this security zone unless authorized by the Captain of the Port
New Orleans (COTP) or a designated representative.

DATES: The regulations in 33 CFR 165.846 will be enforced from noon on
February 17, 2023 until 11:59 p.m. on February 21, 2023.

FOR FURTHER INFORMATION CONTACT: If you have questions about this rule,
call or email Lieutenant Commander William A. Stewart, Sector New
Orleans, U.S. Coast Guard; telephone<PHONE_NUMBER>, email
[email protected].

SUPPLEMENTARY INFORMATION: The Coast Guard will enforce a security zone
in 33 CFR 165.846 for events related to Mardi Gras Celebration from
noon on February 17, 2023 until 11:59 p.m. on February 21, 2023. This
action is being taken to provide security and protection for visiting
personnel during the events related to the Mardi Gras celebration. The
security zone will cover all navigable waters within 400 yards of the
Left Descending Bank on the Lower Mississippi River from MM 94.4 to MM
95.1 AHP, New Orleans, LA. No person or vessel may enter this security
zone unless authorized by the Captain of the Port New Orleans (COTP) or
a designated representative. A designated representative means any
Coast Guard commissioned, warrant, or petty officer of the U.S. Coast
Guard assigned to units under the operational control of Sector New
Orleans; to include a Federal, State, and/or local officer designated
by or assisting the COTP in the enforcement of the security zone. To
seek permission to enter, contact the COTP or a designated
representative by telephone at<PHONE_NUMBER> or VHF-FM Channel 16 or
67. Those in the security zone must transit at their slowest speed and
comply with all lawful orders or directions given to them by the COTP
or a designated representative.
    In addition to this notification of enforcement in the Federal
Register, the Coast Guard will inform the public of the enforcement
period of this security zone through Broadcast Notices to Mariners
(BNMs) and Marine Safety Information Bulletin (MSIB).

    Dated: February 3, 2023.
K.K. Denning,
Captain, U.S. Coast Guard, Captain of the Port Sector New Orleans.
[FR Doc. 2023-02799 Filed 2-8-23; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register: May 16, 2007 (Volume 72, Number 94)]
[Notices]
[Page 27606-27608]
[DOCID:fr16my07-118]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-55737; File No. SR-NASD-2006-124]

Self-Regulatory Organizations; National Association of Securities
Dealers, Inc.; Notice of Filing of Amendment Nos. 1 and 2 to, and Order
Granting Accelerated Approval of, a Proposed Rule Change as Modified by
Amendment Nos. 1 and 2 To Require the Provision of Certain Information
About the Securities Investor Protection Corporation to Customers

May 10, 2007.

I. Introduction

    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(the ``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that the National Association of Securities Dealers, Inc. (``NASD'')
has filed Amendment Nos. 1 and 2 to the proposed rule change, which, as
amended, would adopt proposed NASD Rule 2342 to require NASD members,
except those excluded from membership in the Securities Investor
Protection Corporation (``SIPC'') or who sell only investments
ineligible for SIPC protection, to provide new customers, and all
customers annually, with certain information about SIPC. This order
provides notice of and solicits comments from interested persons on the
proposed rule change as modified by Amendment Nos. 1 and 2, and
approves the proposed rule change as amended on an accelerated basis.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

II. Description of the Proposal

    NASD filed the proposed rule change with the Securities and
Exchange Commission (the ``Commission'') on November 9, 2006. The
Commission published the proposal for comment in the Federal Register
on December 13, 2006.\3\ The Commission received nine comments in
response to the Notice.\4\ On February 7, 2007, NASD filed Amendment
No. 1 to the proposed rule change, which also responded to the
comments.\5\ The Commission received one comment in response to
Amendment No. 1.\6\ All of the comments received by the Commission
regarding the proposed rule change are available on the Commission's
Internet Web site (http://www.sec.gov/rules/sro.shtml). On April 19,

2007, NASD filed Amendment No. 2 to the proposed rule change, which
also responded to the comment on the proposed rule change as modified
by Amendment No. 1.\7\
---------------------------------------------------------------------------

    \3\ See Securities Exchange Act Release No. 54871 (December 5,
2006), 71 FR 74970 (December 13, 2006) (SR-NASD-2006-124)
(``Notice'').
    \4\ See e-mail from Frederick G. Ferrara, Chief Compliance
Office, Panattoni Securities, Inc. dated December 20, 2006
(``Ferrara 1''); e-mail from Philip C. McMorrow, President, Cantella
Co., Inc. dated December 21, 2006 (``McMorrow''); e-mail from E.C.
Blitz dated December 22, 2006 (``Blitz''); letter from Kenneth M.
Cherrier, Chief Compliance Officer, Fintegra, to Nancy M. Morris,
Secretary, Commission, dated December 22, 2006 (``Cherrier''); e-
mail from Michael A. Pagano, 1st Global Capital Corp. dated December
22, 2006 (``Pagano''); e-mail from Christine E. Saccente, Vice
President, Chief Compliance Officer, Operations Manager, Maxwell
Noll Inc. dated December 27, 2006 (``Saccente''); e-mail from
William R. Sykes, Sykes Financial Services LLC dated December 28,
2006 (``Sykes''); e-mail from John Harris, Chief Executive Officer,
BondMart, Inc. dated December 30, 2006 (``Harris''); letter from
Noland Cheng, Chairman, SIFMA Operations Committee, to Nancy M.
Morris, Secretary, Commission, dated January 12, 2007 (``Cheng'').
    \5\ Amendment No. 1 modified the text of proposed Rule 2342.
    \6\ See e-mail from Frederick G. Ferrara, Chief Compliance
Officer, Panattoni Securities, Inc. dated February 13, 2007
(``Ferrara 2'')
    \7\ Amendment No. 2 further modified the text of proposed Rule
2342 and proposed changing the effective date of the rule change.
---------------------------------------------------------------------------

    NASD filed the proposed rule change to adopt proposed NASD Rule
2342, which would require NASD members to advise all new customers, in
writing, at the opening of an account, and all customers at least once
each year that they may obtain information about SIPC, including the
SIPC brochure, by contacting SIPC, and to provide such customers with
SIPC's telephone number and Web site address. Amendment No. 1 proposed
that firms that are excluded from membership in SIPC pursuant to
Section 3(a)(2)(A)(i) through (iii) of the Securities Investor
Protection Act of 1970 (``SIPA'') and that are not SIPC members be
exempt from the requirements of proposed Rule 2342. Amendment No. 2
proposed to exempt firms whose business consists exclusively of the
sale of investments that are ineligible for SIPC protection from the
requirements of proposed Rule 2342. Below is the text of the proposed
rule change, as modified by Amendment Nos. 1 and 2. Proposed new
language is in italics.

2000. BUSINESS CONDUCT

* * * * *

2300. Transactions with Customers

* * * * *

2342. SIPC Information

    All members, except those members: (a) that pursuant to Section
3(a)(2)(A)(i) through (iii) of the Securities Investor Protection Act
of 1970 (SIPA) are excluded from membership in the Securities Investor
Protection Corporation (SIPC) and that are not SIPC members; and (b)
whose business consists exclusively of the sale of investments that are
ineligible for SIPC protection, shall advise all new customers, in
writing, at the opening of an account, that they may obtain information
about SIPC, including the SIPC brochure, by contacting SIPC, and also
shall provide the Web site address and telephone number of SIPC. In
addition, such members shall provide all customers with the same
information, in writing, at least once each year. In cases where both
an introducing firm and clearing firm service an account, the firms may
assign these requirements to one of the firms.

III. Summary of Comments on the Proposal and Amendment No. 1

    Two commenters supported the proposed rule change. One believed
that the disclosure required by proposed NASD Rule 2342 would remind
clients that they are buying a product that is not directly
underwritten or supported by a bank or covered by the Federal Deposit
Insurance Corporation (``FDIC'').\8\ Another believed that public
customers would benefit from broader dissemination of information about
SIPC.\9\
---------------------------------------------------------------------------

    \8\ See Cherrier.
    \9\ See Cheng.
---------------------------------------------------------------------------

    Seven commenters generally opposed the proposed rule change.\10\
Five questioned the need for disseminating the information that would
be required by proposed Rule 2342.\11\ Two suggested that the proposed
rule be revised to mandate that firms include on their Web sites a link
to SIPC's Web site.\12\ One questioned whether investors need, or are
interested in, information about SIPC, suggested that investors are
unlikely to read the proposed disclosure, and questioned the cost of
implementing it.\13\ Another stated that customers will be made

aware of SIPC at such time as they need the coverage.\14\
---------------------------------------------------------------------------

    \10\ See Ferrara 1; McMorrow; Blitz; Pagano; Saccente; Sykes;
Harris.
    \11\ See McMorrow; Blitz; Pagano; Saccente; Sykes; Harris.
    \12\ See Pagano; Saccente.
    \13\ See Pagano.
    \14\ See Sykes.
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    In its response to these comments included with Amendment No. 1,
NASD stated that, as noted in its initial rule filing, the genesis of
the proposal was a U.S. General Accounting Office (``GAO'') \15\ report
in which the GAO made recommendations to the Commission and SIPC about
ways to improve the information available to the public about SIPC and
SIPA.\16\ Among other things, the GAO recommended that self-regulatory
organizations (``SROs'') explore ways to encourage broader
dissemination of the SIPC brochure to customers so that they can become
more aware of the scope of SIPA's coverage. NASD further stated that,
after consulting with its members regarding the costs of providing
customers with a copy of the SIPC brochure, NASD determined that the
most cost-effective way of making customers aware of the SIPC brochure
was to provide them with the information they would need to obtain a
copy of the brochure, i.e., by giving them SIPC's address and telephone
number so they could call or write SIPC to order a copy of the
brochure, and by giving them SIPC's Web site address so they could read
the SIPC brochure online. NASD believes that requiring firms to provide
customers with SIPC's address, telephone number and Web site at account
opening and yearly thereafter would help to further educate customers
regarding SIPC and encourage customers to review the SIPC brochure.
---------------------------------------------------------------------------

    \15\ The GAO has since been renamed the Government
Accountability Office.
    \16\ See GAO, Securities Investor Protection: Steps Needed to
Better Disclose SIPC Policies to Investors, GAO-01-653 (May 25,
2001).
---------------------------------------------------------------------------

    Two commenters believed that introducing firms should not be
subject to proposed Rule 2342.\17\ In response, NASD stated that it
believed these commenters' concerns were addressed by a provision in
the proposed rule that would allow firms, where both an introducing
firm and clearing firm service an account, to assign the requirements
of proposed Rule 2342 to one of the firms.
---------------------------------------------------------------------------

    \17\ See Blitz; Pagano.
---------------------------------------------------------------------------

    Five commenters believed that, as initially proposed, Rule 2342
would apply too broadly. One of these commenters believed that
institutional customers should be exempt from the proposed rule.\18\
Two of these commenters believed that NASD members that are exempt from
membership in SIPC or from carrying SIPC coverage should be exempt from
the proposed rule.\19\ Another believed that firms selling only
investment products that are ineligible for SIPC protection should be
exempt from the proposed rule.\20\
---------------------------------------------------------------------------

    \18\ See Cheng.
    \19\ See Cherrier; Sykes.
    \20\ See Ferrara 1.
---------------------------------------------------------------------------

    In response to these comments, NASD stated, ``SIPA excludes certain
categories of registered brokers and dealers from membership in SIPC,
including `persons whose business as a broker or dealer consists
exclusively of * * * the distribution of shares of registered open end
investment companies or unit investment trusts * * * the sale of
variable annuities * * * the business of insurance, or * * * the
business of rendering investment advisory services to one or more
registered investment companies or insurance company separate
accounts.' '' \21\ NASD further stated that SIPA provides that all
other persons registered as brokers or dealers under Section 15(b) of
the Securities Exchange Act of 1934 \22\ are required to be members of
SIPC. NASD believed that firms that are required to be SIPC members
should also be required to make the disclosures required by proposed
NASD Rule 2342, regardless of the products currently being sold.
Therefore, NASD did not propose to exempt any SIPC members from the
requirements of proposed NASD Rule 2342.
---------------------------------------------------------------------------

    \21\ See Amendment No. 1 (citing 15 U.S.C. 78ccc(a)(2)(A)).
    \22\ 15 U.S.C. 78o(b).
---------------------------------------------------------------------------

    However, NASD agreed with the commenters who believed that NASD
members that are excluded from membership in SIPC should not be subject
to the proposed rule, and, in Amendment No. 1, proposed to exclude from
the requirements of proposed NASD Rule 2342 any member that is excluded
from membership in SIPC.
    One commenter believed that institutional customer accounts should
be exempt from the proposed rule's disclosure requirements on the
grounds that institutional customers are sophisticated investors that
are well aware of SIPC and the protections it affords.\23\ This
commenter stated that institutional customers generally settle
transactions in delivery versus payment/receive versus payment (``DVP/
RVP'') accounts, and that most of them were likely to opt out of
receiving quarterly customer account statements under NASD Rule 2340.
This commenter also stated that receiving the disclosures that would be
required by proposed Rule 2342 annually from each broker-dealer through
which an institution executes transactions would create a flood of
unnecessary and redundant disclosures that institutional customers
would simply discard.
---------------------------------------------------------------------------

    \23\ See Cheng.
---------------------------------------------------------------------------

    In response, NASD stated that it believed the benefit to
institutional investors of receiving the SIPC disclosures at account
opening and yearly thereafter outweighs any inconvenience that might be
incurred. NASD stated that although many institutional investors are
likely to be sophisticated investors, there are those that are not, and
that, to the extent the required disclosures may make institutional
investors more aware of SIPC and the protections it affords, NASD
believed that the dissemination of the required information would be
worthwhile. Therefore, NASD determined not to exempt institutional
investors from the requirements of proposed Rule 2342.
    After NASD filed Amendment No. 1, one commenter submitted a second
letter, in which he further contended that firms that are SIPC members
but that only sell investment products that are ineligible for SIPC
protection may violate Article 11, Section 4(g)(2) of the SIPC By-Laws
(Advertisement of Membership) if they are not exempt from the
requirements of proposed Rule 2342.\24\ In response to this comment,
NASD agreed that proposed Rule 2342 should not require members whose
business consists exclusively of the sale of investments that are
ineligible for SIPC protection to distribute SIPC's contact information
to their customers pursuant to proposed Rule 2342. Accordingly, in
Amendment No. 2, NASD modified proposed Rule 2342 to exempt from the
rule's requirements members whose business consists exclusively of the
sale of investments that are ineligible for SIPC protection.
---------------------------------------------------------------------------

    \24\ See Ferrara 2.
---------------------------------------------------------------------------

IV. Discussion and Commission's Findings

    NASD has requested that the Commission find good cause pursuant to
Section 19(b)(2) of the Act \25\ for approving the proposed rule change
prior to the 30th day after publication in the Federal Register. NASD
also proposed an effective date of 180 days following Commission
approval, in order to give member firms sufficient time to make changes
to their customer documentation and systems. After careful
consideration, the Commission finds that the proposed rule change is
consistent with the Act, and in particular, with Section 15A(b)(6) of
the

Act,\26\ which provides, among other things, that NASD rules must be
designed to promote just and equitable principles of trade, to remove
impediments to and perfect the mechanism of a free and open market and
a national market system, and in general, to protect investors and the
public interest.\27\ The Commission believes that NASD has adequately
responded to concerns about the proposed rule change raised by
commenters, and that the proposed rule change is consistent with the
provision of the Exchange Act noted above. In particular, proposed NASD
Rule 2342 should help to improve investors' awareness of SIPC's
policies and practices, and the scope of coverage available under SIPA.
---------------------------------------------------------------------------

    \25\ 15 U.S.C. 78s(b)(2).
    \26\ 15 U.S.C. 78o-3(b)(6).
    \27\ In approving this proposed rule change, the Commission
notes that it has considered the proposed rule's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(2) of the Act,\28\ the Commission finds
good cause for approving the proposed rule change before the thirtieth
day after the date of publication of notice of filing thereof.
Accelerating approval and delaying the effective date of the proposed
rule change will give NASD additional time to notify its members about
the requirements of the proposed rule and help to ensure that firms
have sufficient time to efficiently make the changes to their customer
documentation and systems needed to comply with the rule.
---------------------------------------------------------------------------

    \28\ 15 U.S.C. 78s(b)(2).
---------------------------------------------------------------------------

V. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change, as modified by Amendment Nos. 1 and 2, is consistent with the
Act. Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml.
); or     Send an e-mail to<EMAIL_ADDRESS>Please include

File Number SR-NASD-2006-124 on the subject line.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NASD-2006-124. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml
). Copies of the submission, all subsequent amendments, all

written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room. Copies of such
filing also will be available for inspection and copying at the
principal office of NASD. All comments received will be posted without
change; the Commission does not edit personal identifying information
from submissions. You should submit only information that you wish to
make available publicly. All submissions should refer to the File
Number SR-NASD-2006-124 and should be submitted on or before June 6,
2007.

VI. Conclusion

    It is therefore ordered, pursuant to Section 19(b)(2) of the
Act,\29\ that the proposed rule change (SR-NASD-2006-124), as modified
by Amendment Nos. 1 and 2, be, and it here is, approved on an
accelerated basis, and shall be effective 180 days following the date
of this order.
---------------------------------------------------------------------------

    \29\ 15 U.S.C. 78s(b)(2).

    For the Commission, by the Division of Market Regulation,
pursuant to delegated authority.\30\
---------------------------------------------------------------------------

    \30\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

Florence E. Harmon,
Deputy Secretary.
 [FR Doc. E7-9433 Filed 5-15-07; 8:45 am]

BILLING CODE 8010-01-P


[Federal Register Volume 81, Number 178 (Wednesday, September 14, 2016)]
[Notices]
[Page 63191]
[FR Doc No: 2016-21984]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2016-N-0002]

Withdrawal of Approval of Part of a New Animal Drug Application;
Chlortetracycline, Procaine Penicillin, and Sulfamethazine

AGENCY: Food and Drug Administration, HHS.

ACTION: Notification of withdrawal of approval.

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SUMMARY: The Food and Drug Administration (FDA) is withdrawing approval
of those parts of a new animal drug application (NADA) for a 3-way,
fixed-ratio, combination drug Type A medicated article that pertain to
use of the procaine penicillin component for production indications in
swine. This action is being taken at the sponsor's request because the
3-way Type A medicated article is no longer manufactured.

DATES: Withdrawal of approval is effective September 14, 2016.

FOR FURTHER INFORMATION CONTACT: Cindy L. Burnsteel, Center for
Veterinary Medicine (HFV-130), Food and Drug Administration, 7500
Standish Pl., Rockville, MD 20855,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Pharmgate LLC (Pharmgate), 1015 Ashes Dr.,
Suite 102, Wilmington, NC 28405 has requested that FDA withdraw
approval of those parts of NADA 138-934 for PENNCHLOR SP 500
(chlortetracycline, procaine penicillin, and sulfamethazine) Type A
medicated article that pertain to use of the procaine penicillin
component for the production indications of growth promotion and
increased feed efficiency in swine. Pharmgate requested voluntary
withdrawal of approval of these indications for use because PENNCHLOR
SP 500 Type A medicated article is no longer manufactured.
    Therefore, under authority delegated to the Commissioner of Food
and Drugs and redelegated to the Director of the Center for Veterinary
Medicine, and in accordance with Sec.  514.116 Notice of withdrawal of
approval of application (21 CFR 514.116), notice is given that approval
of those parts of NADA 138-934 that pertain to use of procaine
penicillin for the production indications of growth promotion and
increased feed efficiency in swine are hereby withdrawn, effective
September 14, 2016.
    NADA 138-934 was identified as being affected by guidance for
industry (GFI) #213 ``New Animal Drugs and New Animal Drug Combination
Products Administered in or on Medicated Feed or Drinking Water of
Food-Producing Animals: Recommendations for Drug Sponsors for
Voluntarily Aligning Product Use Conditions with GFI #209,'' December
2013.
    Elsewhere in this issue of the Federal Register, FDA is amending
the animal drug regulations to reflect the withdrawal of approval of
these parts of NADA 138-934.

    Dated: September 6, 2016.
William T. Flynn,
Acting Director, Center for Veterinary Medicine.
[FR Doc. 2016-21984 Filed 9-13-16; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register Volume 81, Number 94 (Monday, May 16, 2016)]
[Notices]
[Pages 30362-30363]
[FR Doc No: 2016-11412]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-77801; File No. SR-Phlx-2016-55]

Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change To Modify the
Maximum Number of Times an Order on PSX May Be Updated Before the
System Cancels the Order

May 10, 2016.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given
that, on May 2, 2016, NASDAQ PHLX LLC (``Phlx'' or ``Exchange'') filed
with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I, II, and III, below, which
Items have been prepared by the Exchange. The Commission is publishing
this notice to solicit comments on the proposed rule change from
interested persons.
---------------------------------------------------------------------------

    \18\ 17 CFR 200.30-3(a)(12).
    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes to modify the maximum number of times an
Order on PSX may be updated before the System cancels the Order.
    The text of the proposed rule change is available on the Exchange's
Web site at http://nasdaqomxphlx.cchwallstreet.com/, at the principal
office of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    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.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
Background
    The Exchange will cancel an Order if it is updated a certain number
of times during any given day. Pursuant to Rule 3301A(a), an Order will
be cancelled if it is repriced and/or reentered 10,000 times for any
reason.\3\
---------------------------------------------------------------------------

    \3\ Orders entered through OUCH and FLITE ports generally are
not repriced or reentered. As explained in rule 3301A(b)(1)(B),
orders entered through OUCH and FLITE may be updated for display
once. Further, OUCH and FLITE Orders may only be decremented in
size, which is not considered repricing or reentry of the Order. See
http://www.nasdaqtrader.com/Trader.aspx?id=TradingSpecs for a
description of the various order entry port specifications.
---------------------------------------------------------------------------

    Pursuant to Rule 3301A(b)(5)(A), a Market Maker Peg Order will be
canceled if it is repriced 1,000 times. Pursuant to Rule 3301B(d), an
Order with Primary Pegging will be cancelled if it is updated 1,000
times, and an Order with Market Pegging will be cancelled if it is
updated 10,000 times.
    The Exchange applies these limits to conserve System resources by
limiting the persistence of Orders that update repeatedly without
execution. These limits are applied daily to each order entered into
the System. Orders that have a Time-in-Force \4\ that allows them to
persist longer than a single trading day will have their count reset
each day. For example, if an Order with a Time-in-Force of Good-till-
Canceled \5\ is repriced 9,999 times during any given day, the Order
will not be canceled due to the number of updates. Starting the next
day, the Order would be again allowed to reprice up to 9,999 times
before it would be canceled by the System.
---------------------------------------------------------------------------

    \4\ The ``Time-in-Force'' assigned to an Order means the period
of time that the System will hold the Order for potential execution.
See Rule 3301B(a).
    \5\ An Order that is designated to deactivate one year after
entry may be referred to as a ``Good-till-Cancelled.'' See Rule
3301B(a)(3).
---------------------------------------------------------------------------

Proposed Changes
    First, the Exchange is proposing to eliminate rule text under Rules
3301A(a), 3301A(b)(5)(A), and 3301B(d) concerning cancellation based on
Order updates and consolidate the concept under a new Rule 3306(a)(4).
    Second, the Exchange is proposing to no longer state the specific
number of times a particular Order Type may be updated before it is
canceled in the new rule and is, instead, noting that the number of
permissible changes may vary by Order Type or Order Attribute and may
change from time to time. Further, the proposed rule will note that the
Exchange will post on its Web site what is considered a change for a
particular Order Type and Order Attribute, and the current limits on
the number of such changes.
    The Exchange is changing the process by which it counts updates,
which will allow it to identify a wider range of updates to an Order.
Using the new process, the Exchange will be able to track the following
Order updates: (1) System-generated child Orders; (2) display size
refreshes from reserve; (3) replaces of System-generated child Orders
(which include Orders with a Pegging Attribute); and (4) cancellation
requests of System-generated child Orders. The Exchange notes that all
updates identified by the current process will be counted under the new
process. The Exchange believes these changes will provide it with
greater flexibility in addressing changes in volume, market participant
behavior, and the Exchange's capacity to handle the message volume
caused by Orders that update a significant number of times throughout
the trading day.
    The Exchange will provide at least one day's advanced notice to the
public of any changes to the number of updates permitted before an
Order is canceled. Initially, the Exchange will keep the number of
updates consistent with what is currently noted in the rules; however,
the Exchange may shortly thereafter change the number of updates as
needed to address market conditions.
    Phlx is also making minor technical corrections to Rule 3301B(d) to
change the word ``they'' to the word ``the'' in the first full
paragraph below the bulleted list under the rule and to delete an
erroneous quote from the end of the same paragraph.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\6\ in general, and with
Section 6(b)(5) of the Act,\7\ in particular, because it is designed to
prevent fraudulent and manipulative acts and practices, to promote just
and equitable principles of trade, to foster cooperation and
coordination with persons engaged in regulating, clearing, settling,
processing information with respect to, and facilitating transactions
in securities, to

remove impediments to and perfect the mechanism of a free and open
market and a national market system, and, in general, to protect
investors and the public interest; and is not designed to permit unfair
discrimination between customers, issuers, brokers, or dealers.
---------------------------------------------------------------------------

    \6\ 15 U.S.C. 78f.
    \7\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------

    Excessive updating of Orders places a burden on the Exchange's
System, which, if left unchecked, could potentially affect overall
market quality. The Exchange will continue canceling Orders that reach
a certain number of updates but, instead of the static number of
updates stated in the rules, the Exchange is proposing to provide the
number of updates by Order Type or Order Attribute on its public Web
site. Web site posting will allow the Exchange to react more quickly to
changes in the marketplace by changing the applicable number of updates
that will trigger cancellation of an Order. The Exchange will provide
advanced notice to market participants of any changes to the number of
updates applied. Thus, the proposed rule change will further promote
the protection [sic] investors and the public interest.

B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended.\8\
The Exchange is proposing to make the change because it will allow it
to better manage market quality for all market participants, who would
be negatively impacted by issues caused by Orders that tax System
resources due to the excessive number of updates.
---------------------------------------------------------------------------

    \8\ 15 U.S.C. 78f(b)(8).
---------------------------------------------------------------------------

    These adjustments will not impact competition among market
participants because the cancellation parameters will apply equally to
all market participants. As is the case now, market participants that
have an Order canceled due to the number of updates may enter a new
replacement Order. Thus, the Exchange does not think that the proposed
change will place a burden on competition not necessary or appropriate
in furtherance of the Act.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    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 \9\ and
subparagraph (f)(6) of Rule 19b-4 thereunder.\10\
---------------------------------------------------------------------------

    \9\ 15 U.S.C. 78s(b)(3)(a)(iii) [sic].
    \10\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change at
least five business days prior to the date of filing of the proposed
rule change, or such shorter time as designated by the Commission.
The Exchange has satisfied this requirement.
---------------------------------------------------------------------------

    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.

IV. Solicitation of Comments

    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:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to<EMAIL_ADDRESS>Please include
File Number SR-Phlx-2016-55 on the subject line.

Paper Comments

     Send paper comments in triplicate to Secretary, Securities
and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

All submissions should refer to File Number SR-Phlx-2016-55. This file
number should be included on the subject line if email is used. To help
the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for Web site viewing and
printing in the Commission's Public Reference Room, 100 F Street NE.,
Washington, DC 20549, on official business days between the hours of
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available
for inspection and copying at the principal office of the Exchange. All
comments received will be posted without change; the Commission does
not edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly. All
submissions should refer to File Number SR-Phlx-2016-55 and should be
submitted on or before June 6, 2016.
---------------------------------------------------------------------------

    \11\ 17 CFR 200.30-3(a)(12).

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\11\
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-11412 Filed 5-13-16; 8:45 am]
 BILLING CODE 8011-01-P