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National Nuclear Security Administration (NNSA), Department of Energy (DOE).
Final rule.
DOE issues procedures for the imposition of civil penalties for violations of the provisions of the Atomic Energy Act of 1954 (AEA) that restrict participation by U.S. persons in the development or production of special nuclear material outside of the United States. This final rule provides procedures to implement a statutory amendment contained within the
This rule is effective February 13, 2023.
Ms. Katie Strangis, Senior Policy Advisor, Office of Nonproliferation and Arms Control (NPAC), National Nuclear Security Administration, Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, telephone (202) 586-8623 or email:
DOE's 10 CFR part 810 regulation (part 810) implements section 57 b.(2) of the AEA (42 U.S.C. 2077), as amended. Part 810 controls the export of unclassified nuclear technology and assistance. It enables peaceful nuclear trade by helping to ensure that nuclear technologies exported from the United States will not be used for non-peaceful purposes. Part 810 controls the export of nuclear technology and assistance by identifying some activities as “generally authorized” by the Secretary of Energy (Secretary), thereby requiring no further authorization under part 810 by DOE prior to engaging in such activities. For activities and/or destinations that are not generally authorized, part 810 requires a “specific authorization” by the Secretary. Part 810 also details a process to apply for specific authorization from the Secretary and specifies the reporting requirements for generally and specifically authorized activities subject to part 810. Violations of section 57 b. of the AEA and part 810 may result in revocation, suspension, or modification of authorizations, pursuant to 10 CFR 810.10, as well as criminal penalties, pursuant to 10 CFR 810.15.
Section 3116(b) of the
In response to comments from the public, the final rule reflects a revision of § 810.15 (c)(12) to clarify the burdens of proof that apply in hearings conducted pursuant to § 810.15(c)(6). The NOPR stated in § 810.15(c)(12) that “[t]he person requesting the hearing has the burden of going forward and of demonstrating that the decision to impose the civil penalty is not supported by substantial evidence.” This section is revised and clarified in the final rule to state that “DOE shall have the burden of proving the violation(s) as set forth in the final notice of violation by a preponderance of the evidence. The person to whom the notice of violation is addressed shall have the burden of proving any affirmative defense by a preponderance of the evidence. The amount of the penalty associated with any violation which is upheld shall be adopted by the Administrative Judge unless not supported by the facts.”
In response to public comments concerning the approach to adjusting civil monetary penalties for inflation, DOE also revised § 810.15(c) to update the maximum penalty amount from the amount that would have been applicable when the NOPR was published,
The final rule also makes a minor change to § 810.15(c)(5) to state that the Deputy Administrator for Defense Nuclear Nonproliferation “will” issue a final notice of violation rather than “may”, as was stated in the proposed rule.
The final rule contains no other changes to the NOPR published on October 3, 2019.
On October 3, 2019, DOE published the NOPR. On November 4, 2019, DOE
NEI provided a comprehensive set of comments, and these comments were endorsed by eight other commenters: Exelon Generation Company (Exelon), Duke Energy Corporation (Duke), STARS Alliance (STARS), the Ad Hoc Suppliers Group (AHSG), the Ad Hoc Utility Group (AHUG), Precision Custom Components, LLC (PCC), Holtec International Corporation (Holtec), and BWX Technologies, Inc. (BWXT).
The following six entities also provided timely comments before the deadline: Florida Power and Light Company (“FPL,” on behalf of itself and on behalf of its affiliates, NextEra Energy Seabrook, LLC, NextEra Energy Duane Arnold, LLC, and NextEra Energy Point Beach, LLC); Morgan, Lewis & Bockius LLP (Morgan Lewis); Miles & Stockbridge P.C.; a group of students from Rutgers Law School; Aaron Ahern; and one anonymous commenter. One comment, postmarked after the deadline, was not considered in the rulemaking and is not otherwise referenced in the Discussion of Public Comments.
The 15 comments considered fell into one of four categories: communications between DOE and alleged violators, penalty amounts and limitations, hearings, and other comments.
NEI, BWXT, Duke, Exelon, Holtec, Miles & Stockbridge, PCC, STARS, and the Rutgers law students requested clarifications from DOE on voluntary self-disclosure procedures and policy, including the specific types of information that should be included in a VSD and the mitigating impact of VSDs on civil penalties. Commenters stated that this type of information would help incentivize self-disclosures, improving the effectiveness and efficiency of the part 810 enforcement program.
DOE has provided information related to VSDs in guidance documents. DOE guidance regarding self-disclosures of violations of part 810 is set forth on the part 810 website (
AHUG, NEI, Exelon, STARS, AHSG, PCC, Holtec, BWXT, Duke, and Morgan Lewis expressed concern that the proposed civil penalties procedures did not provide for alternative dispute resolution (ADR), pre-decisional enforcement conferences (PEC), or settlement outside the formal procedures set forth in § 810.15(c). Commenters stated that ADR and PECs would offer collaborative resolution for violations of part 810, reducing the need for the civil penalties process which may be expensive, time-consuming, and contentious. Commenters also suggested that DOE recognize the possibility of entering into a settlement agreement prior to or during formal adjudication.
DOE agrees that ADR and PEC are potentially useful tools in compliance and enforcement. The final rule describes the process for DOE to impose civil penalties where warranted, but the rule would not prevent DOE from making use of PEC in advance of issuing a notice of violation. Similarly, the rule would not prevent DOE from making use of ADR instead of issuing a notice of violation, nor would it prevent DOE from reaching settlement agreements with an alleged violator at any point in the enforcement process. Accordingly, DOE will consider making use of ADR, PEC, and settlement agreements where appropriate in implementing this rule, but the comments do not require changes to the text of the rule itself.
AHUG, NEI, Exelon, STARS, AHSG, PCC, Holtec, BWXT, and Morgan Lewis asked that DOE state explicitly that possible outcomes of part 810 enforcement actions include not just civil penalties, but also “no action,” “warning,” “zero penalty,” or “closeout” notices. The commenters observed that the use of such notices would incentivize companies to self-report violations and would provide DOE with the flexibility to address violations without penalties where warranted.
DOE agrees that such notices are potentially useful tools in compliance and enforcement. The final rule describes the process for DOE to impose civil penalties where warranted and does not prevent DOE from issuing “no action,” “warning,” “zero penalty,” or “closeout” notices instead of a notice of violation, where appropriate. Accordingly, DOE will consider making use of such notices where appropriate in implementing this rule, but the comments do not require changes to the text of the rule itself.
NEI commented that § 810.15(c)(5) should be amended to include a requirement that the Deputy Administrator for Defense Nuclear Nonproliferation specify in a final notice of violation how the factors enumerated at § 810.15(c)(5)(i) through (viii) support the amount of the civil penalty. The commenter stated that this change is necessary for the alleged violator to have a meaningful opportunity to appeal the final notice.
The regulation has been updated to clarify that each notice of violation and final notice of violation will include an explanation of how the factors at § 810.15(c)(5) were considered. The person to whom the notice of violation is addressed may contest any factual allegations underlying that analysis at a hearing held pursuant to § 810.15(c)(6). However, the hearing is to contest the allegations in the final notice of violation and does not extend to the discretionary determination regarding the amount of the civil penalty based on those allegations. With regard to that discretionary determination, application of the factors in § 810.15(c)(5) involves the exercise of policy-informed judgment, which is the province of DOE officials, not of the Administrative Judge. Thus, if the Administrative Judge concludes that a violation has occurred, the Administrative Judge will not amend the applicable penalty for that violation unless it is not supported by the facts, in which event the Administrative Judge will include such information in the Administrative Judge's recommended decision to the Under Secretary.
AHUG, NEI, Exelon, Duke, FPL/NextEra, STARS, AHSG, PCC, Holtec, BWXT, and Morgan Lewis requested
In the NOPR, § 810.15(c) stated that, “[i]f any violation is a continuing one, each day from the point at which the violating activity began to the point at which the violating activity was suspended shall constitute a separate violation for the purpose of computing the applicable civil penalty.” In this case, “violating activity” refers to an action by a person that violates section 57 b. of the AEA. In the example cited in the comment from NEI the person committed a single violation on the day that they sent the email, and the maximum penalty in this case would be $100,000, as adjusted for inflation. By contrast, a U.S. company that granted a foreign national access for five successive days to a facility wherein the foreign national had access to part 810-controlled information without the required specific authorization from DOE would have committed a continuing violation.
DOE acknowledges that examples of this kind provide clarity to the regulated community as to how DOE intends to implement this final rule. However, DOE has determined that it would not be appropriate to modify the text of the rule itself to include such examples. Instead, DOE has provided clarifying guidance through this preamble statement, and DOE will consider providing additional information in a future guidance document describing the agency's implementation of this rule.
Some commenters also recommended that, when continuing violations do occur, DOE should only apply its authority to impose a separate penalty for each day of the violation for especially severe violations, that the application of daily penalties should be otherwise limited to certain circumstances, or that DOE should refrain from imposing daily penalties altogether.
DOE notes its authority under section 234 of the AEA to impose civil penalties for each day of a continuing violation is not limited to violations of any particular type or severity. However, when continuing violations are identified, DOE will not mechanistically apply daily penalties, but rather will use the factors described in § 810.15(c)(5) to determine an appropriate penalty that may be equal to or less than the maximum.
AHUG, AHSG, NEI, FPL/NextEra, Morgan Lewis, and STARS commented that DOE should provide more detailed criteria for determining the amount of a monetary civil penalty, including mitigating and aggravating factors. Some commenters cited specific factors that should have a mitigating impact on penalties, such as corrective actions and self-disclosure. AHUG and AHSG also requested that the rule be revised to state that DOE will not exercise its civil penalty authority until the agency has provided more guidance on penalty determination criteria.
DOE recognizes that effective regulation sometimes involves issuance of guidance documents that explain how the agency will implement the rule. In this case, some commenters requested that more detailed penalty determination criteria be added to the rule itself, while other commenters requested that the information be provided in separate guidance.
After due consideration of these comments, DOE has decided not to add more detailed penalty calculation criteria to the rule itself, beyond the eight factors already listed at § 810.15(c)(5)(i) through (viii). Adopting a mechanistic formula for calculating civil penalties within the rule itself would make it extremely difficult for DOE to ensure that penalty amounts are appropriate in each case and could result in excessive penalty amounts in many cases.
In response to these comments, DOE may develop and issue subsequent guidance that provides additional detail on how DOE will implement § 810.15(c)(5)(i) through (viii) for the calculation of civil penalties, based on due consideration of the commenters' suggestions and experience in implementing the rule. However, given the level of detail that is already included in this rule, DOE will not delay the implementation of its legal and regulatory enforcement authority pending completion of the guidance document that the commenters requested.
AHUG, AHSG, Duke, and FPL/NextEra commented that civil penalties should only be applied in the case of willful violations, or that other types of violations should be exempted from civil penalties, such as violations that occur within a certain “grace period” after the effective date of this rule, violations related to the unauthorized transfers of technology related to light-water nuclear reactors, actions committed by individual employees of a company in violation of policies and procedures, or violations that do not constitute a “clear unauthorized transfer of technology.”
Willful violations of the statute are subject to criminal enforcement under section 222 of the AEA. Pursuant to section 234 of the AEA, any person who violates any provision of section 57 of the AEA shall be subject to a civil penalty. This provision of law establishes strict liability and does not require that violations be willful. DOE cannot change the statutory standard of culpability by rule exempting inadvertent violators, nor would the Department seek to do so, given that a negligent violation of part 810 can be as damaging to national security as a willful violation. Similarly, DOE cannot categorically exempt any other category of violation from such penalties. As such, DOE will not revise the rule in response to this comment. However, pursuant to § 810.15(c)(5), DOE will consider the degree of culpability and the gravity of the violation, among other factors, in determining the amount of the civil penalty to be imposed.
AHUG and AHSG recommended that DOE's enforcement policy or procedures specify that there is a 5-year statute of limitations for violations subject to civil penalties, pursuant to 28 U.S.C. 2462. DOE agrees that its authority to impose civil penalties is subject to this limitation and will consider including this information in a subsequent guidance document. However, this comment does not require changes to the text of the rule, because the statute of limitations applies.
NEI, STARS, Holtec, BWXT, PCC, and Morgan Lewis commented that DOE should only impose civil penalties for violations that occur after the final rule enters into force. The commenters observed that the imposition of civil
As required by existing law, DOE will only impose civil penalties for violations that occur after this final rule enters into force. In the event that DOE learns of a continuing violation that began prior to this rule's effective date but continued thereafter, DOE may impose a civil penalty only for the period of the continuing violation that followed the effective date of this rule. Given that DOE does not have the legal authority to impose retroactive penalties, DOE has determined that no changes are required to the text of the rule in this regard.
NEI, FPL/NextEra, Holtec, STARS, PCC, BWXT, Morgan Lewis, and Miles & Stockbridge expressed concern that DOE would calculate inflation adjustments so as to make the maximum penalty $265,815, as opposed to $102,522.
The NOPR's preamble discussed alternate approaches for calculating the maximum civil penalty. However, DOE does not intend to adopt this alternate calculation method or to revise the maximum penalty listed in § 810.15(c), except to make ongoing, incremental adjustments for inflation on an annual basis in accordance with OMB guidance.
DOE updated § 810.15(c) to reflect the maximum civil penalty amount of $112,131 (
Duke, Holtec, and Exelon commented that this rule should not become effective until six months after publication to allow time for companies to adjust to and understand the rule. DOE has reviewed this comment and notes that this final rule establishes procedures for imposing monetary civil penalties for violations of Part 810, but the rule does not alter persons' long-standing obligation to comply with the regulation itself. As such, DOE has determined that it is reasonable and appropriate for this rule to become effective 30 days after its publication.
NEI, AHUG, AHSG, Exelon, Duke, STARS, PCC, Holtec, BWXT, Morgan Lewis, and Miles & Stockbridge commented that, with regards to hearings conducted pursuant to § 810.15(c)(6), the text of the proposed rule did not expressly place the burden of proof on DOE, the proponent of the civil penalty, as required by the Administrative Procedure Act (APA).
The NOPR stated in § 810.15(c)(12) that “[t]he person requesting the hearing has the burden of going forward and of demonstrating that the decision to impose the civil penalty is not supported by substantial evidence.” In response to the comments received, DOE has revised this section in the final rule to state the following: “DOE shall have the burden of proving the violation(s) as set forth in the final notice of violation by a preponderance of the evidence. The person to whom the notice of violation is addressed shall have the burden of proving any affirmative defense by a preponderance of the evidence. The amount of the penalty associated with any violation which is upheld shall be adopted by the Administrative Judge unless not supported by the facts.” This change addresses the concerns raised by the commenters regarding burden of proof.
NEI, Exelon, BWXT, STARS, PCC, and Holtec expressed concern that, after a hearing has been conducted and the Administrative Judge has forwarded their recommended decision to the Under Secretary, the Under Secretary might impose a steeper monetary penalty than that imposed by the Administrative Judge, find a violation when the Administrative Judge did not, or otherwise impose a harsher punishment than the Administrative Judge imposed. The text of the proposed rule at § 810.15(c)(14) would expressly give the Under Secretary the power to compromise, mitigate, or remit the recommended penalty of the Administrative Judge, but does not give the Under Secretary the authority to increase the penalty. Given that the text comports with the comments, DOE has determined that no change to the text in the final rule is required.
Rutgers Law School students commented that the proposed rule should be revised to create an additional appellate review step between the Administrative Judge's decision and the final decision by the Under Secretary. The commenters argue that a different DOE regulation includes such an intermediate step, and that use of an intermediate appellate step in the part 810 civil penalties process could decrease the number of legal challenges to DOE penalty decisions and increase DOE's chances of success in court when challenged. Additionally, AHUG and AHSG commented that DOE should designate the Under Secretary to hear appeals of the Administrative Judge's decision, which would constitute an additional appeal step beyond the process described in this rule.
DOE has reviewed the comments and determined that it has developed a robust administrative process for adjudicating appeals of its civil penalty determinations, notwithstanding the potential use of such intermediate steps in any other DOE regulatory process. As such, DOE has determined that an additional appellate step is not necessary in this case, because the rule already includes two separate opportunities for individuals to appeal or otherwise contest an alleged violation, pursuant to § 810.15(c)(2) and (6). The rule also includes a third opportunity for penalties to be mitigated through the Under Secretary's review of the Administrative Judge's decision under § 810.15(c)(14). Accordingly, DOE has determined that no change to the rule is required in this case.
AHUG and AHSG commented that DOE should provide the alleged violator with a full administrative hearing before determining that a civil penalty should be imposed. The commenters argue that such an approach is required under the APA. These observations are closely linked to the commenters' contention that the hearing process described in § 810.15(c)(12) would place the burden of proof on the alleged violator, rather than DOE. As described above, in response to the comments received from AHUG, AHSG, and others, DOE has revised § 810.15(c)(12) in this final rule to clarify the issue of the burden of proof.
In addition, DOE has concluded that, with the revision to § 810.15(c)(12) described above, the hearing process in this rule is fully consistent with the
Morgan Lewis commented that DOE should maintain its procedures as set forth in the NOPR for protecting classified information, and other information protected from public disclosure by law or regulation, during hearings. This final rule makes no changes to these provisions and therefore comports with the comment.
Morgan Lewis commented that the National Defense Authorization Act for Fiscal Year of 2016 directed DOE to issue guidance with respect to the use of the clear and intended authority of the Secretary of Energy under section 234 of the Atomic Energy Act of 1954 to impose civil penalties, including fines. Morgan Lewis recommended that DOE issue such guidance “no later than concurrently with the final rule on civil monetary penalties.” DOE has reviewed the comment and determined that no additional guidance is required at this time. Accordingly, DOE will make no change to the text of the rule in response to this comment, and the effective date of the rule will not be delayed.
Morgan Lewis, NEI, FPL/NextEra, Duke, AHSG, STARS, and an anonymous commenter stated that the scope of the part 810 regulation is ambiguous and requested that DOE clarify the regulation. In some cases, the commenters requested that DOE delay issuing a final rule on monetary civil penalties until these clarifications have been made.
These comments relate to the existing scope of the part 810 regulation, as issued as a final rule on February 23, 2015, as opposed to the NOPR at hand. Comments and suggestions outside the scope of this rulemaking regarding other aspects of the part 810 program will not be addressed here.
The final rule has been determined to not be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive Order by the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB).
DOE has determined that the rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which applies to a rulemaking that amends an existing rule or regulation and that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.
The Regulatory Flexibility Act (5 U.S.C. 601
This rule would update 10 CFR 810.15 to include procedures for the imposition of civil penalties. DOE has reviewed the changes under the provisions of the
DOE has conducted a review of the potential small businesses that may be impacted by this rule. This review consisted of an analysis of the number of businesses impacted generally in Fiscal Years 2016 and 2017, and a determination of which of those are considered “small businesses” by the Small Business Administration. Small businesses impacted by part 810 generally fall within two North American Industry Classification System codes: engineering services (541330) and computer systems designs services (541512). Often, their requests for authorization include the transfer of computer codes or other similar products. A total of 89 businesses and other entities submitted reports and applications pursuant to the regulation during this time period. DOE estimates that approximately 10% of those entities impacted by part 810 are small businesses. As such, of those 89 entities that submitted reports and applications under part 810, approximately 9 are estimated to be small businesses.
Small businesses exporting nuclear technology like all other regulated entities, would be subject to civil penalties for violations of part 810. Further, the requirements for small businesses exporting nuclear technology would not substantively change because the proposed revisions to this rule do not add new burdens or duties to small businesses. The obligations of any person subject to the jurisdiction of the United States who engages or participates directly or indirectly in the production of special nuclear material outside the United States have not changed in a manner that would provide any significant economic impact on small businesses. Because the changes to this rule would not alter the businesses' standards or processes for receiving part 810 authorization, there would be no impact on these businesses' ability to comply with part 810 in the same manner they have previously.
On the basis of the foregoing, DOE certifies that the rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).
The collection of information requirements have been approved under OMB Control Number 1901-0263. The rule would provide procedures for imposing civil penalties for a violation
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For regulatory actions likely to result in a rule that may cause the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy (2 U.S.C. 1532(a),(b)). UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and tribal governments on a “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. (This policy is also available at
With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b), Executive Order 12988 specifically requires that Federal agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met, or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988.
Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.
Section 654 of the
Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy, Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant regulatory action. Accordingly, DOE has not prepared a Statement of Energy Effects.
The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.
As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).
Foreign relations, Nuclear energy, Reporting and recordkeeping requirements.
This document of the Department of Energy was signed on December 23, 2022, by Jennifer Granholm, Secretary of Energy. That document with the original signature and date is maintained by
For the reasons set forth in the preamble, the Department of Energy amends part 810 of chapter III, title 10 of the Code of Federal Regulations as set forth below.
Secs. 57, 127, 128, 129, 161, 222, 232, and 234 AEA, as amended by the
(d) Specify civil penalties and enforcement proceedings.
(c) In accordance with section 234 of the AEA, any person who violates any provision of section 57 b. of the AEA, as implemented under this part, shall be subject to a civil penalty, not to exceed $112,131 per violation, such amount to be adjusted annually for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. If any violation is a continuing one, each day from the point at which the violating activity began to the point at which the violating activity was suspended shall constitute a separate violation for the purpose of computing the applicable civil penalty. The mere act of suspending an activity does not constitute admission that the activity was a violation and does not waive the rights and processes outlined in paragraphs (c)(4) through (14) of this section or otherwise impact the right of the person to appeal any civil penalty that may be imposed.
(1) In order to begin a proceeding to impose a civil penalty under this paragraph (c), the Deputy Administrator for Defense Nuclear Nonproliferation or his/her designee, shall notify the person by a written notice of violation sent by registered or certified mail to the last known address of such person, of:
(i) The date, facts, and nature of each act or omission with which the person is charged;
(ii) The particular provision or provisions of section 57 b. of the AEA, as implemented under this part, involved in each alleged violation;
(iii) The penalty which DOE proposes to impose, including an explanation of how the factors at paragraph (c)(5) of this section were considered;
(iv) The opportunity of the person to submit a written reply within 30 calendar days of receipt of such preliminary notice of violation showing why such penalty should not be imposed; and
(v) The possibility of collection by civil action upon failure to pay the civil penalty.
(2) A reply to the notice of violation must:
(i) State any facts, explanations, and arguments which support a denial of the alleged violation;
(ii) Demonstrate any extenuating circumstances or other reason why a proposed penalty should not be imposed or should be mitigated;
(iii) Discuss the relevant authorities which support the position asserted;
(iv) Furnish full and complete answers to any questions set forth in the notice of violation; and
(v) Include copies of all relevant documents.
(3) If a person fails to submit a written reply within 30 calendar days of receipt of a notice of violation, the notice of violation, including any penalties therein, constitutes a final decision, and payment of the full amount of the civil penalty assessed in the notice of violation is due 30 calendar days after receipt of the notice of violation. Such failure to submit a reply constitutes a waiver of the rights and processes outlined in paragraphs (c)(4) through (14) of this section.
(4) The Deputy Administrator for Defense Nuclear Nonproliferation or his/her designee, at the written request of a person notified of an alleged violation, may extend in writing, for a reasonable period, the time for submitting a reply.
(5) If a person submits a timely written reply to the notice of violation, the Deputy Administrator for Defense Nuclear Nonproliferation will make a final determination whether the person violated or is continuing to violate a requirement of section 57 b. of the AEA, as implemented under this part. Based on a determination that a person has violated or is continuing to violate a requirement of section 57 b., as implemented under this part, the Deputy Administrator for Defense Nuclear Nonproliferation will issue to that person a final notice of violation that concisely states the violation, the amount of the civil penalty imposed, including an explanation of how the factors in this paragraph were considered, further actions necessary by or available to the person, and that upon failure to timely pay the civil penalty, the penalty may be collected by civil action. The Deputy Administrator for Defense Nuclear Nonproliferation will send such a final notice of violation by registered or certified mail to the last known address of the person. The amount of the civil penalty will be based on:
(i) The nature, circumstances, extent, and gravity of the violation or violations;
(ii) The violator's ability to pay;
(iii) The effect of the civil penalty on the person's ability to do business;
(iv) Any history of prior violations;
(v) The degree of culpability;
(vi) Whether the violator self-disclosed the violation;
(vii) The economic significance of the violation; and (viii) Such other factors as justice may require.
(6) Any person who receives a final notice of violation under paragraph (c)(5) of this section may request a hearing concerning the allegations contained in the notice. The person must mail or deliver any written request for a hearing to the Under Secretary for Nuclear Security within 30 calendar days of receipt of the final notice of violation. If the person does not request a hearing within 30 calendar days, the final notice of violation, including any penalties therein, constitutes a final decision, and payment of the full amount of the civil penalty assessed in the final notice of violation is due 45 calendar days after receipt of the final notice of violation.
(7) Upon receipt from a person of a written request for a hearing, the Under Secretary for Nuclear Security or his/her designee, shall:
(i) Appoint a Hearing Counsel; and
(ii) Forward the request to the DOE Office of Hearings and Appeals (OHA). The OHA Director shall appoint an OHA Administrative Judge to preside at the hearing.
(8) The Hearing Counsel shall be an attorney employed by DOE, and shall have all powers necessary to represent DOE before the OHA.
(9) In all hearings under this paragraph (c):
(i) The parties have the right to be represented by a person of their choosing, subject to possessing an appropriate information access authorization for the subject matter. The parties are responsible for producing witnesses on their behalf, including requesting the issuance of subpoenas, if necessary;
(ii) Testimony of witnesses is given under oath or affirmation, and witnesses must be advised of the applicability of 18 U.S.C. 1001 and 18 U.S.C. 1621, dealing with the criminal penalties associated with false statements and perjury;
(iii) Witnesses are subject to cross-examination;
(iv) Formal rules of evidence do not apply, but OHA may use the Federal Rules of Evidence as a guide; and
(v) A court reporter will make a transcript of the hearing.
(vi) The Administrative Judge has all powers necessary to regulate the conduct of proceedings:
(vii) The Administrative Judge may order discovery at the request of a party, based on a showing that the requested discovery is designed to produce evidence regarding a matter, not privileged, that is relevant to the subject matter of the complaint;
(viii) The Administrative Judge may permit parties to obtain discovery by any appropriate method, including deposition upon oral examination or written questions; written interrogatories; production of documents or things; permission to enter upon land or other property for inspection and other purposes; and requests for admission;
(ix) The Administrative Judge may issue subpoenas for the appearance of witnesses on behalf of either party, or for the production of specific documents or other physical evidence;
(x) The Administrative Judge may rule on objections to the presentation of evidence; exclude evidence that is immaterial, irrelevant, or unduly repetitious; require the advance submission of documents offered as evidence; dispose of procedural requests; grant extensions of time; determine the format of the hearing; direct that written motions, documents, or briefs be filed with respect to issues raised during the course of the hearing; ask questions of witnesses; direct that documentary evidence be served upon other parties (under protective order if such evidence is deemed confidential); and otherwise regulate the conduct of the hearing;
(xi) The Administrative Judge may, at the request of a party or on his or her own initiative, dismiss a claim, defense, or party and make adverse findings upon the failure of a party or the party's representative to comply with a lawful order of the Administrative Judge, or, without good cause, to attend a hearing;
(xii) The Administrative Judge, upon request of a party, may allow the parties a reasonable time to file pre-hearing briefs or written statements with respect to material issues of fact or law. Any pre-hearing submission must be limited to the issues specified and filed within the time prescribed by the Administrative Judge;
(xiii) The parties are entitled to make oral closing arguments, but post-hearing submissions are only permitted by direction of the Administrative Judge;
(xiv) Parties allowed to file written submissions, or documentary evidence must serve copies upon the other parties within the timeframe prescribed by the Administrative Judge;
(xv) The Administrative Judge is prohibited, beginning with his or her appointment and until a final agency decision is issued, from initiating or otherwise engaging in
(xvi) The Administrative Judge is responsible for determining the date, time, and location of the hearing, including whether the hearing will be conducted via video conference; and
(xvii) The Administrative Judge shall convene the hearing within 180 days of the OHA's receipt of the request for a hearing, unless the parties agree to an extension of this deadline by mutual written consent, or the Administrative Judge determines that extraordinary circumstances exist that require a delay.
(10) Hearings shall be open only to Hearing Counsel, duly authorized representatives of DOE, the person and the person's counsel or other representatives, and such other persons as may be authorized by the Administrative Judge. Unless otherwise ordered by the Administrative Judge, witnesses shall testify in the presence of the person but not in the presence of other witnesses.
(11) The Administrative Judge must use procedures appropriate to safeguard and prevent unauthorized disclosure of classified information or any other information protected from public disclosure by law or regulation, with minimum impairment of rights and obligations under this part. The classified or otherwise protected status of any information shall not, however, preclude its being introduced into evidence. The Administrative Judge may issue such orders as may be necessary to consider such evidence in camera including the preparation of a supplemental recommended decision to address issues of law or fact that arise out of that portion of the evidence that is classified or otherwise protected.
(12) DOE shall have the burden of proving the violation(s) as set forth in the final notice of violation by a preponderance of the evidence. The person to whom the notice of violation is addressed shall have the burden of proving any affirmative defense by a preponderance of the evidence. The amount of the penalty associated with any violation which is upheld shall be adopted by the Administrative Judge unless not supported by the facts, in which event the Administrative Judge will include such information in the Administrative Judge's recommended decisions to the Under Secretary for reconsideration of the amount of the penalty based on the Administrate Judge's resolution of the factual issues.
(13) Within 180 days of receiving a copy of the hearing transcript, or the closing of the record, whichever is later, the Administrative Judge shall issue a recommended decision. The recommended decision shall contain findings of fact and conclusions regarding all material issues of law, as well as the reasons therefor. If the Administrative Judge determines that a violation has occurred and that a civil penalty is appropriate, the recommended decision shall set forth the amount of the civil penalty based on the factors in paragraph (c)(5) of this section.
(14) The Administrative Judge shall forward the recommended decision to the Under Secretary for Nuclear Security. The Under Secretary for Nuclear Security shall make a final decision as soon as practicable after completing his/her review. This may include compromising, mitigating, or remitting the penalties in accordance with section 234 a. of the AEA, as amended. DOE shall notify the person of the Under Secretary for Nuclear Security's final decision or other action
(15) If a civil penalty assessed in a final decision is not paid as provided in paragraphs(c)(3), (6), or (14) of this section, as appropriate, the Under Secretary for Nuclear Security may request the Department of Justice to initiate a civil action to collect the penalty imposed under this paragraph in accordance with section 234 c. of the AEA.
(16) The Under Secretary for Nuclear Security or his/her designee may publish redacted versions of notices of violation and final decisions.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 ECJ, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes. This AD was prompted by a report of uncommanded setting of the barometric reference in both primary flight displays (PFDs) due to the architecture of data communication of the Control I/O modules, which interconnect the display controllers to the air data system. This AD requires installing updated Primus EPIC software, as specified in an Agência Nacional de Aviação Civil (ANAC) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 16, 2023.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 16, 2023.
• For material incorporated by reference in this AD, contact ANAC, Aeronautical Products Certification Branch (GGCP), Rua Dr. Orlando Feirabend Filho, 230—Centro Empresarial Aquarius—Torre B—Andares 14 a 18, Parque Residencial Aquarius, CEP 12.246-190—São José dos Campos—SP, Brazil; telephone 55 (12) 3203-6600; email
• You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available at
Hassan Ibrahim, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3653; email
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 ECJ, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes. The NPRM published in the
In the NPRM, the FAA proposed to require installing updated Primus EPIC software, as specified in ANAC AD 2022-05-04. The FAA is issuing this AD to address uncommanded setting of the barometric reference in both primary flight displays, which could interfere with the decisions taken by the flightcrew during critical phases of flight, and possibly result in reduced controllability of the airplane.
You may examine the MCAI in the AD docket at
The FAA received a comment from the Air Line Pilots Association, International (ALPA) who supported the NPRM without change.
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. This AD is adopted as proposed in the NPRM.
This AD requires ANAC AD 2022-05-04, which specifies procedures for installing updated Primus EPIC software. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA estimates that this AD affects 121 airplanes of U.S. registry. The FAA estimates 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.
The FAA is 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 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) Will not affect intrastate aviation in Alaska, and
(3) 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 airworthiness directive (AD) is effective February 16, 2023.
This AD affects AD 2020-05-21, Amendment 39-19871 (85 FR 15940, March 20, 2022) (AD 2020-05-21).
This AD applies to Embraer S.A. (Type Certificate previously held by Yaborã Indústria Aeronáutica S.A.; Embraer S.A.) Model ERJ 190-100 STD, -100 LR, -100 ECJ, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes, certificated in any category, as identified in Agência Nacional de Aviação Civil (ANAC) AD 2022-05-04, effective May 25, 2022 (ANAC AD 2022-05-04).
Air Transport Association (ATA) of America Code 31, Instruments.
This AD was prompted by a report of uncommanded setting of the barometric reference in both primary flight displays due to the architecture of data communication of the Control I/O modules, which interconnect the display controllers to the air data system. The FAA is issuing this AD to address this condition, which could interfere with the decisions taken by the flightcrew during critical phases of flight, and possibly result in reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, ANAC AD 2022-05-04.
(1) Where ANAC AD 2022-05-04 refers to its effective date, this AD requires using the effective date of this AD.
(2) The “Alternative methods of compliance (AMOC)” section of ANAC AD 2022-05-04 does not apply to this AD.
(3) Where paragraph (d) of ANAC AD 2022-05-04 states, “You must use the following service information for the installation of the Primus EPIC software versions 25.9, 27.4 and 27.4.0.1 as required by this AD,” replace that text with “You must use the following service information for the installation of the Primus EPIC software versions 25.9, 27.4 and 27.4.0.1, as applicable, except as provided in paragraphs (a)(1) through (6) of ANAC AD 2022-05-04.”
Accomplishing the actions required by this AD on an airplane terminates all requirements of AD 2020-05-21 for that airplane only.
Although the service information referenced in ANAC AD 2022-05-04 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Hassan Ibrahim, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3653; email
(1) The Director of the Federal Register approved the incorporation by reference of
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Agência Nacional de Aviação Civil (ANAC) AD 2022-05-04, effective May 25, 2022.
(ii) [Reserved]
(3) For ANAC AD 2022-05-04, contact ANAC, Aeronautical Products Certification Branch (GGCP), Rua Dr. Orlando Feirabend Filho, 230—Centro Empresarial Aquarius—Torre B—Andares 14 a 18, Parque Residencial Aquarius, CEP 12.246-190—São José dos Campos—SP, Brazil; telephone 55 (12) 3203-6600; email
(4) You may view this material at the FAA, Airworthiness Products Section, Operational Safety 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 material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule; removal.
The FAA is removing Airworthiness Directive (AD) 2020-25-03, which applied to all Airbus SAS Model A318, A319, A320, and A321 series airplanes. AD 2020-25-03 required repetitive checks of the pressure gauges to determine the amount of pressure on the inflation reservoir of each emergency escape slide/raft, and applicable corrective actions. AD 2020-25-03 also provided optional terminating action for the repetitive checks. The FAA issued AD 2020-25-03 to address insufficient reservoir pressure in an emergency escape slide/raft, which would prevent the deployment of the emergency escape slide/raft during an emergency, possibly resulting in injury to the occupants. The FAA has determined that AD 2020-25-03 is no longer necessary because the unsafe condition no longer exists. Accordingly, AD 2020-25-03 is removed.
This AD becomes effective January 12, 2023.
Dan Rodina, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; email
The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, previously issued AD 2020-0236, dated October 27, 2020 (EASA AD 2020-0236) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Airbus SAS Model A318 series airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, -153N, and -171N airplanes; Model A320-211, -212, -214, -215, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321 series airplanes. The FAA issued corresponding AD 2020-25-03, Amendment 39-21345 (85 FR 79415, December 10, 2020) (AD 2020-25-03), for those airplanes except for Model A319-153N and A320-215 airplanes, which are not included on the U.S. type certificate data sheet. AD 2020-25-03 required repetitive checks of the pressure gauges to determine the amount of pressure on the inflation reservoir of each emergency escape slide/raft, and applicable corrective actions. AD 2020-25-03 also provided optional terminating action for the repetitive checks. AD 2020-25-03 was prompted by a report of a loud bang heard during airplane boarding. A subsequent inspection revealed that one emergency escape slide/raft was found with zero reservoir pressure due to a burst rupture disk assembly in the inflation reservoir, which was probably caused by a manufacturing defect. The FAA issued AD 2020-25-03 to address insufficient reservoir pressure in an emergency escape slide/raft, which would prevent the deployment of the emergency escape slide/raft during an emergency, possibly resulting in injury to the occupants.
Since the FAA issued AD 2020-25-03, EASA issued AD 2020-0236-CN, dated May 16, 2022, to cancel EASA AD 2020-0236. EASA advised the FAA that SAFRAN Aerosystems, the manufacturer of the affected parts, produced service information with instructions for replacement of the rupture disk during overhaul of the affected parts. EASA reports that no rupture disk failures have occurred in service or during overhaul. Consequently, new risk analysis determined that an unsafe condition no longer exists that would warrant AD action.
Subsequently, the FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by removing AD 2020-25-03. The NPRM was published in the
The FAA received a comment from United Airlines Engineering in support of the NPRM without change. The commenter concurred with the proposal to rescind AD 2020-25-03, noting that there have been no known reports of evacuation slide issues related to rupture disc failure while in service or during repair/overhaul. The commenter added that a visual check of the slide pressure is performed prior to each revenue flight.
The NPRM identified the project number as AD-2020-01459-T. However, the project number for this rescission is MCAI-2020-1459-T. The FAA has revised this rescission accordingly.
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
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.
The FAA is 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.
The FAA 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) Will not affect intrastate aviation in Alaska, and
(3) 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 becomes effective January 12, 2023.
This AD replaces AD 2020-25-03, Amendment 39-21345 (85 FR 79415, December 10, 2020).
This action applies to all Airbus SAS airplanes, certificated in any category, identified in paragraphs (c)(1) through (4) of this AD.
(1) Model A318-111, -112, -121, and -122 airplanes.
(2) Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, and -171N airplanes.
(3) Model A320-211, -212, -214, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes.
(4) Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -252N, -253N, -271N, -272N, -251NX, -252NX, -253NX, -271NX, and -272NX airplanes.
Air Transport Association (ATA) of America Code 25, Equipment/furnishings.
For more information about this AD, contact Dan Rodina, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; email
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all The Boeing Company Model 707 and Model 727 airplanes. This AD was prompted by a report indicating cracking in fastener holes at the center wing box and at certain positions of the rear spar and lower skin on a Model 737-300 airplane. A cross model review determined that similar cracking of the fastener holes in the center wing box lower skin could occur on Model 707 and Model 727 airplanes. For Model 707 airplanes this AD requires repetitive detailed inspections of the center wing box lower skin for cracking and repetitive high frequency eddy current (HFEC) and ultrasonic (UT) inspections of the rear spar lower chord at a certain position for cracking, repetitive sealant application, and repair if necessary. For Model 727 airplanes this AD requires repetitive detailed inspections of the center wing box, lower skin, and rear spar lower chord at a certain location for cracking, repetitive sealant application, and repair if necessary. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 16, 2023.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 16, 2023.
• 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; website
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available at
Sean Newell, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5266; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 707 and Model 727 airplanes. The NPRM published in the
The FAA received comments from Boeing and an individual who supported the NPRM without change.
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed Boeing 707 Alert Requirements Bulletin A3544 RB, dated November 1, 2021. This service information specifies procedures for repetitive internal detailed inspections of the center wing box lower skin for cracking and repetitive internal surface HFEC and UT inspections of the rear spar lower chord between left body buttock line (LBBL) 40 and right body buttock line (RBBL) 40 for cracking, repetitive sealant application, and repair.
The FAA reviewed Boeing Alert Requirements Bulletin 727-57A0190 RB, dated September 13, 2021. This service information specifies procedures for repetitive internal detailed inspections for cracking of the center wing box, lower skin, and rear spar lower chord between LBBL 34.7 and RBBL 34.7, repetitive sealant application, and repair.
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 FAA estimates that this AD affects 48 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in 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.
The FAA is 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 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) Will not affect intrastate aviation in Alaska, and
(3) 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:
9 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective February 16, 2023.
None.
This AD applies to The Boeing Company airplanes specified in paragraphs (c)(1) through (3) of this AD, certificated in any category.
(1) Model 707-100 Long Body, -200, -100B Long Body, and -100B Short Body series airplanes.
(2) Model 707-300, -300B, -300C, and -400 series airplanes.
(3) Model 727, 727C, 727-100, 727-100C, 727-200, and 727-200F series airplanes.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by a report indicating cracking in fastener holes at the center wing box and at certain positions of the rear spar and lower skin on a Model 737-300 airplane. A cross model review determined that similar cracking of the fastener holes in the center wing box lower skin could occur on Model 707 and Model 727 airplanes. The FAA is issuing this AD to address cracking in the center wing box lower skin or rear spar lower chord, which could result in the inability of the structure to sustain limit load 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 727-57A0190 RB, dated September 13, 2021: Within 120 days after the effective date of this AD, inspect the airplane and do all applicable on-condition actions using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
Except as specified by paragraph (i) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing 707 Alert Requirements Bulletin A3544 RB, dated November 1, 2021; or Boeing Alert Requirements Bulletin 727-57A0190 RB, dated September 13, 2021; as applicable, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing 707 Alert Requirements Bulletin A3544 RB, dated November 1, 2021; or Boeing Alert Requirements Bulletin 727-57A0190 RB, dated September 13, 2021, as applicable.
Guidance for accomplishing the actions required by this AD can be found in Boeing 707 Alert Service Bulletin A3544, dated November 1, 2021, which is referred to in Boeing 707 Alert Requirements Bulletin A3544 RB, dated November 1, 2021; and Boeing Alert Service Bulletin 727-57A0190, dated September 13, 2021, which is referred to in Boeing Alert Requirements Bulletin 727-57A0190 RB, dated September 13, 2021.
(1) Where the Compliance Time columns of the tables in the “Compliance” paragraph of Boeing 707 Alert Requirements Bulletin A3544 RB, dated November 1, 2021, uses the phrase “the original issue date of Requirements Bulletin 707A3544 RB” this AD requires using “the effective date of this AD.”
(2) Where the Compliance Time columns of the tables in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 727-57A0190 RB, dated September 13, 2021, uses the phrase “the original issue date of Requirements Bulletin 727-57A0190 RB” this AD requires using “the effective date of this AD.”
(3) Where Boeing 707 Alert Requirements Bulletin A3544 RB, dated November 1, 2021, specifies contacting Boeing for repair instructions: This AD requires doing the repair using a method approved in accordance with the procedures specified in paragraph (j) of this AD.
(4) Where Boeing Alert Requirements Bulletin 727-57A0190 RB, dated September 13, 2021, specifies contacting Boeing for repair instructions: This AD requires doing the 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 responsible Flight Standards 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 responsible Flight Standards 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 Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, FAA, 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 Sean Newell, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5266; email:
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (l)(3) and (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 707 Alert Requirements Bulletin A3544 RB, dated November 1, 2021.
(ii) Boeing Alert Requirements Bulletin 727-57A0190 RB, dated September 13, 2021.
(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; website
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety 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,
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes Class D airspace for Craig Field, Selma, AL, as a new air traffic control tower will service the airport. This action also amends Class E airspace extending upward from 700 feet above the surface by updating the radius and geographic coordinates of the airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.
Effective 0901 UTC, February 23, 2023. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11 and publication of conforming amendments.
FAA Order JO 7400.11G, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Avenue, College Park, GA 30337; Telephone (404) 305-6364.
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 D airspace and amends Class E airspace in Selma, AL, to support IFR operations in the area.
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
Class D and E airspace designations are published in Paragraphs 5000 and 6005, respectively, of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the
The FAA is amending 14 CFR part 71 by establishing Class D airspace in Selma, AL, as a new air traffic control tower will service Craig Field Airport. Also, Class E airspace extending upward from 700 feet above the surface at Craig Field Airport is amended as an airspace evaluation determined the radius required an increase to 10.2 miles (formerly 7 miles), as well as updating the airport's geographic coordinates to coincide with the FAA's database. In addition, the city name is removed from the second line of the Class E descriptor header, as per FAA Order 7400.2N.
Class D and E airspace designations are published in Paragraphs 5000 and 6005, respectively, of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.
FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is 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 qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraphs 5-6.5a.
This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances warrant the preparation of an environmental assessment.
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 the surface up to and including 3,000 feet MSL, within a 4.3-mile radius of Craig Field Airport, and within 1.2 miles on each side of the 146° bearing, extending from the 4.3-mile radius to 6.3 miles southeast of the airport; and within 1-mile each side of the 326° bearing, extending from the 4.3-mile radius to 6.3 miles northwest of the airport. This Class D airspace area is effective during the specific days and times established in advance by a Notice to Air Missions. The effective days and times will thereafter be continuously published in the Chart Supplement.
That airspace extending upward from 700 feet above the surface within a 10.2-mile radius of Craig Field Airport.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPS) and associated Takeoff Minimums and Obstacle Departure procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective January 12, 2023. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of January 12, 2023.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30. 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Information Services, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedures and Airspace Group, Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration. Mailing Address: FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace Group, 6500 South MacArthur Blvd., STB Annex, Bldg. 26, Room 217, Oklahoma City, OK 73099. Telephone (405) 954-4164.
This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air traffic control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Federal Energy Regulatory Commission.
Final rule.
The Federal Energy Regulatory Commission (Commission) is issuing a final rule to amend its regulations governing the maximum civil monetary penalties assessable for violations of statutes, rules, and orders within the Commission's jurisdiction. The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended most recently by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, requires the Commission to issue this final rule.
This final rule is effective January 12, 2023.
Colin Chazen, Attorney, Office of Enforcement, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Phone: (202) 502-8732; email:
1. In this final rule, the Federal Energy Regulatory Commission
2. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Adjustment Act),
3. The 2015 Adjustment Act defines a civil monetary penalty as any penalty, fine, or other sanction that: (A)(i) is for a specific monetary amount as provided by Federal law; or (ii) has a maximum amount provided for by Federal law; (B) is assessed or enforced by an agency pursuant to Federal law; and (C) is assessed or enforced pursuant to an administrative proceeding or a civil action in the federal courts.
4. Under the 2015 Adjustment Act, the first step for such adjustment of a civil monetary penalty for inflation requires determining the percentage by which the U.S. Department of Labor's Consumer Price Index for all-urban consumers (CPI-U) for October of the preceding year exceeds the CPI-U for October of the year before that.
5. The second step requires multiplying the CPI-U percentage increase by the applicable existing maximum civil monetary penalty.
6. The third step requires rounding the base penalty increase amount to the nearest dollar and adding that amount to the base penalty to calculate the new adjusted maximum civil monetary penalty.
7. Under the 2015 Adjustment Act, an agency is directed to use the maximum civil monetary penalty applicable at the time of assessment of a civil penalty, regardless of the date on which the violation occurred.
8. The adjustments that the Commission is required to make pursuant to the 2015 Adjustment Act are reflected in the following table:
9. Congress directed that agencies issue final rules to adjust their maximum civil monetary penalties notwithstanding the requirements of the Administrative Procedure Act (APA).
10. The Regulatory Flexibility Act, as amended, requires agencies to certify that rules promulgated under their authority will not have a significant economic impact on a substantial number of small businesses.
11. This rule does not require the collection of information. The Commission is therefore not required to submit this rule for review to the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995.
12. In addition to publishing the full text of this document in the
13. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and downloading. To access this document in eLibrary, type the docket number (excluding the last three digits) in the docket number field.
14. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
15. For the same reasons the Commission has determined that public notice and comment are unnecessary, impractical, and contrary to the public interest, the Commission finds good cause to adopt an effective date that is less than 30 days after the date of publication in the
16. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule is being submitted to the Senate, House, and Government Accountability Office.
Natural gas, Reporting and recordkeeping requirements.
Administrative practice and procedure, Electric power, Penalties, Pipelines, Reporting and recordkeeping requirements.
By the Commission.
In consideration of the foregoing, the Commission amends parts 250 and 385, chapter I, title 18,
15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352; 28 U.S.C. 2461 note.
(e) * * *
(1) Any person who transports gas for others pursuant to subpart B or G of part 284 of this chapter and who knowingly violates the requirements of §§ 358.4 and 358.5 of this chapter, this section, or § 284.13 of this chapter will be subject, pursuant to sections 311(c), 501, and 504(b)(6) of the Natural Gas Policy Act of 1978, to a civil penalty, which the Commission may assess, of not more than $1,496,035 for any one violation.
5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791a-825v, 2601-2645; 28 U.S.C. 2461; 31 U.S.C 3701, 9701; 42 U.S.C. 7101-7352, 16441, 16451-16463; 49 U.S.C. 60502; 49 App. U.S.C. 1-85 (1988); 28 U.S.C. 2461 note (1990); 28 U.S.C. 2461 note (2015).
(a) Except as provided in paragraph (b) of this section, the Commission may assess a civil penalty of up to $27,017 for each day that the violation continues.
The current inflation-adjusted civil monetary penalties provided by law within the jurisdiction of the Commission are:
(a) 15 U.S.C. 3414(b)(6)(A)(i), Natural Gas Policy Act of 1978: $1,496,035.
(b) 16 U.S.C. 823b(c), Federal Power Act: $27,017 per day.
(c) 16 U.S.C. 825n(a), Federal Power Act: $3,529.
(d) 16 U.S.C. 825o-1(b), Federal Power Act: $1,496,035 per day.
(e) 15 U.S.C. 717t-1, Natural Gas Act: $1,496,035 per day.
(f) 49 App. U.S.C. 6(10) (1988), Interstate Commerce Act: $1,566 per offense and $73 per day after the first day.
(g) 49 App. U.S.C. 16(8) (1988), Interstate Commerce Act: $15,662 per day.
(h) 49 App. U.S.C. 19a(k) (1988), Interstate Commerce Act: $1,566 per day.
(i) 49 App. U.S.C. 20(7)(a) (1988), Interstate Commerce Act: $1,566 per day.
Pension Benefit Guaranty Corporation.
Final rule.
The Pension Benefit Guaranty Corporation is required to amend its regulations annually to adjust for inflation the maximum civil penalty for failure to provide certain notices or other material information and for failure to provide certain multiemployer plan notices.
Melissa Rifkin (
This rule is needed to carry out the requirements of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and Office of Management and Budget guidance M-23-05. The rule adjusts, as required for 2023, the maximum civil penalties under 29 CFR parts 4071 and 4302 that the Pension Benefit Guaranty Corporation (PBGC) may assess for failure to provide certain notices or other material information and certain multiemployer plan notices.
PBGC's legal authority for this action comes from the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and from sections 4002(b)(3), 4071, and 4302 of the Employee Retirement Income Security Act of 1974 (ERISA).
This rule adjusts as required by law the maximum civil penalties that PBGC may assess under sections 4071 and 4302 of ERISA. The new maximum amounts are $2,586 for section 4071 penalties and $345 for section 4302 penalties.
PBGC administers title IV of ERISA. Title IV has two provisions that authorize PBGC to assess civil monetary penalties.
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,
On December 15, 2022, the Office of Management and Budget issued memorandum M-23-05 on implementation of the 2023 annual inflation adjustment pursuant to the 2015 act.
The Office of Management and Budget has determined that this rule is not a “significant regulatory action” under Executive Order 12866 and therefore not subject to its review.
The Office of Management and Budget also has determined that notice and public comment on this final rule are unnecessary because the adjustment of civil penalties implemented in the rule is required by law. See 5 U.S.C. 553(b).
Because no general notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).
Penalties.
Penalties.
In consideration of the foregoing, PBGC amends 29 CFR parts 4071 and 4302 as follows:
28 U.S.C. 2461 note, as amended by sec. 701, Pub. L. 114-74, 129 Stat. 599-601; 29 U.S.C. 1302(b)(3), 1371.
28 U.S.C. 2461 note, as amended by sec. 701, Pub. L. 114-74, 129 Stat. 599-601; 29 U.S.C. 1302(b)(3), 1452.
Issued in Washington, DC.
Department of Defense.
Interim final rule with request for comments.
The Assistant Secretary of Defense for Health Affairs (ASD(HA)) issues this interim final rule (IFR) with comment to modify the TRICARE regulation by adding freestanding End Stage Renal Disease (ESRD) facilities as a category of TRICARE-authorized institutional provider and establishing reimbursement for such facilities and by temporarily adopting Medicare's New Coronavirus Disease 2019 (COVID-19) Treatments Add-on Payments (NCTAPs).
You may submit comments, identified by docket number and/or Regulation Identification Number (RIN) number and title, by any of the following methods:
•
•
• Jahanbakhsh Badshah, Defense Health Agency, Medical Benefits and Reimbursement Section, 303-676-3881,
• Sharon Seelmeyer, Defense Health Agency, Medical Benefits and Reimbursement Section, 303-676-3690,
The ASD(HA) will publish a document in the
There is currently an outbreak of respiratory disease caused by a novel coronavirus. The virus has been named “SARS-CoV-2,” and the disease it causes is referred to as COVID-19. On January 31, 2020, the Secretary of HHS determined that a PHE had existed since January 27, 2020. On March 13, 2020, the President declared a national emergency due to the COVID-19 outbreak, retroactive to March 1, 2020 (Proclamation 9994, 85 FR 15337). The current administration has continued the national emergency declaration, via a notice issued February 18, 2022, which was published in the
While the substantial access to COVID-19 vaccinations in the United States initially resulted in State and local governments relaxing restrictions for individuals and in improved conditions for health care providers due to the decreasing rate of new COVID-19 cases, the emergence of the Delta variant of the virus, which proved to be more infectious and more resistant to vaccination, resulted in a surge of COVID-19 infections in the United States, as well as an increase in the rate of hospitalizations, deaths, and health care providers at capacity. In July 2021, the Centers for Disease Control and Prevention (CDC) released guidance recommending that both vaccinated and unvaccinated individuals wear face masks in public indoor settings in areas of substantial or high transmission. Likewise, the Federal Government and many State, local, and tribal governments resumed or increased various restrictions. In December 2021, the Omicron variant replaced the Delta variant as the predominant COVID-19 variant in the United States. Although the Omicron variant is reportedly less severe than previous variants, it also results in a much higher level of transmission than previous variants and is still responsible for high levels of severe illness, hospitalization, and death, primarily in the unvaccinated and immunocompromised populations. Additionally, COVID-19 vaccines available in the United States are currently less effective at preventing COVID-19 caused by the Omicron variant. The CDC also states that new variants of COVID-19 are expected to occur, and that even if a variant is less severe in general, “an increase in the overall number of cases could cause an increase in hospitalizations, put more strain on healthcare resources and potentially lead to more deaths.”
Consistent with the President's national emergency declaration and as a result of the COVID-19 pandemic, the ASD(HA) hereby modifies the following regulations, but in each case, only to the extent determined necessary to ensure that TRICARE beneficiaries have expanded access to care required for the treatment of COVID-19 and for other medically necessary care, and that TRICARE continues to reimburse like Medicare, to the extent practicable, as required by 10 U.S.C. 1079(i).
Agency rulemaking is governed by the Administrative Procedure Act (APA), 5 U.S.C. 551
First, as of this rule's writing, both the PHE and the President's declared national emergency are still in effect; therefore, the Administration still finds COVID-19 to be an emergency situation and unnecessary delays should be avoided to the greatest extent possible. While DoD acknowledges that the pandemic has been ongoing for many months, DoD maintains that, given the ongoing uncertainty as to what dangers future COVID-19 variants may pose, it is impracticable and contrary to the public interest to delay these regulations until a full public notice-and-comment process is completed. Second, patients and providers alike continue to struggle due to burdens imposed by the COVID-19 pandemic. The emergence of the Delta and Omicron variants have resulted in increased COVID-19 cases, hospitalizations, and deaths, which have worsened resource constraints on providers, limited access to medically necessary health care services and supplies for TRICARE beneficiaries, and cost many beneficiaries their health and their lives. Meanwhile, the trajectory of COVID-19, including number of future variants and severity of each variant, remains an unknown variable. In such a precarious and uncertain healthcare landscape, it is imperative that TRICARE ensure continued access to care for TRICARE beneficiaries while simultaneously following its statutory mandate to pay for like services and supplies using Medicare reimbursement methodologies, when practicable. In promulgating this IFR, the Defense Health Agency (DHA) has evaluated and re-evaluated each provision to ensure the IFR remains up to date with current developments during the COVID-19 pandemic and to publish only such requirements and authorities that DHA deems necessary to respond to the declared national emergency and PHE in order to best provide for the health of TRICARE beneficiaries. It is likewise crucial that TRICARE authorize ESRD facilities as institutional providers as expeditiously as possible to ameliorate the resource constraints current TRICARE-authorized providers are facing and increase the access of beneficiaries with a life-threatening disease to proven, medically necessary care in the most appropriate setting. Considerations specific to the two provisions contained in this IFR are discussed in greater depth below. Finally, this rule imposes no restrictions, financial penalties, or regulatory burdens on the public that would make a notice and comment period necessary or prudent; in fact, this IFR would ensure better access to medically necessary care for TRICARE beneficiaries by providing appropriate reimbursement to TRICARE providers. We anticipate no negative feedback from the general public on the provisions within this IFR; advance notice and comment would only delay increased payment to providers and improved access to care for beneficiaries. Moreover, an earlier DHA COVID-19 IFR (85 FR 54914-54924) that relaxed
Specifically regarding the adoption of Medicare's NCTAPs, it is crucial that providers be reimbursed adequately for COVID-19 treatments involving new, high-cost services and supplies to which Medicare has deemed appropriate to apply an add-on payment. Adopting this change will ensure that TRICARE beneficiaries continue to receive maximized access to new, high-cost COVID-19 treatments such as remdesivir and convalescent plasma as well as any qualifying treatments that may follow. CMS established the NCTAP “to increase the current IPPS payment amounts to mitigate any potential financial disincentives for hospitals to provide new COVID-19 treatments during the PHE” in an IFR (85 FR 71142) published November 6, 2020. Due to the statutory requirement that TRICARE reimburse providers using Medicare reimbursement methodologies for like services and supplies, when practicable, DHA adopted these changes, as well as the changes made in this IFR, because the ASD(HA) determined that such changes were practicable and necessary due to the COVID-19 pandemic. Although DHA is not required to adopt all Medicare reimbursement methodologies—only those that are practicable—the ASD(HA) does find it practicable to adopt Medicare's NCTAP and likewise finds it necessary to promulgate this change in an IFR, effective the publication date of this IFR (
Additional good cause exists to publish as an IFR the permanent amendments to the TRICARE regulation regarding adoption of freestanding ESRD facilities as authorized institutional providers and modifications to the reimbursement of freestanding ESRD facilities. As previously noted, TRICARE is mandated by law, 10 U.S.C. 1079(i)(2), to reimburse institutional providers using the Medicare reimbursement methodologies, to the extent practicable. Medicare recognizes freestanding and hospital-based ESRD facilities as institutional providers and reimburses ESRD facilities using a specific ESRD Prospective Payment System (PPS). Due to historically low volume, TRICARE has neither classified freestanding ESRD facilities as institutional providers nor adopted the Medicare ESRD PPS. However, in recent years, there has been increasing volume of TRICARE beneficiaries requiring ESRD services and DHA has determined that because the TRICARE payment methodology for freestanding ESRD facilities designated as CSPs does not reimburse these facilities for their institutional charges, this could result in freestanding ESRD providers declining to accept TRICARE patients who need dialysis and other ESRD services and supplies. As such, the ASD(HA) has determined that, while it would be impracticable to adopt the Medicare ESRD PPS, it is practicable to adopt a TRICARE-specific ESRD rate that approximates the Medicare ESRD rate. The national emergency caused by the COVID-19 pandemic and extended by the Delta, Omicron, and potentially other future variants has resulted in a severe shortage of health care providers and supplies, and it is imperative that (1) TRICARE beneficiaries have maximized access to care for ESRD services and (2) ESRD services are available, where appropriate, outside hospital settings to ensure that hospitals are more efficiently able to maximize resources to treat COVID-19 and other conditions requiring the acuity of inpatient or outpatient hospital settings. Due to these resource constraints for providers and the lack of reimbursement for institutional charges under the TRICARE program's existing reimbursement methodology based on restricted TRICARE provider status, ESRD facilities have notified DHA that they may be forced to leave the TRICARE private sector network if payment rates do not include reimbursement for institutional charges. A reduction in network ESRD facilities would severely restrict the access of TRICARE beneficiaries to life-saving ESRD services and supplies during the remainder of the COVID-19 pandemic and could impose additional, unnecessary costs on TRICARE beneficiaries who consequently have to choose care from a provider who is out of network or is not a participating provider within the TRICARE program. Barriers to access and increased costs could prevent TRICARE beneficiaries from seeking or receiving medically necessary treatment for ESRD. Furthermore, ESRD is a life-threatening condition and patients with ESRD are immunocompromised—and therefore more susceptible to COVID-19-so it is especially imperative during the COVID-19 pandemic that these beneficiaries receive prompt, accessible, high-quality ESRD services in the most appropriate setting. Having patients with ESRD receive treatment in an ESRD facility rather than in another setting may also improve capacity or other resource constraints that other institutional providers are facing during the COVID-19 pandemic; by not treating ESRD patients, these providers will be able to focus their resources on treating other patients, such as those with COVID-19 during times of surging infection rates or new variants. For example, should hospitals continue to experience periodic patient admission surges, TRICARE beneficiaries who are ESRD patients would neither be occupying valuable emergency department and inpatient beds nor would they be turned away from treatment due to hospitals being over capacity, as they could be treated in freestanding ESRD facilities instead of in a hospital setting (as appropriate for their specific medical needs). Lastly, DoD intends to make this change in ESRD provider status and reimbursement methodology permanent, in conformance with statutory mandates to reimburse providers of services of the same type (
In exercising the authority under statute 5 U.S.C. 553(b)(B), the ASD(HA) has determined that good cause exists to avoid delay as further notice and public comment would be impracticable and contrary to the public interest. Nonetheless, public comments on this IFR are still invited and DoD is committed to considering all comments in enacting any final regulations. Therefore, pursuant to 5 U.S.C. 553(b)(B), and for the reasons stated in this preamble, the ASD(HA) concludes that there is good cause to dispense with prior public notice and the opportunity to comment on this rule before finalizing this rule. For the same reasons and due to the fact that no harm could occur in implementing this rule effective upon publication, as it does not impose any burdens upon the public but rather increases their reimbursement, the ASD(HA) has determined, consistent with section 553(d) of the APA, that there is good cause to make this IFR effective immediately upon publication in the
These provisions, 32 CFR 199.6 and 199.14, establish freestanding ESRD facilities as institutional providers under the TRICARE Program and modify TRICARE reimbursement of ESRD facilities.
ESRD is the fifth and final stage of Chronic Kidney Disease and necessitates long-term dialysis or a kidney transplant; without treatment, death is imminent. There are three treatment options for ESRD, including two types of dialysis. First, patients may receive a kidney transplant; however, there are approximately 100,000 individuals on the national kidney transplant list at any given point in time, but only 20,000 kidneys available each year in the United States. Consequently, most ESRD patients receive dialysis until they can receive a kidney transplant from a suitable donor. A patient may receive hemodialysis, in which the patient's blood is filtered externally before being returned to the body. Most patients (86%) begin ESRD treatment receiving this type of dialysis, which can be performed at home or in an inpatient or outpatient medical facility. Alternatively, a patient may receive peritoneal dialysis, in which fluid is injected into the patient's abdomen, blood is filtered, and waste is filtered out through a semi-permanent tube. Although this type of dialysis can be performed in a patient's home, fewer than 11% of patients begin ESRD receiving this type of dialysis. The remaining 3% of patients beginning ESRD treatment receive a preemptive kidney transplant.
In 1972, Congress passed an amendment to the Social Security Act (Pub. L. 92-603), which added ESRD to the list of qualifying conditions for which a person is entitled to enroll in Medicare. ESRD patients under the age of 65 must undergo a waiting period before being able to enroll in Medicare. Currently, TRICARE beneficiaries are eligible for Medicare coverage on the basis of an ESRD diagnosis on the first day of the fourth month of dialysis treatment, after which the beneficiary, if enrolled in Medicare, becomes dual eligible (
The term “freestanding ESRD facilities” refers to non-hospital, freestanding providers that render services and supplies related to ESRD, including outpatient dialysis treatments, home dialysis training and equipment, drugs and biologicals, laboratory tests, and nursing services. Freestanding ESRD facilities may also provide dialysis services for acute kidney injury (AKI), and will be reimbursed for AKI services under the provisions established in this IFR. ESRD facilities may also be known as Dialysis Facilities and Dialysis Centers, and they include both freestanding and hospital-based providers. Hospital-based ESRD facilities are already reimbursed for their institutional charges by TRICARE, generally under the Outpatient Prospective Payment System (OPPS) or other rules that apply to special hospitals, such as Critical Access Hospitals; this IFR concerns freestanding ESRD facilities only. TRICARE utilizes Medicare's classification for determining if a facility is hospital-based (42 CFR 413.174). If Medicare considers a dialysis treatment facility to be hospital-based or part of a hospital outpatient department, TRICARE accepts that determination without exception. No changes will be made to hospital-based ESRD facilities as a result of this IFR. They will continue to be reimbursed on the basis of OPPS, or in the case of Sole Community Hospitals, Critical Access Hospitals, or other special providers (
Currently, freestanding ESRD facilities are considered non-institutional CSPs under the TRICARE Program and are not considered institutional providers, as described in 32 CFR 199.6(b). As a result, these providers can only be reimbursed for professional services and for covered supplies and pharmaceuticals on a FFS basis. CSPs may not be reimbursed for institutional services outlined in 32 CFR 199.4(b), such as the use of special treatment rooms, general staff nursing services, and room and board. In order to modify TRICARE reimbursement of ESRD facilities to better reflect Medicare's ESRD PPS (
Title 42 CFR part 494 provides Medicare's Conditions for Coverage for both hospital-based and freestanding ESRD Facilities. As ESRD is a Medicare-qualifying condition, we find it appropriate to adopt Medicare approval of freestanding ESRD facilities, including all Medicare conditions for coverage required for Medicare approval of freestanding ESRD facilities, in order to be an authorized TRICARE ESRD facility and receive payment under the TRICARE program. Those ESRD facilities that qualify to be an authorized TRICARE ESRD institutional provider on the effective date of this IFR may apply for TRICARE authorized provider status and be reimbursed under the new TRICARE reimbursement methodology for ESRD facilities for covered services furnished to an eligible TRICARE beneficiary on or after the IFR effective date. No new TRICARE CSP participation agreements will be accepted for coverage of ESRD services on or after the effective date of this IFR, and all current TRICARE CSP participation agreements will be terminated from freestanding ESRD facilities on the effective date of this IFR. Only ESRD services furnished by hospital-based ESRD facilities and TRICARE authorized freestanding ESRD facilities will qualify as TRICARE
In 2011, CMS established the ESRD PPS, which is the methodology used to reimburse ESRD facilities. The ESRD PPS pays facilities a case-mix adjusted rate for dialysis services, per dialysis treatment, including drugs, laboratory tests, and supplies. The specific rate varies by patient characteristics (
Additionally, facilities may receive separately-paid outlier payments if a patient's treatment costs exceed a specified threshold for certain items. Facilities may also be paid separately for certain drugs and supplies, using add-on payments known as Transitional Drug Add-on Payment Adjustment and Transitional Add-on Payment Adjustment for New and Innovative Equipment and Supplies. Once approved for a specific drug or supply, the add-on payment is applied for two years, after which the reimbursement for these products is bundled into the base payment amount. CMS has also established a Quality Incentive Program (QIP) for reimbursement of ESRD facilities.
As discussed above, DHA reimburses dialysis services on a FFS basis for the covered professional services and supplies only, as freestanding ESRD facilities are not classified as institutional providers in 32 CFR 199.6. Currently, most freestanding ESRD facilities are only eligible to be considered CSPs, as defined in 32 CFR 199.6(f). The CSP class of providers consists of freestanding corporations and providers that render principally professional, ambulatory, or in-home care and technical diagnostic procedures. The intent behind CSPs is not to create additional benefits that ordinarily would not be covered under TRICARE if provided by a more traditional health care delivery system, but rather to allow cost-sharing for services which would otherwise be allowed except for an authorized individual professional provider's affiliation with a freestanding corporate entity, such as a medical doctor or physical therapist employed directly with a freestanding corporate entity or foundation. This limits reimbursement for freestanding ESRD facilities qualifying as CSPs to only professional services, along with supplies and drugs, and excludes reimbursement of facility charges, such as general nursing services and reimbursement for the use of treatment rooms.
This rule will establish a TRICARE reimbursement methodology for freestanding ESRD facilities to better reflect the Medicare reimbursement rate under the Medicare ESRD PPS by recognizing freestanding ESRD facilities as authorized institutional providers and permitting reimbursement of facility charges. In 2021, freestanding ESRD providers were paid, via the CHAMPUS Maximum Allowable Charge Method (CMAC), approximately $119 per session, on average, for professional services, plus an additional average of $125 for supplementary drugs, tests, and supplies, leading to an average per-session reimbursement of approximately $244. While this rate was roughly comparable to the Medicare base rate, it does not account for other adjustments and modifications made by Medicare to the base rate as part of the Medicare ESRD PPS.
Medicare adjusts the base rate for patient-level characteristics, including age, body mass index, specific conditions, and date of onset, as well as facility-level characteristics such as wage-index, low-volume factors, rural locations, and outlier payments. Medicare also provides a separate payment for certain exceptional drugs or equipment and supply items during a transitional status. Finally, Medicare continues to refine the system through the QIP.
Our analysis has shown that the two most important factors in Medicare's adjustment of the base rate that would apply to TRICARE's population are age and date of onset. The age adjustment factor is approximately 7% for patients ages 44-69. We found that over 70% of TRICARE ESRD patients where TRICARE is the primary payer are between the ages of 44-69, and thus we think that a 7% adjustment would be practicable. A more important factor is the 32.7% adjustment used by Medicare for patients in the first four months since the onset of dialysis.
In lieu of the current method of reimbursement utilizing the CMAC for the professional charges plus additional allowed amounts for laboratory, pharmaceuticals, and supplies (with no reimbursement for facility charges), under the provisions of this rule, TRICARE will reimburse a single, flat, per-session fee which will include all charges for the facility use, general nursing services, laboratory services related to ESRD care, pharmaceuticals (excepting those allowed for separate payment by Medicare), and supplies. The TRICARE ESRD rate will have a higher reimbursement for the first 120 days of dialysis, and a different, lower rate for days 121 and later where TRICARE is the primary payer. This reflects Medicare's adjustment of 32.7% for the first four months of ESRD treatment. We also propose to add a 7% adjustment to each rate (
As stated above, this fee will incorporate all ESRD-related laboratory services, pharmaceuticals, and supplies required in the course of the dialysis treatment. The flat rates above also apply to renal dialysis services furnished to TRICARE beneficiaries for home dialysis services, which include: home dialysis support services identified at 42 CFR 494.100; the purchase and delivery of all necessary home dialysis supplies; and dialysis training for days 1-120. The authorized TRICARE ESRD institutional provider will receive the same reimbursement rate for home dialysis services as it would receive for in-facility dialysis services. All renal dialysis items and services furnished in the ESRD facility or in a patient's home are included in the rates above and must be furnished by the ESRD facility, either directly or under an arrangement. Only the following services will be allowed separate reimbursement:
• Evaluation and management services rendered by authorized individual professional providers (
• Drugs, supplies, and devices listed by Medicare as eligible for Transitional Drug Add-on Payment Adjustment and Transitional Add-on Payment Adjustment for New and Innovative Equipment and Supplies. These services may be reimbursed via the CMAC and/or Durable Medical Equipment Prosthetics Orthotics and Supplies (DMEPOS) reimbursement system (
• Services unrelated to ESRD care (
The flat rate shall be updated each year by utilizing the Medicare base rate, promulgated in their annual ESRD PPS final rule, and by adjusting it using the age adjustment factor for individuals aged 44-69 (currently 7%, however, if Medicare modifies this adjustment factor in subsequent years DHA will utilize the updated factor) and the Medicare adjustment factor for date of onset (currently 32.7%, however, if Medicare modifies this adjustment factor in subsequent years DHA will utilize the updated factor).
The flat rate also will be wage adjusted to provide adequate locality adjustments, using the wage indices published by Medicare for the ESRD PPS. This adjustment serves to more appropriately reimburse freestanding ESRD facilities based on their locality (
This reimbursement approach approximates, but does not duplicate, Medicare's ESRD PPS. It is not practicable for DHA to implement Medicare's ESRD PPS because of the small number of beneficiaries for which TRICARE is the primary payer. The administrative start-up and ongoing maintenance costs of implementing such a complex system would outweigh benefits of adoption. We believe that this flat payment, one for the first 120 days, and another for 121 days and later, sufficiently retains the intent to reimburse like Medicare to the extent practicable, while also ensuring adequate reimbursement for ESRD services delivered at freestanding ESRD facilities.
We invite comments on this methodology and may make further refinements through the issuance of a Final Rule.
Treatment in freestanding ESRD facilities (including home dialysis services) shall be considered specialty outpatient visits for the purposes of cost-sharing and copayments under the program. Applicable copayments and cost-shares as described in 32 CFR 199.4 and 199.17(k)(2)(iii) will apply upon publication of this rule.
This provision, 32 CFR 199.14(a)(1)(iv)(C), temporarily adopts Medicare's NCTAP for services and supplies otherwise covered under the TRICARE Program, including adopting Medicare's termination date for NCTAPs, which CMS extended for discharges that occur through the end of the FY in which the PHE terminates. TRICARE shall reimburse acute care hospitals an NCTAP amount which is the lesser of (1) 65 percent of the operating outlier threshold for the claim or (2) 65 percent of the amount by which the costs of the case exceed the standard DRG payment, including the adjustment to the relative weight under section 3710 of the CARES Act, for certain cases that include the use of a drug or biological product currently authorized or approved for treating COVID-19. The NCTAP will not be included as part of the calculation of the operating outlier payments. Providers must submit claims in accordance with the TRICARE claims filing deadline requirements, which are located in the TRICARE implementing instructions (
This rule is issued under 10 U.S.C. 1073(a)(2) giving authority and responsibility to the Secretary of Defense to administer the TRICARE program. The statutory requirements to reimburse individual and institutional providers for like services and supplies using the same methodologies as Medicare are located in 10 U.S.C. 1079(h) and (i), respectively. The text of 10 U.S.C. chapter 55 can be found at
Each of the sections being modified by this rule are revised every few years to ensure requirements continue to align with the evolving health care field.
Title 32 CFR 199.6 was last modified November 17, 2020 (85 FR 73196). This change added Doctors of Podiatric Medicine and Podiatrists as allied health professionals under the TRICARE Program, added referral and supervision requirements for physical therapists and occupational therapists, and added
Title 32 CFR 199.14 was last modified September 3, 2020 (85 FR 54924). This change added multiple provisions related to the COVID-19 pandemic (
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Accordingly, the rule has been reviewed by the Office of Management and Budget under the requirements of these Executive Orders. This rule has been designated a “significant regulatory action” although determined to be not economically significant, under section 3(f) of Executive Order 12866.
The modifications to paragraphs 199.6(b)(4)(xxi) and 199.14(c) in this IFR will establish freestanding ESRD facilities as a category of institutional provider within the TRICARE program and will create a TRICARE reimbursement system for those facilities. These changes will make TRICARE reimbursement of freestanding ESRD facilities, as well as dialysis services and supplies provided by these facilities, more consistent with the Medicare PPS rates for ESRD facilities, in accordance with the statutory requirement to reimburse like Medicare for like services and supplies to providers of services of the same type (
The modifications to paragraph 199.14(a)(1)(iv)(C) in this IFR will temporarily adopt the Medicare NCTAP for COVID-19 patients through the end of the FY in which the PHE terminates. The NCTAP provides additional reimbursement in addition to the 20 percent add-on payment under section 3710 of the CARES Act equal to the lesser of (1) 65 percent of the operating outlier threshold for the claim or (2) 65 percent of the amount by which the costs of the case exceed the standard DRG payment, including the adjustment to the relative weight under section 3710 of the CARES Act, for certain cases that include the use of a drug or biological product currently authorized or approved for treating COVID-19. NCTAP claims are those that are eligible for the 20 percent add-on payment indicated by the presence of COVID diagnosis codes, plus the presence of certain procedure codes for certain COVID-19 treatments including remdesivir, or convalescent plasma.
This change impacts all TRICARE beneficiaries who require dialysis, who are receiving COVID-19 treatments eligible for NCTAPs, or who require medically necessary services during the COVID-19 pandemic. Providers who render treatments eligible for NCTAPs will be impacted by being able to receive higher, more appropriate reimbursement from TRICARE than they would have in the absence of this rule. Providers may also experience decreased patient volume burden if their patients with ESRD are able to be treated in a freestanding ESRD facility instead. Freestanding ESRD facilities will be impacted by receiving higher reimbursement for care provided to TRICARE beneficiaries who have not enrolled in Medicare. TRICARE's health care contractors will be impacted by being required to implement the provisions of this regulatory change. State, local, and tribal governments will not be impacted.
The cost estimates related to the changes discussed in this IFR include incremental health care cost increases (also known as transfer costs) as well as administrative costs to the government. Only the ESRD provisions will result in recurring incremental health care costs, while the NCTAP provision will result in cost increases from the effective date of the IFR though the FY in which the PHE terminates. The cost estimate assumes that the PHE continues into, but not beyond, FY 2023; however, the COVID-19 pandemic contains substantial uncertainty including the possibility of additional COVID-19 variants resistant to current vaccines and treatments, as well as the actual date the PHE terminates. As such, we find it appropriate to make these regulatory changes despite the potential short effective period, as the end of the pandemic is by no means a certainty.
Based on these factors, as well as the assumptions for each provision detailed below, we estimate that the total cost estimate for this IFR through FY 2023 will be approximately $8.08M. This estimate includes approximately $0.75M in administrative costs and $7.33M in direct health care costs. The NCTAP provision is expected to have costs through FY 2023, while the permanent ESRD provisions are expected to result in $5.23M in incremental annual costs, with a 4.5% increase each subsequent year due to inflation and an increase in cases.
A breakdown of costs, by provision, is provided in the below table. A discussion of assumptions follows.
Assumptions specific to the estimates for each individual provision are explained below.
•
•
Freestanding ESRD facilities will be positively impacted by increased reimbursement and may improve both the access to and quality of care patients receive, which will in turn benefit TRICARE beneficiaries with ESRD, a chronic, life-threatening condition. Providers rendering treatments to patients with COVID-19 will benefit by receiving higher, more adequate reimbursement for services and supplies eligible for an NCTAP. Both providers and patients requiring emergency or inpatient treatment will benefit if TRICARE beneficiaries with ESRD are treated in a freestanding ESRD facility rather than in an emergency department or inpatient hospital during any future COVID-19 surges.
DoD considered several alternatives to this IFR. The first alternative involved taking no action. Although this alternative would be cost neutral, it was rejected as not addressing the medical needs of the beneficiary population in response to the COVID-19 pandemic. Additionally, it would fail to fulfill the statutory mandate that TRICARE reimburse like Medicare, when deemed practicable.
The second alternative, related to the provisions regarding freestanding ESRD facilities, was to adopt Medicare's reimbursement system (the ESRD PPS) in total. The advantages of this option were:
• It is completely consistent with the statutory provision to pay institutional providers using the same methodology as Medicare;
• It would provide the nuanced payment differences made by Medicare on the basis of age, comorbidities, body measurements, and facility-specific adjustments for low-volume facilities and rural facilities;
• It would accommodate outlier payments and cases; and
• It contains provisions for a QIP.
However, this option was not pursued because of the very low volume of TRICARE beneficiaries who receive dialysis services from freestanding ESRDs and who are not enrolled to Medicare. Most dialysis services that are paid by TRICARE are for individuals who are both Medicare and TRICARE eligible (approximately 90% of claims for dialysis services in FY 2019 were for patients where Medicare was the primary payer). In these cases, where Medicare pays as primary, TRICARE generally provides reimbursement for the remaining patient liability, which was approximately $44 per treatment in FY 2019. Thus, for 90% of dialysis claims received by TRICARE, TRICARE is already following Medicare reimbursement methods, as the remaining patient liability is less than what would have otherwise been paid had TRICARE been the primary payer, in accordance with TRICARE regulations regarding other health insurance and dual eligibility. The cost of implementing the full ESRD PPS system is estimated to be at least $600,000 in start-up costs, plus ongoing administrative costs, to ensure all adjustments were made for each claim, plus additional special pricing software or algorithms. Additional administrative funds may be required to implement the QIP and other programs, as implemented by Medicare now or in the future. Further, implementation of the ESRD PPS would be time-consuming, taking up to a year to accomplish. In contrast, we estimate that the option provided in this IFR can be implemented relatively quickly, and for approximately $340,000 in start-up costs with lower ongoing administrative costs. Further, the flat rate will provide the ESRD facilities with predictability with regard to TRICARE payments and will reduce uncertainty and specialized coding or case-mix documentation requirements that may be required by the ESRD PPS, reducing the administrative burden on the provider. To summarize, adopting the ESRD PPS was considered, but was deemed impracticable and overly burdensome to both the Government and providers.
The ASD(HA) certified that this IFR is not subject to the flexibility analysis requirements of the Regulatory Flexibility Act (5 U.S.C. 601
All of the provisions of this IFR are likely to have an economic impact on health care providers and suppliers. As its measure of significant economic impact on a substantial number of small entities, HHS uses an adverse change in revenue of more than 3 to 5 percent. While TRICARE is not required to follow this guidance in the issuance of our rules, we provide this metric for context, given that these temporary changes align with similar changes made by Medicare. Given that all provisions within this rule are likely to increase reimbursement to providers and suppliers, we find that these provisions would not have an adverse impact on revenue and, therefore, would not have a significant impact on these providers meeting the definition of small business.
Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act, 5 U.S.C. 801
Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) requires agencies to assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. This IFR will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.
It has been determined that 32 CFR part 199 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates an IFR (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This IFR does not preempt State law or impose substantial direct costs on State and local governments.
Executive Order 13175 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct compliance costs on one or more Indian tribes, preempts tribal law, or effects the distribution of power and responsibilities between the Federal Government and Indian tribes. This rule will not have a substantial effect on Indian tribal governments.
Administrative practice and procedure, Claims, Fraud, Health care, Health insurance, Individuals with disabilities, Military personnel.
Accordingly, 32 CFR part 199 is amended as follows:
5 U.S.C. 301; 10 U.S.C. chapter 55.
(b) * * *
(4) * * *
(xxi)
(f) * * *
(1) * * *
(i) This corporate services provider class is established to accommodate individuals who would meet the criteria for status as a CHAMPUS authorized individual professional provider as established by paragraph (c) of this section but for the fact that they are employed directly or contractually by a corporation or foundation that provides principally professional services which are within the scope of the CHAMPUS benefit. With authorization of freestanding end stage renal disease (ESRD) facilities as TRICARE institutional providers under paragraph (b)(4)(xxi) of this section, corporate service provider status will not be authorized for the provision of ESRD services.
(a) * * *
(1) * * *
(iv) * * *
(C)
(c)
(i) Services included in the flat per-session rate must be furnished by an authorized TRICARE ESRD institutional provider:
(A) Institutional charges (
(B) Routine laboratory services related to the dialysis session;
(C) Pharmaceuticals and supplies related to the dialysis;
(D) Home dialysis support services identified at 42 CFR 494.100;
(E) Purchase and delivery of all necessary home dialysis supplies; and
(F) Dialysis training for days 1-120.
(ii) Services which may be billed separately:
(A) Evaluation and management services provided by authorized individual professional providers. These services will continue to be reimbursed using existing reimbursement systems (
(B) Drugs, supplies, and devices listed by Medicare as eligible for Transitional Drug Add-on Payment Adjustment and Transitional Add-on Payment Adjustment for New and Innovative Equipment and Supplies under the Medicare ESRD PPS. These services will continue to be reimbursed using existing reimbursement systems (
(C) Professional services, supplies, and pharmaceuticals unrelated to dialysis care (
(iii) Establishment of the flat rate:
(A)
(B)
(C)
(D)
(E)
(2) The reimbursement methods established in paragraph (c)(1) of this section applies to freestanding ESRD facilities meeting the requirements established for TRICARE authorized freestanding ESRD facilities in § 199.6. For purposes of cost-sharing and copayments, treatment provided by freestanding ESRD facilities are considered outpatient specialty visits. The applicable copayments and cost-shares described in §§ 199.4 and 199.17(k)(2)(iii) shall apply. Hospital-based ESRD facilities are not subject to the provisions of this paragraph, and will continue to be reimbursed utilizing other applicable reimbursement systems (
Coast Guard, DHS.
Temporary final rule.
The U.S. Coast Guard is establishing a temporary safety zone for the navigable waters in Chinese Harbor of Santa Cruz Island, California. This safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by ongoing oil recovery and salvage operations relating to the grounding of a 60-foot fishing vessel in Chinese Harbor. Entry of persons or vessels into this safety zone is prohibited unless specifically authorized by the Captain of the Port Los Angeles—Long Beach (COTP), or their designated representative.
This rule is effective without actual notice from January 12, 2023 until January 23, 2023. For the purposes of enforcement, actual notice will be used from January 5, 2023, until January 12, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email LCDR Maria Wiener, Waterways Management, U.S. Coast Guard Sector Los Angeles—Long Beach; telephone (310) 357-1603, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) because it is impracticable. This is an emergency response to a vessel grounding and immediate action is needed to respond to potential safety hazards associated with the emergency oil recovery operations. It is impracticable to publish an NPRM because we must establish this safety zone by January 05, 2023.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231) and 46 U.S.C. 70011(b)(3). The Captain of the Port Los Angeles—Long Beach (COTP) has determined that potential hazards associated with emergency oil recovery operations will be a safety concern for anyone within a 500-yard radius of the grounded fishing vessel in Chinese Harbor. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while oil recovery operations take place in the vicinity of Chinese Harbor.
This rule establishes a safety zone from January 05, 2023, through January 23, 2023. The safety zone will cover all navigable waters from the surface to the sea floor in and around Chinese Harbor from the location of the commercial fishing vessel SPERANZA MARIE (Official Number 643138), currently on the shoreline at 34°01.87′ N, 119°36.25′ W and extending out along a 500-yard radius from the vessel. These coordinates are based on North American Datum of 1983. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or his designated representative. Sector Los Angeles—Long Beach may be contacted on VHF-FM Channel 16 or (310) 521-3801. The marine public will be notified of the safety zone via Broadcast Notice to Mariners.
If the COTP determines that the zone need not be enforced during this entire period, the Coast Guard will announce via Broadcast Notice to Mariners when the zone will no longer be subject to enforcement.
We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. This rule impacts an area of 500-yards during for 19 days during the month of January 2023. Vessel traffic will be able to safely transit around this safety zone, which will impact a small, designated area of Chinese Harbor, Santa Cruz Island, CA.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and COMDTINST 5090.1 (series), which guide the Coast Guard in
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.2. 2.
(a)
(b)
(c)
(2) To seek permission to enter, contact the COTP or the COTP's representative by hailing Coast Guard Sector Los Angeles—Long Beach on VHF-FM Channel 16 or calling at (310) 521-3801. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
National Endowment for the Arts, National Foundation on the Arts and the Humanities.
Final rule.
The National Endowment for the Arts (NEA) is adjusting the maximum civil monetary penalties (CMPs) that may be imposed for violations of the Program Fraud Civil Remedies Act (PFCRA) and the NEA's Restrictions on Lobbying to reflect the requirements of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act). The 2015 Act further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act) to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. This final rule provides the 2023 annual inflation adjustments to the initial “catch-up” adjustments made on June 15, 2017, and reflects all other inflation adjustments made in the interim.
This rule is effective January 12, 2023.
Daniel Fishman, Assistant General Counsel, National Endowment for the Arts, 400 7th St. SW, Washington, DC 20506, Telephone: 202-682-5418.
On December 12, 2017, the NEA issued a final rule entitled “Federal Civil Penalties Adjustments”,
A CMP is defined in the Inflation Adjustment Act as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.
These annual inflation adjustments are based on the percentage change in the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October preceding the date of the adjustment, relative to the October CPI-U in the year of the previous adjustment. The formula for the amount of a CMP inflation adjustment is prescribed by law, as explained in Office of Management and Budget (OMB) Memorandum M-16-06 (February 24, 2016), and therefore the amount of the adjustment is not subject to the exercise of discretion by the Chairman of the National Endowment for the Arts (Chairman).
OMB has issued guidance on implementing and calculating the 2023 adjustment under the 2015 Act.
The inflation adjustments contained in this rule shall apply to any violations assessed after January 15, 2023.
Two CMPs in NEA regulations require adjustment in accordance with the 2015 Act: (1) the penalty associated with the Program Fraud Civil Remedies Act (45 CFR 1149.9) and (2) the penalty associated with Restrictions on Lobbying (45 CFR 1158.400; 45 CFR part 1158, app. A).
The current maximum penalty under the PFCRA for false claims and statements is currently set at $12,536. The post-adjustment penalty or range is obtained by multiplying the pre-adjustment penalty or range by the percent change in the CPI-U over the relevant time period and rounding to the nearest dollar. Between October 2021 and October 2022, the CPI-U increased by a multiplier of 107.745%. Therefore, the new post-adjustment maximum penalty under the PFCRA for false statements is $12,536 × 1.07745 = $13,506.91 which rounds to $13,507 Therefore, the maximum penalty under the PFCRA for false claims and statements will be $13,507.
The penalty for violations of the Restrictions on Lobbying is currently set at a range of a minimum of $22,009 and a maximum of $220,213. The post-adjustment penalty or range is obtained by multiplying the pre-adjustment penalty or range by the percent change in the CPI-U over the relevant time period and rounding to the nearest dollar. Between October 2021 and October 2022, the CPI-U increased by a multiplier of 107.745%. Therefore, the new post-adjustment minimum penalty under the Restrictions on Lobbying is $22,009 × 1.07745 = $23,713.60, which rounds to $23,714 and the maximum penalty under the Restrictions on Lobbying is $220,213 × 1.07745 = $237,268.50, which rounds to $237,268. Therefore, the range of penalties under the law on the Restrictions on Lobbying shall be between $23,714 and $237,268.
Section 553 of the Administrative Procedure Act requires agencies to provide an opportunity for notice and comment on rulemaking and also requires agencies to delay a rule's effective date for 30 days following the date of publication in the
Even if the 2015 Act did not except this final rule from section 553 of the APA, the NEA has good cause to dispense with notice and comment. Section 553(b)(B), authorizes agencies to dispense with notice and comment procedures for rulemaking if the agency finds good cause that notice and comment are impracticable, unnecessary, or contrary to public interest. The annual adjustments to civil penalties for inflation and the method of calculating those adjustments are established by section 5 of the 2015 Act, as amended, leaving no discretion for the NEA. Accordingly, public comment would be impracticable because the NEA would be unable to consider such comments in the rulemaking process.
Executive Order 12866 (E.O. 12866) established a process for review of rules by the Office of Information and Regulatory Affairs, which is within OMB. Only “significant” proposed and final rules are subject to review under this Executive Order. “Significant,” as used in E.O. 12866, means “economically significant.” It refers to rules with (1) an impact on the economy of $100 million; or that (2) were inconsistent or interfered with an action taken or planned by another agency; (3) materially altered the budgetary impact of entitlements, grants, user fees, or loan programs; or (4) raised novel legal or policy issues.
This final rule would not be a significant policy change and OMB has not reviewed this final rule under E.O. 12866. The NEA has made the assessments required by E.O. 12866 and determined that this final rule: (1) will not have an effect of $100 million or more on the economy; (2) will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (3) will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (4) does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients; and (5) does not raise novel legal or policy issues.
This final rule does not have federalism implications, as set forth in E.O. 13132. As used in this order, federalism implications mean “substantial direct effects on the States, on the relationship between the [N]ational [G]overnment and the States, or on the distribution of power and responsibilities among the various levels of government.” The NEA has determined that this final rule will not have federalism implications within the meaning of E.O. 13132.
This final rule meets the applicable standards set forth in section 3(a) and 3(b)(2) of E.O. 12988. Specifically, this final rule is written in clear language designed to help reduce litigation.
Under the criteria in E.O. 13175, the NEA has evaluated this final rule and determined that it would have no potential effects on federally recognized Indian Tribes.
Under the criteria in E.O. 12630, this final rule does not have significant takings implications. Therefore, a takings implication assessment is not required.
This final rule will not have a significant adverse impact on a substantial number of small entities, including small businesses, small governmental jurisdictions, or certain small not-for-profit organizations.
This final rule will not impose any “information collection” requirements under the Paperwork Reduction Act. Under the Act, information collection means the obtaining or disclosure of facts or opinions by or for an agency by 10 or more non-Federal persons.
This final rule does not contain a Federal mandate that will result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year.
The final rule will not have a significant effect on the human environment.
This final rule would not be a major rule as defined in section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule will not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and export markets.
Section 206 of the E-Government Act requires agencies, to the extent practicable, to ensure that all information about that agency required to be published in the
Finally, the E-Government Act requires, to the extent practicable, that agencies ensure that a publicly accessible Federal Government website contains electronic dockets for rulemakings under the Administrative Procedure Act of 1946 (5 U.S.C. 551
Under this Act, the term “plain writing” means writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience. To ensure that this final rule has been written in plain and clear language so that it can be used and understood by the public, the NEA has modeled the language of this final rule on the Federal Plain Language Guidelines.
The NEA encourages public participation by ensuring its documentation is understandable by the general public, and has written this final rule in compliance with Executive Order 13563 by ensuring its accessibility, consistency, simplicity of language, and overall comprehensibility.
Administrative practice and procedure, Government contracts, Grant programs, Loan programs, Lobbying, Penalties.
For the reasons stated in the preamble, the NEA amends 45 CFR chapter XI, subchapter B, as follows:
5 U.S.C. App. 8G(a)(2); 20 U.S.C. 959; 28 U.S.C. 2461 note; 31 U.S.C. 3801-3812.
20 U.S.C. 959; 28 U.S.C. 2461; 31 U.S.C. 1352.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service or USFWS), are reclassifying Fender's blue butterfly (
This rule is effective February 13, 2023.
The proposed rule and this final rule, the comments we received on the proposed rule, and supporting documents are available at
Craig Rowland, Acting State Supervisor, U.S. Fish and Wildlife Service, Oregon
On June 23, 2021, we published in the
In preparing this final rule, we reviewed and fully considered all comments we received from peer reviewers and the public during the comment period on the proposed rule to downlist Fender's blue butterfly (86 FR 32859; June 23, 2021). We made minor, nonsubstantive changes and corrections throughout this document in response to those comments. Additionally, after further internal review and consultation with partners, in this rule, we amend the proposed 4(d) rule to allow manual removal of invasive and/or nonnative plant species during Fender's blue butterfly's flight period (April 15 to June 30). The long-term conservation benefits to the species of allowing this type of work during the flight season outweigh the potential negative effects to any individuals on the landscape at that moment because removing invasive plants improves habitat suitability for host lupine plants, which improves butterfly viability. Overall, the information we received during the proposed rule's comment period did not change our determination that Fender's blue butterfly is no longer in danger of extinction throughout all or a significant portion of its range and, therefore, does not meet the Act's definition of an endangered species but that it is still likely to become endangered in the foreseeable future.
Lastly, during development of this final rule, we identified an error in the entry for Kincaid's lupine (
A species status assessment (SSA) team prepared an SSA report for Fender's blue butterfly. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
We prepared an SSA report for Fender's blue butterfly (USFWS 2020, entire) that presents a thorough review of the taxonomy, life history, ecology, and overall viability of Fender's blue butterfly. In this final rule, we present only a summary of the key results and conclusions from the SSA report; the full report is available at
Fender's blue butterfly is found only in the prairie and oak savannah habitats of the Willamette Valley of Oregon. Adult Fender's blue butterflies are quite small, having a wingspan of approximately 25 millimeters (mm) (1 inch (in)). The upper wings of males are brilliant blue in color with black borders and basal areas, whereas the upper wings of females are brown.
Fender's blue butterfly relies primarily upon a relatively uncommon lupine plant, the Kincaid's lupine (
Given its short adult lifespan, Fender's blue butterfly has limited dispersal ability. Butterflies are estimated to disperse approximately 0.75 kilometers (km) (0.5 miles (mi)) if they remain in their natal lupine patch, and approximately 2 km (1.2 mi) if they disperse between lupine patches (Schultz 1998, p. 290).
Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. Under section 4(f)(1)(B)(ii), recovery plans must, to the maximum extent practicable, include objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of section 4 of the Act, that the species be removed from the Lists of Endangered and Threatened Wildlife and Plants.
Recovery plans provide a roadmap for us and our partners on methods of enhancing conservation and minimizing threats to listed species, as well as measurable criteria against which to evaluate progress towards recovery and assess the species' likely future condition. However, they are not regulatory documents and do not substitute for the determinations and promulgation of regulations required under section 4(a)(1) of the Act. A decision to revise the status of a species, or to delist a species, is ultimately based on an analysis of the best scientific and commercial data available to determine whether a species is no longer an endangered species or a threatened species, regardless of whether that information differs from the recovery plan.
There are many paths to accomplishing recovery of a species, and recovery may be achieved without all of the criteria in a recovery plan being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently, and that the species is robust enough, that it no longer meets the Act's definition of an endangered species or a threatened species. In other cases, we may discover new recovery opportunities after having finalized the recovery plan. Parties seeking to conserve the species may use these opportunities instead of methods identified in the recovery plan. Likewise, we may learn new information about the species after we finalize the recovery plan. The new information may change the extent to which existing criteria are appropriate for identifying recovery of the species. The recovery of a species is a dynamic process requiring adaptive management that may, or may not, follow all of the guidance provided in a recovery plan.
In 2010, we finalized the Recovery Plan for the Prairie Species of Western Oregon and Southwestern Washington (recovery plan), which applied to a suite of endemic species including Fender's blue butterfly (USFWS 2010, entire). The objective of the recovery plan is to achieve viable populations of the listed species distributed across their historical ranges in a series of interconnected populations. The historical range of Fender's blue butterfly is considered to be the Willamette Valley, which consists of nine counties in Oregon, because that is where the prairie plants on which the species relies for its survival and reproduction are distributed. The recovery plan objective was to be accomplished by establishing metapopulations of Fender's blue butterfly within restored prairie reserves across the geographic range (USFWS 2010, p. v). The recovery plan set abundance and distribution goals for Fender's blue butterfly by delineating three recovery zones (Salem, Corvallis, and Eugene) encompassing the historical range of the species in the Willamette Valley. The two downlisting criteria established for Fender's blue butterfly are as follows:
(1) Each recovery zone has one functioning network (a metapopulation with several interacting subpopulations, as defined in the recovery plan) with a minimum count of 200 butterflies, distributed among three subpopulations, for at least 10 years; in addition to this network, there must be a second functioning network or two independent populations with butterflies present each year in each recovery zone. Downlisting goals were set at a 90 percent probability of persistence for 25 years.
(2) Two functioning networks or one functioning network and two independent populations in each zone must be protected and managed for high-quality prairie habitat. The plan described high-quality prairie as habitat consisting of a diversity of native, non-woody plant species, various nectar plants that bloom throughout the flight season of Fender's blue butterfly, low frequency of nonnative plant species and encroaching woody species, and essential habitat elements (
All three recovery zones have at least two metapopulations (see Table 1, below). The Baskett, Wren, West Eugene, and Willow Creek metapopulations have had more than
The species is also currently meeting the second (habitat management and protection) downlisting criterion. In each recovery zone, there are at least three metapopulations with greater than 75 percent of their habitat protected (see Table 1, below). Managers of protected land either have a habitat management plan in place or are in the process of creating plans to maintain prairie quality for Fender's blue butterfly. Although the recovery plan has identified the number of nectar species and sufficient amount of nectar to make up high-quality habitat, the metapopulations currently do not meet the strict definition spelled out in the recovery plan. However, we find that for the species to achieve recovery, it does not need to fulfill this part of the second downlisting criterion as laid out in the recovery plan. We will discuss this in greater detail below.
While Fender's blue butterfly meets downlisting criteria, the species does not meet delisting criteria. The three delisting criteria established for Fender's blue butterfly are as follows:
(1) Each of the three recovery zones has a combination of functioning networks and independent populations such that the probability of persistence is 95 percent over the next 100 years; annual population surveys in each functioning network and independent population must contain at least the minimum number of adult butterflies as described in Table IV-2 in the recovery plan (Table 2) for 10 consecutive years.
(2) Sites supporting populations of Fender's blue butterflies considered in delisting criterion (1) must be protected and managed for high-quality prairie habitat as described in the recovery plan.
(3) Monitoring of populations following delisting will verify the ongoing recovery of the species, provide a basis for determining whether the species should be again placed under the protection of the Act, and provide a means of assessing the continuing effectiveness of management actions.
Delisting may be achieved with a variety of combinations of metapopulations and independent populations in each recovery zone as detailed in the recovery plan. Currently, each recovery zone has at least four metapopulations, meaning that each metapopulation would need a minimum of 400 butterflies in each of 10 consecutive years to meet delisting criterion 1 (Table 2). At this time, none of the recovery zones meet this criterion. For delisting criterion 2, many of the sites for Fender's blue butterfly have protection in place. Currently, we have three habitat conservation plans (HCPs), 17 safe harbor agreements (SHAs), and many Partners for Fish and Wildlife (PFW) agreements in place. These agreements help maintain the species' habitat through prairie habitat restoration and enhancement. Overall, there is currently management and protection for Fender's blue butterfly habitat. However, these sites do not possess a sufficient number of butterflies to meet delisting criterion 1. Additionally, we also do not have post-delisting monitoring plans or agreements in place to assure habitat management will continue for this conservation-reliant species per delisting criterion 3. Therefore, although there are management plans in place for the species' habitat, because there are not a sufficient number of butterflies within the metapopulations and there are no long-term agreements for continual habitat management, this species does not meet the threshold for delisting.
The extinction thresholds underlying downlisting and delisting criteria were derived from a census-based population viability analysis (PVA) conducted shortly after we listed Fender's blue butterfly (USFWS 2010, pp. IV-29-IV-31, IV-34). However, for the reasons described below, we are conducting a new PVA using an individual-based population model and reevaluating the delisting recovery criteria in light of the best scientific data that are now available. As described in the SSA report, the PVA used to develop the initial recovery criteria relied upon several assumptions that, based on our improved understanding of the ecology of the butterfly, we now know are outdated and require modification. We also have an additional decade of monitoring data and increased confidence in the accuracy of a standardized monitoring protocol implemented in 2012 (USFWS 2020, pp. 47-52). Furthermore, the recovery plan set specific targets for the abundance and diversity of nectar species required to be of high-habitat quality to support Fender's blue butterfly, as well as a minimum density of lupine leaves (the host plant for the species' larval life stage). For various reasons detailed in the SSA report, including a limited dataset and conflicting results regarding the correlation between these resources and densities of Fender's blue butterfly, these targets are also now in question (USFWS 2020, pp. 65-67).
Because we are in the process of reevaluating the current recovery criteria for Fender's blue butterfly as presented in the recovery plan for the species (USFWS 2010, pp. IV-29-IV-31 and IV-34), we did not assess the status of Fender's blue butterfly relative to all of the existing habitat targets. However, in our SSA, we did consider the status of the species relative to the overarching goals of protecting existing populations, securing the habitat, and managing for high-quality prairie habitats; all of these were downlisting and delisting considerations described in the recovery plan (USFWS 2010, p. IV-9). In addition, our evaluation under the SSA framework (USFWS 2016) reflects the fundamental concepts captured in the recovery plan strategy of achieving multiple populations with connectivity between them distributed across the historical range of the species. For example, we find that the minimum number threshold from the recovery plan remains valid because population size targets based on minimum population size eliminate confounding variation from stochastic events that may not reflect demographic changes. In other words, averages may be artificially high or low if there is one unusual weather year.
Additionally, we partially rely upon the habitat targets for nectar species for evaluating the status of the species. We acknowledge that the species needs a variety of different species as nectar sources. The recovery plan identifies the quantity of nectar needed per area and
Fender's blue butterfly was first described in 1931 as
In some instances, populations that are spatially separated interact, at least on occasion, as individual members move from one population to another. In the case of Fender's blue butterfly, the clear delineation of discrete populations and subpopulations is challenging because of the uncertainty regarding the extent to which individuals at known sites interact with each other or with other individuals on the landscape of adjacent private lands that are inaccessible to researchers and remain unsurveyed. Thus, in the SSA report and in this document, we use the term “metapopulation” as a rough analog to the more familiar term “population.” We use the term metapopulation to describe groups of sites occupied by Fender's blue butterflies that are within 2 km (1.2 mi) of one another and not separated by barriers. We chose this distance because it is the estimated dispersal distance of Fender's blue butterfly (Schultz 1998, p. 290). We assume that butterflies within a metapopulation are capable of at least occasional interchange of individuals. We do not anticipate that metapopulations across the range of the species will interact with one another given the distance and structural barriers between them. The definition of metapopulation used here and in the SSA report is not the same as the “functioning network” defined in the recovery plan. The recovery plan defines a functioning network as three or more potentially interacting subpopulations that are no more than 2 km (1.2 mi) from one another. This definition is problematic because it requires knowledge of subpopulation boundaries, and it excludes metapopulations comprised of only two subpopulations. It also included a requirement for a minimum patch size of 18 hectares (ha) (44 acres (ac)) for each network, which we now know is not necessary, as the butterfly can thrive in much smaller patch sizes. Further information regarding these definitions is detailed in the SSA report (USFWS 2020, pp. 41-42).
Locations containing Fender's blue butterfly occur across multiple land ownerships, have varying degrees of habitat protection, and are managed in different ways. We use the term “site” to identify a management unit or land ownership designation; multiple sites may therefore comprise a single metapopulation. An “independent group” of Fender's blue butterfly refers to occupied sites that are more than 2 km (1.2 mi) from another occupied site and/or are separated by barriers from other occupied sites such that butterflies are unable to interact.
Due to the limited information collected on this subspecies prior to its description in 1931, we do not know the precise historical (prior to 1989) distribution of Fender's blue butterfly. Only a limited number of collections were made between the time of the subspecies' discovery and its presumed last observation on May 23, 1937, in Benton County, Oregon, leading the scientific community to assume the species was extinct (Hammond and Wilson 1993, p. 3).
Fender's blue butterfly was rediscovered in 1989, at the McDonald State Forest, Benton County, Oregon, on the uncommon plant, Kincaid's lupine. Surveys since its rediscovery indicate that the current distribution, which is identical to its historical distribution, of Fender's blue butterfly is restricted to the Willamette Valley in Benton, Lane, Linn, Polk, Yamhill, and Washington Counties in Oregon.
While we do not know the precise historical abundance or distribution of Fender's blue butterfly, at the time the species was listed as endangered in 2000, we knew of approximately 3,391 individuals on 32 sites (USFWS 2020, p. 35). By retroactively applying the criteria for our refined population terminology, we calculate there would have been 12 metapopulations of Fender's blue butterfly distributed across approximately 165 ha (408 ac) of occupied prairie in four counties at the time of listing (see Table 3, below). Those numbers have now grown across all three recovery zones identified for Fender's blue butterfly (see
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for threatened and endangered species. In 2019, jointly with the National Marine Fisheries Service, the Service issued final rules that revised the regulations in 50 CFR parts 17 and 424 regarding how we add, remove, and reclassify threatened and endangered species and the criteria for designating listed species' critical habitat (84 FR 45020 and 84 FR 44753; August 27, 2019). At the same time the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (collectively, the 2019 regulations).
As with the proposed rule, we are applying the 2019 regulations for this final rule because the 2019 regulations are the governing law just as they were when we completed the proposed rule. Although there was a period in the interim—between July 5, 2022, and September 21, 2022—when the 2019 regulations became vacated and the pre-2019 regulations therefore governed, the 2019 regulations are now in effect and govern listing and critical habitat decisions (
Our analysis for this decision applied the 2019 regulations. However, given that litigation remains regarding the court's vacatur of the 2019 regulations, we also undertook an analysis of whether the decision would be different if we were to apply the pre-2019 regulations. We concluded that the decision would have been the same if we had applied the pre-2019 regulations. The analyses under both the pre-2019 regulations and the 2019 regulations are included in the decision file for this decision.
The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We consider these same five factors in downlisting a species from endangered to threatened (50 CFR 424.11(c) and (d)).
We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.
However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.
The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations
It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.
The SSA report documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent our decision on whether the species should be reclassified as a threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the full SSA report, which may be found at Docket No. FWS-R1-ES-2020-0082 on
To assess Fender's blue butterfly viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision.
In this discussion, we review the biological condition of the species and its resource needs, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability.
Table 4 summarizes the key ecological resources required by individual Fender's blue butterflies at various life stages, as presented in the SSA report (from USFWS 2020, Table 2.4).
Based on our evaluation as detailed in the SSA report, we determined that for the species to be highly resilient, Fender's blue butterfly metapopulations need an abundance of lupine host plants and nectar plants within prairie patches of sufficient size, with habitat heterogeneity and minimal amounts of invasive plants and woody vegetation. Healthy metapopulations would also contain individuals distributed across multiple groups (redundancy) in lupine patches that are in close proximity of one another. Ideally, at the species level, highly resilient metapopulations would be distributed across the historical range of the species (redundancy and representation) and have multiple “stepping stone” habitats for connectivity across the landscape (redundancy and representation) (USFWS 2020, p. 33). A “stepping stone” habitat is a prairie patch that provides both lupine and nectar plants, and occurs in an area with barrier-free movement for butterflies; such areas are likely too small to support a subpopulation or metapopulation of butterflies over the long term, but they provide sufficient resources to support multi-generational movement of individuals between larger areas of habitat. The key resources and circumstances required to support resiliency in Fender's blue butterfly metapopulations, and redundancy and representation at the species level, are identified below in Table 5 (from USFWS 2020, Table 2.5). Based on the
At the time we listed Fender's blue butterfly as endangered (65 FR 3875; January 25, 2000), we considered the loss, degradation, and fragmentation of native prairie habitat in the Willamette Valley to pose the greatest threat to the species' survival. Forces contributing to the loss of the little remaining native prairie included urban development (named as the largest single factor threatening the species at the time); agricultural, forestry, and roadside maintenance activities, including the use of herbicides and insecticides; and heavy levels of grazing. In addition, habitat loss through vegetative succession from prairie to shrubland or forest resulting from the absence of natural disturbance processes, such as fire, was identified as a long-term threat, and the invasion of prairies by nonnative plants was identified as a significant contributor to habitat degradation. Although predation is a natural condition affecting the species, the listing rule considered that predation may significantly impact remaining populations of Fender's blue butterfly because they had been reduced to such low numbers. Small population size was also identified as posing a threat of extinction due to the increased risk of loss through random genetic or demographic factors, especially in fragmented or localized populations. Small population size is not a threat in and of itself; however, it may exacerbate the impacts from threats. Christmas tree farms were also identified as a threat due to habitat loss. However, we have not found Christmas tree farming has negatively affected the species or its habitat since 1992. Similarly, we have not found a population-level effect to the species from non-herbicide road maintenance by private landowners. We developed a state-wide Habitat Conservation Plan to address all routine maintenance activities along rights-of-ways adjacent to roads managed by the Oregon Department of Transportation. While insect herbivory on host lupine plants was considered a possible indirect threat to Fender's blue butterfly, this threat has not manifested in reduced butterfly reproduction or survival. The possibility that the rarity of Fender's blue butterfly could render it vulnerable to overcollection by butterfly enthusiasts was cited as a potential threat. However, we have no evidence that collection of Fender's blue butterfly has occurred either before or since listing. Finally, the listing rule pointed to the inadequacies of existing regulatory mechanisms to protect Fender's blue butterfly or its habitat, especially on lands under private ownership. With assistance from partner organizations, we have undertaken steps to manage and protect butterfly habitat on both private and public lands, which includes Habitat Conservation Plans for roadside maintenance and other activities, Safe Harbor Agreements, Partners for Fish and Wildlife agreements, and individual site management plans. Threats not recognized or considered at the time of listing, but now evaluated, include the potential impacts resulting from climate change (Factor E).
As discussed in the SSA report, habitat loss from land conversion for agriculture and urbanization, and from heavy grazing (Factor A), has decreased since the time of listing due to land protection efforts and management agreements; these activities are still occurring at some level, especially in Lane and Polk Counties, but not at the scope and magnitude seen previously (USFWS 2020, pp. 57-59; see also
The overall number of sites supporting Fender's blue butterfly has increased across all land ownership categories since listing, as has the percentage of sites with habitat management. Although the percentage of sites that are protected has remained roughly the same (just over 70 percent) relative to the time of listing, we now have a far greater number of sites that are protected (101 out of 137 sites protected, compared to 23 of 32 sites at the time of listing). More importantly, there is a significant increase in the proportion of sites that are actively managed by private and partner agencies to maintain or restore prairie habitat. At listing, only 31 percent of known sites (10 of 32) and only 44 percent of protected sites (10 of 23) were managed for prairie habitat to any degree. At present, 74 percent of current sites (101 of 137) and 100 percent of protected sites (101 of 101) are managed for prairie habitat. In addition, three HCPs, 17 SHAs, and a programmatic agreement for non-Federal landowners are now in place to undertake proactive conservation and restoration actions to benefit native prairie and minimize and mitigate effects to Fender's blue butterfly (see
Insecticides and herbicides can directly kill eggs, larvae, and adult butterflies during application of the chemicals to vegetation or from drift of the chemicals from nearby applications in agricultural and urban areas. For instance,
Although the listing rule stated that predation may have a significant negative impact on Fender's blue butterfly due to the reduced size of populations, the best available information does not indicate that predation is a limiting factor for the species. Small population size was also identified as posing a threat of extinction due to the increased risk of loss through random genetic or demographic factors, especially in fragmented or localized populations (Factor E). Some very small, isolated populations of Fender's blue butterfly known at the time of listing do appear to have become extirpated (USFWS 2020, pp. 51-52), and existing small metapopulations or independent groups remain especially vulnerable to extirpation. Overall, however, the threat of small population size has decreased since listing due to the discovery of new metapopulations, the expansion of existing metapopulations, and the creation of new metapopulations from reintroductions of Fender's blue butterflies. Most, but not all, metapopulations of Fender's blue butterfly have increased in abundance relative to the time of listing, and the total population size has increased from just over 3,000 individuals in 12 metapopulations distributed across four counties, to well over 13,000 individuals in 15 metapopulations distributed across six counties (USFWS 2020, pp. 52-53).
The severity of threat posed to Fender's blue butterfly from the impacts of climate change is difficult to predict. The Willamette Valley, and prairies specifically, may fare better than other regions; however, various changes in average annual temperatures and precipitation are predicted and may affect Fender's blue butterfly or its habitat (Bachelet
Because of extensive loss of native prairie habitats in the Willamette Valley and the resulting Federal listing of multiple endemic plant and animal species, the region has been the focus of intensive conservation efforts. Numerous entities, including Federal, State, and county agencies, nongovernmental organizations such as land trusts, and private landowners, have all become engaged in efforts to restore native Willamette Valley prairie and oak savannah habitats and the associated endemic animal communities. Collectively, the agencies and organizations that manage lands have acquired conservation easements and conducted management actions to benefit prairie and oak savannah habitats; in many cases, conservation efforts have been designed specifically to benefit Fender's blue butterfly. Various types of agreements have been established with private landowners to perform voluntary conservation actions on their land, while agencies are working collaboratively on habitat restoration and active prairie management under interagency agreements.
Our SSA report summarizes the conservation measures implemented across the range of Fender's blue butterfly since the species was listed in 2000 (USFWS 2020, pp. 62-65). These measures include native prairie habitat restoration and management on public lands or lands that are managed by a conservation organization, including Baskett Slough National Wildlife Refuge and surrounding areas, William L. Finley National Wildlife Refuge, Fern Ridge Reservoir, West Eugene Wetlands, Willow Creek Preserve, Yamhill Oaks Preserve, Coburg Ridge, Lupine Meadows, Hagg Lake, a small portion of the McDonald State Forest, and some Benton County public lands. The long-term viability of Fender's blue butterfly is dependent on an ongoing, consistent commitment to active management to remove woody vegetation and invasive plants, thereby maintaining the native plant community and open prairie conditions required by this species.
The contributions of private landowners have also made a significant impact on the conservation of Fender's blue butterfly. Approximately 96 percent of the Willamette Valley ecoregion is in private ownership (Oregon Department of Fish and Wildlife 2006), and the majority (66 percent) of designated critical habitat for Fender's blue butterfly is on private lands (see 50 CFR 17.95(i) and 71 FR 63862, October 31, 2006). Thus, the conservation and recovery of Fender's blue butterfly, Kincaid's lupine, and the suite of native species associated with them relies in large part on the voluntary actions of willing non-Federal landowners to conserve, enhance, restore, reconnect, and actively manage the native prairie habitats that support these species. Many Fender's blue butterfly sites on private or other non-Federal lands across the range of the species now have PFW agreements, SHAs, or HCPs in place with the Service.
Through many PFW agreements in place with private landowners in the Willamette Valley, we provide technical assistance to landowners for the enhancement and restoration of native habitats on their lands; these conservation actions benefit multiple native species, including Fender's blue butterfly. We administer and implement a programmatic SHA for the benefit of Fender's blue butterfly. This program encourages non-Federal landowners to undertake proactive conservation and restoration actions to benefit native prairie, as well as Fender's blue butterfly and Kincaid's lupine, in Benton, Lane, Linn, Marion, Polk, Washington, and Yamhill Counties, Oregon (USFWS 2016, entire). Since 2021, 17 properties covering approximately 595 ha (1,471 ac) are enrolled under the programmatic SHA as of November 2020; another 12 agreements that will cover an additional 417 ha (1,031 ac) are in development. In addition, three HCPs in place are designed to minimize and mitigate effects to Fender's blue butterfly: the Benton County HCP (2011; 50-year term), Yamhill County Road Rights-of-Way HCP (2014; 30-year term), and the Oregon Department of Transportation HCP (2017; 25-year term). These agreements include various provisions ensuring the implementation of best management practices and offsetting any potential negative impacts of activities through augmenting or enhancing populations of Fender's blue butterfly or prairie habitats.
Finally, nongovernmental organizations have actively pursued conservation easements and acquisition of properties throughout the Willamette Valley to benefit native prairies and Fender's blue butterfly. Specific examples include the 2005 acquisition and establishment of the Lupine Meadow Preserve by the Greenbelt Land Trust, and the 2008 acquisition and establishment of the Yamhill Oaks Preserve by The Nature Conservancy.
Overall, there are 137 total sites containing Fender's blue butterfly that occur over a broad range of land ownerships with varying degrees of land protection and management. Forty-four sites are on tracts of public land owned by the U.S. Army Corps of Engineers, Bureau of Land Management, Bureau of Reclamation, Oregon State University, or the Service, all of which are being managed for prairie habitat to varying degrees given funding and personnel. Fourteen sites are in public rights-of-way managed by the Oregon Department of Transportation or County Public Works, and all are being managed for prairie habitat. Thirty sites are on private land without any form of protection or active management for Fender's blue butterfly or its habitat. Another 43 sites are on private land with some level of protection via a conservation easement (20 sites) or under a cooperative agreement (23 sites) and are being managed for prairie habitat. More information on conservation measures performed by nongovernmental organizations specific to each metapopulation of Fender's blue butterfly are listed in the SSA report under
We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis. For Fender's blue butterfly, we analyzed the cumulative effects of habitat loss, conversion, and fragmentation; habitat succession to shrubs and woody plant species; encroachment of nonnative plants; application of pesticides; and climate change. We considered the source, immediacy, scope, and trajectory of each stressor; the life stages impacted, and the benefit conservation measures, such as habitat management and protection provided.
After assessing the biology of Fender's blue butterfly and the information presented in its recovery plan, we determined that the resiliency of a metapopulation of the species relies on an abundant supply of lupine host plants and nectar plants within prairie patches at least 6 ha (14.8 ac) in size, habitat heterogeneity, and minimal amounts of invasive plants and woody vegetation. Healthy metapopulations would also contain a minimum of 200 butterflies (resiliency) distributed across multiple groups within a metapopulation (redundancy) in lupine patches that are within 0.5 to 1.0 km (0.31 to 0.62 mi) of one another. At the species level, a highly resilient metapopulations would ideally be distributed across the historical range of the species (representation and redundancy across metapopulations) and have numerous habitat “stepping stones” for connectivity across the landscape (redundancy and representation).
In our evaluation, we used the best scientific data available to evaluate the current condition of each Fender's blue butterfly metapopulation in terms of resiliency. We developed criteria to assess specific habitat and demographic factors contributing to the overall resilience of metapopulations, and to rank each metapopulation as to whether it is in high, moderate, or low condition; these categories reflected our estimate of the probability of persistence over a period of 25 to 35 years (explained below; see
Five of the existing 15 Fender's blue butterfly metapopulations are ranked as having a high current condition, while 3 are ranked as moderate, 6 are ranked low, and one may be extirpated (see Table 6, below). Overall, the majority of metapopulations, 8 out of 15, are ranked as either in high or moderate condition, indicating a degree of resiliency across the range of the species. Fender's blue butterfly currently demonstrates a good degree of metapopulation redundancy, with multiple metapopulations occurring both within and across the three recovery zones spanning the historical range of the species. Although no direct measures of genetic or ecological diversity are available, we consider the species to have a good degree of representation, as there are multiple metapopulations and groups of Fender's blue butterfly distributed relatively evenly across the geographic range of the species (six in the Salem recovery zone, five in the Corvallis recovery zone, and four in the Eugene recovery zone), in all known habitat types (both prairie and oak savannah) and elevations.
The discovery of Fender's blue butterflies in additional counties since the listing of the species, as well as the expansion of existing metapopulations, increases both the geographic range of the species and connectivity throughout the landscape. An increased number of metapopulations, composed of a greater number of individuals and with expanded distribution and connectivity across the range of Fender's blue butterfly (see Table 3, above), means the species has a greater chance of withstanding stochastic events (resiliency), surviving potentially catastrophic events (redundancy), and adapting to changing environmental conditions (representation) over time.
To understand the potential future condition of Fender's blue butterfly with respect to resiliency, redundancy, and representation, we considered a range of potential scenarios that incorporate important influences on the status of the species, and that are reasonably likely to occur. We additionally forecast the relative likelihood of each scenario occurring, based on our experience with the species and best professional judgment (see USFWS 2020, p. 78). Through these future scenarios, we forecast the viability of Fender's blue butterfly over the next 25 to 35 years. We chose this timeframe because it represents up to 35 generations of Fender's blue butterfly, and therefore provides an adequate timeframe to consider the species' response to threats. The recovery plan also used this general timeframe for the determination of downlisting criteria, and this timeframe can reveal the immediate effects of habitat management strategies given that our current interim protections (
Scenario 1 assumes “continuing efforts”—Fender's blue butterfly will continue on its current trajectory and influences on viability, habitat management, and conservation measures will all continue at their present levels. Due to our analysis of current management actions, protections, and threats, we consider this scenario as highly likely to play out over the next 25 to 35 years. Scenario 2 is based on an increased level of impact from negative influences on viability, particularly alterations in environmental conditions as a result of climate change. We consider this scenario moderately likely to occur over the next 25 to 35 years due to greater uncertainty in assessing the degree of climate change and the impact it may have on the species. Scenario 3 is based on increased conservation effort, including the potential for improved habitat conditions at currently occupied sites; metapopulation expansion by restoring currently unoccupied prairie sites; and augmentation, translocation,
Because the natural processes that historically maintained this ecosystem and Fender's blue butterfly's early seral habitat are now largely absent from the Willamette Valley, the species is reliant upon ongoing management that sets back succession and controls invasive tall grasses and woody plant species. Therefore, an important consideration in our evaluation of the viability of the species is whether or not management actions will continue that restoration and maintenance of prairie systems, including actions that maintain populations of the lupine host plants and nectar resources in the Willamette Valley.
Scenario 1 results in improved condition for several metapopulations currently ranked as moderate as conservation efforts continue. On the other hand, metapopulations that are currently in low condition or already at risk of extirpation would likely either remain in that state or (in one case) degrade in condition from low to possible extirpation. Overall, we expect that the viability of Fender's blue butterfly under this scenario would improve relative to its current condition, characterized by increases in resiliency of existing metapopulations. Seven metapopulations would be in high condition, one in moderate condition, five in low, and two at risk of possible extirpation. There would be at least two metapopulations in high condition in each of the three recovery zones; the Salem recovery zone would be in the best condition, with three metapopulations in high condition. The resiliency of metapopulations would be lowest in the Corvallis recovery zone, with three of five metapopulations ranked either low or at risk of extirpation. Thus, there is a possibility for some loss of redundancy, with the Corvallis recovery zone at greatest risk. We anticipate that most, but not all, of the current metapopulations would maintain viability under this scenario.
Scenario 2 would be expected to result in decreases in resiliency and redundancy, with seven metapopulations subject to possible extirpation. While some metapopulations would likely retain their resiliency, more than half of the current metapopulations would be at risk of extinction within the next 25 to 35 years under this scenario. That said, we projected that all recovery zones would still maintain at least one metapopulation in high condition. We anticipate that, under these conditions, Fender's blue butterfly would persist, but its long-term viability in terms of resiliency, redundancy, and representation would be greatly diminished even with continued management for the conservation of the species.
Under Scenario 3, we expect resiliency to increase as several metapopulations remain at or move into high condition, with others transitioning from low to moderate condition; seven metapopulations would be in high condition, five in moderate condition, two in low condition, and one at risk of extirpation. Redundancy and representation would be maintained in all recovery zones; all recovery zones would have a minimum of two metapopulations in high condition. We anticipate that all of the currently extant metapopulations would maintain viability under this scenario, with the exception of one that is small and at risk of extirpation under all scenarios considered.
For the reasons described above under
In the proposed rule published on June 23, 2021 (86 FR 32859), we
As discussed under Supporting Documents above, we received responses from five peer reviewers. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final SSA report.
(1)
Further research may provide important information on the effects of wildfire on the species, but we know that fire is an essential ecosystem component, is necessary to maintain prairie habitat so that it is not converted to shrub land and forest, and is a tool used to prevent succession to woody vegetation on the landscape. Regular fires reduce the abundance of shrubs and trees and favor the growth of grasses needed for Fender's blue butterfly habitat. Based on two climate change vulnerability models, it appears likely that Fender's blue butterfly may be negatively affected by long-term consequences of climate change; however, we are not able to specifically quantify the magnitude of effects to the species. While vulnerability was influenced by loss of nectar and host plants, the source of this loss was identified as invasive plants, not as wildfire. We have made no changes to the rule in response to this comment.
(2)
In determining whether a metapopulation is of low, moderate, or high resiliency, we rely on multiple lines of evidence in addition to the ones the commenter mentioned. In our analysis, a minimum population criterion of 200 adults is used to gauge how long (in consecutive years) a metapopulation exists above this threshold. In addition to this factor, we also considered the average 5-year abundance of a metapopulation, connectivity within the metapopulation, average prairie patch size, lupine density, and other demographic and habitat factors to assess resiliency (see table 6.2 in the SSA for the complete list). The 200-adult threshold alone does not determine the resiliency of the population. Rather, it is one of the factors we considered, in addition to the other factors briefly mentioned here, to determine the resiliency of a metapopulation.
Continued research and management activities since the recovery plan was completed have revealed that highly resilient populations do not necessarily need 6 ha of high-quality habitat. We have observed multiple populations that thrived in smaller habitat size (Menke 2018, entire). As noted above, while our recovery plan provides the general criteria for assessing the status of the species, it is not a regulatory document, and we are not required to fulfill all of its provisions and criteria to make a determination under section 4(a)(1) of the Act that a listed species should be downlisted or delisted. That said, the recommendation in our SSA and proposed rule that Fender's blue butterfly populations with high resiliency have 6 ha of high-quality habitat was to create a baseline for assessing the health of the metapopulation. The 6 ha of high-quality habitat was not used as a hard line for determining high versus low resiliency of metapopulations.
(3)
(4)
The intermixing of climate change and habitat management actions, therefore, was intentional. In assessing the status of the species, we considered the risk of extinction across the range of plausible scenarios. Because the probability of any one scenario occurring is incalculable, we concluded that adding additional scenarios would not necessarily better capture potential impacts of climate change. While the new IPCC report provides a global perspective on projected changes in climate, a downscaled model specific to the Pacific Northwest has not yet been released. As a result, we continue to rely on the best available scientific and commercial information to assess the impact of climate change on this species.
With regards to considering plant phenology in our future conditions, we reviewed the information presented in the paper cited in the comment. While the paper reports that peak flight activity for this species has changed, the trends in abundance based on phenological response has not. However, uncertainty remains regarding potential phenological mismatch with both host and nectar plants, and what, if any, the impacts will be to Fender's blue butterfly. Our future scenarios were designed to reflect the major stressors that could affect the species now and within the foreseeable. Therefore, we determined that plant phenology does not at present rise to the level where we would need to incorporate it into our future analysis.
(5)
Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an endangered species or threatened species. The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of endangered species or threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.
After evaluating threats to the species and assessing the cumulative effect of the threats under the Act's section 4(a)(1) factors, we find that Fender's blue butterfly has experienced a marked increase in resiliency, redundancy, and representation across its historical range, contributing to an overall increase in viability. We listed Fender's blue butterfly as endangered in 2000, upon a determination at that time that the species was presently in danger of extinction throughout all or a significant portion of its range (65 FR 3875, January 25, 2000, p. 3886). Since then, our evaluation of the best scientific and commercial data available indicates that the abundance and distribution of Fender's blue butterfly has improved as a result of metapopulation expansion, metapopulation discovery, and metapopulation creation, as well as a marked increase in habitat protection and management across the range of the species. The presence of Fender's blue butterflies in new counties, the expansion of existing metapopulations, and the creation of new metapopulations increase both the geographic range of the species and potential connectivity throughout the landscape. In addition, active recovery efforts occurring since Fender's blue butterfly was listed have led to the amelioration of threats to the species, as detailed above under
We next consider whether Fender's blue butterfly meets the Act's definition of a threatened species. Although threats to the species have been reduced relative to the time of listing, the species remains vulnerable. The potential for exposure to pesticides (herbicides, insecticides) is an ongoing threat to the species throughout its range, due to the close proximity of Fender's blue butterfly occurrence sites to agricultural lands as well as areas subject to spraying to control gypsy moths or mosquitoes. In addition, we have yet to develop an effective method for eradicating tall oatgrass, a nonnative, invasive plant that is rapidly expanding into prime prairie habitats and posing a growing management concern. The low availability of lupine host plants, and inadequate supply of appropriate lupine seed for restoration efforts, is also a limiting factor for Fender's blue butterfly. The threat of overcollection to the long-term viability of the species is currently unknown but could have negative impacts. However, these acts are currently prohibited, likely reducing the threat. Next, we consider Fender's blue butterfly to be a “conservation-reliant” species (
As noted in our endangered determination, there has been marked improvement in addressing many of the threats affecting the species including habitat loss due to conversion and invasion by non-native species. However, these efforts were achieved through management actions undertaken by the Service and our partners. The continuation of these efforts is vital due to the fact that succession of Fender's blue butterfly habitat by invasive species is an ongoing process. Controlling these invasives through management activities is essential to preventing succession. If these activities were downscaled or reduced, it could have drastically harmful effects on the species. This is demonstrated through our future scenarios in which we project out to 35 years.
Under the Continuing Effects scenario which assumes management activities continue at the current level, we project the number of metapopulations with high resiliency will increase from five to seven. This increase came from metapopulations whose current conditions were rated as low and moderate. This trend is also reflected in the Conservation Effort scenario where the number of metapopulations with high resiliency is projected to increase. However, under the Considerable Impacts scenario where management efforts are reduced, we project the species will occur in eight metapopulations with high or moderate resiliency and zero metapopulations with low resiliency; seven metapopulations may be extirpated. Under current condition, one metapopulation may be extirpated. The Considerable Impacts scenario represents a significant decline because we project a possible extirpation of almost half of all existing metapopulations. These declines are due to the stressors discussed above including succession of native habitats due to invasive species. The potential loss of so many metapopulations would have severe impacts on the species' redundancy and representation as these potential losses occur across all three recovery zones. Overall, our future scenarios demonstrate that Fender's blue butterfly is a conservation reliant species and ensuring the continuation of management activities is vital to sustain and improve the species' condition.
In addition to our future scenarios, we also reviewed the delisting criteria as identified in the recovery plan. Using those criteria, eleven of the 15 metapopulations do not meet the minimum criteria of 200 butterflies each year, and connectivity both within and between metapopulations remains limited due to the reduction and fragmentation of native prairie habitats, as well as the relative rarity and patchy distribution of the primary host plant, Kincaid's lupine. In particular, concern remains for the Corvallis recovery zone in the middle of the species' range, with metapopulations that are generally less robust and more vulnerable to deteriorating in condition over time (under current conditions, only one metapopulation in this zone is considered highly resilient, compared to two or more in the other zones).
Thus, after assessing the best available information, including, but not limited to, the current status of the species, ongoing threats to the species, and predicted status of Fender's blue butterfly under various future scenarios, including the consequences of climate change, we conclude that Fender's blue butterfly is not currently in danger of extinction but is likely to become in danger of extinction within the foreseeable future throughout all of its range.
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in
Following the court's holding in
For Fender's blue butterfly, we considered whether the threats are geographically concentrated in any portion of the species' range at a biologically meaningful scale. We examined the following threats: habitat loss from land conversion for agriculture and urbanization; habitat degradation resulting from invasion of prairies by nonnative plants or by succession to woody species; insecticides and herbicides; effects of climate change; small population size; and the cumulative effects of these threats.
Given the small size of the Willamette Valley, its relatively homogenous geological features, and the consistent vegetation structure and composition in Fender's blue butterfly habitat, threats to the species are equally present throughout its range. For instance, the human population, and the resulting urbanization and agricultural needs, are increasing throughout the Willamette Valley such that habitat loss is not concentrated in any portion of the range (Oregon Department of Administrative Services 2013). Similarly, habitat degradation due to invasion by nonnative plants and woody succession have been detected in all occupied Fender's blue butterfly habitat (USFWS 2020, p. 59). Insecticides and herbicides are used for both roadside maintenance and for management to maintain or restore prairie habitats. Although treatments occur in different habitat areas, we did not find these activities to be concentrated in any Fender's blue butterfly metapopulation (USFWS 2020, p. 61).
Due to the limited geographic scope of the Willamette Valley, climatic variables such as temperature and precipitation do not vary significantly in different portions of the range currently. Temperature is projected to increase or somewhat increase throughout the Willamette Valley while hydrological variables are projected to remain neutral (Kaye
Additionally, the Fender's blue butterfly diet, physical habitat, and reproductive needs are all consistent throughout its range. Because of the small geographic scale of the Willamette Valley, the lack of habitat differences, the same biological requirements, and the uniform distribution of threats, we have determined that neither individual nor cumulative threats are concentrated to a degree in the current Fender's blue butterfly range such that the species would have a different biological status in any one recovery zone or metapopulation.
We found no concentration of threats in any portion of the range of Fender's blue butterfly at a biologically meaningful scale, and there is no evidence to suggest that these threats affect any of the metapopulations to a greater degree. Additionally, metapopulations that are in low condition are distributed throughout the species range and are not concentrated in any single portion of the range. Thus, there are no portions of the species' range where threats facing the species are concentrated to a degree where the species in that portion would have a different status from its rangewide status.
Therefore, no portion of the species' range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This does not conflict with the courts' holdings in
Our review of the best available scientific and commercial information indicates that Fender's blue butterfly meets the Act's definition of a threatened species. Therefore, we are reclassifying Fender's blue butterfly as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.
It is our policy, as published in the
Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened species. The U.S. Supreme Court has noted that statutory language similar to the language in section 4(d) of the Act authorizing the Secretary to take action that she “deems necessary and advisable” affords a large degree of deference to the agency (see
The courts have recognized the extent of the Secretary's discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld, as a valid exercise of agency authority, rules developed under section 4(d) that included limited prohibitions against takings (see
The provisions of this 4(d) rule would promote conservation of Fender's blue butterfly by encouraging management of the habitat for in ways that facilitate conservation for the species. The provisions of this 4(d) rule are one of many tools that we would use to promote the conservation of Fender's blue butterfly.
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species.
If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of Federal actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251
This obligation does not change in any way for a threatened species with a species-specific 4(d) rule. Actions that result in a determination by a Federal agency of “not likely to adversely affect” continue to require the Service's written concurrence and actions that are “likely to adversely affect” a species require formal consultation and the formulation of a biological opinion.
Exercising the Secretary's authority under section 4(d) of the Act, we have developed a rule that is designed to address the specific threats and conservation needs of Fender's blue butterfly. As discussed above in the Summary of Biological Status and Factors Affecting Fender's Blue Butterfly, we have concluded that Fender's blue butterfly is likely to become in danger of extinction within the foreseeable future primarily due to loss and degradation of habitat, including impacts from habitat conversion, woody succession, and invasive plant species (Factors A and E); and the potential exposure of Fender's blue butterfly to herbicides or insecticides and changes in vegetation composition due to climate change (Factor E). Although the condition of Fender's blue butterfly has improved, the species remains vulnerable to these threats due to the small size of many of its metapopulations, limited connectivity between metapopulations as a consequence of fragmentation and the reduced extent of native prairie habitats, and the relative rarity of its lupine host plants on the landscape. Section 4(d) requires the Secretary to issue such regulations as she deems necessary and advisable to provide for the conservation of each threatened species and authorizes the Secretary to include among those protective regulations any of the prohibitions that section 9(a)(2) of the Act prescribes for endangered species. We find that the protections, prohibitions, and exceptions in this rule as a whole satisfy the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of Fender's blue butterfly.
The protective regulations we are finalizing for Fender's blue butterfly incorporate prohibitions from section 9(a)(1) to address the threats to the species. Section 9(a)(1) prohibits the following activities for endangered wildlife: importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. This protective regulation includes all of these prohibitions for Fender's blue butterfly because the species is at risk of extinction in the foreseeable future and putting these prohibitions in place will help to regulate a range of human activities that have the potential to affect Fender's blue butterfly, including agricultural or urban development; certain agricultural practices (
We include the prohibition of import, export, interstate and foreign commerce, and sale or offering for sale in such commerce because, while the number of metapopulations and abundance within most metapopulations has increased since the time of listing, Fender's blue butterfly is not thriving to the degree that the species is considered to be capable of sustaining trade. Rare butterflies such as Fender's blue are easily subject to overcollection, and the potential for population declines as a result of increased collection was one of the factors considered in the original listing of Fender's blue butterfly as an endangered species. Fortunately, the potential threat of overcollection has not thus far been realized, but any increased incentive for capture of Fender's blue butterfly from the wild would be highly likely to result in negative impacts to the long-term viability of the species.
Fender's blue butterfly remains likely to become an endangered species within the foreseeable future throughout all of its range. Although the status of the species has improved relative to when it was first listed as an endangered species, the species has not recovered to the point that it is capable of sustaining
Under the Act, “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. Regulating incidental and intentional take will help preserve the remaining metapopulations of Fender's blue butterfly.
Although the number of metapopulations, and abundance within most metapopulations, has increased since the time of listing, Fender's blue butterfly remains a vulnerable species and has not yet attained full recovery. We do not consider Fender's blue butterfly capable of withstanding unregulated take, either intentional or incidental to otherwise lawful activities, without likely negative impacts to the long-term viability of the species. There are a few circumstances in which allowing incidental take may ultimately benefit Fender's blue butterfly as a species and further its recovery. We have outlined such circumstances below as exceptions to the prohibitions of take. By allowing take under specified circumstances, the rule will provide needed protection to the species while allowing management flexibility to benefit the species' long-term conservation. Anyone taking, attempting to take, or otherwise possessing a Fender's blue butterfly, or parts thereof, in violation of section 9 of the Act will still be subject to a penalty under section 11 of the Act, except for the actions that are specifically excepted under the 4(d) rule.
Incidental take by landowners or their agents is allowed while conducting management for the creation, restoration, or enhancement of short-stature native upland prairie or oak savannah conditions within areas occupied by Fender's blue butterfly, subject to the restrictions described herein and as long as reasonable care is practiced. An important aspect of prairie management is the timing and location of treatment. Lupine is patchy and distributed in small clumps low to the ground whereas invasive tall grasses are more uniform. This means the person doing the herbicide spray or other removal work needs to be able to recognize the plants to be sure they are treating the correct areas, the correct species, and know when to treat the area before the seed has set. To help avoid potential issues, we require a qualified biologist to be involved in the planning even if the landowners do the treatment themselves. The biologist does not need to be present on-site on the day of the treatment but does need to be consulted and involved beforehand. Reasonable care may include but is not limited to: (1) Procuring and/or implementing technical assistance from a qualified biologist on timing and location of habitat management activities prior to implementation; and (2) using best efforts to avoid trampling or damaging Fender's blue butterflies (eggs, larvae, pupae, adults) and their host and nectar plants during all activities.
Fender's blue butterfly is a conservation-reliant species. Active management for prairie conditions within the historical range of Fender's blue butterfly is essential for long-term viability and is one of the key recovery actions identified for the species. Allowing certain forms of active management for the purpose of creating, restoring, or enhancing native upland prairie or oak savannah conditions is necessary to facilitate and encourage the implementation of conservation measures that will address one of the primary threats to Fender's blue butterfly, the loss or degradation of native short-stature prairie or oak savannah habitat within the Willamette Valley. Restoration actions may include manual, mechanical, and herbicidal treatments for invasive and nonnative plant control that does not result in ground disturbance, including mowing and planting by hand of native vegetation, especially native food resources for Fender's blue butterfly larvae (Kincaid's, longspur, or sickle-keeled lupine) or adults (native nectar species). Prescribed burning is a complex endeavor, and there is potential for impacts to Fender's blue butterfly beyond that which local metapopulations or subpopulations may be capable of withstanding should the burn exceed its intended geographic limits; therefore, we do not provide an exception for take as a result of prescribed burning in the 4(d) rule. Take coverage for prescribed burning can be obtained through section 7 consultation, a section 10(a)(1)(A) permit, or through the Programmatic Restoration Opinion for Joint Ecosystem Conservation by the Services (PROJECTS) program.
Providing landowners management flexibility facilitates the creation, restoration, and enhancement of native upland prairie and oak savannah habitats. Habitat is considered occupied by Fender's blue butterfly if it is within the historical range of the species and supports or may support lupine, unless a qualified biologist using direct observation has conducted surveys for adult Fender's blue butterfly during the April 15 to June 30 flight period and documented no adult butterflies. Occupied habitat also includes all nectar habitat within 0.5 km (0.3 miles) of habitat containing at least one of the three host lupine species and that is occupied by Fender's blue butterfly. Unsurveyed areas within 2 km (1.25 mi) of a known Fender's blue butterfly population shall be assumed occupied if no surveys are conducted. This 4(d) rule authorizes landowners to plant native vegetation by hand; conduct mechanical and manual treatments to control woody and invasive nonnative plants; perform tractor and hand mowing; and apply herbicides within occupied Fender's blue butterfly habitat. To prevent possible negative effects on Fender's blue butterfly or its host lupine, the following time restrictions apply to the exceptions to take by landowners in areas occupied by Fender's blue butterfly:
(1) Mechanical treatments for control of woody and invasive and nonnative plant species that do not result in ground disturbance are authorized within occupied habitat outside of the butterfly flight period (April 15 to June 30) to avoid impacts to adult butterflies.
(2) To prevent invasive plant species establishment, tractor mowing is authorized throughout sites with Fender's blue butterflies before February 15 (when lupine emerges) and after August 15 (when lupine undergoes senescence). Mowing with handheld mowers is authorized throughout the year; however, a buffer of at least 8 m (25 ft) must be maintained between the mower and any individual lupine plant during Fender's blue butterfly's flight season (April 15 to June 30).
(3) Weed wiping and broadcast application of herbicides are authorized outside of the flight period of April 15 to June 30; however, additional timing and use restrictions are required based on the chemicals used. Contact the Oregon Fish and Wildlife Office prior to herbicide implementation for a list of
To better refine conservation activities affecting the species, we are amending the proposed rule on manual treatment. In this final rule, manual treatments for control of woody and invasive and nonnative plant species that do not result in ground disturbance are authorized within occupied habitat year-round. Additionally, planting by hand of native vegetation is authorized year-round.
We expect that the actions and activities that are allowed under this 4(d) rule, while they may cause some minimal level of harm or disturbance to individual Fender's blue butterflies, will on balance facilitate efforts to conserve and recover the species because they will make it easier for our State and private partners to implement recovery actions and restore the habitats required by Fender's blue butterfly. The loss or degradation of early seral prairie habitats is one of the primary threats to Fender's blue butterfly, and disturbance (such as that described under the take exemptions provided here) is required to restore or maintain the habitat characteristics that are essential to the survival of this conservation-reliant species.
In addition to other standard exceptions applied to this species in this 4(d) rule, we may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: for scientific purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. In this regard, section 6 of the Act provides that we shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with us in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve Fender's blue butterfly that may result in otherwise prohibited take without additional authorization.
Nothing in this 4(d) rule will change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or our ability to enter into partnerships for the management and protection of Fender's blue butterfly. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between us and other Federal agencies, such as the existing programmatic consultation on habitat restoration actions in the existing PROJECTS biological opinion (USFWS 2015, entire), which includes provisions for management actions that benefit Fender's blue butterfly.
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 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), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), 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 because there are no Tribal lands or interests within or adjacent to Fender's blue butterfly habitat.
A complete list of references cited in this rulemaking is available on the internet at
The primary authors of this rule are the staff members of the U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Plants, Reporting and recordkeeping requirements, Transportation, Wildlife.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
(h) * * *
(f) Fender's blue butterfly (
(i)
(ii)
(iii)
(2)
(i) Import or export, as set forth at § 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife.
(3)
(i) Conduct activities as authorized by a permit under § 17.32.
(ii) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.
(iii) Take, as set forth at § 17.21(c)(2) through (4) for endangered wildlife.
(iv) Take, as set forth at § 17.31(b).
(v) Take incidental to an otherwise lawful activity caused by:
(A)
(
(
(B)
(
(
(C)
(
(
(D)
(E)
(
(
(F)
(
(
(G)
(H)
Department of Energy.
Request for information; re-opening of public comment period.
On November 15, 2022, the U.S. Department of Energy (DOE) published a request for information to help inform potential updates to categorical exclusions in its regulations implementing the National Environmental Policy Act (NEPA). Through the request for information, DOE sought recommendations and supporting information from interested individuals and organizations on establishing new categorical exclusions and revising existing ones. In response to public request, DOE is re-opening the comment period for 30 days to allow interested parties additional time to provide input.
The comment period for the request for information, published on November 15, 2022 (87 FR 68385), which closed on December 30, 2022, is hereby reopened. Responses should be submitted by February 13, 2023.
Submit comments, labeled “DOE NEPA RFI,” via
For further information on submitting responses, contact Carrie Abravanel, Office of NEPA Policy and Compliance (GC-54), 202-586-8397,
DOE published a request for information on November 15, 2022 (87 FR 68385) that started a 45-day comment period (ending December 30, 2022). DOE is considering revisions to ensure that its NEPA reviews are aligned with the latest DOE programs and initiatives for clean energy and electricity transmission projects, fully consider potential environmental impacts and community concerns, and are efficient and effective at informing DOE decisions. In the request for information, DOE sought recommendations and supporting information from interested individuals and organizations on establishing new categorical exclusions and revising existing ones. Through the request for information, interested parties were invited to:
• Identify a specific category of actions related to clean energy projects and clean energy infrastructure that is not covered by existing DOE categorical exclusions, but that is likely to meet the standard of not having a significant effect on the human environment; and
• Provide suggestions for revising DOE's existing categorical exclusions related to clean energy projects and clean energy infrastructure.
In response to public request, DOE has determined that re-opening the public comment period is appropriate to allow interested parties additional time to submit comments for DOE's consideration. Therefore, DOE is re-opening the comment period for an additional 30 days. Please see the November 15, 2022, request for information for additional background information and instructions on providing comments. That request for information is available at
Responses should be submitted to
This document of the Department of Energy was signed on January 6, 2023, by Samuel Walsh, General Counsel, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Bombardier, Inc., Model BD-100-1A10 airplanes. This proposed AD was prompted by multiple reports of
The FAA must receive comments on this proposed AD by February 27, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For Bombardier service information identified in this NPRM, contact Bombardier Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Steven Dzierzynski, Aerospace Engineer, Avionics & Electrical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Steven Dzierzynski, Aerospace Engineer, Avionics & Electrical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; email
Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2022-28, dated June 9, 2022 (Transport Canada AD CF-2022-28) (also referred to after this as the MCAI), to correct an unsafe condition on certain Bombardier, Inc., Model BD-100-1A10 airplanes. The MCAI states there have been multiple reports of erratic electrical system status on the PBAs and the EICAS while on-ground and during flight, and in several cases, leading to momentary loss of electrical power and loss of flight displays following flight crew responses to the erratic statuses. It was found that airplanes could experience misleading electrical system status indications (PBA and EICAS) as a result of contamination of electrical contacts in the LH DCPC internal communication data bus. Those erratic indications could cause the crew to turn off fully-operational electrical power sources, leading to partial or complete loss of electrical power. Loss of electrical power could result in the loss of flight displays and reduced controllability of the airplane.
The MCAI also stated that Transport Canada previously issued CF-2020-46, dated November 17, 2020 (which corresponds to FAA AD 2021-23-14, Amendment 39-21812 (86 FR 68889, December 6, 2021)), which mandated the use of revised Electrical Emergency and Non-Normal Procedures in the airplane flight manual that directed crews not to turn off active generators in the event of an erroneous electrical system status indication. The MCAI advised that further corrective action is being developed to introduce a design improvement to the DCPC that is intended to protect the internal communication data bus from contaminants, and that a time-limited maintenance check will also be implemented.
You may examine the MCAI in the AD docket at
The FAA reviewed Bombardier Service Bulletins 100-24-29 and 350-24-004, both dated April 9, 2021. This service information specifies procedures for a records check to determine the total flight hours and replacement of affected LH DCPC units (part numbers 975GC02Y04, 975GC0Y05, 975GC02Y06, or 975GC02Y07). These documents are distinct since they apply to different airplane configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another
This proposed AD would require accomplishing the actions specified in the service information already described, except as discussed under “Differences Between this NPRM and the MCAI or Service Information.”
The note to paragraph 2.B.(4) in Bombardier Service Bulletins 100-24-29 and 350-24-004, both dated April 9, 2021, specifies to reset the unit total flight hours to zero at date of incorporation. This proposed AD would not require that action.
The FAA considers that this proposed AD would be an interim action. The MCAI states that further corrective action is being developed. Once this action is developed, approved, and available, the FAA might consider additional rulemaking.
The FAA estimates that this AD, if adopted as proposed, would affect 315 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.
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.
The FAA is 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.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by February 27, 2023.
None.
This AD applies to Bombardier, Inc., Model BD-100-1A10 airplanes, certificated in any category, having serial number 20003 through 20795 inclusive, 20797 through 20812 inclusive, 20814 through 20832 inclusive, and 20834 through 20836 inclusive.
Air Transport Association (ATA) of America Code 24, Electrical Power.
This AD was prompted by multiple reports of erratic electrical system status on the push button annunciators (PBAs) and the engine instrument and crew alerting system (EICAS) while on-ground and during flight. The FAA is issuing this AD to address erratic indications, which could cause the flight crew to turn off fully-operational electrical power sources, leading to partial or complete loss of electrical power. The unsafe condition, if not addressed, could result in loss of electrical power could result in the loss of flight displays and reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 60 days after the effective date of this AD, verify the total flight hours of the left-hand (LH) direct current power center (DCPC) unit since the date of manufacture by doing a records check in accordance with paragraph 2.B.(1) of the Accomplishment Instructions of the applicable service bulletin identified in paragraphs (g)(1) and (2) of this AD.
(1) For airplanes having serial number 20001 through 20500 inclusive, use Bombardier Service Bulletin 100-24-29, dated April 9, 2021.
(2) For airplanes having serial number 20501 through 20999 inclusive, use Bombardier Service Bulletin 350-24-004, dated April 9, 2021.
If, during the records check required by paragraph (g) of this AD, the total flight hours since date of manufacture of the LH DCPC unit is equal to or more than 3,100 total flight hours and the LH DCPC has not been cleaned as specified in Safran Service Bulletin 975GC02Y-24-018 before the effective date of this AD: Within 19 months after the effective date of this AD, replace the LH DCPC unit in accordance with paragraphs 2.B.(2) through 2.B.(5) and 2.C. of the Accomplishment Instructions of the applicable service bulletin identified in paragraphs (g)(1) and (2) of this AD.
Although the note in paragraph 2.B.(4) of the Accomplishment Instructions of Bombardier Service Bulletins 100-24-29, and 350-24-004, both dated April 9, 2021, specifies that actions will reset “the unit total flight hours to zero at date of incorporation,” this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Transport Canada AD CF-2022-28, dated May 26, 2022, for related information. This Transport Canada AD may be found in the AD docket at
(2) For more information about this AD, contact Steven Dzierzynski, Aerospace Engineer, Avionics & Electrical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; 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) Bombardier Service Bulletin 100-24-29, dated April 9, 2021.
(ii) Bombardier Service Bulletin 350-24-004, dated April 9, 2021.
(3) For Bombardier service information identified in this AD, contact Bombardier Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; email
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety 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, email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Airbus SAS Model A350-941 and -1041 airplanes. This proposed AD was prompted by reports of broken lower attachment studs on the AFT galley complex. This proposed AD would require repetitive detailed inspections of the lower attachment studs and, depending on findings, replacement of the lower attachment studs, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by February 27, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For EASA material that is proposed for IBR in this NPRM, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Dat Le, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 516-228-7317; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dat Le, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 516-228-7317; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0196, dated September 20, 2022 (EASA AD 2022-0196) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus SAS Model A350-941 and -1041 airplanes. The MCAI states that the manufacturer has received reports of broken lower attachment studs on the AFT galley complex. The manufacturer's investigation indicates that the broken lower attachment studs resulted from a hydrogen-induced failure. This condition, if not addressed, could lead to galley detachment, resulting in injury to airplane occupants and reduced capacity for emergency evacuation of the airplane.
The FAA is proposing this AD to address the unsafe condition on these products.
You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1659.
EASA AD 2022-0196 specifies procedures for repetitive detailed inspections for broken lower attachment studs and, depending on findings, replacement of the lower attachment studs on the AFT galley complex. The MCAI specifies that replacement of the lower attachment studs on the AFT galley complex constitutes a terminating action for the repetitive detailed inspections. The MCAI also prohibits the installation of affected parts on any airplane. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in EASA AD 2022-0196 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2022-0196 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0196 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0196 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0196. Service information required by EASA AD 2022-0196 for compliance will be available at
The FAA considers that this proposed AD would be an interim action. If final action is later identified, the FAA may consider further rulemaking.
The FAA estimates that this AD, if adopted as proposed, would affect 8 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need this on-condition action:
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.
The FAA is 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.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by February 27, 2023.
None.
This AD applies to Airbus SAS Model A350-941 and -1041 airplanes, certificated in any category, as identified in European Union Aviation Safety Agency (EASA) AD 2022-0196, dated September 20, 2022 (EASA AD 2022-0196).
Air Transport Association (ATA) of America Code 25, Equipment/furnishings.
This AD was prompted by reports of broken lower attachment studs on the AFT galley complex. The FAA is issuing this AD to address broken lower attachment studs on the AFT galley complex. The unsafe condition, if not addressed, could lead to galley module detachment, resulting in injury to airplane occupants and reduced capacity for emergency evacuation of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2022-0196.
(1) Where EASA AD 2022-0196 refers to its effective date, this AD requires using the effective date of this AD.
(2) Where paragraph (3) of EASA AD 2022-0196 specifies terminating action, for this AD, replacing all affected parts of all affected galleys terminates the repetitive inspections for that airplane.
(3) This AD does not adopt the “Remarks” section of EASA AD 2022-0196.
The following provisions also apply to this AD:
(1)
(2)
(3)
For more information about this AD, contact Dat Le, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 516-228-7317; 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) European Union Aviation Safety Agency (EASA) AD 2022-0196, dated September 20, 2022.
(ii) [Reserved]
(3) For EASA AD 2022-0196, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety 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, email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Airbus SAS Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). This proposed AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by February 27, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For material that is proposed for IBR in this NPRM, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Dan Rodina, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.
CBI is commercial or financial information that is both customarily and
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0194, dated September 23, 2022 (EASA AD 2022-0194) (also referred to as the MCAI), to correct an unsafe condition for all Airbus A300B4-601, A300B4-603, A300B4-620, A300B4-622, A300B4-605R, A300B4-622R, A300C4-605R Variant F, A300C4-620, A300F4-605R, A300F4-622R, and A300F4-608ST airplanes. Model A300C4-620 and A300F4-608ST airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this proposed AD therefore does not include those airplanes in the applicability.
The MCAI states that new or more restrictive airworthiness limitations tasks related to the trimmable horizontal stabilizer actuators (THSA) are necessary. EASA AD 2022-0194 specifies that revised tasks (limitations) in Airbus A300-600 Airworthiness Limitations Section (ALS), Part 4, System Equipment Maintenance Requirements (SEMR) Revision 03, dated August 28, 2017, are required by EASA AD 2017-0202, dated October 12, 2017 (which corresponds to FAA AD 2018-18-21, Amendment 39-19400 (83 FR 47054, September 18, 2018) (AD 2018-18-21)). EASA AD 2022-0194 also specifies that incorporation of EASA AD 2022-0194 invalidates (terminates) prior instructions for the tasks specified in Airbus A300-600 Airworthiness Limitations Section (ALS), Part 4, System Equipment Maintenance Requirements (SEMR) Revision 03, Variation 3.1, dated June 30, 2022, only. For this proposed AD, the corresponding action is specified in paragraph (j)(2) of this proposed AD, which states that accomplishing the actions specified in this proposed AD terminates the corresponding requirements of AD 2018-18-21, for the tasks identified in the service information referenced in EASA AD 2022-0194 only.
The MCAI also states that EASA AD 2015-0081, dated May 7, 2015 (EASA AD 2015-0081) requires replacement of certain THSA. EASA AD 2015-0081 corresponds to FAA AD 2016-15-01, Amendment 39-18592 (81 FR 47696, July 22, 2016) (AD 2016-15-01). AD 2016-15-01 required inspecting THSA part numbers, serial numbers, and flight cycles on certain THSAs; and repetitive replacement of certain THSAs. The THSA limitation task specified in this proposed AD addresses the actions required by AD 2016-15-01. Paragraph (j)(1) of this proposed AD therefore terminates AD 2016-15-01, for Model A300-600 series airplanes only.
The FAA is proposing this AD to address the risks associated with the effects of aging on airplane systems. The unsafe condition, if not addressed, could change system characteristics, leading to an increased potential for failure of certain life-limited parts, and reduced structural integrity or controllability of the airplane. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1660.
The FAA reviewed EASA AD 2022-0194, which specifies new or more restrictive airworthiness limitations for certain THSAs. 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
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2022-0194 described previously, as incorporated by reference. Any differences with EASA AD 2022-0194 are identified as exceptions in the regulatory text of this proposed AD.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2022-0194 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0194 through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0194 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0194. Service information required by EASA AD 2022-0194 for compliance will be available at
The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.
For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).
The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions (
The FAA estimates that this AD, if adopted as proposed, would affect 128 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is 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.
The FAA has determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by February 27, 2023.
This AD affects AD 2016-15-01, Amendment 39-18592 (81 FR 47696, July 22, 2016) (AD 2016-15-01); and AD 2018-18-21, Amendment 39-19400 (83 FR 47054, September 18, 2018) (AD 2018-18-21).
This AD applies to all Airbus SAS Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes, Model A300 B4-605R and B4-622R airplanes; and Model A300 C4-605R Variant F airplanes; and Model A300 F4-605R and F4-622R airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address the risks associated with the effects of aging on airplane systems. The unsafe condition, if not addressed, could change system characteristics, leading to an increased potential for failure of certain life-limited parts, and reduced structural integrity or controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2022-0194, dated September 23, 2022 (EASA AD 2022-0194).
(1) This AD does not adopt the requirements specified in paragraphs (1) and (2) of EASA AD 2022-0194.
(2) Paragraph (3) of EASA AD 2022-0194 specifies revising “the approved AMP” within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, within 90 days after the effective date of this AD.
(3) The initial compliance time for doing the tasks specified in paragraph (3) of EASA AD 2022-0194 is on or before the applicable “limitations” and “associated thresholds” as incorporated by the requirements of paragraph (3) of EASA AD 2022-0194, or within 90 days after the effective date of this AD, whichever occurs later.
(4) This AD does not adopt the provisions specified in paragraph (4) of EASA AD 2022-0194.
(5) This AD does not adopt the “Remarks” section of EASA AD 2022-0194.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
(1) Accomplishing the actions required by this AD terminates all requirements of AD 2016-15-01 for Model A300-600 series airplanes only.
(2) Accomplishing the actions required by this AD terminates the corresponding requirements of AD 2018-18-21, for the tasks identified in the service information referenced in EASA AD 2022-0194 only.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Dan Rodina, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3225; email
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2022-0194, dated September 23, 2022.
(ii) [Reserved]
(3) For EASA AD 2022-0194, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) You may view this material at the FAA, Airworthiness Products Section, Operational Safety 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 material that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to amend its medical regulations to implement a statute exempting Indian and urban Indian veterans from copayment requirements for the receipt of hospital care or medical services, including the initial three urgent care visits in a calendar year, under laws administered by VA.
Comments must be received on or before February 13, 2023.
Comments must be submitted through
Mark Upton, Acting Deputy to the Deputy Under Secretary for Health, Office of the Deputy Under Secretary for Health (10A), 810 Vermont Avenue NW, Washington, DC 20420, 202-461-7459. (This is not a toll-free telephone number.)
Pursuant to section 1730A of title 38, United States Code (U.S.C.), catastrophically disabled veterans are exempt from copayment for the receipt of hospital care or medical services under laws administered by VA. On January 5, 2021, the President signed into law the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 (the “Act”). Public Law 116-315. Section 3002 of the Act amended section 1730A to add a copayment exemption for veterans who are either Indian or urban Indian, as those terms are defined in section 4 of the Indian Health Care Improvement Act. This amendment to section 1730A took effect one year after the date of enactment of the Act (that is, the statutory amendment became effective on January 5, 2022). In accordance with 38 U.S.C. 1730A, this rulemaking is using the terms Indian and urban Indian as provided in 38 U.S.C. 1730A and as defined in 25 U.S.C. 1603(13) and (28). This rulemaking proposes to revise several VA regulations concerning copayment exemptions to be consistent with the amendment made to 38 U.S.C. 1730A by section 3002 of the Act.
As explained above, section 3002 of the Act defines Indian and urban Indian based on those terms' definitions in section 4 of the Indian Health Care Improvement Act for purposes of copayment exemption under 38 U.S.C. 1730A. Section 4 of the Indian Health Care Improvement Act is codified at 25 U.S.C. 1603, and the definitions for Indian and urban Indian are located in paragraphs 13 and 28, respectively, of section 1603.
Paragraph 13 of section 1603 defines the term Indians or Indian as any person who is a member of an Indian tribe, as that term is further defined in section 1603(14), except that, for the purpose of 25 U.S.C. 1612 and 1613, such terms
Section 1603(13) refers to members of an Indian tribe in the definition of Indian. Section 1603(14) defines Indian tribe to mean any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or group or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601
Paragraph 28 of section 1603 defines the term urban Indian as any individual who resides in an urban center (as such term is further defined in section 1603(27)) and who meets at least one or more of the four criteria in the definition of Indian in 25 U.S.C. 1603(13) (as described above in a previous paragraph regarding the definition of Indians or Indian).
For purposes of implementing the copayment exemption for Indian and urban Indian veterans as required by 38 U.S.C. 1730A, VA is using the definitions of Indian and urban Indian in 25 U.S.C. 1603(13) and (28). Doing so ensures that VA is adhering to the statutory definitions referenced in section 1730A and will allow VA to immediately implement any changes made by Congress to those definitions without requiring amendment to the definitions of Indian and urban Indian in VA's medical regulations. As explained subsequently in this rulemaking, we propose to revise §§ 17.108, 17.110, 17.111 and 17.4600 of title 38, Code of Federal Regulations (CFR) to include these definitions of Indian and urban Indian under section 1603(13) and (28).
In identifying ways in which VA could determine whether a veteran meets the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28) for purposes of copayment exemption under 38 U.S.C. 1730A, VA sought input and guidance from American Indian and Alaska Native tribal governments and individuals who may be considered to meet the definition of Indian and urban Indian under section 1730A. On April 1, 2021, VA published a
The majority of the comments, including comments from American Indian and Alaska Native tribal governments, supported submission of documentation (
A recording of the April 29, 2021, virtual consultation session can be found at:
Based on the feedback VA received from consultation that supported requiring veterans submit documentation, VA proposes that, for purposes of exempting from copayment veterans who meet the definition of the terms Indian and urban Indian under section 1730A, VA will require documentation from a veteran that they are an Indian or urban Indian as those terms are defined in 25 U.S.C. 1603(13) and (28). VA proposes to require documentation as this recognizes tribal sovereignty and promotes the Nation-to-Nation relationship that exists between the United States and tribal governments. As the vast majority of comments from American Indian and Alaska Native tribal governments supported documentation, requiring documentation would be consistent with the preferences of tribal leaders. American Indian and Alaska Native tribal governments recognize their members and provide individual members with documentation to recognize that they are members of an American Indian and Alaska Native tribe. This approach would acknowledge each tribal government's right to determine their tribal membership and how best to substantiate it.
Further, requiring veterans to submit documentation would also align with how other Federal agencies, such as IHS, determine eligibility for benefits or services. When determining eligibility for benefits or service based on status as a member of an American Indian or Alaska Native tribe, Federal agencies may accept documentation issued by American Indian and Alaska Native tribal governments to tribal members to show membership in the tribe. VA would defer to the American Indian and Alaska Native tribal governments with respect to the documentation showing who is a tribal member, as described later in this discussion which, as noted above, is consistent with IHS practices. While some commenters suggested American Indian and Alaska Native tribal governments determine the documentation that is required to meet the definitions of Indian and urban Indian under 25 U.S.C. 1603(13) and (28), part of VA's responsibility is to ensure that those who are eligible for the copayment exemption under 38 U.S.C. 1730A receive that benefit and that the documentation submitted meets the definitions in the law. VA reiterates that it would defer to the American Indian and Alaska Native tribal governments as to the documentation that they provide to their members to submit to VA to demonstrate they meet those definitions of Indian and urban Indian.
While some commenters supported self-attestation, VA believes that self-attestation presents an unreasonable risk
Documentation VA proposes to accept to verify an individual meets the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28) would be as follows:
(1) Documentation issued by a federally-recognized Indian tribe that shows that a veteran is a member of the tribe;
(2) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;
(3) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;
(4) Documentation issued by the U.S. Department of the Interior (DOI) showing that the veteran is considered by DOI to be an Indian for any purpose;
(5) Documentation showing that the veteran is considered by the U.S. Department of Health and Human Services (HHS) to be an Indian under that Department's regulations;
(6) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:
(a) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;
(b) Is an Eskimo or Aleut or other Alaska Native;
(c) Is considered by DOI to be an Indian for any purpose; or
(d) Is considered by HHS to be an Indian under that Department's regulations.
VA believes that all veterans who are Indian and urban Indian pursuant to the definitions in 25 U.S.C. 1603(13) and (28) would be able to obtain and submit to VA the documents listed above that are applicable to their status in order to establish their status as Indian or urban Indian. It is important to note that any documentation submitted to VA would be safeguarded and protected consistent with all applicable privacy and security laws.
VA would accept documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member. Submission of such documentation would show that a veteran meets the definition of Indian in 25 U.S.C. 1603(13), specifically that the individual, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member. See 25 U.S.C. 1603(13)(A). This would include those veterans who are members of a State-recognized Indian tribe or formerly federally-recognized Indian tribe.
VA would accept documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native. Submission of such documentation would show that a veteran meets the definition of Indian in 25 U.S.C. 1603(13), specifically that the individual is an Eskimo or Aleut or other Alaska Native. See 25 U.S.C. 1603(13)(B).
DOI and HHS issue documentation that may show a veteran meets the definition of Indian. Thus, VA would accept documentation issued by DOI that shows that the veteran is considered by DOI to be an Indian for any purpose. Submission of such documentation would show that a veteran meets the definition of Indian in 25 U.S.C. 1603(13), specifically that the individual is considered by the Secretary of Interior to be an Indian for any purpose. See 25 U.S.C. 1603(13)(C). VA would also accept documentation that shows that the veteran is considered by HHS to be an Indian under that Department's regulations. Submission of such documentation would show that a veteran meets the definition of Indian in 25 U.S.C. 1603(13), specifically that the individual is determined to be an Indian under regulations promulgated by the Secretary [of HHS]. See 25 U.S.C. 1603(13)(D).
To be eligible for the copayment exemption under 38 U.S.C. 1730A, veterans would also be able to submit documentation showing that they reside in an urban center and meet one or more of the following criteria: (a) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (b) Is an Eskimo or Aleut or other Alaska Native; (c) is considered by DOI to be an Indian for any purpose; or (d) Is considered by HHS to be an Indian under HHS regulations. Submission of such documentation would show that a veteran meets the definition of urban Indian in 25 U.S.C. 1603(28). As the definition of urban Indian in section 1603(28) refers to and incorporates (A) through (D) of the definition of Indian in section 1603(13), VA acknowledges that urban Indians would be able to meet both the definition of Indian and urban Indian and would be able to submit documentation that shows they meet both of these definitions. However,
This new copayment exemption would not be automatic; regardless of whether a veteran is already enrolled in VA health care or is enrolling in VA health care for the first time, the veteran would need to submit documentation to VA. Until veterans submit documentation that confirms that they meet the definition of the term Indian or urban Indian under 25 U.S.C. 1603(13) and (28), VA would be unable to exempt such veterans from copayments. However, once the documentation is submitted and processed, VA would exempt the veteran from copayments unless and until they notify VA that they no longer meet the definition of Indian or urban Indian under section 1603(13) and (28) or VA determines that the veteran does not meet the definition of Indian or urban Indian as defined in section 1603(13) and (28).
As previously discussed, 38 U.S.C. 1730A exempted those veterans determined to be catastrophically disabled from copayments for hospital care and medical services prior to the Act. Section 3002 of the Act amended section 1730A to add veterans who meet the definition of the terms Indian and urban Indian as covered veterans exempt from copayments for hospital care and medical services. VA considers the terms hospital care and medical services as defined in 38 U.S.C. 1701(5) and (6) and in 38 CFR 17.30(a).
The copayment exemptions for catastrophically disabled veterans, as authorized under 38 U.S.C. 1730A, were implemented in 38 CFR 17.108, 17.110, and 17.111. Section 17.108 sets forth the copayments for inpatient hospital care and outpatient medical care and exempts catastrophically disabled veterans from copayments for such care. Section 17.110 sets forth the copayments for medication provided by VA on an outpatient basis (other than medication administered during treatment) and exempts catastrophically disabled veterans from copayments for such medication. Section 17.111 sets forth the copayments for extended care services and exempts catastrophically disabled veterans from copayments for adult day health care, noninstitutional geriatric evaluation, and noninstitutional respite care.
In addition to “hospital care” and “medical services,” veterans exempted from copayments under section 1730A are also exempt from copayments for at least two visits to qualifying non-Department providers for urgent care in a year.
VA utilizes the authority provided under section 1725A to require copayments for all veterans, irrespective of their priority group in VA enrollment, level of service-connected disability, or designation as catastrophically disabled, after the first three visits in a calendar year because the copayment is designed to encourage appropriate use of the benefit. Collecting a copayment after the third visit helps ensure that the urgent care benefit is utilized appropriately and is not being used as a substitute for primary care. Copayments are a common feature of health care, including VA health care, and are an important mechanism for guiding behavior to ensure that patients receive care at an appropriate location. The urgent care copayment is designed to encourage all veterans to seek care from VA first, when VA can provide the needed care, and to utilize urgent care when prompt treatment is necessary to prevent the condition from becoming emergent. Urgent care is considered to be a convenient option for care but is not intended to be used as a substitute for traditional primary care that emphasizes longitudinal management and care coordination.
As section 3002 of the Act amended 38 U.S.C. 1730A to include veterans who meet the definition of the terms Indian and urban Indian as copayment exempt, with no distinction between this new cohort and those considered catastrophically disabled with regards to the care for which these copayments are exempted, VA would interpret the copayment exemption for veterans who meet the definition of the terms Indian and urban Indian under section 1730A the same as VA has for catastrophically disabled veterans. Thus, as explained later in this discussion, VA proposes to amend 38 CFR 17.108, 17.110, and 17.111 to include veterans who meet the definition of the terms Indian and urban Indian as exempt from copayment for inpatient hospital care, outpatient medical care, outpatient medications, adult day health care, noninstitutional geriatric evaluation, and noninstitutional respite care. However, these veterans would still be required to pay copayments for domiciliary care, institutional respite care, institutional geriatric evaluation, and nursing home care. Similarly, consistent with how VA applies copayment exemptions for catastrophically disabled veterans for urgent care visits, VA proposes to amend the urgent care copayment regulation at § 17.4600(d)(1) to include veterans who meet the definition of the terms Indian and urban Indian to ensure that these veterans are not charged a copayment until their fourth urgent care visit.
The changes VA proposes to make to 38 CFR part 17 are explained in more detail below in the section describing the regulations proposed to be amended.
In order to allow time for veterans to learn about this new benefit and submit to VA documentation that verifies they meet the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28), VA proposes to reimburse Indian and urban Indian veterans for copayments paid to VA for hospital care, medical services, and urgent care provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect. This would also allow these veterans to be reimbursed for copayments that were paid for such care provided on or after January 5, 2022, irrespective of when this rulemaking is published and effective or when these veterans submit their documentation for processing.
After a veteran submits to VA the required documentation, VA would review the documentation to determine if the veteran meets the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28). If the veteran meets the definition of Indian or urban Indian under 25 U.S.C. 1603(13) and (28), the veteran's record would be updated to
As previously explained, VA has implemented regulations concerning copayments for hospital care and medical services at 38 CFR 17.108, 17.110, 17.111, and 17.4600. In this rulemaking, VA proposes to amend these regulations to align with the statutory requirement to exempt from copayment veterans who are an Indian or urban Indian as those terms are defined in section 4 of the Indian Health Care Improvement Act.
Copayments for inpatient hospital care and outpatient medical care are established in 38 CFR 17.108. Paragraph (d) of § 17.108 lists categories of veterans who are not subject to the copayment requirements of this section. VA proposes to amend § 17.108(d) by adding a new paragraph (14). Proposed paragraph (14) explains that a veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), would be exempt from copayment under this section. In addition, it would include language explaining that the exemption is applicable for care provided on or after January 5, 2022. This is consistent with 38 U.S.C. 1730A, as amended by section 3002 of the Act which exempts these veterans from copayments for care received on or after January 5, 2022.
Proposed paragraph (14) would further inform veterans that to demonstrate they meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), they must submit to VA any of the following documentation: (i) documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe; (ii) documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (iii) documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native; (iv) documentation issued by DOI showing that the veteran is considered by DOI to be an Indian for any purpose; (v) documentation showing that the veteran is considered by HHS to be an Indian under that Department's regulations; or (vi) documentation showing that the veteran resides in an urban center and meets one or more of the following criteria: (A) irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (B) is an Eskimo or Aleut or other Alaska Native; (C) is considered by DOI to be an Indian for any purpose; or (D) is considered by the HHS to be an Indian under that Department's regulations.
VA also proposes to amend § 17.108 by adding a new paragraph (g) to explain that after VA determines the documentation submitted by the veteran meets paragraph (d)(14) and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA would reimburse veterans exempt under paragraph (d)(14) of this section for any copayments that were paid to VA for inpatient hospital care and outpatient medical care provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect.
Copayments for medications are established in 38 CFR 17.110. Paragraph (c) of § 17.110 lists medications that are not subject to the copayment requirements of this section. Similar to the proposed amendments to § 17.108, VA proposes to amend § 17.110(c) by adding paragraph (13) to include as exempt from copayment under such section a veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), for medications provided on or after January 5, 2022.
In addition, VA would include in proposed § 17.110(c)(13) the same language under § 17.108(d)(14) to inform veterans that to demonstrate they meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), the veteran must submit to VA any of the following documentation: (i) documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe; (ii) documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (iii) documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native; (iv) documentation issued by DOI showing that the veteran is considered by DOI to be an Indian for any purpose; (v) documentation showing that the veteran is considered by HHS to be an Indian under that Department's regulations; or (vi) documentation showing that the veteran resides in an urban center and meets one or more of the following criteria: (A) irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (B) is an Eskimo or Aleut or other Alaska Native; (C) is considered by DOI to be an Indian for any purpose; or (D) is considered by HHS to be an Indian under that Department's regulations.
VA also proposes to add paragraph (d) to § 17.110 to state that after VA determines the documentation submitted by the veteran meets paragraph (c)(13) and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA would reimburse veterans exempt under paragraph (c)(13) of this section for any copayments that were paid to VA for medications provided on or after January 5, 2022 if they would have been exempt from making such copayments if this regulation had been in effect.
Copayments for extended care services are established in § 17.111. Section 17.111(f) lists categories of veterans and care that are not subject to the copayment requirements of this section. While 38 U.S.C. 1730A only exempts Indian and urban Indian veterans from copayments for hospital care and medical services, noninstitutional extended care services are included in the definition of medical
VA also proposes to add language to inform veterans that to demonstrate they meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), they must submit to VA any of the following documentation: (i) documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe; (ii) documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (iii) documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native; (iv) documentation issued by DOI showing that the veteran is considered by DOI to be an Indian for any purpose; (v) documentation showing that the veteran is considered by HHS to be an Indian under that Department's regulations; or (vi) documentation showing that the veteran resides in an urban center and meets one or more of the following criteria: (A) irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (B) is an Eskimo or Aleut or other Alaska Native; (C) is considered by DOI to be an Indian for any purpose; or (D) is considered by HHS to be an Indian under that Department's regulations.
VA proposes to add a new paragraph (g) to 38 CFR 17.111 to explain that after VA determines the documentation submitted by the veteran meets paragraph (f)(11) and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA would reimburse veterans exempt under paragraph (f)(11) of this section for any copayments that were paid to VA for adult day health care, noninstitutional respite care, and noninstitutional geriatric evaluation provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect.
VA also proposes to amend 38 CFR 17.4600 for purposes of urgent care visits. Pursuant to 38 U.S.C. 1725A(f)(1)(B), an eligible veteran not required to pay a copayment under title 38, U.S.C., may access urgent care without a copayment for the first two visits in a calendar year. For any additional visits, a copayment at an amount determined by VA may be required. The implementing regulation for 38 U.S.C. 1725A is 38 CFR 17.4600. Section 17.4600(d)(1)(i) explains that certain veterans are exempt from copayment for the first three urgent care visits in a calendar year, but must pay a copayment after those first three visits. VA has determined that a veteran who meets the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), based on the documentation the veteran has submitted, should not be required to pay a copayment for the first three visits in a calendar year. This would be consistent with how VA implements copayments for urgent care visits by catastrophically disabled veterans. VA proposes to amend 38 CFR 17.4600(d)(1) by redesignating current paragraph (ii) as (iii) and adding new paragraph (ii) to exempt from copayment the initial three urgent care visits in a calendar year of a veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28).
VA also proposes to add language to 38 CFR 17.4600(d)(1)(ii) to inform veterans that to demonstrate that they meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28), they must submit to VA any of the following documentation: (A) documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe; (B) documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member; (C) documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native; (D) documentation issued by DOI showing that the veteran is considered by DOI to be an Indian for any purpose; (E) documentation showing that the veteran is considered by HHS to be an Indian under that Department's regulations; or (F) documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:
VA also proposes to amend 38 CFR 17.4600(d)(2), which explains that an eligible veteran who receives urgent care under § 17.4600(b)(5)(iv) or urgent care consisting solely of an immunization against influenza (flu shot) is not subject to a copayment under § 17.4600(d)(1) and such a visit shall not count as a visit for purposes of § 17.4600(d)(1)(i). Because VA proposes to add new paragraph (d)(1)(ii) which is similar to (d)(1)(i) in exempting certain eligible veterans from copayment for the initial three urgent care visits in a calendar year, VA also proposes to add paragraph (d)(1)(ii) so that veterans who meet the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28) are treated the same for purposes of paragraph (d)(2).
VA also proposes to add paragraph (d)(4) to § 17.4600 to state that after VA determines the documentation submitted by the veteran meets § 17.4600(d)(1)(ii) and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA would reimburse veterans exempt under paragraph (d)(1)(ii) of this section for any copayments that were paid to VA for the first three visits for urgent care in a calendar year provided on or after January 5, 2022 if they would have been exempt from making such copayments if this regulation had been in effect.
While there are veterans exempt from copayment under 38 CFR 17.108, 17.110, 17.111, and 17.4600 who have been assigned a specific Priority Group (for example, catastrophically disabled veterans are in Priority Group 4), section 3002 of the Act did not change VA's system for enrolling veterans who meet the definition of Indian or urban Indian in 25 U.S.C. 1603(13) and (28) in the VA health care system and assigning them to a Priority Group. VA is thus not proposing to make any changes to the
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this proposed rule is a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at
The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This rule would not cause a significant economic impact on small entities since this exemption is limited to individual veterans who VA determines to be Indian or urban Indian. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
This proposed rule includes provisions constituting a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval.
OMB assigns control numbers to collection of information it approves. VA 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. Sections 17.108, 17.110, 17.111, and 17.4600 would require documentation be submitted by veterans to be eligible for copayment exemption as an Indian or urban Indian. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing the collection of information or take such other action as is directed by OMB.
Comments on the new collection of information contained in this rulemaking should be submitted through
OMB is required to make a decision concerning the collection of information contained in this rulemaking between 30 and 60 days after publication of this rulemaking in the
The Department considers comments by the public on new collection of information in—
• Evaluating whether the new collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Evaluating the accuracy of the Department's estimate of the burden of the new collection of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and
• Minimizing 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,
The collection of information associated with this rulemaking contained in 38 CFR 17.108, 17.110, 17,111, 17.4600 is described immediately following this paragraph, under its respective title.
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* To estimate the total information collection burden cost, VA used the Bureau of Labor Statistics (BLS) mean hourly wage for hourly wage for “00-0000 All Occupations” of $28.01 per hour. This information is available at
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs—health, Government programs—veterans, Health care, Health facilities, Health professions, Health records, Homeless,
Denis McDonough, Secretary of Veterans Affairs, approved this document on December 28, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 17 as set forth below:
38 U.S.C. 501, and as noted in specific sections.
Section 17.111 is also issued under 38 U.S.C. 101(28), 501, 1701(7), 1703, 1710, 1710B, 1720B, 1720D, 1722A, and 1730A.
Section 17.4600 is also issued under 38 U.S.C. 1725A and 1730A.
(d) * * *
(14) A veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), for inpatient hospital care or outpatient medical care provided on or after January 5, 2022. To demonstrate that they meet the definition of Indian or urban Indian, the veteran must submit to VA any of the documentation listed in paragraphs (d)(14)(i) through (vi) of this section:
(i) Documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe;
(ii) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;
(iii) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;
(iv) Documentation issued by the Department of Interior (DOI) showing that the veteran considered by DOI to be an Indian for any purpose;
(v) Documentation showing that the veteran is considered by the Department of Health and Human Services (HHS) to be an Indian under that Department's regulations; or
(vi) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:
(A) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;
(B) Is an Eskimo or Aleut or other Alaska Native;
(C) Is considered by the Department of Interior to be an Indian for any purpose; or
(D) Is considered by HHS to be an Indian under that Department's regulations.
(g)
(c) * * *
(13) A veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), for medications provided on or after January 5, 2022. To demonstrate that they meet the definition of Indian or urban Indian, the veteran must submit to VA any of the documentation listed in paragraphs (c)(13)(i) through (vi) of this section:
(i) Documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe;
(i) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;
(iii) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;
(iv) Documentation issued by the Department of Interior (DOI) showing that the veteran is considered by DOI to be an Indian for any purpose;
(v) Documentation showing that the veteran is considered by the Department of Health and Human Services (HHS) to be an Indian under that Department's regulations; or
(vi) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:
(A) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;
(B) Is an Eskimo or Aleut or other Alaska Native;
(C) Is considered by DOI to be an Indian for any purpose; or
(D) Is considered by HHS to be an Indian under that Department's regulations.
(d)
(f) * * *
(11) A veteran who meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28), is exempt from copayments for noninstitutional extended care including adult day health care, noninstitutional respite care, and noninstitutional geriatric evaluation provided on or after January 5, 2022. To demonstrate that they meet the definition of Indian or urban Indian, the veteran must submit to VA any of the documentation listed in paragraphs (f)(11)(i) through (vi) of this section:
(i) Documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe;
(ii) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;
(iii) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;
(iv) Documentation issued by the Department of Interior (DOI) showing that the veteran is considered by DOI to be an Indian for any purpose;
(v) Documentation showing that the veteran is considered by the Department of Health and Human Services (HHS) to be an Indian under that Department's regulations; or
(vi) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:
(A) Irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians, including those tribes, bands, or groups terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;
(B) Is an Eskimo or Aleut or other Alaska Native;
(C) Is considered by DOI to be an Indian for any purpose; or
(D) Is considered by HHS to be an Indian under that Department's regulations.
(g)
The additions and revision read as follows:
(d) * * *
(1) * * *
(ii) After three visits in a calendar year if such eligible veteran meets the definition of Indian or urban Indian, as defined in 25 U.S.C. 1603(13) and (28). To demonstrate that they meet the definition of Indian or urban Indian, the veteran must submit to VA any of the documentation listed in paragraphs (A) through (F):
(A) Documentation issued by a federally-recognized Indian tribe that shows that the veteran is a member of the tribe;
(B) Documentation showing that the veteran, irrespective of whether they live on or near a reservation, is a member of a tribe, band, or other organized group of Indians terminated since 1940 and those recognized now or in the future by the State in which they reside, or who is a descendant, in the first or second degree, of any such member;
(C) Documentation showing that the veteran is an Eskimo or Aleut or other Alaska Native;
(D) Documentation issued by the Department of Interior (DOI) showing that the veteran is considered by DOI to be an Indian for any purpose;
(E) Documentation showing that the veteran is considered by the Department of Health and Human Services (HHS) to be an Indian under that Department's regulations; or
(F) Documentation showing that the veteran resides in an urban center and meets one or more of the following criteria:
(
(
(
(
(2) An eligible veteran who receives urgent care under paragraph (b)(5)(iv) of this section or urgent care consisting solely of an immunization against influenza (flu shot) is not subject to copayment under paragraph (d)(1) of this section and such a visit shall not count as a visit for purposes of paragraph (d)(1)(i) or (ii) of this section.
(4) After VA determines the submitted documentation meets paragraph (d)(1)(ii) of this section and updates the veteran's record to reflect the veteran's status as an Indian or urban Indian, VA will reimburse eligible veterans exempt under paragraph (d)(1)(ii) for any copayments that were paid to VA for the first three visits for urgent care in a calendar year provided on or after January 5, 2022, if they would have been exempt from making such copayments if this regulation had been in effect.
Postal Service
Proposed rule; withdrawal.
The Postal Service is withdrawing the proposed rule that announced a new service feature, Caller Service—Customized Address, which would've allowed current Caller Service customers to omit their Post Office Box number from the address of the mailpiece.
The proposed rule published June 17, 2022 (87 FR 36432-36433) is withdrawn as of January 12, 2023.
Dale Kennedy at (202) 268-6592 or Doriane Harley at (202) 268-2537.
In the proposed rule that was published in the
In consideration of concerns expressed by members of the mailing community during the proposed rule comment period, the Postal Service has elected to withdraw the proposed rule. Nevertheless, the Postal Service reserves the right to revisit this initiative at a later date.
Postal Service
Proposed rule.
The Postal Service is proposing to amend
Submit comments on or before February 13, 2023.
Mail or deliver written comments to the manager, Product Classification, U.S. Postal Service, 475 L'Enfant Plaza SW, Room 4446, Washington, DC 20260-5015. If sending comments by email, include the name and address of the commenter and send to
All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.
You may inspect and photocopy all written comments, by appointment only, at USPS® Headquarters Library, 475 L'Enfant Plaza SW, 11th Floor North, Washington, DC 20260. These records are available for review on Monday through Friday, 9 a.m.-4 p.m., by calling 202-268-2906.
Judi Mummy at (858) 674-3155, Clayton Gerber at (202) 449-8076, or Garry Rodriguez at (202) 268-7281.
The Postal Service is proposing to revise DMM subsection 508.1.8 by reorganizing and revising the subsections in 508.1.8. These changes are occurring, in part because the Postal Service has developed an electronic database to collect and manage the information collected on PS Form 1583, Application for Delivery of Mail Through Agent, which has been collected and maintained as paper records. Following are the proposed changes to subsection 508.1.8.
Current subsections 508.1.8.1 through 1.8.4 will be renumbered as subsections 508.1.8.2 through 1.8.5. New subsection 508.1.8.1 will define what type of business is considered a CMRA and therefore must comply with the requirements in this section. The definitions are based on the type of service the business entity receives from the Postal Service. If an entity receives U.S. Mail for multiple customers and receives single point mail delivery from the Postal Service, it is considered a CMRA for purposes of complying with these requirements. There will be three specifically defined entities that must register as a CMRA and comply with these requirements: a CMRA that provides private mail boxes and accepts delivery of mail on behalf of another; an office business center (OBC) that provides private office facilities for others and receives single-point mail delivery from the Postal Service; and a reshipping or redelivery service that accepts delivery of mail on behalf of another for the purpose of reshipping or redelivering that mail either physically or electronically.
Renumbered subsection 1.8.2,
Renumbered subsection 1.8.3,
Renumbered subsection 1.8.4,
The Postal Service is proposing to delete renumbered 1.8.5,
The Postal Service is proposing to implement this change effective March 1, 2023.
We believe this proposed revision will provide customers with a more efficient process for establishing a CMRA.
Although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comment on the following proposed revisions to
We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.
Administrative practice and procedure, Postal Service.
Accordingly, 39 CFR part 111 is proposed to be amended as follows:
5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401-404, 414, 416, 3001-3018, 3201-3220, 3401-3406, 3621, 3622, 3626, 3629, 3631-3633,3641, 3681-3685, and 5001.
The definition of a Commercial Mail Receiving Agency is as follows:
a. A Commercial Mail Receiving Agency (CMRA) is defined as a business that, in whole or in part, accepts the delivery of U.S. Mail on behalf of another person or entity as a business service. U.S. Mail is inclusive of all classes of mail.
b. An office business center (OBC) is a business that operates primarily to provide private office facilities and other business support services to individuals or firms (customers). OBCs receive single-point delivery. OBCs are considered CMRAs for postal purposes and must comply with DMM 508.1.8.
c. A business or individual that operates primarily to provide re-shipping or re-delivery services to individuals or firms (customers) is considered a CMRA for postal purposes and must comply with DMM 508.1.8.
The procedures for establishing a commercial mail receiving agency (CMRA) are as follows:
b.
The CMRA owner or manager must present acceptable primary and secondary forms of identification as specified under 608.10.0. The identifications presented must be current (not expired). These identifications must contain sufficient information to confirm that the applicant is who he or she claims to be and is traceable to the bearer. The postmaster (or designee) must list and record sufficient information to identify the two acceptable forms of identification on PS Form 1583-A (block 10).
* * * If any information required on PS Form 1583-A changes, the CMRA owner or manager must file a new application with the postmaster.
c. The postmaster (or designee) must verify the documentation to confirm that the CMRA owner or manager resides at the permanent home address shown on Form 1583-A; witness the signature of the CMRA owner or manager; and sign Form 1583-A. The postmaster must provide the CMRA owner or manager with a copy of the DMM regulations relevant to the operation of a CMRA under 1.8. The CMRA owner or manager must sign the Form 1583-A acknowledging receipt of the regulations. The postmaster must file the original of the completed Form 1583-A at the Post Office, scan and upload a copy into the Facilities Database (FDB) and provide the CMRA with a duplicate copy.
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e. CMRAs found not to be operating within the Postal Service regulations will be suspended from authorization to act as a CMRA until the CMRA is in compliance with the regulations. If compliance is not achieved within 30 days, the Postal Service may terminate the CMRA's authorization to accept mail on behalf of others.
f. CMRAs and Private Mail Boxes (PMBs) shall not be utilized for or in furtherance of criminal purposes.
Procedures for delivery to a CMRA are as follows:
a. Mail delivery to a CMRA requires that the CMRA owner or manager complete and sign PS Form 1583, Application for Delivery of Mail Through Agent, for themselves. Private Mail Boxes (PMBs) for residential/personal use must have a separate PS Form 1583 completed for each addressee. Spouses must each complete and sign a separate PS Form 1583. Each spouse must provide acceptable primary and secondary forms of identification as specified under 608.10.0.
A parent or guardian may receive delivery of a minor's mail by listing the name(s) of each minor on PS Form 1583 (block 11).
If information on the application does not match the identification, the CMRA must deny the application. Furnishing false information on the application or refusing to provide required information is reason for withholding the addressee's mail from delivery to the agent and returning it to the sender.
When any information required on PS Form 1583 changes, the addressee must complete a new application with the CMRA. The addressee must provide acceptable primary and secondary forms of identification as specified under 608.10.0. The identification presented must be current (not expired). It must contain sufficient information to confirm that the applicant is who he or she claims to be and is traceable to the bearer.
The CMRA owner or manager must retain a photocopy of the two forms of identification for verification purposes. The CMRA owner or manager must list and record on PS Form 1583 (block 10) sufficient information to identify the acceptable primary and secondary forms of identification presented and write on PS Form 1583 (block 4) the complete CMRA delivery address used to deliver mail to the addressee.
c. The CMRA must enter the information provided on each PS Form 1583 and upload a clear and legible copy of each identification document into the USPS CMRA Customer Registration Database. The CMRA must maintain completed PS Forms 1583 and a copy of each identification and address document on file at the CMRA business location. The PS Forms 1583 and supporting documents must be available at all times for examination by postal representatives and postal inspectors.
h. The CMRA must ensure all its addressees (customers) have a current PS Form 1583 on file and updated as necessary in the USPS CMRA Customer Registration Database. Updates shall include the entry of termination dates for any PMBs closed in the previous quarter. Any expired, illegible, or unclear identification or address document uploaded into the CMRA Customer Registration Database shall be considered not in compliance.
i. The CMRA must certify in the USPS CMRA Customer Registration Database each quarter (due on January 15th, April 15th, July 15th, and October 15th), that every PS Forms 1583 it has submitted is current, all termination dates have been updated and no identification documents are expired.
* * * The proper notification must be in writing outlining the specific violation(s) with a 30-day period to comply.
l. The Chief Postal Inspector or their designee may issue an emergency mail withholding order to withhold mail to any PMB Holder that is suspected of utilizing a CMRA and/or PMB for any activity that is in violation of United States Code Title 18 or Title 39 and that the mail be returned to sender, forwarded to the mail recovery center, or otherwise in accordance with a court order. The CMRA must give the mail addressed to the withheld PMB to the letter carrier or return it to the Post Office responsible for delivery to the CMRA the next business day after receipt.
In delivery of the mail to the CMRA, the addressee and the CMRA agree that:
a. * * * The CMRA must write the date of termination on its copy of PS Form 1583. The CMRA must enter the date of termination in the USPS CMRA Customer Registration Database as soon as practical. The CMRA must retain the endorsed copies of PS Forms 1583 for 6 months after the termination date. PS Forms 1583 filed at the CMRA business location must be available at all times for examination by postal representatives and the postal inspectors.
* * * The remail of mail intended for the addressee (customer) is the responsibility of the CMRA. This includes at least a 6-month period after the termination date of the agency relationship between the CMRA and the addressee. The addressee (customer) shall provide the remail address (or email if correspondence is scanned for digital delivery) on PS Form 1583. The remail address shall be entered into the USPS CMRA Customer Registration Database. If the addressee collects their mail in person at the CMRA but elects to have their mail remailed for the 6-month post-termination period, the CMRA shall record this remail address on their copy of PS Form 1583 and enter this remail address in the USPS CMRA Customer Registration Database with the date of termination. * * *
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the Commonwealth of Virginia. This revision pertains to the Commonwealth's plan, submitted by the Virginia Department of Environmental Quality (VADEQ), for maintaining the 1997 8-hour ozone national ambient air quality standards (NAAQS) (referred to as the “1997 ozone NAAQS”) in the Richmond, Virginia Area (Richmond-Petersburg Area). This action is being taken under the Clean Air Act (CAA).
Written comments must be received on or before February 13, 2023.
Submit your comments, identified by Docket ID No. EPA-R03-OAR-2022-0870 at
Serena Nichols, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1600 John F. Kennedy Blvd., Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-2053. Ms. Nichols can also be reached via electronic mail at
On September 21, 2021, the VADEQ submitted a revision to the Virginia SIP to incorporate a plan for maintaining the 1997 ozone NAAQS in the Richmond-Petersburg Area through December 31, 2028, in accordance with CAA section 175A.
In 1979, under section 109 of the CAA, EPA established primary and secondary NAAQS for ozone at 0.12 parts per million (ppm), averaged over a 1-hour period. 44 FR 8202 (February 8, 1979). On July 18, 1997 (62 FR 38856),
Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the nation as attaining or not attaining the NAAQS. On April 30, 2004 (69 FR 23858), EPA designated the Richmond-Petersburg Area as nonattainment for the 1997 ozone NAAQS. The Richmond-Petersburg Area consists of the counties of Charles City, Chesterfield, Hanover, Henrico, and Prince George, and the cities of Colonial Heights, Hopewell, Richmond, and Petersburg.
Once a nonattainment area has three years of complete and certified air quality data that has been determined to attain the NAAQS, and the area has met the other criteria outlined in CAA section 107(d)(3)(E),
On June 1st, 2007 (72 FR 30485), EPA approved a redesignation request (and maintenance plan) from VADEQ for the Richmond-Petersburg Area for the 1997 ozone NAAQS. In accordance with section 175A(b), at the end of the eighth year after the effective date of the redesignation, the state must also submit a second maintenance plan to ensure ongoing maintenance of the standard for an additional 10 years.
EPA's final implementation rule for the 2008 ozone NAAQS revoked the 1997 ozone NAAQS and provided that one consequence of revocation was that areas that had been redesignated to attainment (
As previously discussed, CAA section 175A sets forth the criteria for adequate maintenance plans. In addition, EPA
VADEQ's September 21, 2021 submittal outlines a plan for continued maintenance of the 1997 ozone NAAQS which addresses the criteria set forth in EPA guidance, including the 1992 Calcagni Memo as follows.
For maintenance plans, a state should develop a comprehensive and accurate inventory of actual emissions for an attainment year which identifies the level of emissions in the area which is sufficient to maintain the NAAQS. The inventory should be developed consistent with EPA's most recent guidance. For ozone, the inventory should be based on typical summer day's emissions of nitrogen oxides (NO
The data shown in Table 1 in this document is based on the 2014 National Emissions Inventory (NEI) version 2.
In order to attain the 1997 ozone NAAQS, the three-year average of the fourth-highest daily average ozone concentration (design value, or “DV”) at each monitor within an area must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, appendix I, the standard is attained if the DV is 0.084 ppm or below. CAA section 175A requires a demonstration that the area will continue to maintain the NAAQS throughout the duration of the requisite maintenance period. Consistent with the prior guidance documents discussed previously in this document as well as EPA's November 20, 2018 “Resource Document for 1997 Ozone NAAQS Areas: Supporting Information for States Developing Maintenance Plans” (2018 Resource Document),
For the purposes of demonstrating continued maintenance with the 1997 ozone NAAQS, VADEQ provided 3-year DVs at monitors located in the Richmond-Petersburg Area from 2001 to 2020. This includes DVs at monitors for 2001-2003, 2002-2004, 2003-2005, 2004-2006, 2005-2007, 2006-2008, 2007-2009, 2008-2010, 2009-2011, 2010-2012, 2011-2013, 2012-2014, 2013-2015, 2014-2016, 2015-2017, 2016-2018, 2017-2019, and 2018-2020, which are shown in Table 2 in this document.
Additionally, states can support the demonstration of continued maintenance by showing stable or improving air quality trends. According to EPA's 2018 Resource Document, several kinds of analyses can be performed by states wishing to make such a showing. One approach is to take the most recent DV at a monitor located in the area and add the maximum design value increase (over one or more consecutive years) that has been observed in the area over the past several years. For an area with multiple monitors, the highest of the most recent DVs should be used. A sum that does not exceed the level of the 1997 ozone NAAQS may be a good indicator of expected continued attainment. The largest increase in DVs at a monitor located in the Richmond-Petersburg Area was 0.004 ppm, which occurred between the 2004-2006 (0.081 ppm) and 2005-2007 (0.085 ppm) DVs at the Henrico monitoring site. Adding 0.004 ppm to the highest DV for the 2018-2020 period (0.061 ppm) results in 0.065 ppm, a sum that is still below the 1997 ozone NAAQS.
DVs at all monitors located in the Richmond-Petersburg Area have been below 85% of the 1997 ozone NAAQS (
Once an area has been redesignated to attainment, the state remains obligated to maintain an air quality network in accordance with 40 CFR part 58, in order to verify the area's attainment status. In the September 21, 2021 submittal, VADEQ commits to continue to operate their air monitoring network in accordance with 40 CFR part 58. VADEQ also commits to track the attainment status of the Richmond-Petersburg Area for the 1997 ozone NAAQS through the review of air quality and emissions data during the second maintenance period. EPA has analyzed the commitments in VADEQ's submittal and is proposing to determine that they meet the requirements for continued air quality monitoring and verification of continued attainment.
The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The state should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must require that the state will implement all pollution control measures that were contained in the SIP before redesignation of the area to attainment. See section 175(A)(d) of the CAA.
VADEQ's September 21, 2021 submittal includes the following contingency plan for the Richmond-Petersburg Area:
Virginia commits to implement all measures with respect to the control of NO
Any ozone monitor in the area registering a fourth-highest, eight-hour average of 0.085 ppm or greater is considered to have recorded an exceedance of the 1997 ozone NAAQS. One control measure listed in Table 3 in this document will be implemented in the unlikely event that a monitor registers an exceedance.
Any ozone monitor in the area registering a three-year average of the fourth-highest, eight-hour ozone values of 0.085 ppm or greater is considered to have recorded a violation of the 1997 ozone NAAQS. Two additional control measures listed in Table 3 in this document will be implemented in the unlikely event that a monitor registers a violation.
Two additional control measures listed in Table 3 in this document will be implemented in the unlikely event that an ozone monitor registers a second violation following the implementation of the first contingency measures.
The following schedule applies to contingency measures should they need to be implemented due to exceedances or violations of the 1997 ozone NAAQS:
• Notification received from EPA that a contingency measure must be implemented or three months after a recorded exceedance or violation is certified.
• Applicable regulation to be adopted 6 months after this date.
• Applicable regulation to be implemented 6 months after adoption.
• Compliance with regulation to be achieved within 12 months of adoption.
EPA proposes to find that the contingency plan included in VADEQ's September 21, 2021 submittal satisfies the pertinent requirements of CAA section 175A(d). EPA also finds that the submittal acknowledges Virginia's continuing requirement to implement all pollution control measures that were contained in the SIP before redesignation of the Richmond-Petersburg Area to attainment.
Transportation conformity is required by section 176(c) of the CAA. 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 (CAA 176(c)(1)(B)). EPA's conformity rule at 40 CFR part 93 requires that transportation plans, programs and projects conform to SIPs and establish the criteria and procedures for determining whether or not they conform. The conformity rule generally requires a demonstration that emissions from the Regional Transportation Plan (RTP) and Transportation Improvement Program (TIP) are consistent with the motor vehicle emissions budget (MVEB) contained in the control strategy SIP revision or maintenance plan (40 CFR 93.101, 93.118, and 93.124). An MVEB is defined as “that portion of the total allowable emissions defined in the submitted or approved control strategy implementation plan revision or maintenance plan for a certain date for the purpose of meeting reasonable further progress milestones or demonstrating attainment or maintenance of the NAAQS, for any criteria pollutant or its precursors, allocated to highway and transit vehicle use and emissions (40 CFR 93.101).”
Under the conformity rule, LMP areas may demonstrate conformity without a regional emission analysis (40 CFR 93.109(e)). However, because LMP areas are still maintenance areas, certain aspects of transportation conformity determinations still will be required for transportation plans, programs, and projects. Specifically, for such determination, RTPs, TIPs, and transportation projects still will have to demonstrate that they are fiscally constrained (40 CFR 93.108), meet the criteria for consultation (40 CFR 93.105 and 93.112) and satisfy transportation control measure implementation in the conformity rule provisions (40 CFR 93.113).
Additionally, conformity determinations for RTPs and TIPs must be determined no less frequently than every four years, and conformity of transportation plan and TIP amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104. In addition, for projects to be approved, they must come from a currently conforming RTP and TIP (40 CFR 93.114 and 93.115). The Richmond-Petersburg Area remains under the obligation to meet the applicable conformity requirements for the 1997 ozone NAAQS.
EPA's review of VADEQ's September 21, 2021 submittal indicates that it meets all applicable CAA requirements, specifically the requirements of CAA section 175A. EPA is proposing to approve the second maintenance plan for the Richmond-Petersburg Area as a revision to the Virginia SIP. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.11198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger
On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”
Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”
Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule pertaining to Virginia's second maintenance plan for the Richmond-Petersburg Area does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve the amended “Env-Sw 2100: Management and Control of Asbestos Sites Not Operated after July 9, 1981,” effective September 1, 2018 (“amended Asbestos Disposal Site Rule”) in place of the National Emission Standard for Asbestos (“Asbestos NESHAP”) provisions for inactive waste disposal sites not operated after July 9, 1981 submitted by the State of New Hampshire. The intended effect of this action is to propose approval of the amended Asbestos Disposal Site Rule in place of the Asbestos NESHAP provisions for inactive waste disposal sites not operated after July 9, 1981. This approval would make the New Hampshire Department of Environmental Services' (NH DES) amended Asbestos Disposal Site Rule federally enforceable. This action is being taken under the Clean Air Act.
Written comments must be received on or before February 13, 2023.
Submit your comments, identified by Docket ID No. EPA-R01-OAR-2022-0496 at
Liam Numrich, Air Permits, Toxics, and Indoor Programs Branch, U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office Square-Suite 100, Boston, MA 02109-3912, tel: (617) 918-1307, email:
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
Under CAA section 112(l), EPA may approve state or local rules or programs to be implemented and enforced in place of certain otherwise applicable Federal rules, emissions standards, or requirements. The Federal regulations governing EPA's approval of state and local rules or programs under section 112(l) are located at 40 CFR part 63, subpart E.
The Environmental Protection Agency (EPA) first promulgated standards to regulate asbestos emissions on April 6, 1973 (see 38 FR 8826). These standards have since been amended several times and re-codified in 40 CFR part 61, subpart M, “National Emission Standard for Asbestos” (Asbestos NESHAP). On June 28, 2002, NH DES submitted a partial rule substitution request to implement and enforce its regulation Env-Wm 3900 titled “Management and Control of Asbestos Disposal Sites Not Operated After July 9, 1981” (Asbestos Disposal Site Rule) in lieu of some sections of the Asbestos NESHAP as they apply to certain inactive waste disposal sites. On May 28, 2003, EPA approved the Asbestos Disposal Site Rule as a partial rule substitution for the provisions of the Asbestos NESHAP at 40 CFR 61.151, which apply to inactive waste disposal sites not operated after July 9, 1981. (
Under 40 CFR 63.91(e)(2), within 90 days of any amendment, repeal, or revision of any state rule approved as an alternative to a Federal requirement, the state must provide EPA with a copy of the revised authorities and request approval of the revised rule. NH DES enacted amendments to Env-Sw 2100 in 2018. The purpose of these amendments is to more effectively address large quantities of asbestos waste buried throughout Nashua and Hudson, NH on residential, commercial, and industrial properties. On December 29, 2021, NH DES requested EPA approval to implement its amended rules in Env-Sw 2100 as a partial substitute for 40 CFR 61.01 through 40 CFR 61.18 (subpart A, General Provisions) and 40 CFR 61.151 (subpart M provisions applicable to inactive asbestos disposal sites). NH DES now seeks to have the 2010 substituted rule formally replaced with the 2018 amended Asbestos Disposal Site rule. While we acknowledge receiving New Hampshire's submission of the revised rule after the 90-day deadline, pursuant to 40 CFR 63.91(e)(2)(iii), until such time as EPA approves or withdraws approval of a revised rule, the previously approved rule remains federally enforceable and the revision is not federally enforceable. Therefore, EPA believes that it is appropriate to act on the state's submission even though the state did not request approval of the revised rule within 90 days. As explained below, EPA has reviewed the State's submission and determined that the amended Asbestos Disposal Site Rule is no less stringent than the provisions of the Asbestos NESHAP. EPA is therefore proposing to approve NH DES's requests to implement and enforce its amended rules in Env-Sw 2100, “Management and Control of Asbestos Disposal Sites Not Operated After July 9, 1981,” effective September 1, 2018 (“amended Asbestos Disposal Site Rule”) as a partial rule substitution for the same provisions of 40 CFR 61.01 through 40 CFR 61.18 and 40 CFR 61.151 that were substituted by the predecessor rule Env-Wm 3900 on May 28, 2003 and amended in 2010.
A state must demonstrate that it has satisfied the general delegation/approval criteria contained in 40 CFR 63.91(d). The process of providing “up-front approval” assures that a state has met the delegation criteria in section 112(l)(5) of the CAA (as codified in 40 CFR 63.91(d)), that is, that the state has demonstrated that its NESHAP program contains adequate authorities to assure compliance with each applicable Federal requirement, adequate resources for implementation, and an expeditious compliance schedule. Under 40 CFR 63.91(d) (3), interim or final Title V program approval satisfies the criteria set forth in 40 CFR 63.91(d) for “up-front approval.” On September 24, 2001, EPA promulgated full approval of NH DES's operating permits program.
Additionally, the “rule substitution” option requires EPA to make a detailed and thorough evaluation of the state's submittal to ensure that it meets the stringency and other requirements of 40 CFR 63.93. A rule will be approved as a substitute if the state or local government demonstrates: (1) the state and local rules contain applicability criteria that are no less stringent than the corresponding Federal rule; (2) the state and local rule requires levels of control and compliance and enforcement measures that would achieve emission reductions from each affected source that are no less stringent than would result from the otherwise applicable Federal standard; (3) the schedule for implementation and compliance is consistent with the deadlines established in the otherwise applicable Federal rule; and (4) the state requirements include additional compliance and enforcement measures as specified in 40 CFR 63.93(b)(4).
A state may also seek, and EPA may approve, a partial delegation of the EPA's authorities. CAA 112(l)(1). To obtain a partial rule substitution, the state's submittal must meet the otherwise applicable requirements in 40 CFR 63.91 and 63.93, and be separable from the portions of the program that the state is not seeking rule substitution for.
Before we can approve alternative requirements in place of a part 61 or part 63 emissions standard, the state must submit to us detailed information that demonstrates how the alternative requirements compare with the otherwise applicable Federal standard. Under 40 CFR part 63, subpart E, the level of control in the state rule must be at least as stringent as the level of control in the Federal rule. In addition, in order for equivalency to be granted for a rule substitution, the level of control and compliance and enforcement measures (monitoring, reporting and recordkeeping (“MRR”)) of the state rule, taken together as a whole, must be equivalent to the level of control and MRR of the Federal rule, taken together as a whole. A detailed discussion of how EPA will determine equivalency under the rule substitution option for state alternative NESHAP requirements is provided in the preamble to EPA's proposed Subpart E amendments on January 12, 1999.
In its initial request for a partial rule substitution on June 28, 2002, NH DES stated that virtually all known inactive waste disposal sites not operated after July 9, 1981, are concentrated in two neighboring communities, Nashua and Hudson. Due to dumping practices by a former asbestos manufacturing plant, over 250 sites are known to exist in these two areas on properties that are actively in use for residential, commercial, industrial, recreational and public purposes. The asbestos manufacturing plant operated in Nashua disposed of its asbestos containing waste by delivering it to the property owners for use as fill (
For example, in its initial request, NH DES stated that § 61.151 of the Asbestos NESHAP requires unfenced/non-posted sites to be covered with a minimum of six inches of soil if vegetated, or a minimum of 24 inches of soil if not vegetated. If the site is not fenced and posted, other viable capping materials can be used but only with EPA approval pursuant to 40 CFR 61.151(c). This means that neither asphalt nor concrete can be used as a surface treatment without EPA approval. In these communities, asbestos waste is currently buried beneath parking lots, driveways, and sidewalks. NH DES substituted performance-based specifications for the “one-size-fits-all” cover specifications in 40 CFR 61.151.
As another example, 40 CFR 61.151(d) requires the owner/operator of an inactive waste disposal site to supply notice at least 45 days in advance of excavating or disturbing any asbestos-containing waste at the site. In its initial request, NH DES explained that due to the built-up nature of these inactive waste disposal sites, the need to disturb asbestos on short notice is a common occurrence and needs to be addressed. For instance, asbestos waste often must be disturbed to replace broken water lines as well as to repair or replace cover materials exposed due to storm water runoff. NH DES's substituted rules reduce the length of the notice period but also require all persons who disturb asbestos waste to be qualified and to employ specific safe work practices and engineering controls.
In its initial request, NH DES also noted that the general provisions of 40 CFR part 61, subpart A generally apply to new stationary sources that are not yet constructed or to existing stationary sources that are actively operating. Inactive waste disposal sites are already constructed and are no longer operating or allowed to emit pollutants. Therefore, NH DES's rule includes general requirements that are more relevant to inactive waste disposal sites. For example, the alternative rules address site monitoring, maintenance, and reporting requirements in a manner appropriate to closed nonoperating sources that by their nature cannot be constructed or modified to increase their emissions.
Effective as of September 1, 2018, NH DES amended its rules in Env-Sw 2100, “Management and Control of Asbestos Disposal Sites Not Operated After July 9, 1981.” The following provides an overview of the changes NH DES made to its amended Asbestos Disposal Site Rule. Detailed side-by-side comparison tables of NH DES's amended Asbestos Disposal Site Rule compared to the Asbestos NESHAP and the General Provisions are included in the docket identified in the
In section Env-Sw 2102 of the amended Asbestos Disposal Site Rule, definitions were added and amended to more clearly explain the roles and responsibilities including Certified Asbestos Disposal Site (ADS) Workers, Contractors, Qualified ADS Contractors, and Qualified Individuals. The definition of “Utility Project” was expanded to include projects that occur in roadways and railroad right of ways, so that those projects involving multiple property owners can be handled similarly to utility projects that also often involve multiple property owners. In addition, NH DES moved the definitions of Asbestos, Asbestos Disposal Site, and Contractor to
In Env-Sw 2103, Waivers, application criteria were updated and clarified regarding who can apply for a waiver, signature requirements, criteria for granting and denying waiver requests, and decision-making procedures and requirements. Language in Env-Sw 2103.05(e) was added to provide that NH DES may grant a waiver only after the requestor obtains approval from EPA for the alternative control method pursuant to 40 CFR 60.151(c).
In Env-Sw 2104, General Site Management Requirements, multiple requirements for capping systems and owner responsibilities were clarified. This includes design and maintenance requirements for capping systems, how the requirements of these rules relate to other local, state, and federal requirements, owner responsibility to protect capping systems and assure asbestos is not disturbed except in controlled situations, and owner responsibility to keep and disclose clearance determination records produced by qualified individuals when projects are completed.
In Env-Sw 2105, Work Practices and Engineering Controls, it was clarified that the rules in this part apply to all projects involving the disturbance of asbestos, even those that do not require the work to be done by licensed/certified persons. New and amended terms were incorporated from the definitions section to clarify rule implementation including, for example, that work plans must be prepared and signed by qualified individuals, that clearance determinations must be performed and signed by certified qualified individuals, that air monitoring results can be summarized in the project completion report, and that lab data is allowed to be placed in the owner records versus submitted to NH DES. The amendments also clarified signature requirements for project completion reports and clearance determinations, project notice requirements, as well as roles and responsibilities for notification, reporting, and clearance determinations. In addition, hyperlinks were added to provide information on documents that were incorporated by reference into the rule.
In Env-Sw 2106, Work Plans for Major Non-Emergency Projects, rule implementation was clarified by incorporating new and amended terms from the definitions section. In addition, the requirements for and the process of submitting work plans for approval were clarified, and the process for updating approved generic work plans was clarified.
In Env-Sw 2107, Suspension and Revocation, the amendments clarified and expanded the good cause provision for suspension or revocation of any approval issued pursuant to Chapter Env-Sw 2100.
After reviewing NH DES's amended Asbestos Disposal Site Rule and equivalency demonstrations for the Asbestos NESHAP inactive waste disposal site provisions, as the rules apply to sources in New Hampshire for inactive waste disposal sites not operated after July 9, 1981, EPA has determined that the amended Asbestos Disposal Site Rule is no less stringent than the provisions of the Asbestos NESHAP and these requests meet all the requirements necessary for approval under CAA section 112(l) and 40 CFR 63.91 and 63.93.
EPA is proposing to grant NH DES the authority to implement the revised Env-Sw 2100, “Management and Control of Asbestos Disposal Sites Not Operated After July 9, 1981,” effective September 1, 2018, in place of the Asbestos NESHAP provisions for inactive waste disposal sites not operated after July 9, 1981. Upon approval the rule will be federally enforceable. EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the
In this proposed rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference New Hampshire Regulations at Env-Sw 2100: “Management and Control of Asbestos Disposal Sites Not Operated after July 9, 1981,” effective September 1, 2018, as described in section VI of this proposed rule. The EPA has made, and will continue to make, these documents generally available through
Under the Clean Air Act, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. In reviewing section 112(l) submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the 112(l) submission 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
Environmental protection, Air pollution control, Administrative practice and procedure, Arsenic, Asbestos, Benzene, Beryllium, Hazardous substances, Incorporation by reference, Intergovernmental relations, Mercury, Radioactive materials, Radon, Reporting and recordkeeping requirements, Uranium, Vinyl chloride.
Environmental protection, Air pollution control, Administrative practice and procedure, Business and industry, Carbon oxides, Hazardous substances, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of opportunities to provide public comments.
The Pacific Fishery Management Council (Council) has begun its annual preseason process to develop regulations to manage the 2023 ocean salmon fisheries off the U.S. West Coast. This document informs the public of opportunities to provide oral and written comments on the development of 2023 ocean salmon regulations.
Comments on the salmon management alternatives that will be adopted by the Council at its March 2023 meeting and will be described in its Preseason Report II, received orally, electronically, or in hard copy by 5 p.m. Pacific Time, March 31, 2023, will be considered in the Council's final recommendation for the 2023 management measures.
Documents will be available from the Pacific Fishery Management Council, 7700 NE Ambassador Place, Suite 101, Portland, OR 97220-1384, and will be posted on the Council's website at
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Ms. Robin Ehlke, Pacific Fishery Management Council, telephone: 503-820-2280;
The Council has announced the schedule of reports, public meetings, and hearings for the 2023 ocean salmon fisheries on its website (
Public hearings will be held to receive oral comments on the proposed ocean salmon fishery management alternatives adopted by the Council. All public hearings begin at 7 p.m. Public hearings focusing on Washington and Oregon salmon fisheries will occur simultaneously on March 20, 2023, and the public hearing for California salmon fisheries will occur on March 21, 2023. A summary of oral comments heard at the hearings will be provided to the Council at its April meeting. These public hearings are tentatively scheduled to occur in person, in the cities of Westport, Washington; Coos Bay, Oregon; and Santa Rosa, California. Actual hearing venues or instructions for joining online hearings will be posted on the Council's website (
Comments on the alternatives the Council adopts at its March 2023 meeting, and described in its Preseason Report II, may be submitted in writing or electronically as described under
United States Agency for International Development (USAID).
Notice of public availability.
Acting in compliance with Section 743 of Division C of the Consolidated Appropriations Act of 2010, requiring civilian agencies to prepare and analyze inventories of their service contracts, the United States Agency for International Development (USAID) is publishing this notice to advise the public of the availability of the FY 2021 Service Contract Inventory found at
Questions regarding the service contract inventory should be directed to Eileen Simoes, Chief, Policy Division, Bureau for Management Policy, Budget and Performance, U.S. Agency for International Development, (202) 921-5090,
Research, Education, and Economics (REE), United States Department of Agriculture (USDA).
Solicit applications for memberships for the NAREEE Advisory Board, Citrus Disease Subcommittee, National Genetic Resource Advisory Council, Specialty Crop Committee, and Pollinator Subcommittee.
In accordance to the Federal Advisory Committee Act (FACA), as amended, the Research, Education, and Economics (REE), United States Department of Agriculture (USDA) announces the opening of the solicitation for applications to fill vacancies on the National Agricultural Research, Extension, Education, and Economics (NAREEE) Advisory Board and its committees and subcommittees for Fiscal Year 2024 and any vacancies that may occur in this current fiscal year (FY23)—from the date of this notice to September 30, 2023: Citrus Disease Subcommittee (CDS), National Genetic Resources Advisory Council (NGRAC), Specialty Crop Committee (SCC), and Pollinator Subcommittee (PS).
Visit the NAREEE Advisory Board website:
Applications for all Board and Committee/Subcommittee membership seats will be received continuously until Friday, December 29, 2023.
Applicants will be selected by the Secretary of Agriculture based on how well they meet the required qualifications and the current needs of the Board and its committees/subcommittees. It is anticipated that the members will start serving on the Advisory Board and/or committees/subcommittee beginning of October 2023.
Kate Lewis, Executive Director, National Agricultural Research, Extension, Education, and Economics Advisory Board, 1400 Independence Avenue SW, Room 6019 South Building, Washington, DC 20250-2255; email:
All board members will receive reimbursement for per diem and travel expenses incurred for attending meetings and/or conducting other business on behalf of the Board/Subcommittee authorized by 5 U.S.C. 5703 of the Federal Travel Regulation for persons employed intermittently in government service.
Individuals may not serve on more than one USDA Federal Advisory Committee. Individuals who are federally registered lobbyists, appointed to committees to exercise their own individual best judgment on behalf of the government (
All applicants will be carefully reviewed for their relevant experience, expertise, and leadership. Appointed members will serve one-, two-, or three-year terms in order to properly stagger term rotation. All applicants will be vetted before selection. Appointments to the NAREEE Advisory Board and its committees and subcommittees will be made by the Secretary of Agriculture.
Application instructions can be found on the NAREEE Advisory Board website:
The USDA prohibits discrimination in all of its programs and activities on the basis of “race, color, national origin, religion, sex, (including gender identity and sexual orientation), disability, age, marital status, familial or parental status, income derived from a public assistance program, political beliefs, genetic information, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs).
Equal opportunity practices, in line with USDA policies, will be followed in all membership appointments to the committee. To ensure that the recommendations of the committee have taken into account the needs of the diverse groups served by the Department, membership shall include, to the extent practicable women, and persons with disabilities. USDA is an equal opportunity provider, employer, and lender.
Persons with disabilities who require alternative means of communication for program information (
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 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; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and 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 February 13, 2023 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
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.
Furthermore, FSIS will collection information to ensure that each establishment operating under the NSIS submit on an annual basis an attestation to the management member of the local FSIS circuit safety committee stating that it maintains a program to monitor and document any work-related conditions of establishment workers.
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; 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; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; and 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 February 13, 2023 will be considered. Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
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.
If the information was collected less frequently or not collected at all, it would significantly cripple APHIS' ability to evaluate the risk of spreading swine vesicular disease in the United States. This would have serious effects on the U.S. livestock industry and international trade.
Rural Utilities Service, USDA
Notice of roundtable discussion sessions.
The Inflation Reduction Act (IRA) of 2022 created several new clean energy provisions to be administered by the Rural Utilities Service (RUS), an agency of the Rural Development (RD) mission area of the United States Department of Agriculture (USDA). Following formal listening sessions, Tribal consultation, and a written comment period in November and December of 2022 regarding these IRA RUS clean energy provisions, RUS will host a series of virtual roundtables in January of 2023 to gain additional individual input from stakeholders regarding the design of IRA sections 22001 and 22004, with the intention of releasing a funding opportunity announcement in the first half of 2023.
Thirteen virtual roundtable discussions are planned for the following dates and times. In an effort to create a smaller setting for individual representatives to share their input, roundtables are organized by stakeholder groups, although all discussions will be open to any member of the public who expresses interest in joining, with the goal of being inclusive and hearing from all stakeholders wishing to provide further input. Registration links for the sessions below are available at:
If you have an interest in attending any roundtable discussion session, please register at
Louise Torrez at
Rural Development is an advocate for rural America, administering a multitude of programs, ranging from housing and community facilities to infrastructure and business development. The Agency's mission is to increase economic opportunity and improve the quality of life in rural communities by providing the leadership, infrastructure, capital, and technical support that enables rural communities to prosper. To achieve its mission, the Agency provides financial support, including loan guarantees, direct loans and grants, and technical assistance to enhance the quality of life and provide the foundation for economic development in rural areas.
The RUS received significant funding through the IRA of 2022, Public Law 117-169. This funding is a historic opportunity to provide financial assistance for renewable and zero-emission projects and energy systems, including energy storage and enabling infrastructure, that will support the long-term resilience, reliability, and affordability of rural electric systems and achieve greenhouse gas emission reductions.
Section 22001 of the IRA provides $1 billion in budget authority for loans for solar, hydro, wind, geothermal and biomass projects, as required by Section 317 of the Rural Electrification Act (7 U.S.C. 940g), and for energy storage associated with renewable energy projects. Up to 50 percent of such loans will be forgiven if the loan terms and conditions are satisfied; however, the Secretary shall also establish criteria to go beyond the 50 percent limitation.
Section 22004 of the IRA provides $9.7 billion in budget authority for loans, grants, loan modifications and other financial assistance to support the purchase of renewable energy, renewable energy systems, zero-emissions, and carbon capture systems and to deploy such systems or to make energy efficiency improvements to generation and transmission systems of eligible entities to achieve the greatest reduction in carbon dioxide, methane, and nitrous oxide emissions associated with rural electric systems. An eligible entity is defined as an electric cooperative described in section 501(c)(12) or 1381(a)(2) of the Internal Revenue Code of 1986 and is or has been a Rural Utilities Service electric loan borrower pursuant to the Rural Electrification Act of 1936 or serving a predominantly rural area or a wholly or jointly owned subsidiary of such electric cooperative.
RUS aims to release a Funding Opportunity Announcement for both sections 22001 and 22004 in the first half of 2023. The RUS is developing processes and tools that will be used to deliver this important funding to rural areas and stakeholder feedback is vital in developing financial assistance products that will be integral to ensuring this funding reaches the intended customers.
The RUS will hold the roundtable discussions on the dates listed in
The discussions will vary and be driven in large part by participants, but will focus on IRA sections 22001 and 22004 and input regarding, but not limited to, topics such as community needs, concerns, and opportunities regarding renewable energy development; specific financing and market needs to make renewable energy and zero emission projects and energy systems viable, affordable and reliable for rural communities; equity concerns and specific thoughts on how to include and address equity considerations; and metrics and the benefits and/or limitations of existing publicly available government tools to assess the greenhouse gas emissions of renewable energy projects and energy systems.
U.S. Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the Ohio Advisory Committee (Committee) will hold a virtual meeting on Friday, January 20, 2023, at 11:30 a.m. Eastern Time. The purpose of the meeting is to identify and discuss potential panelists for a series of briefings on the source of income discrimination in housing in Ohio.
The meeting will take place on Friday, January 20, 2023, from 11:30 a.m.-1:00 p.m. ET.
Melissa Wojnaroski, DFO, at
Committee meetings are available to the public through the conference registration link or telephone number listed above. Any interested member of the public may listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. If joining via phone, callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Individuals who are deaf, deafblind, and hard of hearing may also follow the proceedings by first calling the Federal Relay Service at 1 (800) 877-8339 and providing the Service with the conference details found through registering at the web link above. To request additional accommodations, please email
Members of the public are also entitled to submit written comments; the comments must be received within 30 days following the meeting. Written comments may be emailed to
Records generated from this meeting may be inspected and reproduced at the
Notice of application for an amended Export Trade Certificate of Review by Aerospace Industries Association of America, Inc. (AIA), Application No. 92-16A001.
The Secretary of Commerce, through the Office of Trade and Economic Analysis (OTEA) of the International Trade Administration, received an application for an amended Export Trade Certificate of Review (Certificate). This notice summarizes the proposed application and requests comments relevant to whether the amended Certificate should be issued.
Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or email at
Title III of the Export Trading Company Act of 1982 (15 U.S.C. 4011-21) (the Act) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. The regulations implementing Title III are found at 15 CFR part 325. OTEA is issuing this notice pursuant to 15 CFR 325.6(a), which requires the Secretary of Commerce to publish a summary of the application in the
Interested parties may submit written comments relevant to the determination whether a Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a nonconfidential version of the comments (identified as such) should be included. Any comments not marked as privileged or confidential business information will be deemed to be nonconfidential.
Written comments should be sent to
Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, nonconfidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 92-16A001.”
A summary of the application follows.
1. Add the following companies as new Members of the Certificate within the meaning of section 325.2(l) of the Regulations (15 CFR 325.2(l)):
2. Remove the following companies as Members of AIA's Certificate:
3. Change in names or addresses for the following Members:
National Institute of Standards and Technology.
Notice.
The Information Security and Privacy Advisory Board (ISPAB) will meet Wednesday, March 1, 2023, from 10 a.m. until 4 p.m., Eastern Time, and Thursday, March 2, 2023, from 10 a.m. until 4 p.m., Eastern Time. All sessions will be open to the public.
The meeting will be held on Wednesday, March 1, 2023, from 10 a.m. until 4 p.m., Eastern Time, and Thursday, March 2, 2023, from 10 a.m. until 4 p.m., Eastern Time.
The meeting will be held at Grand Hyatt Washington, Quarter Penn A, 1000 H Street NW, Washington, DC 20001. Please note admittance instructions under the
Jeff Brewer, Information Technology
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the ISPAB will meet Wednesday, March 1, 2023, from 10 a.m. until 4 p.m., Eastern Time, and Thursday, March 2, 2023, from 10 a.m. until 4 p.m., Eastern Time. All sessions will be open to the public. The ISPAB is authorized by 15 U.S.C. 278g-4, as amended, and advises the National Institute of Standards and Technology (NIST), the Secretary of Homeland Security, and the Director of the Office of Management and Budget (OMB) on information security and privacy issues pertaining to Federal government information systems, including thorough review of proposed standards and guidelines developed by NIST. Details regarding the ISPAB's activities are available at
The agenda is expected to include the following items:
Note that agenda items may change without notice. The final agenda will be posted on the ISPAB event page:
The ISPAB agenda will include a period, not to exceed thirty minutes, for submitted questions or comments from the public between 3:00 p.m. and 3:30 p.m. on Wednesday, March 1, 2023. Submitted questions or comments from the public will be selected on a first-come, first-served basis and limited to five minutes per person.
Members of the public who wish to expand upon their submitted statements, those who had wished to submit a question or comment but could not be accommodated on the agenda, and those who were unable to attend the meeting in person are invited to submit written statements. In addition, written statements are invited and may be submitted to the ISPAB at any time. All written statements should be directed to the ISPAB Secretariat, Information Technology Laboratory by email to:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permits.
Notice is hereby given that permits have been issued to the following entities under the Marine Mammal Protection Act (MMPA) and the Endangered Species Act (ESA), as applicable.
The permits and related documents are available for review upon written request via email to
Jennifer Skidmore (Permit Nos. 26973 and 27033), Shasta McClenahan, Ph.D., (Permit No. 24359), and Courtney Smith, Ph.D. (Permit Nos. 26170 and 26599); at (301) 427-8401.
Notices were published in the
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, as applicable, issuance of these permit was based on a finding that such permits: (1) were applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) are consistent with the purposes and policies set forth in Section 2 of the ESA.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for permit amendment.
Notice is hereby given that Douglas Nowacek, Ph.D., Nicholas School of the Environment, Duke University Marine Laboratory, 135 Duke Marine Lab Rd, Beaufort, NC 28516, has applied for an amendment to Scientific Research Permit No. 22156-02.
Written, telefaxed, or email comments must be received on or before February 13, 2023.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
Written comments on this application should be submitted via email to
Those individuals requesting a public hearing should submit a written request via email to
Amy Hapeman or Shasta McClenahan, Ph.D., (301) 427-8401.
The subject amendment to Permit No. 22156-02 is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361
Permit No. 22156, issued on May 8, 2020, (85 FR 35637), authorizes the permit holder to conduct research on 31 cetacean species in U.S. and international waters of the North Atlantic Ocean. Species include endangered blue (
A draft environmental assessment (EA) has been prepared in compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information-collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before March 13, 2023.
Interested persons are invited to submit written comments to Adrienne Thomas, NOAA PRA Officer, at
Requests for additional information or specific questions related to collection activities should be directed to Michael Migliori, lead evaluator, NOS Office of Coastal Management, 1305 East West Hwy., Bldg. SSMC4, Silver Spring, MD 20910, (443) 332-8936, or
This request is for revision and extension of a currently approved information collection. A few questions will be rewritten to improve the usefulness of information collected. A new question is proposed for inclusion that will collect information from Coastal Zone Management Act programs about efforts in diversity, inclusion, equity, and accessibility.
The Coastal Zone Management Act of 1972, as amended (CZMA; 16 U.S.C. 1451
As part of this submission, a few questions will be modified to clarify the information that should be provided as part of the information requests and questionnaires sent to the coastal program and reserve managers. One new question about efforts in diversity, inclusion, equity, and accessibility will be included for coastal program and reserve managers. A few questions will be revised to clarify and improve the usefulness of responses for the partners and stakeholders' survey.
Given the addition of a designated research reserve since the last renewal of this information collection and the anticipated designation of additional reserves in the coming years, and an increase in Office for Coastal Management staff capacity to conduct evaluations, the number of CZMA programs to be evaluated, on average, in the next three years will increase from 11 to 12 programs per year. This increase in the number of programs to be evaluated will also increase the number of partner and stakeholder respondents to this information collection.
Coastal program and reserve manager respondents will receive information requests and questionnaires via email, and submittals will be made via email. Partners and stakeholders of coastal management programs and of reserves will receive a link to a web-based survey tool and respond through the survey tool.
We are soliciting public comments to permit the Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) 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; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this information collection request. Before including your address, phone number, email address, or other personally identifiable information in your comment, you should be aware that your entire comment—including your personally identifiable information—may be made publicly available at any time. While you may ask us in your comment to withhold your personally identifiable information from public review, we
Department of the Air Force, Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by March 13, 2023.
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 HQ AETC/A5QR, 61 Main Circle, Ste. 2, Bldg. 675, JBSA Randolph TX, 78150, Richard W. Tilton, 210-652-6837.
Department of the Army, Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by March 13, 2023.
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 Office of the Product Manager for Force Protection Systems (PdM-FPS), 5900 Putnam Road, Building 365/Suite 1, (SFAE-IEW-TF), ATTN: Mark Shuler, Fort Belvoir, VA 22060-5420, or call PdM-FPS at 703-704-2402.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
DoD announces an early engagement opportunity regarding implementation of the National Defense Authorization Act for Fiscal Year 2023 within the acquisition regulations.
Early inputs should be submitted in writing via the Defense Acquisition Regulations System (DARS) website shown below. The website will be updated when early inputs will no longer be accepted.
Submit early inputs via the DARS website at
Jennifer D. Johnson, telephone 703-717-8226.
DoD is providing an opportunity for the public to provide early inputs on implementation of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2023 within the acquisition regulations. The public is invited to submit early inputs on sections of the NDAA for FY 2023 via the DARS website at
Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by March 13, 2023.
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 Military Community Support Programs, 4800 Mark Center Drive, Suite 14E08, Alexandria, VA 22350, C. Eddy Mentzer, (571) 309-4977.
The Military Spouse Employment Partnership (MSEP) Partner Portal is the sole web platform utilized to connect the program office with MSEP employer partners and potential partners. Participating companies, called MSEP Partners, are vetted and approved participants in the MSEP Program and
Office of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by March 13, 2023.
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 Department of Defense Education Activity (Executive Services Division), 4800 Mark Center Drive, Alexandria, VA 22350, Samuel Gotti, (571) 372-1891.
The Office of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by March 13, 2023.
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,
The Office of the Under Secretary of Defense for Personnel and Readiness (USD(P&R)), Department of Defense (DoD).
30-Day information collection notice.
The DoD has submitted 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.
Consideration will be given to all comments received by February 13, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela Duncan, 571-372-7574,
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 Ms. Duncan at
Office of the Under Secretary of Defense for Personnel and Readiness (OUSD(P&R)), Department of Defense (DoD).
30-day information collection notice.
The DoD has submitted to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information
Consideration will be given to all comments received by February 13, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Angela Duncan, 571-372-7574,
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 Ms. Duncan at
Department of the Navy, Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by March 13, 2023.
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 Office of the Department of the Navy Information Management Control Officer, 2000 Navy Pentagon, Rm. 4E563, Washington, DC 20350, ATTN: Ms. Sonya Martin, or call 703-614-7585.
Department of the Navy, Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by March 13, 2023.
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 Marine Corps WWR Headquarters, 3280 Russell Road, Quantico, VA 22134, ATTN: Ms. Sonya Martin, or call 703-432-1850.
Department of the Navy, Department of Defense (DoD).
60-Day information collection notice.
In compliance with the
Consideration will be given to all comments received by March 13, 2023.
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 Office of the Department of the Navy Information Management Control Officer, 2000 Navy Pentagon, Rm. 4E563, Washington, DC 20350, ATTN: Ms. Sonya Martin, or call 703-614-7585.
Office of Special Education and Rehabilitative Services, Department of Education.
Notice. January 12, 2023.
The Department of Education (Department) is issuing a notice inviting applications for new awards for fiscal year (FY) 2023 for Technical Assistance for Parent Centers, Assistance Listing Number 84.328R. This notice relates to the approved information collection under OMB control number 1820-0028.
Applications Available: January 12, 2023.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Carmen Sanchez, U.S. Department of Education, 400 Maryland Avenue SW, Room 5144, Potomac Center Plaza, Washington, DC 20202-5076. Telephone: (202) 245-6595. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
This priority is:
The mission of the Office of Special Education and Rehabilitative Services (OSERS) is to improve early childhood, educational, and employment outcomes and raise expectations for all people with disabilities, their families, their communities, and the Nation. Section 673 of IDEA authorizes technical assistance (TA) for developing, assisting, and coordinating parent training and information programs carried out by parent training and information centers (PTIs) that receive assistance under section 671 of IDEA and by community parent resource centers (CPRCs) that receive assistance under section 672 of IDEA (collectively, “parent centers”). The purpose of this priority is to fund five cooperative agreements to establish and operate five parent technical assistance centers (PTACs) across two focus areas to provide TA to parent centers. A center for parent information and resources (CPIR) will focus on developing products for all parent centers (Focus Area 1). Four regional parent training and technical assistance centers (regional PTACs) will focus on
The work of the proposed centers is consistent with the following Secretary's Supplemental Priorities, which were published in the
The 90 parent center grants (
Consistent with the statute, PTACs provide support to parent centers to carry out these statutorily required activities and thereby help parents participate in the education of their children to improve their children's outcomes. In addition, section 673(b) of IDEA lists potential areas in which parent centers may also need TA from PTACs, such as: (1) coordinating parent training efforts; (2) disseminating evidence-based research and information; (3) promoting the use of technology, including assistive technology devices and services; (4) reaching underserved
PTACs provide needed support to parent centers on other topics as well, including current information on laws and policies; translating EBPs to improve outcomes for children with disabilities and their families; how to help parents learn about and access high-quality education options that allow their children to meet challenging objectives appropriate in light of the child's circumstances; and ways to effectively engage in education reform activities, including Federal, State, and local initiatives. Ongoing TA, responsive to the individual needs of parent centers, can increase parent center staff's knowledge and expertise on these topics. In addition, since many parent centers are grassroots organizations with small budgets, they often benefit from TA on managing a Federal grant, maximizing efficient use of their resources, meeting complex statutory and regulatory requirements for nonprofits, and providing professional development to staff. External evaluation reports, as part of the PTACs' annual performance reports (APRs), indicate that the TA they provided has substantially increased parent centers' capacity to respond effectively to parents and youth during disasters, including the COVID-19 pandemic.
The following website provides more information on the current parent centers, including links to each grantee's website:
The purpose of this priority is to fund five cooperative agreements to establish and operate one CPIR (Focus Area 1) and four regional PTACs (Focus Area 2). The CPIR will develop and disseminate resources for all parent centers to use when working with parents of children with disabilities (hereafter “parents”) and youth with disabilities (hereafter “youth”). The CPIR will also develop and disseminate materials that all parent centers can use to train staff to effectively reach and serve all parents and youth. The four regional PTACs will provide TA to parent centers within their region to effectively manage their centers and reach and serve all parents and youth. The CPIR and regional PTACs will coordinate their efforts in order to maximize resources and avoid duplication. An applicant may submit applications in both focus areas; however, an applicant is limited to only one application in each focus area (
The CPIR will provide universal, general TA
(a) Increased parent centers' knowledge, through the development and dissemination of high-quality information and products, of—
(1) Early intervention and educational EBPs and current Federal, State, Tribal, and other laws and policies that impact children and youth with disabilities and their families;
(2) Effective and equitable practices in carrying out parent center activities including outreach, family-centered services, and self-advocacy skill building; and
(3) Effective nonprofit management practices, to include developing a robust infrastructure for remote service provision; hiring strategies and succession planning; and board development.
(b) Increased parent centers' use of high-quality materials and approaches to train—
(1) Staff in effective and equitable practices in carrying out parent center activities including outreach, family-centered services, and self-advocacy skill building; and
(2) Multilingual staff—in their native languages to the extent practicable—and to ensure the accuracy of the translation of materials they provide in languages other than English.
In addition to these programmatic requirements, to be considered for funding under this priority, applicants must meet the application and administrative requirements in this priority, which are:
(a) Demonstrate, in the narrative section of the application under “Significance,” how the proposed project will—
(1) Address parent centers' needs both for resources to effectively reach and serve all parents and youth, including underserved parents and youth, and for materials to train staff to effectively reach and serve all parents and youth. To meet this requirement, the applicant must—
(i) Present applicable national data on the needs of parent centers; and
(ii) Demonstrate knowledge of—
(A) Current educational issues and policy initiatives relating to early childhood (ages birth through five), general and special education, secondary transition services, and postsecondary options; and
(B) Best practices in—
(2) Increase the knowledge of parent centers on how to reach, and provide virtual and in-person services to, all parents and youth, to train staff using high-quality training materials, and to apply management best practices; and
(3) Indicate the likely magnitude or importance of the improvements in parent centers' service provision.
(b) Demonstrate, in the narrative section of the application under “Quality of project services,” how the proposed project will—
(1) Ensure equal access and treatment for members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. To meet this requirement, the applicant must describe how it will—
(i) Identify the needs of the parent centers for TA and information;
(ii) Ensure that products and services meet the needs of the parent centers;
(2) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—
(i) Measurable intended project outcomes; and
(ii) In Appendix A, the logic model (as defined in 34 CFR 77.1) by which the proposed project will achieve its intended outcomes that depicts, at a minimum, the goals, activities, and outputs in addition to the intended outcomes of the proposed project;
(3) Use a conceptual framework (and provide a copy in Appendix A) to develop project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework;
(4) Be based on current research and make use of EBPs. To meet this requirement, the applicant must describe—
(i) The current research on outreach, family-centered services, and self-advocacy skill building, including effective and equitable outreach and service provision to underserved parents and youth; staff training, including training for multilingual staff; and nonprofit management;
(ii) The current research about adult learning principles and implementation science that will inform the proposed TA; and
(iii) How the proposed project will incorporate current research and EBPs in the development and delivery of its products and services;
(5) Develop products and provide services that are of high quality and sufficient intensity and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—
(i) How it proposes to identify how knowledgeable the parent centers are regarding outreach, family-centered services, and self-advocacy skill building, including effective and appropriate outreach and service provision to underserved parents and youth; staff training, including training for multilingual staff; and nonprofit management;
(ii) Its proposed approach to universal, general TA, which must identify the intended recipients within the parent centers, including the type and number of recipients, that will receive the products and services under this approach and must, at minimum, include how the project will—
(A) Create, update, and maintain an online, annotated repository of high-quality resources produced by the CPIR, OSEP-funded projects, and other federally funded projects for parent centers' use with families, youth, staff members, and members of the boards of directors, including translations of materials as needed;
(B) Develop, as needed, up-to-date, family-centered resources that parent centers can use with parents and youth in a variety of languages, formats, and reading levels, including when providing virtual services;
(C) Disseminate and modify, as needed, family-centered resources developed by OSEP and other federally funded centers such as the proposed Center on Dispute Resolution to provide all parents, particularly underserved parents, with information on their and their children's rights and responsibilities under IDEA and other Federal laws;
(D) Disseminate and modify, as needed, family-centered resources developed by OSEP and other federally funded centers to provide families with strategies to enhance their children's academic skills, self-advocacy, social emotional skills, and behavior and mental health at home, to include information about accessing Federal, State, and local programs, benefits, and resources that provide support;
(E) Disseminate and modify, as needed, family-centered resources
(F) Compile and create materials to train staff, including multilingual staff, to effectively provide services to underserved parents and youth; and
(G) Compile and create materials on nonprofit management, as needed, and develop a process for an annual orientation of new parent center directors and other key personnel and members of the boards of directors that provides the new personnel with the information and resources they need to carry out their responsibilities;
(6) Develop products and implement services that maximize efficiency. To address this requirement, the applicant must describe—
(i) How the proposed project will use technology to achieve the intended project outcomes;
(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration;
(iii) How the proposed project will use existing knowledge and expertise within parent centers to achieve intended project outcomes; and
(iv) How the proposed project will use non-project resources to achieve the intended project outcomes;
(7) Develop a dissemination plan that describes how the applicant will systematically distribute information and products to parent centers, using a variety of dissemination strategies, to promote awareness and use of the CPIR's products and services; and
(8) Assist parent centers in the collection of annual performance data required under section 671(b)(12) of IDEA, in consultation with the OSEP project officer.
(c) In the narrative section of the application under “Quality of the project evaluation,” include an evaluation plan for the project developed in consultation with and implemented by a third-party evaluator.
(1) Articulate formative and summative evaluation questions, including important process and outcome evaluation questions. These questions must be related to the project's proposed logic model required in paragraph (b)(2)(ii) of this notice;
(2) Describe how progress in and fidelity of implementation, as well as project outcomes, will be measured to answer the evaluation questions. Specify the measures and associated instruments or sources for data appropriate to the evaluation questions. Include information regarding reliability and validity of measures where appropriate;
(3) Describe strategies for analyzing data and how data collected as part of this plan will be used to inform and improve service delivery over the course of the project and to refine the proposed logic model and evaluation plan, including subsequent data collection;
(4) Provide a timeline for conducting the evaluation and include staff assignments for completing the plan. The timeline must indicate that the data will be available annually for the APR and in Year 2 for the review process described under the heading,
(5) Dedicate sufficient funds in each budget year to cover the costs of developing or refining the evaluation plan in consultation with a third-party evaluator, as well as the costs associated with the implementation of the evaluation plan by the third-party evaluator.
(d) Demonstrate, in the narrative section of the application under “Adequacy of resources and quality of project personnel,” how—
(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;
(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and
(4) The proposed costs are reasonable in relation to the anticipated results and benefits.
(e) Demonstrate, in the narrative section of the application under “Quality of the management plan,” how—
(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—
(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and
(ii) Timelines and milestones for accomplishing the project tasks;
(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes;
(3) The proposed management plan will ensure that the products and services provided are of high quality, relevant, and useful to recipients; and
(4) The proposed project will benefit from a diversity of perspectives, including those of families, youth, educators, TA providers, researchers, and policy makers, among others, in its development and operation.
(f) Address the following application requirements. The applicant must—
(1) Include, in Appendix A, personnel-loading charts and timelines, as applicable, to illustrate the management plan described in the narrative;
(2) Include, in the budget, attendance at the following:
(i) A one and one-half day virtual kick-off meeting after receipt of the award, and an annual virtual planning meeting with the OSEP project officer and other relevant staff during each subsequent year of the project period.
(ii) A two and one-half day project directors' conference in Washington, DC, during each year of the project period. The project must reallocate funds for travel to the project directors' conference no later than the end of the third quarter of each budget period if the meeting is conducted virtually;
(iii) One annual two-day trip to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP; and
(iv) A one-day intensive virtual 3+2 review meeting during the last half of the second year of the project period;
(3) Include, in the budget, a line item for an annual set-aside of 5 percent of the grant amount to support emerging needs that are consistent with the proposed project's intended outcomes, as those needs are identified in consultation with, and approved by, the OSEP project officer. With approval from the OSEP project officer, the project must reallocate any remaining funds from this annual set-aside no later
(4) Maintain a high-quality website, with an easy-to-navigate design, that meets government or industry-recognized standards for accessibility;
(5) Ensure that annual project progress toward meeting project goals is posted on the project website; and
(6) Include, in Appendix A, an assurance to assist OSEP with the transfer of pertinent resources and products and to maintain the continuity of services to parent centers during the transition to this new award period and at the end of this award period, as appropriate.
In deciding whether to continue funding the project for the fourth and fifth years, the Secretary will consider the requirements of 34 CFR 75.253(a), including—
(a) The recommendations of a 3+2 review team consisting of experts who have experience and knowledge in family-centered services. This review will be conducted during a one-day intensive meeting that will be held during the last half of the second year of the project period;
(b) The timeliness with which, and how well, the requirements of the negotiated cooperative agreement have been or are being met by the project; and
(c) The quality, relevance, and usefulness of the project's products and services and the extent to which the project's products and services are aligned with the project's objectives and likely to result in the project achieving its intended outcomes.
Under 34 CFR 75.253, the Secretary may reduce continuation awards or discontinue awards in any year of the project period for excessive carryover balances or a failure to make substantial progress. The Department intends to closely monitor unobligated balances and substantial progress under this program and may reduce or discontinue funding accordingly.
The four regional PTACs will provide targeted, specialized TA
(a) Increased parent center capacity to inform and train parents both virtually and in person on—
(1) Early intervention and educational EBPs;
(2) Their rights and responsibilities under Federal, State, Tribal, and other laws and policies that impact children with disabilities and their families; and
(3) Accessing Federal, State, and local programs, benefits, and resources that support children with disabilities, youth with disabilities, and their families;
(b) Increased parent center capacity to reach more parents and youth and effectively provide equitable parent center services to help more parents improve outcomes for their children and to help youth build their self-advocacy skills;
(c) Increased parent center capacity to provide effective and equitable outreach and service provision to all parents and youth; and
(d) Increased parent center capacity to effectively manage their nonprofit organizations and projects and to provide high-quality training to staff, including multilingual staff, to reach and serve all parents and youth in their region.
The geographic regions served by the four regional PTACs are generally aligned with the States served by the Equity Assistance Centers funded under Title IV of the 1964 Civil Rights Act, while also balancing the number of centers each regional PTAC will have in its region. This alignment will help the regional PTACs meet the requirement in section 673(c) of IDEA that the regional PTACs develop collaborative agreements with the geographically appropriate centers. The four regional PTACs will represent the following geographic regions:
Region A PTAC: CT, DC, DE, ME, MA, MD, NH, NJ, NY, PA, Puerto Rico, RI, U.S. Virgin Islands, VT.
Region B PTAC: AL, AR, FL, GA, LA, MS, NC, OK, SC, TN, TX, VA.
Region C PTAC: IL, IN, IA, KS, KY, MI, MN, MO, MT, NE, ND, OH, SD, WI, WV, WY.
Region D PTAC: AK, AZ, CA, CO, HI, ID, NM, NV, OR, UT, WA, the outlying areas of the Pacific Basin, the Freely Associated States.
In addition to these programmatic requirements, to be considered for funding under this priority, applicants must meet the application and administrative requirements in this priority, which are:
(a) Demonstrate, in the narrative section of the application under “Significance,” how the proposed project will—
(1) Address the needs of parent centers in its region for TA to increase their capacity to reach, and provide virtual and in-person services to, parents and youth in their areas, including underserved parents and youth; build youth's self-advocacy skills; train staff; and effectively manage their centers. To meet this requirement the applicant must—
(i) Present applicable information on the needs of parent centers in the region; and
(ii) Demonstrate knowledge of—
(A) Current early intervention and educational issues and policy initiatives relating to early childhood, general and special education, secondary transition services, and postsecondary options; and
(B) Best practices in—
(2) Increase the capacity of parent centers to reach, and provide virtual and in-person services to, all parents and youth, train staff, and manage their projects; and indicate the likely magnitude or importance of the improvements.
(b) Demonstrate, in the narrative section of the application under “Quality of project services,” how the proposed project will—
(1) Ensure equal access and treatment for members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. To meet this requirement, the applicant must describe how it will—
(i) Identify the needs of the parent centers in the proposed region for TA and information;
(ii) Ensure that products and services meet the needs of the intended parent centers;
(2) Achieve its goals, objectives, and intended outcomes. To meet this requirement, the applicant must provide—
(i) Measurable intended project outcomes; and
(ii) In Appendix A, the logic model (as defined in 34 CFR 77.1) by which the proposed project will achieve its intended outcomes that depicts, at a minimum, the goals, activities, and outputs in addition to the intended outcomes of the proposed project;
(3) Use a conceptual framework (and provide a copy in Appendix A) to develop project plans and activities, describing any underlying concepts, assumptions, expectations, beliefs, or theories, as well as the presumed relationships or linkages among these variables, and any empirical support for this framework;
(4) Be based on current research and make use of EBPs. To meet this requirement, the applicant must describe—
(i) The current research on outreach, family-centered services, and self-advocacy skill building, including effective and equitable outreach and service provision to underserved parents and youth; staff training, including training for multilingual staff; and nonprofit management;
(ii) The current research about adult learning principles and implementation science that will inform the proposed TA; and
(iii) How the proposed project will incorporate current research and EBPs in the development and delivery of its products and services;
(5) Develop products and provide services that are of high quality and sufficient intensity and duration to achieve the intended outcomes of the proposed project. To address this requirement, the applicant must describe—
(i) How it proposes to work with the CPIR to identify the materials and products on parental and child rights under Federal laws, outreach, family-centered services, and self-advocacy skill building, including effective and equitable outreach and virtual and in-person service provision to underserved parents and youth; staff training, including training for multilingual staff; and nonprofit management;
(ii) Its proposed approach to targeted, specialized TA
(A) Conduct at least one in-person, on-site visit to each parent center in the region during the course of the five-year project period;
(B) Increase parent centers' capacity to reach and provide services to all parents and youth, including underserved parents and youth;
(C) Increase parent centers' capacity to train staff, including multilingual staff, to provide effective and appropriate outreach and services to underserved parents and youth; and
(D) Increase parent centers' capacity to effectively manage nonprofit organizations, including: developing the board of directors so that parent centers have the organizational policies, procedures, and structure in place to manage their grants effectively; providing remote services; developing and implementing hiring strategies; and developing succession plans; and
(iii) Its proposed approach to intensive, sustained TA,
(A) The intended recipients, including the type and number of recipients, that will receive the products and services under this approach;
(B) Its proposed approach to measure the readiness of the parent centers to work with the project;
(C) Its proposed plan for assisting parent centers to build or enhance their staff training and professional development based on adult learning principles and coaching; and
(D) Its proposed approach to providing intensive TA to parent centers when requested by OSEP project officers;
(6) Develop products and implement services that maximize efficiency. To address this requirement, the applicant must describe—
(i) How the proposed project will use technology to achieve the intended project outcomes;
(ii) With whom the proposed project will collaborate and the intended outcomes of this collaboration;
(iii) How the proposed project will use existing knowledge and expertise within parent centers to achieve intended project outcomes;
(iv) How the proposed project will use the resources housed in and developed by the CPIR and build on the CPIR's universal TA; and
(v) How the proposed project will use non-project resources to achieve the intended project outcomes; and
(7) Develop a dissemination plan that describes how the applicant will systematically distribute information, products, and services to the parent centers in the region, using a variety of dissemination strategies, to promote awareness and use of the regional PTAC's products and services.
(c) In the narrative section of the application under “Quality of the project evaluation,” include an evaluation plan for the project developed in consultation with and implemented by a third-party evaluator.
(1) Articulate formative and summative evaluation questions, including important process and outcome evaluation questions. These questions must be related to the project's proposed logic model required in paragraph (b)(2)(ii) of this notice;
(2) Describe how progress in and fidelity of implementation, as well as project outcomes, will be measured to answer the evaluation questions. Specify the measures and associated instruments or sources for data appropriate to the evaluation questions. Include information regarding reliability and validity of measures where appropriate;
(3) Describe strategies for analyzing data and how data collected as part of this plan will be used to inform and improve service delivery over the course of the project and to refine the proposed logic model and evaluation plan, including subsequent data collection;
(4) Provide a timeline for conducting the evaluation and include staff assignments for completing the plan. The timeline must indicate that the data will be available annually for the APR; and
(5) Dedicate sufficient funds in each budget year to cover the costs of developing or refining the evaluation plan in consultation with a third-party evaluator, as well as the costs associated with the implementation of the evaluation plan by the third-party evaluator.
(d) Demonstrate, in the narrative section of the application under “Adequacy of resources and quality of project personnel,” how—
(1) The proposed project will encourage applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability, as appropriate;
(2) The proposed key project personnel, consultants, and subcontractors have the qualifications and experience to carry out the proposed activities and achieve the project's intended outcomes;
(3) The applicant and any key partners have adequate resources to carry out the proposed activities; and
(4) The proposed costs are reasonable in relation to the anticipated results and benefits.
(e) Demonstrate, in the narrative section of the application under “Quality of the management plan,” how—
(1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—
(i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and
(ii) Timelines and milestones for accomplishing the project tasks;
(2) Key project personnel and any consultants and subcontractors will be allocated and how these allocations are appropriate and adequate to achieve the project's intended outcomes;
(3) The proposed management plan will ensure that the products and services provided are of high quality, relevant, and useful to recipients; and
(4) The proposed project will benefit from a diversity of perspectives, including those of families, educators, TA providers, researchers, and policy makers, among others, in its development and operation.
(f) Address the following application requirements. The applicant must—
(1) Include, in Appendix A, personnel-loading charts and timelines, as applicable, to illustrate the management plan described in the narrative;
(2) Include, in the budget, attendance at the following:
(i) A one- and one-half day virtual kick-off meeting after receipt of the award, and an annual virtual planning meeting with the OSEP project officer and other relevant staff during each subsequent year of the project period.
(ii) A two- and one-half day project directors' conference in Washington, DC, or virtually, during each year of the project period. The project must reallocate funds for travel to the project directors' conference no later than the end of the third quarter of each budget period if the meeting is conducted virtually; and
(iii) One annual two-day trip, or virtually, to attend Department briefings, Department-sponsored conferences, and other meetings, as requested by OSEP;
(3) Include, in the budget, a line item for an annual set-aside of 5 percent of the grant amount to support emerging needs that are consistent with the proposed project's intended outcomes, as those needs are identified in consultation with, and approved by, the OSEP project officer. With approval from the OSEP project officer, the project must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period;
(4) Maintain a high-quality website, with an easy-to-navigate design, that meets government or industry-recognized standards for accessibility;
(5) Ensure that annual project progress toward meeting project goals is posted on the project website; and
(6) Include, in Appendix A, an assurance to assist OSEP with the transfer of pertinent resources and products and to maintain the continuity of services to parent centers in the center's region during the transition to this new award period and at the end of this award period, as appropriate.
Within this absolute priority, we give competitive preference to applications that address the following priorities. Under 34 CFR 75.105(c)(2)(i), for an application under Focus Area 1, we will award five additional points if the application meets Competitive Preference Priority 1. For an application under Focus Area 2, we will award five additional points if the application meets Competitive Preference Priority 1 and five additional points if the application meets Competitive Preference Priority 2, for a total of 10 possible additional points.
These priorities are:
Applicants under Focus Area 1 or Focus Area 2 that are “parent organizations.” A “parent organization” is a private nonprofit organization (other than an institution of higher education) that—
(a) Has a board of directors—
(1) The majority of whom are parents of children with disabilities ages birth through 26;
(2) That includes—
(i) Individuals working in the fields of special education, related services, and early intervention; and
(ii) Individuals with disabilities; and
(3) The parent and professional members of which are broadly representative of the population to be served, including low-income parents and parents of limited English proficient children; and
(b) Has as its mission serving families of children with disabilities who—
(1) Are ages birth through 26; and
(2) Have the full range of disabilities described in section 602(3) of IDEA. (Section 671(a)(2) of IDEA)
Applicants under Focus Area 2 that are located in the region they propose to serve.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2024 from the list of unfunded applications from this competition.
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(a) Recipients of funding under this competition must make positive efforts to employ and advance in employment qualified individuals with disabilities (see section 606 of IDEA).
(b) Applicants for, and recipients of, funding must, with respect to the aspects of their proposed project relating to the absolute priority, involve individuals with disabilities, or parents of individuals with disabilities ages birth through 26, in planning, implementing, and evaluating the project (see section 682(a)(1)(A) of IDEA).
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• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, reference citations, and captions, as well as all text in charts, tables, figures, graphs, and screen shots.
• Use a font that is 12 point or larger.
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the abstract (follow the guidance provided in the application package for completing the abstract), the table of contents, the list of priority requirements, the resumes, the reference list, the letters of support, or the appendices. However, the recommended page limit does apply to all of the application narrative, including all text in charts, tables, figures, graphs, and screen shots.
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(a)
(1) The Secretary considers the significance of the proposed project.
(2) In determining the significance of the proposed project, the Secretary considers one or more of the following factors:
(i) The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses.
(ii) The importance or magnitude of the results or outcomes likely to be attained by the proposed project.
(b)
(1) The Secretary considers the quality of the services to be provided by the proposed project.
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers one or more of the following factors:
(i) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable.
(ii) The extent to which there is a conceptual framework underlying the proposed research or demonstration activities and the quality of that framework.
(iii) The extent to which the services to be provided by the proposed project
(iv) The extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services.
(v) The extent to which the TA services to be provided by the proposed project involve the use of efficient strategies, including the use of technology, as appropriate, and the leveraging of non-project resources.
(c)
(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers one or more of the following factors:
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project.
(ii) The extent to which the methods of evaluation provide for examining the effectiveness of project implementation strategies.
(iii) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
(d)
(1) The Secretary considers the adequacy of resources for the proposed project and quality of the personnel who will carry out the proposed project.
(2) In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In determining the adequacy of resources and quality of project personnel for the proposed project, the Secretary considers one or more of the following factors:
(i) The qualifications, including relevant training and experience, of key project personnel.
(ii) The qualifications, including relevant training and experience, of project consultants or subcontractors.
(iii) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization.
(iv) The relevance and demonstrated commitment of each partner in the proposed project to the implementation and success of the project.
(v) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project.
(e)
(1) The Secretary considers the quality of the management plan for the proposed project.
(2) In determining the quality of the management plan for the proposed project, the Secretary considers one or more of the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks.
(ii) The extent to which the time commitments of the project director and principal investigator and other key project personnel are appropriate and adequate to meet the objectives of the proposed project.
(iii) The adequacy of mechanisms for ensuring high-quality products and services from the proposed project.
(iv) How the applicant will ensure that a diversity of perspectives are brought to bear in the operation of the proposed project, including those of parents, teachers, the business community, a variety of disciplinary and professional fields, recipients or beneficiaries of services, or others, as appropriate.
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In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII,
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(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an APR that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
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• Program Performance Measure #1: The percentage of materials used by Special Education Parent Information Centers Program projects deemed to be of high quality by an independent review panel of experts qualified to review the substantive content of the products or services.
• Program Performance Measure #2: The percentage of Special Education Parent Information Centers products and services deemed to be of high relevance to educational and early intervention policy or practice by an independent review panel of experts qualified to review the substantive content of the products or services.
• Program Performance Measure #3: The percentage of all Special Education Parent Information Centers products and services deemed by an independent review panel of qualified experts to be useful to improve educational or early intervention policy or practice.
• Program Performance Measure #4: An index of the Federal cost per unit of output provided by the Special Education Parent Information Centers.
The following measures are collected through a survey of parent centers, as part of the CPIR data collection referenced in this notice.
• Long-term Program Performance Measure #1: Parents served by Special Education Parent Information Centers investments will be knowledgeable about their IDEA rights and responsibilities.
• Long-term Program Performance Measure #2: Parents served by the Special Education Parent Information Centers will be able to work with schools and service providers effectively in meeting the needs of their children.
The measures apply to projects funded under this competition, and grantees are required to submit data on these measures as directed by OSEP.
Grantees will be required to report information on their project's performance in annual and final performance reports to the Department (34 CFR 75.590).
The Department will also closely monitor the extent to which the products and services provided by the Center meet needs identified by stakeholders and may require the Center to report on such alignment in its annual and final performance reports.
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In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Petition response.
The Environmental Protection Agency (EPA) is responding to a rulemaking petition from the Center for Biological Diversity requesting that discarded polyvinyl chloride be listed as a hazardous waste under the Resource Conservation and Recovery Act. After careful consideration, the Agency is tentatively denying the petition for the reasons discussed in this document. The Agency is also soliciting public comment on this tentative denial.
Comments must be received on or before February 13, 2023.
You may send comments, identified by Docket ID No. EPA-HQ-OLEM-2022-0971, by any of the following methods:
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Daniel Lowrey, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery, (5304T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-566-1015; email address:
The Agency is not proposing any regulatory changes at this time. Entities that may be interested in this tentative denial of the rulemaking petition include any facility that manufactures, uses, or generates as waste any materials containing polyvinyl chloride (PVC) or its components. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2022-0971, at
The EPA is providing notice of and requesting comment on its tentative denial of CBD's 2014 rulemaking petition concerning the regulation of discarded polyvinyl chloride (PVC) and associated chemical additives under the Resource Conservation and Recovery Act (RCRA). With this action, the Agency is publishing its evaluation of the petition and supporting materials and requesting public comment on the tentative denial.
On July 24, 2014, the Center for Biological Diversity (CBD) petitioned the EPA to list discarded PVC as a hazardous waste under RCRA (“Petition”). The Agency is responding to this petition for rulemaking pursuant to 42 U.S.C. 6903, 6921 and 6974, and implementing regulation 40 CFR part 260.21. Authority for the identification and listing of hazardous wastes is granted pursuant to 42 U.S.C. 6903 and 6921, and implementing regulations 40 CFR parts 260 and 261.
As this action proposes no regulatory changes, this action will have neither incremental costs nor benefits.
PVC is one of the most common plastics, used in a variety of applications—primarily in the construction industry, but also in packaging and consumer goods (OECD 2022).
PVC is formed from the polymerization of vinyl chloride monomer and additives. Typical additives include plasticizers that make the PVC more flexible and stabilizers that limit degradation from sources such as oxygen, heat, light, and flame. Currently, discarded PVC may be classified as hazardous waste under RCRA if it leaches specified toxic constituents in excess of the toxicity characteristic leaching procedure (TCLP) regulatory limit for any contaminant (identified by a hazardous waste “D” number) listed in Table 1 of 40 CFR 261.24. PVC may contain RCRA hazardous constituents such as vinyl chloride monomer (toxicity characteristic level of 0.2 milligrams per liter (mg/L)) as well as certain metals like barium, cadmium, and lead. Compounds listed on appendix VIII to 40 CFR part 261, which also includes all compounds that have D- and/or U- listed numbers, are hazardous constituents. “U” number wastes listed in 40 CFR 261.33 are substances that are hazardous wastes when they are discarded commercial chemical products, off-specification species, container residues, and spill residues thereof. Waste containing hazardous constituents is not automatically regulated as hazardous waste.
In the United States, there are no mandatory standards limiting residual vinyl chloride in domestically manufactured or imported PVC. However, some product standards apply to PVC products, such as NSF/ANSI 14 and 61 for plastic pipes. These standards apply to the leaching of vinyl chloride monomer into water carried by pipes, and do not directly limit the amount of vinyl chloride monomer that may be present in the PVC product. Vinyl chloride monomer limits in drinking water are found in 40 CFR 141 Appendix A to Subpart O, with a Traditional MCL of 0.002 mg/L.
A 2000 survey of American vinyl producers found average concentrations of residual vinyl chloride monomer to be between 0.52 and 1.45 mg/kg, and cites industry practice that PVC with residual vinyl chloride of less than 3.2 mg/kg is suitable for pipes that need to meet the leaching standards for drinking water (Borelli et al. 2005). Methods for evaluating residual vinyl chloride monomer in PVC are found in 40 CFR 61 Appendix B (Methods 107, 107A).
All PVC contains stabilizers. Some PVC contains stabilizers containing RCRA hazardous metals such as barium (D005), cadmium (D006), and/or lead (D008) (toxicity characteristic levels of 100 mg/L, 1 mg/L, and 5 mg/L, respectively). Other PVC contains stabilizers based on calcium, zinc, and/or tin, which are not regulated as RCRA hazardous constituents (Hahladakis et al. 2018; European Commission 2022).
PVC may contain plasticizers, with the concentration of plasticizers varying widely based on the desired properties of the final material. Rigid forms of PVC contain little to no plasticizers while more flexible forms require the addition of more plasticizers. Common plasticizers include but are not limited to: di(2-ethylhexyl) phthalate (DEHP, CAS 117-81-7, U028), dibutyl phthalate (DBP, CAS 84-74-2, U069), diethyl phthalate (DEP, CAS 84-66-2, U088), dimethyl phthalate (DMP, CAS 131-11-3, U102), di-n-octylphthalate (DnOP, CAS 117-84-0, U107), and benzyl butyl phthalate (BBP, CAS 85-68-7, on Appendix VIII only) (Carlos, de Jager, and Begley 2018; Hahladakis et al. 2018, 185; Czogała, Pankalla, and Turczyn 2021). Common plasticizers that are not RCRA hazardous constituents include adipates, trimellitates, and other phthalates such as diisononyl phthalate (DINP, CAS 28553-12-0) and diisodecyl phthalate (DIDP, CAS 28761-40-0) (Carlos, de Jager, and Begley 2018; Hahladakis et al. 2018; Czogała, et al 2021).
Typically, plasticizers constitute from zero up to about 50 percent of the product by weight, although higher concentrations have been reported (Carlos, de Jager, and Begley 2018;
It is difficult to determine the proportion of PVC products that contain plasticizers because PVC manufacturers and PVC product manufacturers are not generally required to report this information. Voluntary data from 2000 indicates about two thirds of PVC is of rigid grades that do not contain significant amounts of plasticizers (Borelli et al. 2005). In the United States, concentrations of certain phthalates are prohibited in some children's products (16 CFR 1307), but no single standard covers all PVC.
The EPA has been petitioned to “promulgate regulations governing the safe treatment, storage and disposal of PVC, vinyl chloride and associated dialkyl- and alkylarylesters of 1,2-benzenedicarboxylic acid, commonly known as phthalate plasticizers.”
CBD requests that discarded PVC be listed as a hazardous waste, which would require a narrative listing of discarded PVC from non-specific sources be added to the “F” list under 40 CFR 261.31, the requirements for which are specified in 40 CFR 261.11.
The EPA regulates the management of solid waste, including discarded plastics such as PVC, under RCRA. RCRA sets forth different standards for different types of waste, but in general prohibits open dumping and requires that landfills have structures and procedures to prevent release of waste.
The EPA Strategic Plan of 2022-2026 (U.S. EPA 2022) sets forth priorities to reduce waste and prevent environmental contamination (Objective 6.2) including “EPA will administer grant programs to improve Tribal, state, and local solid waste management programs and infrastructure and education and outreach on waste prevention. EPA also will address land-based contributions to the mismanagement of post-consumer materials and plastic waste.” Further information about the management of discarded plastic, including discarded PVC, can be found at
The EPA Strategic Plan also sets priorities to protect and restore waterbodies and watersheds (Objective 5.2) including “EPA also will engage in both domestic and international partnerships to support trash pollution prevention programs, recycling efforts in rural and suburban communities, and waterfront revitalization.” and “Implement programs to prevent or reduce nonpoint source pollution, including nutrients and plastic pollution.” Further information about the EPA's actions on plastic pollution in bodies of water, including marine plastic pollution as directed by the Save Our Seas 2.0 Act of 2020 (Pub. L. 116-224) signed into law in December 2020, can be found at
The Petition does not provide sufficient evidence to suggest that listing discarded PVC as a hazardous waste would have a meaningful impact, if any, on reducing exposure to phthalates, including phthalates used as plasticizers in some PVC products. The rulemaking the petition is seeking under RCRA is, by definition, limited to hazards that present a substantial present or potential hazard to human health or the environment when solid waste is improperly treated, stored, transported or disposed of, or otherwise managed (40 CFR 261.11), which does not appear to correspond to the studies or data cited in the petition. As a result, the information provided about potential exposures during use of PVC is not relevant.
The petition identifies three primary potential harms, all related to phthalate plasticizers, that are related to disposal: (1) Environmental exposure from marine litter; (2) fugitive leachate from poorly lined landfills; and (3) atmospheric exposure from incineration. However, the petition does not identify any cases or situations where hazardous exposure to phthalate plasticizers results from discarded PVC under current waste management practices.
First, RCRA already prohibits open dumping of any solid waste, which includes marine plastic litter (40 CFR 257.1 through 257.4). Classification of PVC as hazardous waste under RCRA would not introduce new controls to prevent marine litter.
Second, RCRA already requires that landfills control both blowing litter and leachate (40 CFR 258.20 through 258.29). Classification of discarded PVC as hazardous waste,
Third, regarding incineration, RCRA provides that air emissions from thermal processing of municipal-type solid waste are governed by the Clean Air Act (40 CFR 240.205). Standards for air emissions of incineration are not regulated by RCRA. Classification of discarded PVC as hazardous waste could impose additional requirements for incineration facilities (40 CFR 264.340 through 264.351), but it is not clear whether such requirements would reduce phthalate emissions.
Fourth, the Petition does not provide evidence for the release of hazardous constituents from discarded PVC, such as the leaching of plasticizers listed on Appendix VIII of 40 CFR part 261, that would require management as a hazardous waste as opposed to non-hazardous solid waste.
In addition to the reasons provided above, based on the information presented in the Petition, the resources that the EPA would have to allocate to list PVC as a hazardous waste are unwarranted and would preclude the EPA from pursuing more pressing rulemakings, implementation, and reviews with respect to currently identified hazards under RCRA.
Listing hazardous wastes is a resource-intensive process. The EPA must carefully consider the eleven regulatory factors in 40 CFR 261.11(a)(3). While the Petition discusses each of these factors, it often conflates exposure from the use of PVC (and specifically phthalate constituents in PVC) with potential hazards from the treatment storage and disposal of PVC. Moreover, the EPA would need to conduct extensive research to understand the scope and impact of the proposed ruling, including a research survey of all potentially impacted industries and facilities. Indeed, the last rulemaking that led to a new hazardous waste listing in 2002 (Paint) required more than 2 full-time equivalent (FTE) staff for 5 years. In addition, funding to maintain and advance RCRA regulations has been flat or reduced for more than 20 years. By comparison, the number of FTE for the entire hazardous waste listing program in RCRA is currently 1.5. Because of the scope and required analysis, the EPA estimates that the resources required to propose listing discarded PVC as a hazardous waste would require more than 2 FTE over the course of 5 years. Meanwhile, OLEM is currently considering more than 20 petitions, including more than 10
Agencies are generally given significant discretion in setting priorities and determining where the limited resources will be devoted. The Petition does not present evidence that discarded PVC presents a substantial present or potential hazard to human health or the environment when solid waste is improperly treated, stored, transported or disposed of, or otherwise managed. Accordingly, at this time and considering the constraints discussed above, the EPA will not divert limited resources from priority actions for a rulemaking to list discarded PVC as a hazardous waste.
The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by the EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) Science Advisory Board (SAB) Staff Office announces two public meetings of the Science Advisory Board Hexavalent Chromium Review Panel. The purpose of the meetings is to discuss charge questions, listen to agency presentations, listen to public comments and peer review the EPA's draft IRIS Toxicological Review of Hexavalent Chromium.
The public meeting for the Science Advisory Board Hexavalent Chromium Review Panel to receive the briefing from EPA will be held on February 15, 2023, from 12 noon to 5 p.m. The public meeting for the Science Advisory Board Hexavalent Chromium Review Panel to peer review the documents will be held on March 29-31, 2023, in Washington, DC. All times listed are in Eastern Standard Time.
The meeting on February 15, 2023, will be conducted virtually. Please refer to the SAB website at
Any member of the public who wants further information concerning this notice may contact Dr. Suhair Shallal, Designated Federal Officer (DFO), via telephone (202) 564-2057, or email at
Environmental Protection Agency (EPA).
Notice of public comment period.
The Environmental Protection Agency (EPA) is soliciting public comment and recommendations on the National Enforcement and Compliance Initiatives (NECIs) for fiscal years 2024-2027 (formerly called “National Compliance Initiatives”). The EPA focuses enforcement and compliance resources on the most serious and widespread environmental problems by developing and implementing national program initiatives. The initiatives currently underway, modifications to these existing initiatives, as well as potential new initiatives under consideration are described in the
Comments must be received on or before March 13, 2023.
You may send comments, identified by Docket ID No. EPA-HQ-OECA-2022-0981 by any of the following methods:
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Michele McKeever, Chief, National Planning and Measures Branch, Office of Enforcement and Compliance Assurance, Mail Code: M2221A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-3688; fax number: 202-564-0027; email address:
Throughout this document “we,” “us,” and “our” refer to the EPA.
Submit your comments, identified by Docket ID No. EPA-HQ-OECA-2022-0981, at
EPA selects national initiatives every four years to focus resources on serious and widespread environmental problems where federal enforcement can make a difference. The primary objective of these initiatives is to protect human health and the environment by holding polluters accountable and compelling regulated entities to return to compliance. While formal enforcement remains the key tool to address serious environmental problems and significant violations, as well as create general deterrence, EPA also uses a variety of compliance assurance tools to achieve this objective. To reflect this comprehensive approach, EPA has changed the name from National Compliance Initiatives to National Enforcement and Compliance Initiatives (NECIs).
In selecting initiatives for the FY 2024-2027 cycle, EPA will use the following three criteria to evaluate the existing and proposed new initiatives: (1) the need to address serious and widespread environmental issues and significant violations impacting human health and the environment, particularly in overburdened and vulnerable communities; (2) areas where federal enforcement can help ensure national consistency, promote a level playing field, and achieve compliance; and (3) alignment with the Agency's Strategic Plan.
EPA aims to align all existing and proposed NECIs with two overarching Strategic Plan goals: Goal 1: Tackle the Climate Crisis and Goal 2: Take Decisive Action to Advance Environmental Justice. Specifically, EPA has incorporated climate resiliency considerations where appropriate in the current initiatives, and as discussed below, we are proposing a new NECI that would focus specifically on mitigating climate change by reducing non-compliance with applicable requirements, such as the Clean Air Act and American Innovation and Manufacturing Act. Promoting environmental justice, on the other hand, is not specific to any one program or statute; it is a core principle of all of our enforcement and compliance work. Therefore, rather than proposing a separate Environmental Justice NECI, we have fully incorporated environmental justice considerations into every existing and proposed NECI as we seek to reduce environmental harm in vulnerable and overburdened communities.
The EPA's Office of Enforcement and Compliance Assurance is soliciting public comment and recommendations on the NECIs to be undertaken by EPA over the four-year period of fiscal years 2024-2027. Specifically, EPA is collecting comment on which of the current national initiatives should continue into the FY 2024-2027 cycle, as is or modified, or be returned to the standard or “core” enforcement program at the end of FY 2023. Initiatives returned to the core program will continue to be addressed by enforcement and compliance assurance measures as appropriate. In addition, the EPA specifically invites comment on two potential new NECIs and two other areas under consideration for further evaluation as potential NECIs. The public also is invited to propose other areas for consideration as a NECI. This notice is an agency planning document and does not impose any legally binding requirements on any outside parties.
EPA has six initiatives underway from the FY 2020-2023 cycle. These initiatives are:
Additional information on these initiatives is available online at:
For the six current initiatives from the FY 2020-2023 cycle, EPA is soliciting input on whether we should continue, modify, or conclude the initiative and return it to the “core” or standard enforcement program. As noted above, initiatives returned to the core enforcement program will continue to be addressed by the Agency even though they are no longer national initiatives. The EPA is planning to continue the following four existing initiatives into the FY 2024-2027 cycle:
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The EPA proposes to return the following two current initiatives to the standard “core” enforcement program:
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The EPA specifically invites comment on two potential new NECIs and two other areas under consideration for further evaluation as potential NECIs. As noted above, we have developed the proposed NECIs in alignment with the EPA Strategic Plan's emphasis on tackling the climate crisis and promoting environmental justice. We therefore are proposing a new NECI focused on climate change mitigation, while seeking opportunities to enhance climate resiliency in other NECIs, where appropriate. Promoting environmental justice, on the other hand, is a core element of all enforcement and compliance work and we are incorporating those considerations in every NECI—existing ones that we propose to retain as well as proposed new initiatives—as we seek to reduce public health impacts and environmental harm in vulnerable and overburdened communities.
The two potential new NECIs are described as follows:
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The EPA also seeks comment on two additional areas for further consideration for possible development as NECIs. Both topics are significant enforcement priorities for the Agency but resource constraints limit the number of NECIs that the Agency can pursue:
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The EPA will consider all comments to these proposals as it moves forward in the decision-making process. Additionally, the public is invited to propose any other areas for consideration as NECIs. Information in support of this Notice of Public Comment is available online at:
EPA must receive public comments on potential NECIs by March 13, 2023 in order to complete consideration of public comment, issue a selection memo, and begin development of implementation strategies prior to the beginning of the FY 2023-2027 cycle.
Export-Import Bank of the United States.
Notice.
This Notice is to inform the public the Export-Import Bank of the United States (“EXIM”) has received an application for final commitment for a long-term loan or financial guarantee in excess of $100 million. Comments received within the comment period specified below will be presented to the EXIM Board of Directors prior to final action on this Transaction.
Comments must be received on or before February 6, 2023 to be assured of consideration before final consideration of the transaction by the Board of Directors of EXIM.
Comments may be submitted through
Brief non-proprietary description of the anticipated use of the items being exported: To be used for passenger and cargo air transport between Turkiye and Africa, America, Europe, and Asia.
To the extent that EXIM is reasonably aware, the item(s) being exported may be used to produce exports or provide services in competition with the exportation of goods or provision of services by a United States industry.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.
Written PRA comments should be submitted on or before March 13, 2023. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it can further reduce the information collection burden for small business concerns with fewer than 25 employees.
Written comments and recommendations for the proposed information collection should be submitted on or before February 13, 2023.
Comments should be sent to
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) go to the web page
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
The information collection requirements contained in 47 CFR 76.54(c) are used to notify interested parties, including licensees or permittees of television broadcast stations, about audience surveys that are being conducted by an organization to demonstrate that a particular broadcast station is eligible for significantly viewed status under the Commission's rules. The notifications provide interested parties with an opportunity to review survey methodologies and file objections.
Lastly, 47 CFR 76.54(e) and (f), are used to notify television broadcast stations about the retransmission of significantly viewed signals by a satellite carrier into these stations' local market.
The Commission also received approval from OMB for the information collection requirements contained in FCC 16-55. The amendments contained in the Second Report and Order create additional capacity for wireless broadband by adopting a new approach to spectrum management to facilitate more intensive spectrum sharing between commercial and federal users and among multiple tiers of commercial users. The Spectrum Access System (SAS) will use the information to authorize and coordinate spectrum use for Citizen Broadband Radio Service Devices (CBSDs). The Commission will use the information to coordinate among the spectrum tiers and determine Protection Areas for Priority Access Licensees (PALs).
The following is a description of the information collection requirements for is approved under this collection:
Section 96.25(c)(1)(i) requires PALs to inform the SAS if a CBSD is no longer in use.
Section 96.25(c)(2)(i) creates a default protection contour for any CBSD at the outer limit of the PAL Protection Area, but allows a PAL to self-report a contour smaller than that established by the SAS. These rules which contain information collection requirements are designed to provide for flexible use of this spectrum, while managing three tiers of users in the band, and create a low-cost entry point for a wide array of users. The rules will encourage innovation and investment in mobile broadband use in this spectrum while protecting incumbent users. Without this information, the Commission would not be able to carry out its statutory responsibilities.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
Written PRA comments should be submitted on or before March 13, 2023. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
The Commission staff uses the information to advise the Commission about the efficacy of its rules and policies adopted to implement the Telecommunications Act of 1996. The data are necessary to evaluate the status of local telecommunications competition and broadband availability. The Commission uses the data to prepare reports that help inform consumers and policy makers at the federal and state level on the availability and adoption of broadband services, as well as on developments related to competition in the voice telephone services market. The Commission also uses the data to support its analyses in a variety of rulemaking proceedings under the Communications Act, including those related to fulfilling its universal service mandate.
The Commission releases to the public the broadband availability and mobile voice availability data that it began collecting in 2014 as a result of the Order. This information is used by consumers, federal and state government agencies, analysts, and others to determine broadband service availability by provider, technology, and speed.
Office of Child Care, Administration for Children and Families, Department of Health and Human Services.
Request for public comments.
The Administration for Children and Families (ACF) is requesting a three-year extension of the form ACF-700 Tribal Annual Report (OMB #0970-0430, Expiration date: January 31, 2023. No changes are proposed.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Office of Head Start; Administration for Children and Families; Department of Health and Human Services.
Request for public comments.
The Office of Head Start, Administration for Children and Families (ACF), U.S. Department of Health and Human Services, is requesting expedited review from OMB and inviting public comments on revisions to the recordkeeping requirements under
Copies of the proposed collection of information can be obtained and comments may be submitted by emailing
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “Photobiomodulation (PBM) Devices—Premarket Notification [510(k)] Submissions.” This draft guidance provides recommendations on premarket submissions for photobiomodulation devices, which are used in applications such as aesthetics, dermatology, and other general indications. This draft guidance is not final nor is it for implementation at this time.
Submit either electronic or written comments on the draft guidance by March 13, 2023 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the internet. See the
Jessica Mavadia-Shukla, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4643, Silver Spring, MD 20993-0002, 301-348-1596.
PBM devices, also known as low level light therapy devices, are intended for use in applications such as aesthetics, dermatology, and other general indications. A PBM device is designed to deliver a non-heating dose of light energy into the body to provide clinical benefit to the patient. This draft guidance document provides FDA's recommendations on non-clinical testing, clinical studies, and labeling to support premarket submissions for PBM devices. The recommendations reflect current review practices and are intended to promote consistency and facilitate efficient review of these submissions.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Photobiomodulation (PBM) Devices—Premarket Notification [510(k)] Submissions.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
While this guidance contains no collection of information, it does refer to previously approved FDA collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521) is not required for this guidance. The previously approved collections of information are subject to review by OMB under the PRA. The collections of information in the following FDA regulations and guidance have been approved by OMB as listed in the following table:
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.
Notice is hereby given of a change in the meeting of the National Institute of Dental and Craniofacial Research Special Emphasis Panel, February 2, 2023, 10:00 a.m. to February 2, 2023, 04:00 p.m., National Institute of Dental and Craniofacial Research, 6701 Democracy Boulevard, Bethesda, MD 20892, which was published in the
This notice is being amended to change the contact SRO from Nisan Bhattacharyya to Yun Mei. Yun Mei's contact information is as follows:
Yun Mei, MD, Scientific Review Officer, Scientific Review Branch, National Institute of Dental and Craniofacial Research, National Institutes of Health, 6701 Democracy Boulevard, Suite #670, Bethesda, MD 20892, (301) 827-4639,
No other details have changed. The meeting is closed to the public.
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,
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
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
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.
Coast Guard, DHS.
Notice of availability of draft report; extension of comment period.
On January 3, 2023, the Coast Guard published a notice announcing the availability of a draft report of an Approaches to Maine, New Hampshire, and Massachusetts Port Access Route Study (MNMPARS). The notice we sent to the Office of the Federal Register provided for a 30-day comment period. But when the notice was published it listed a past date, February 2, 2022, as the end of the comment period. This document extends the intended comment period to a full 30 days from the date of publication of this notice. The Coast Guard seeks comments on the content, proposed routing measures, and development of the report. The recommendations of MNMPARS study may lead to future rulemakings or appropriate international agreements.
All comments and related material on the notice published at 88 FR 83 on January 3, 2022, must be received on or before February 13, 2023. Commenters should be aware that the electronic Federal Docket Management System will not accept comments after midnight, Eastern Daylight Time, on the last day of the comment period.
You may submit comments identified by docket number USCG-2022-0047 using the Federal eRulemaking Portal (
If you have questions about this notice, call or email LTJG Thomas Davis, First Coast Guard District (dpw), U.S. Coast Guard: telephone (617) 223-8632, email
On January 3, 2023, the Coast Guard published a notice announcing the availability of a draft report of an Approaches to Maine, New Hampshire, and Massachusetts Port Access Route Study (MNMPARS) (88 FR 83). While the public inspection version of the notice (
If we were to simply correct the end of the comment period date in the document published January 3, 2023, that would not provide a full comment period. To provide those interested in commenting on the report a full 30-day comment period, the Coast Guard is extending the comment period to February 13, 2023. If the Office of the Federal Register issues a correction to the date in the January 3, 2022 notice, that will not impact this extension of the comment period. You will have from January 12, 2023 (if not earlier) to February 13, 2023.
The draft report is available at this specific address in the docket:
Federal Emergency Management Agency, Department of Homeland Security.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Geological Survey, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the U.S. Geological Survey (USGS) is proposing to renew an information collection.
Interested persons are invited to submit comments on or before February 13, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request additional information about this Information Collection Request (ICR), contact the Water Resources Research Act (WRRA) Program Manager by email at
In accordance with the PRA and 5 CFR 1320.8(d)(1), we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
A
As part of our continuing effort to reduce paperwork and respondent burdens, we are again soliciting comments from the public and other Federal agencies on the proposed ICR that is described below. We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this 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) How the agency might 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 that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personally identifiable information (PII) in your comment, you should be aware that your entire comment—including your PII—may be made publicly available at any time. While you can ask us in your comment to withhold your PII from public review, we cannot guarantee that we will be able to do so.
The USGS WRRA program issues an annual announcement to solicit applications for noncompetitive State Water Resources Research Program annual base grants authorized by section 104(c) and for the national competitive grant program authorized by section 104(g) of the WRRA of 1984 (Pub. L. 98-242), as amended [42 U.S.C. 10303(c)].
Annual base grants (104(c)) may support research- and information-transfer projects as well as administrative projects that advance the institutes' overall administration and objectives; these research projects are generally selected in a competitive statewide solicitation, peer-review, and selection process designed and conducted by each institute. National competitive grants (104(g)) focus on water problems and issues of a regional or interstate nature beyond those of concern only to a single state and which relate to specific program priorities identified jointly by the Secretary of the Interior (delegated to the USGS) and the institutes.
An agency may not conduct or sponsor, nor is a person required to respond to, a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the PRA of 1995 (44 U.S.C. 3501
Bureau of Indian Affairs, Interior.
Notice.
This notice publishes the current list of 574 Tribal entities recognized by and eligible for funding and services from the Bureau of Indian Affairs (BIA) by virtue of their status as Indian Tribes.
The list is updated from the notice published on January 28, 2022 (87 FR 4636).
Acting Deputy Director Johnna Blackhair, Bureau of Indian Affairs, Office of Indian Services, Mail Stop 3645-MIB, 1849 C Street NW, Washington, DC 20240. Telephone number: (202) 513-7641.
This notice is published pursuant to section 104 of the Act of November 2, 1994 (Pub. L. 103-454; 108 Stat. 4791, 4792), in accordance with section 83.6(a) of part 83 of title 25 of the Code of Federal Regulations, and in exercise of authority delegated to the Assistant Secretary—Indian Affairs under 25 U.S.C. 2 and 9 and 209 DM 8. Published below is an updated list of federally recognized Indian Tribes within the contiguous 48 states and Alaska. Amendments to the list include formatting edits and name changes.
To aid in identifying Tribal name changes, the Tribe's previously listed, former name, or also known as (a.k.a.) is included in parentheses after the correct current Tribal name. The BIA will continue to list the Tribe's former or previously listed name for several years after the publication of the notice of the correct current Tribal name.
The listed Indian entities are recognized to have the immunities and privileges available to federally recognized Indian Tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations, and obligations of such Indian Tribes. The BIA has continued the practice of listing the Alaska Native entities separately for the purpose of facilitating identification of them.
There is a total of 347 federally recognized Indian Tribes within the contiguous 48 states and 227 federally recognized Native entities within the state of Alaska that comprise the 574 federally recognized Indian Tribes of the United States.
Native Village of Venetie Tribal Government (Arctic Village and Village of Venetie)—is not included in the official count of 574 federally recognized Indian Tribes but is recognized as an entity authorized to act on behalf of Artic Village and Village of Venetie by the BIA.
Pribilof Islands Aleut Communities of St. Paul & St. George Islands (Saint George Island and Saint Paul Island)—is not included in the official count of 574 federally recognized Indian Tribes but is recognized as an entity authorized to act on behalf of Saint George Island and Saint Paul Island.
Bureau of Land Management, Interior.
Notice of public meetings.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management's (BLM's) San Juan Islands National Monument Advisory Committee (MAC) will meet as follows.
The MAC will hold a public meeting on Thursday, Feb. 2, 2023. This meeting will run from 9 a.m. to 3 p.m. The meeting will be held via Zoom. A public comment period will be available in the afternoon from 1:30 p.m. until 2:30 p.m.
The MAC will also hold a public meeting on Thursday, May 4, 2023. This meeting will run from 9 a.m. to 3 p.m. The meeting will be held via Zoom. A public comment period will be available in the afternoon from 1:30 p.m. until 2:30 p.m.
The Zoom meeting information and instructions will be posted on the Monument Advisory Committee's website at
The public may send written comments to the MAC at BLM Spokane District, Attn. MAC, 1103 N Fancher, Spokane Valley, WA 99212, or via email to
Jeff Clark, Spokane District Public Affairs Officer, 1103 N Fancher, Spokane Valley, WA 99212, (509) 536-1297, or
The San Juan Islands MAC is comprised of 12 members representing a wide array of interests, including recreation, Tribal interests, education, environmental organizations, and landowners. All advisory council meetings are open to the public. The February meeting will begin at 9 a.m. with a welcome of the new MAC members. After introductions, the members will spend time reviewing the anticipated Record of Decision for the San Juan Islands National Monument. Discussion and review will continue until a working lunch at noon. The next topic will be to consider opportunities for the MAC to support implementation of the anticipated Resource Management Plan (RMP). At 1:30 p.m., members of the public will have the opportunity to make comments to the MAC during a 1-hour public comment period. Persons wishing to make comments during the
The May meeting will also begin at 9 a.m. with welcomes and introductions. After introductions, the members will spend time reviewing possible implementation projects the MAC can assist with and clarifying items from the BLM. This discussion and review will continue through a working lunch at noon. The next topic will be to consider opportunities for the MAC to support implementation of the RMP. At 1:30 p.m., members of the public will have the opportunity to make comments to the MAC during a 1-hour public comment period. Persons wishing to make comments during the public comment period will be called upon by the MAC Chair. Depending on the number of persons wishing to comment, the length of comments may be limited. The MAC will adjourn no later than 3 p.m.
Please make requests in advance for sign language interpreter services, assistive listening devices, or other reasonable accommodations. We ask that you contact the person listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Bureau of Land Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Bureau of Land Management (BLM) is requesting approval for a new information collection.
Interested persons are invited to submit comments on or before February 13, 2023.
Written comments and recommendations for this information collection request (ICR) should be sent within 30 days of publication of this notice to
To request additional information about this ICR, contact Marietta Esquibel by email at
In accordance with the PRA (44 U.S.C. 3501
A
As part of our continuing effort to reduce paperwork and respondent burdens, we are again inviting the public and other Federal agencies to comment on the proposed ICR described below. The BLM is especially interested in public comment addressing the following:
(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 our estimate of the burden for this 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) How might the agency minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Comments submitted in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and, notwithstanding any other provision of law, a person is not required to respond to a collection of information unless it displays a currently valid OMB Control Number.
The authority for this action is the PRA of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the University of California, Riverside intends to repatriate certain cultural items that meet the definition of objects of cultural patrimony and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice. The cultural items were removed from Mono County, CA.
Repatriation of the cultural items in this notice may occur on or after February 13, 2023.
Megan Murphy, University of California, Riverside, 900 University Avenue, Riverside, CA 92517-5900, telephone (951) 827-6349, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the University of California, Riverside. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by the University of California, Riverside.
Thirteen cultural items were removed from site CA-Mno-2122 in Mono, CA, during an archeological excavation led by Brooke Arkush from the University of California, Riverside. The primary objective of the investigation was to track material cultural changes and subsistence practices of the Mono Lake Paiute from the Late Archaic Period (circa A.D. 500) to the Euro-American Settlement of the lake basin (A.D. 1850-1920). The objects removed from the site represent approximately 1,500 years' worth of indigenous use and occupation of the landscape. Arkush particularly focused on corral traps used by the Mono Lake Paiute for hunting pronghorn.
The 13 objects of cultural patrimony are one lot of animal bones, one lot of ceramic sherds and vessels, one lot of glass shards and vessels, one lot of lithic flakes and arrowheads, one lot of metal fragments, one lot of shell artifacts and unmodified shell, one lot of wood artifacts, one lot of seed pods, one lot of mineralogical objects, one lot of glass beads, one lot of stones for milling, one lot of buttons (shell, metal, and wood), and one lot of fire-altered rock.
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: archeological, geographical, historical, kinship, oral traditional, and expert opinion.
Through consultation with tribal representatives, the University of California, Riverside finds that this site is culturally affiliated with the Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation, California, and the Bridgeport Paiute Indian Colony. The Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation, California considers the Owens Valley and Northern Paiute to be one related people and indigenous to the areas in which they now reside.
The Mono Lake Kootzaduka'a Tribe, a non-federally recognized Indian group that also was consulted, consider the Mono Lake Basin to be their aboriginal territory, too. This group's representatives stated that Mono Lake families are related to families who are now members of the Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation, California, and the Bridgeport Paiute Indian Colony.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the University of California, Riverside has determined that:
• The 13 cultural items described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural items and the Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Reservation, California, and the Bridgeport Indian Colony (
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, the University of California, Riverside must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The University of California, Riverside is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Beloit College, Logan Museum of Anthropology (LMA) intends to repatriate a cultural item that meets the definition of an object of cultural patrimony and that has a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice. The cultural item was removed from Oklahoma.
Repatriation of the cultural items in this notice may occur on or after February 13, 2023.
Nicolette B. Meister, Beloit College, Logan Museum of Anthropology, 700 College Street, Beloit, WI 53511, telephone (608) 363-2305, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the LMA. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by the LMA.
In 1901, one item of cultural patrimony was removed from Oklahoma by Dr. George A. Dorsey. The object of cultural patrimony is a shield cover (31207.2) that originally belonged to Tall Chief. Osage shield covers of this nature are objects of cultural patrimony consecrated during ceremonies conducted by Osage clan priests. This shield was bestowed on a warrior who had earned all thirteen ceremonial war honors as part of the “Rite of the Vigil” ritual. The shield cover was received by the LMA in 1956, from C.H. Boyd of Minocqua, WI.
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: linguistic, oral traditional, geographical, kinship, historical, and anthropological.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the LMA has determined that:
• The one cultural item described above has ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural item and The Osage Nation (
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, the LMA must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The LMA is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Matson Museum of Anthropology, Penn State University has completed an inventory of human remains and has determined that there is no cultural affiliation between the human remains and any Indian Tribe. The human remains were removed from Smyth and Washington Counties, VA.
Disposition of the human remains in this notice may occur on or after February 13, 2023.
Dr. James Doyle, Director, Matson Museum of Anthropology, Penn State University, 216 Carpenter Building, University Park, PA 16802, telephone (814) 865-2033, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Matson Museum of Anthropology, Penn State University. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the Matson Museum of Anthropology, Penn State University.
In 1978, Mrs. Bertha H. Lucas donated human remains that had been removed from the State of Virginia to Pennsylvania State University. Since 1902, her husband, Mr. Howard K. Lucas, had been collecting prehistoric items, and during the 1920s and 1930s, he purchased some items from other collectors. Although the Matson Museum's accession file does not specify how and when particular items
The human remains in this notice were removed from known geographic locations. These locations are the aboriginal lands of one or more Indian Tribes. The following information was used to identify the aboriginal land. Based on the 1884 Cherokee Land Cessions map compiled by C.C. Royce, there were two colonial era treaties between the Cherokee and the British that include Smyth and Washington Counties—the Treaty of October 14, 1770 at Lochabar, South Carolina, and the Treaty of March 17, 1775 with Richard Henderson.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes, the Matson Museum of Anthropology, Penn State University has determined that:
• The human remains described in this notice represent the physical remains of, at minimum, 25 individuals of Native American ancestry.
• No relationship of shared group identity can be reasonably traced between the human remains and any Indian Tribe.
• The human remains described in this notice were removed from the aboriginal land of the Cherokee Nation; Eastern Band of Cherokee Indians; and the United Keetoowah Band of Cherokee Indians in Oklahoma.
Written requests for disposition of the human remains in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization, or who shows that the requestor is an aboriginal land Indian Tribe.
Disposition of the human remains described in this notice to a requestor may occur on or after February 13, 2023. If competing requests for disposition are received, the Matson Museum of Anthropology, Penn State University must determine the most appropriate requestor prior to disposition. Requests for joint disposition of the human remains are considered a single request and not competing requests. The Matson Museum of Anthropology, Penn State University is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
National Park Service, Interior.
Notice.
The Mississippi Department of Archives and History, is rescinding a Notice of Inventory Completion published in the
Jessica Walzer, NAGPRA Coordinator, Mississippi Department of Archives and History, Museum Division, 222 North Street, P.O. Box 571, Jackson, MS 39205, telephone (601) 359-6851, email
Notice was previously given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Mississippi Department of Archives and History, Jackson, MS. The human remains and associated funerary objects were removed from the Alston-Wilson site (MLe14) in Lee County, MS.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the institution that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
The Mississippi Department of Archives and History is rescinding a Notice of Inventory Completion published in the
All paragraphs in the
The Mississippi Department of Archives and History is responsible for notifying the Alabama-Coushatta Tribe of Texas (
National Park Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the National Park Service are proposing to renew an information collection.
Interested persons are invited to submit comments on or before March 13, 2023.
Send your comments on this information collection request (ICR) by mail to Phadrea Ponds, NPS Information Collection Clearance Officer (ADIR-ICCO), 12201 Sunrise Valley Drive, (MS-242) Reston, VA 20191 (mail); or by email at
To request additional information about this ICR, contact Marisa Richardson, Permit Specialist by email at
In accordance with the Paperwork Reduction Act of 1995, (PRA, 44 U.S.C. 3501
We are especially interested in public comment addressing the following:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility.
(2) The accuracy of our estimate of the burden for this 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.
(4) How might the agency 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 that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
• Identity of the person(s) or organization(s) requesting authorization to conduct a demonstration or special event, and to determine whether the applicant(s) meets statutory requirements to conduct the activity.
• Nature of the proposed activity and whether there is statutory authority to grant permission to engage in it.
• Whether the proposed activity is in derogation from park values or purposes.
• Relationship between the proposed activity and the primary purpose(s) for which the park area was established and relevant park planning documents.
• Whether there is a legitimate NPS need or interest in the proposed activity.
• Whether the proposed activity would require a commitment of public resources or facilities, whether such commitments are legitimate and appropriate, and whether they are available.
• Long-term or short-term adverse effects caused by the proposed activity on park resources, facilities, or programs.
• Need for attaching special conditions or mitigating measures to the permit, if issued.
• Total cost to the park of monitoring proposed activity.
• Whether a waiver of numerical limitations on the White House sidewalk and/or Lafayette Park should be granted.
• Law enforcement resources needed to assure public safety and site security, especially at the White House, during the activity.
Depending on the size and complexity of the proposed activity, we may require applicants to submit supporting documents such as:
•
•
•
•
We will use an electronic system to receive applications while continuing to accept hard-copy applications.
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 authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the University of California, San Diego has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from Hale and Tuscaloosa Counties, AL.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after February 13, 2023.
Eva Trujillo, University of California, San Diego, 9500 Gilman Drive, La Jolla, CA 92093, telephone (858) 414-4609, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the University of California, San Diego. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the University of California, San Diego.
Human remains representing, at minimum, 478 individuals were removed from various Moundville sites in Hale and Tuscaloosa Counties, AL. From the 1930's to 1987, several large-scale archeological excavations undertaken at the Moundville sites on behalf of the University of Alabama resulted in the removal of Native American human remains. In January of 1987, Dr. Margaret Schoeninger and two colleagues requested samples of fragmentary human remains from the University of Alabama Museum Collections for the purpose of diet and ecology reconstruction research pertaining to Moundville I, II, and III phases. In response, samples from the various Moundville sites were transferred to Dr. Schoeninger and her colleagues. Sometime in the 2000s, the Moundville sample collection and limited supporting documentation were transferred to the University of California, San Diego. In June of 2020, the University of California, San Diego became aware of this collection. The one associated funerary object is one lot of faunal remains.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: archeological, geographical, oral traditional, and historical.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the University of California, San Diego has determined that:
• The human remains described in this notice represent the physical remains of 478 individuals of Native American ancestry.
• The one lot of objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and present-day Muskogean speaking Tribes, namely the Alabama-Coushatta Tribe of Texas (
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, the University of California, San Diego must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The University of California, San Diego is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Thomas Burke Memorial Washington State Museum (Burke Museum) has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from Thomas Bay in Petersburg Borough, AK.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after February 13, 2023.
Peter Lape, Burke Museum, University of Washington, Box 353010, Seattle, WA 98195, telephone (206) 685-3849x2, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Burke Museum. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the Burke Museum.
Human remains representing, at minimum, one individual were removed from a cave in Thomas Bay, AK, by Floyd Schmoe, who donated them to the Burke Museum (Burke Accession #2439). The human remains belong to an infant whose head is covered in red ochre. No known individual was identified. The six funerary objects are one wood box with metal handles, one piece of basketry matting with attached leather handles, one lot of cordage, one lot of fur, one animal hide, and one wool tunic with Chinese coins attached.
The funerary objects and burial characteristics indicate a relatively recent, historic era burial. The style of the wool tunic is consistent with Tlingit traditional garments. It was often considered a sign of wealth or status to use trade materials, in particular Chinese coins, to embellish Tlingit clothing. During consultation, genetic analysis was requested to confirm that the human remains are of Native American ancestry. The results of the analysis showed that the individual's mitochondrial DNA belongs to sub-haplogroup A2, which indicates Native American ancestry through the maternal line. Haplogroup A is the most common form of mitochondrial DNA in Native Americans in southeast Alaska (Kemp & Schurr, 2010).
Thomas Bay is located north of the town of Petersburg on the Alaskan mainland, and it lies within the aboriginal territory of the southern coast Tlingit Stikine (De Laguna 1990:204). According to local oral history, Thomas Bay was the location of two village sites that were destroyed and abandoned due to natural disaster and disease. Information provided during consultation indicates that the surviving residents of these villages relocated to Petersburg and are represented today by the Petersburg Indian Association.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological, archeological, biological, geographical, historical, oral traditional, and other relevant information.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the Burke Museum has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• The six objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and the Petersburg Indian Association.
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Saint Louis Science Center (SLSC) has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from St. Louis County, MO.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after February 13, 2023.
Kristina Hampton, Manager of Collections and Special Projects, Saint Louis Science Center, 5050 Oakland Avenue, St. Louis, MO 63110, telephone (314) 286-4672, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the SLSC. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the SLSC.
In 1870, human remains representing, at minimum, one individual were removed from site 23SL3, Big Mound, in St. Louis County, MO, by archeologist Henry M. Whelpley with support from the Academy of Science of St. Louis. Upon his death in 1944, Whelpley donated his archeological collection, amassed during decades of excavations, to the Academy of Science of St. Louis. In 1959, the Academy of Science of St. Louis created the Museum of Science and Natural History in St. Louis, MO. In 1972, the Museum of Science and Natural History separated from the Academy of Science of St. Louis and control of this collection was transferred to the Museum of Science and Natural History. In 1985, when the Museum of Science and Natural History joined with St. Louis City's Planetarium, the newly formed institution was named the Saint Louis Science Center. This collection remains with the SLSC and is used to support the SLSC's mission, exhibits, and programs. No known individual was identified. The one associated funerary object is one lot of perforated shell discs (approximately 86 discs strung on twine).
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: oral traditional, linguistic, archeological, and historical.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the SLSC has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• The one object described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and The Osage Nation (
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, the SLSC must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The SLSC is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the
Repatriation of the cultural items in this notice may occur on or after February 13, 2023.
Megan Murphy, University of California, Riverside, 900 University Avenue, Riverside, CA 92517-5900, telephone (951) 827-6349, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the University of California, Riverside. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by the University of California, Riverside.
In 1933, while returning from a day at Laguna Beach, Howard Wilson and Ed Marriner, amateur artifact collectors, discovered the cranium of one Native American individual near Coast Highway in Orange County, where construction crews had reportedly uncovered additional human remains. The cranium, which is referred to colloquially as the “Laguna Woman Skull,” was subsequently studied at various institutions to determine the individual's archeological age. In addition to the cranium, a layer of Mytilus californianus shells was discovered in association with additional human bone fragments. One of these shells contained potential bone fragments in its hollows. In 1969, it was sent to the University of California, Los Angeles (UCLA) radiocarbon dating laboratory for testing. In 2016, R.E. Taylor, the founder of the decommissioned UCR Radiocarbon Dating Laboratory, donated the UCR and UCLA laboratories' archives and residual samples to UCR, including this shell. A note found by UCR NAGPRA Staff on the original sample bag that accompanied the shell reads, “UCLA-1233B, Mytilus californianus Conrad found in long bone of Laguna Man.” The shell and bone fragments yielded a radiocarbon date of >14,800 BPE but this date has been heavily contested in the scientific literature. The one unassociated funerary object is a Mytilus californianus Conrad shell.
In 1991, ahead of the construction of the Newport Coast Planned Community, site CA-ORA-340 was excavated along with 37 other sites by the “Newport Coast Archaeological Project,” under the direction of archeologist Hank Koerper. This site was located on a marine terrace overlooking Crystal Cove, in the Wishbone Hill tract of the planned community. During the excavation of CA-ORA-340, a burial containing the human remains of one adult and one infant was uncovered. Among the associated funerary objects were concentrations of olivella, haliotis, and mytilus shell beads. One of these beads, an orange Olivella shell bead with white spots, was sent to the UCR radiocarbon dating laboratory. In 2016, R.E. Taylor, the founder of the laboratory, donated the collections from the decommissioned laboratory to the UCR library, including this shell bead. Only in 2021, was the provenience of the bead identified, when UCR NAGPRA Staff were reviewing archival records associated with the collection. The one unassociated funerary object is a shell bead.
UCR NAGPRA Program Staff consulted with a number of Tribes with dealings in Orange County including the Juaneño Band of Mission Indians, Acjachemen Nation-Belardes, a non-federally recognized Tribe, who recognize this area as ancestral territory. The Pechanga Band of Indians (
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: archeological, geographical, historical, oral traditional, and expert opinion.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the University of California, Riverside has determined that:
• The two cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural items and the Pechanga Band of Indians (
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, the University of California, Riverside must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The University of California, Riverside is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), Bryn Mawr College intends to repatriate certain cultural items that meet the definition of unassociated funerary objects and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice. The cultural items were removed from Jackson County, AL; Montgomery County, AL; Adams County, MS; Greene County, TN; Knox County, TN; and Roane County, TN.
Repatriation of the cultural items in this notice may occur on or after February 13, 2023.
Marianne Weldon, Bryn Mawr College, 101 N Merion Avenue, Bryn Mawr, PA 19010, telephone (610) 526-5022, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of Bryn Mawr College. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by Bryn Mawr College.
William Sansom Vaux bequeathed a collection to the Academy of Natural Sciences (ANS) upon his death in 1882. ANS accessioned them on June 27, 1912. In 1961, ANS loaned approximately 3,000 items, including the 29 unassociated funerary objects described below, to Bryn Mawr College. In 1997, the ANS board voted to transfer control to Bryn Mawr College and executed the paperwork in 1998.
One cultural item was removed from a shell mound in Jackson County, AL. The unassociated funerary object is one discoidal or chunkey stone (70.30.2).
One cultural item was removed from Meigs, Montgomery County, AL. The unassociated funerary object is one spearhead (70.30.1).
Fourteen cultural items were removed from Natchez, Adams County, MI. The 14 unassociated funerary objects are one bannerstone (70.31.46), five bowls (73.3.3, 73.3.6, 73.3.7, 73.3.8, 73.3.9), four celts (70.31.25, 70.31.30, 70.31.31, 70.31.32), and four vessels (73.3.1, 73.3.2, 73.3.4, 73.3.5).
Five cultural items were removed from Lick Creek Mound, Greene County, TN. The five unassociated funerary objects are one lot of beads (70.24.132, 70.24.133), two gorgets (70.24.130, 70.24.131), and two pipes (70.24.123, 70.24.124).
One cultural item was removed from a mound site in Greene County, TN. The unassociated funerary object is one necklace (70.24.140).
Three cultural items were removed from Knoxville Mound, Knox County, TN. The unassociated funerary objects are one lot of beads (70.24.134, 70.24.135, 70.24.136, 70.24.137, 70.24.138, 70.24.139) and two pins (70.24.142, 0.24.143).
One cultural item was removed from a mound site in Knoxville, Knox County, TN. The unassociated funerary object is one gorget (70.24.129).
Two cultural items were removed from Knoxville, Knox County, TN. The unassociated funerary objects are one pin (70.24.144) and one gorget (70.24.145).
One cultural item was removed from the Clark River, Roane County, TN. The unassociated funerary object is one pin (70.24.141).
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: geographical and expert opinion.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, Bryn Mawr College has determined that:
• The 29 cultural items described above are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and are believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural items and The Muscogee (Creek) Nation.
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, Bryn Mawr College must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. Bryn Mawr is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the University of Nebraska State Museum intends to repatriate certain cultural items that meet the definition of sacred objects and objects of cultural patrimony and that have a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this
Repatriation of the cultural items in this notice may occur on or after February 13, 2023.
Taylor Ronquillo, University of Nebraska State Museum, 900 N 16th Street, Lincoln, NE 68508, telephone (402) 472-6592, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the University of Nebraska State Museum. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by the University of Nebraska State Museum.
The 14 cultural items were removed from an unknown location. The only information provided to the University of Nebraska State Museum (UNSM) concerning their provenience was that they share a geographical location of the Northwest Coast.
On May 24, 2021, the UNSM obtained ownership of 1,355 objects from the Joslyn Art Museum (JAM). JAM had obtained ownership of this collection from the Omaha Public Library on December 10, 2020. Among these 1,355 objects were 13 cultural items—two sacred objects and 11 objects of cultural patrimony—from the Northwest Coast Region. The two sacred objects are one seal drag and one dew claw rattle. The 11 objects of cultural patrimony are three baskets, one spoon, three hooks, one slate adz, two harpoon heads, and one harpoon.
In 1892, Harvey Shotwell donated a spirit canoe to UNSM. There only information accompanying this donation was that the item came from the Northwest Coast Region. This spirit canoe is a sacred object.
On September 16, 2022, during consultation between the Stillaguamish Tribe of Indians of Washington and the UNSM, tribal representatives identified the spirit canoe, the seal drag, and the dew claw rattle as sacred objects and the three baskets, the spoon, the three hooks, the slate adz, the two harpoon heads, and the harpoon as objects of cultural patrimony, and they also requested the repatriation of these 14 cultural items. According to information provided by the Tribe, these items are typical of the region, similar items have been used in ceremonial ways by the Tribe, and local Tribal artists still create similar items today.
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: geographical and oral traditional.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the University of Nebraska State Museum has determined that:
• Three of the cultural items described above are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.
• Eleven of the cultural items described above have ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural items and the Stillaguamish Tribe of Indians of Washington (
Additional, written requests for repatriation of the cultural items in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, the University of Nebraska State Museum must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The University of Nebraska State Museum is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the South Carolina Institute of Archaeology and Anthropology (SCIAA) has completed an inventory of human remains and associated funerary objects and has determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from Lancaster County, SC.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after February 13, 2023.
Adam King, South Carolina Institute of Archaeology and Anthropology (SCIAA), College of Arts and Sciences, University of South Carolina, 1321 Pendleton Street, Columbia, SC 29208, telephone (803) 409-9777, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the SCIAA. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found
In 1965, human remains representing, at minimum, one individual were removed from site 38LA00-JH, in Lancaster County, SC, by Mr. John R. Hart of York, SC, from a “Historic Catawba Burial, near Van Wyck, South Carolina.” In 1981, the human remains were donated to SCIAA following Mr. Hart's death by his son, Mr. John R. Hart III. No known individual was identified. The 79 associated funerary objects are 11 metal arm band fragments; 27 round metal trade brooches; three heart shaped metal trade brooches; 10 metal disk button fragments; five metal ball buttons; two faceted, clear glass button/jewelry insets; 18 metal jewelry fragments [three wire hoops, two flat triangles, eight cut triangles with bead dangles, three dangles, and two eagles], one lot of glass beads, one lot of miscellaneous cut nail fragments, and one lot of miscellaneous fabric fragments.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: archeological, geographical, and historical.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, SCIAA has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• The 79 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and the Catawba Indian Nation (
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, the SCIAA must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The SCIAA is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the Hastings Museum intends to repatriate a certain cultural item that meets the definition of an unassociated funerary object and that has a cultural affiliation with the Indian Tribes or Native Hawaiian organizations in this notice. The cultural item was removed from Trigg County, KY.
Repatriation of the cultural item in this notice may occur on or after February 13, 2023.
Dan Brosz, Hastings Museum, 1330 N Burlington Avenue, Hastings, NE 68901, telephone (402) 462-2399, email
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the Hastings Museum. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the summary or related records held by the Hastings Museum.
On an unknown date, an unassociated funerary object was removed from an unidentified mound in Trigg County, KY, by R.E. Dodge. This unassociated object came to the Hastings Museum between 1926 and 1931. The one unassociated funerary object is a cylindrical bead made from tightly wound copper.
The cultural items in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: geographical.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the Hastings Museum has determined that:
• The one cultural item described above is reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony and is believed, by a preponderance of the evidence, to have been removed from a specific burial site of a Native American individual.
• There is a relationship of shared group identity that can be reasonably traced between the cultural item and The Chickasaw Nation (as the requestor on behalf of and in coordination with the Cherokee Nation; Eastern Band of
Additional, written requests for repatriation of the cultural item in this notice must be sent to the Responsible Official identified in
Repatriation of the cultural items in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, the Hastings Museum must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the cultural items are considered a single request and not competing requests. The Hastings Museum is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the New Mexico State University Museum; U.S. Department of the Interior, Bureau of Land Management, New Mexico State Office; and the U.S. Department of Agriculture, Forest Service, Gila National Forest and Apache Sitgreaves National Forest have completed an inventory of human remains and associated funerary objects and have determined that there is a cultural affiliation between the human remains and associated funerary objects and Indian Tribes or Native Hawaiian organizations in this notice. The human remains and associated funerary objects were removed from Apache County AZ, Doña Ana County, NM, Grant County, NM, Lincoln County, NM, Luna County, NM, Otero County, NM, Sierra County, NM and, in certain instances, from locations unknown.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after February 13, 2023.
Dr. Fumi Arakawa, New Mexico State University Museum Director's Office, 1525 Stewart, Room 331, P.O. Box 30001, MSC:3BV, Las Cruces, NM 88003-8001, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains under the control of the New Mexico State University Museum (University Museum); U.S. Department of the Interior, Bureau of Land Management, New Mexico State Office (BLM); and the U.S. Department of Agriculture, Forest Service, Gila National Forest, Silver City, NM (Gila NF), and Apache Sitgreaves National Forest, Springerville, AZ (Apache Sitgreaves NF), and in the physical custody of the New Mexico State University Museum.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA. The determinations in this notice are the sole responsibility of the University Museum, BLM, Gila NF, or Apache Sitgreaves NF. The National Park Service is not responsible for the determinations in this notice. Additional information on the determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the University Museum.
Between 1950 and 2001, human remains representing a minimum of 288 individuals and 1,079 associated funerary objects were acquired by the University Museum by various means. The University acquired many human remains and associated funerary objects through donations by private individuals from sites on private land. In several instances, the exact location and/or land status from which the donated human remains and associated funerary objects were removed is unknown. Human remains and associated funerary objects in custody of the University Museum that originate from federal land belonging to either BLM, Gila NF, or Apache Sitgreaves NF were acquired through archeological excavations or surveys that were sanctioned by the respective managing agency. The University Museum has control of the human remains and associated funerary objects removed from private lands that were acquired by means of donation and has custody of the human remains and associated funerary objects removed from federal land belonging either to the BLM, Gila NF, or Apache Sitgreaves NF.
Dines Site—At an unknown date, human remains representing, at minimum, one individual were donated to the University Museum. No known individual was identified. Records indicate the individual was recovered from private land. No report with exact location coordinates or history of the collection is available. The 100 associated funerary objects include 25 lithic flakes and tools, one metate fragment, 53 potsherds consisting of brownware and redware ceramic sherds, four Gila Polychrome ceramic sherds, one Playas Red ceramic sherd, five Chupadero Black-on-white sherds, seven Mimbres and Reserve style corrugated sherds, and four indented corrugated ceramic sherds. Cultural items associated with the individual are diagnostic of Mimbres-Mogollon and Salado cultural traditions. Artifact typologies indicate the Dines site dates between A.D. 750 and 1350.
The human remains and associated funerary objects in this notice are connected to one or more identifiable earlier groups, tribes, peoples, or cultures. There is a relationship of shared group identity between the identifiable earlier groups, tribes, peoples, or cultures and one or more Indian Tribes or Native Hawaiian organizations. The following types of information were used to reasonably trace the relationship: anthropological information, archeological information, and information derived during consultation.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the New Mexico State University Museum, Bureau of Land Management, Apache-Sitgreaves National Forest, and Gila National Forest have determined that:
• The human remains described in this notice represent the physical remains of 288 individuals.
• The 1,079 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• There is a relationship of shared group identity that can be reasonably traced between the human remains and associated funerary objects described in this notice and the Comanche Nation, Oklahoma; Hopi Tribe of Arizona; Navajo Nation, Arizona; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Tesuque, New Mexico; Santo Domingo Pueblo (
Written requests for repatriation of the human remains and associated funerary objects in this notice must be sent to the Responsible Official identified in the
1. Any one or more of the Indian Tribes or Native Hawaiian organizations identified in this notice.
2. Any lineal descendant, Indian Tribe, or Native Hawaiian organization not identified in this notice who shows, by a preponderance of the evidence, that the requestor is a lineal descendant or a culturally affiliated Indian Tribe or Native Hawaiian organization.
Repatriation of the human remains and associated funerary objects in this notice to a requestor may occur on or after February 13, 2023. If competing requests for repatriation are received, the museum or federal agency in control of the human remains University Museum; BLM; Gila NF or Apache Sitgreaves NF) must determine the most appropriate requestor prior to repatriation. Requests for joint repatriation of the human remains and associated funerary objects are considered a single request and not competing requests. The University Museum is responsible for sending a copy of this notice to the Indian Tribes and Native Hawaiian organizations identified in this notice.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of an expedited review pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty order on furfuryl alcohol from China would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
October 4, 2022.
Ahdia Bavari (202-205-3191), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of this review and rules of general application, consult the Commission's Rules of Practice and
In accordance with §§ 201.16(c) and 207.3 of the rules, each document filed by a party to the review must be served on all other parties to the review (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
On December 16, 2022, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the District of New Jersey in
In the proposed Consent Decree, the 85 Settling Defendants agree to pay $150 million in cleanup costs. EPA Region 2's estimated future cleanup costs for Operable Unit 2 and Operable Unit 4 of the Site are $1.82 billion. EPA sponsored an allocation process, which involved hiring a third party neutral to perform an allocation. The process concluded in December 2020 with a Final Allocation Recommendation Report that recommends relative shares of responsibility for each allocation party's facility or facilities evaluated in the allocation. After review of the Final Allocation Recommendation Report, EPA identified the parties who were eligible to participate in the proposed Consent Decree. Based on the results of the allocation, the United States concluded that the Settling Defendants, individually and collectively, are responsible for a minor share of the response costs incurred and to be incurred at or in connection with the cleanup of Operable Unit 2 and Operable Unit 4, for releases from the facilities identified in the proposed Consent Decree. Certain Settling Defendants had previously resolved their liability for Operable Unit 2, and so were not evaluated in the allocation, but are participating in the proposed Consent Decree in order to resolve their liability for Operable Unit 4. The Consent Decree includes covenants not to sue related to Operable Unit 2 and Operable Unit 4 under sections 106 and 107(a) of CERCLA, as well as contribution protection under section 113 of CERCLA. The consent decree does not include reopeners for previously unknown conditions or information, or for cost overruns, but the settlement amount collectively paid by the Setting Defendants protects against the risk that future costs will exceed EPA's estimate of the future cleanup costs for Operable Unit 2 and Operable Unit 4.
On December 22, 2022, the Department of Justice published a notice in the
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $36.25 (25 cents per page reproduction cost) payable to the United States Treasury. In addition, the Final Allocation Recommendation Report
On January 6, 2023, the Department of Justice lodged a proposed Agreement and Order Regarding Modification of Consent Decree (“Agreement and Order”) with the United States District Court for the Eastern District of Texas in the lawsuit entitled
The proposed Agreement and Order modifies one injunctive relief requirement of the original Consent Decree to provide for use of an alternative control technology to reduce benzene emissions to air at certain locations within the facility. Specifically, the proposed modification would change the control requirement for benzene waste emissions at two locations to the use of a thermal oxidizer as the primary control technology. Carbon canisters operated in series would not be used at these locations. There are no other changes to the original Consent Decree.
The publication of this notice opens a period for public comment on the proposed Agreement and Order. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to entitled
During the public comment period, the Agreement and Order may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $3.00 (25 cents per page reproduction cost) for the proposed Agreement and Order, payable to the United States Treasury.
Mine Safety and Health Administration, Labor.
Request for public comments.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed collections of information in accordance with the Paperwork Reduction Act of 1995. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed. Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments on the information collection for Mine Rescue Teams; Arrangements for Emergency Medical Assistance and Transportation for Injured Persons; Agreements; Reporting Requirements; Posting Requirements.
All comments must be received on or before March 13, 2023.
Comments concerning the information collection requirements of this notice may be sent by any of the methods listed below.
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• MSHA will post your comment as well as any attachments, except for information submitted and marked as confidential, in the docket at
S. Aromie Noe, Director, Office of Standards, Regulations, and Variances, MSHA, at
Section 103(h) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 813(h), authorizes MSHA to collect information necessary to carry out its duty in protecting the safety and health of miners. Further, section 101(a) of the Mine Act, 30 U.S.C. 811, authorizes the Secretary of Labor to develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal and metal and nonmetal mines.
30 CFR part 49 subpart A, Mine Rescue Teams for Underground Metal and Nonmetal (MNM) Mines, requires every operator of an underground mine to assure the availability of mine rescue capability for purposes of emergency rescue and recovery. This collection of information relates to the availability of mine rescue teams; alternate mine rescue capability for small and remote
30 CFR 49.2 (Availability of mine rescue teams) requires each operator of an underground metal and non-metal mine to send the District Manager a statement describing the mine's method of compliance with this standard.
30 CFR 49.3 (Alternative mine rescue capability for small and remote mines) provides that operators of small and remote mines may submit an application for alternative mine rescue capability to MSHA for approval.
30 CFR 49.4 (Alternative mine rescue capability for special mining conditions) provides that operators of small and remote mines may submit an application for special mining conditions capability to MSHA for approval.
30 CFR 49.5 (Mine rescue station) provides that operators of an underground metal and nonmental mine shall designate, in advance, the location of the mine rescue station serving the mine. Mine rescue stations are to provide a centralized storage location for rescue equipment. This centralized storage location may be either at the mine site, affiliated mines, or a separate mine rescue structure. Mine rescue stations shall provide a proper storage environment to assure equipment readiness for immediate use.
30 CFR 49.6 (Equipment and maintenance requirements) requires that a person trained in the use and care of a breathing apparatus must inspect and test the apparatus at intervals not exceeding 30 days and must certify by signature and date that the required inspections and tests were done, and record any corrective action taken.
30 CFR 49.7 (Physical requirements for mine rescue team) requires that each member of a mine rescue team be examined annually by a physician who must certify that each person is physically fit to perform mine rescue and recovery work.
30 CFR 49.8 (Training for mine rescue teams) requires that a record of the training received by each mine rescue team member be made and kept on file at the mine rescue station for a period of 1 year. The operator must provide the District Manager information concerning the schedule of upcoming training when requested.
30 CFR 49.9 (Mine emergency notification plan) requires that each mine have a mine rescue notification plan outlining the procedures to be followed in notifying the mine rescue teams when there is an emergency that requires their services.
30 CFR part 49 subpart B Mine Rescue Teams for Underground Coal Mines, sets standards related to the availability of mine rescue teams; alternate mine rescue capability for small and remote mines; inspection and maintenance records of mine rescue equipment and apparatus; physical requirements for mine rescue team members and alternates; and experience and training requirements for team members and alternates. The collection of information under 30 CFR part 49, subpart B, covers the following requirements for underground coal mines. 30 CFR part 49 subpart B includes sections §§ 49.11-49.60 for coal mine operators.
30 CFR 49.12 (Availability of mine rescue teams) requires each operator of an underground coal mine to send the District Manager a statement describing the mine's method of compliance with this standard.
30 CFR 49.13 (Alternative mine rescue capability for small and remote mines) provides that operators of small and remote mines may submit an application for alternative mine rescue capability to MSHA for approval.
30 CFR 49.16 (Equipment and maintenance requirements) requires that a person trained in the use and care of a breathing apparatus must inspect and test the apparatus at intervals not exceeding 30 days and must certify by signature and date that the required inspections and tests were done, and record any corrective action taken.
30 CFR 49.17 (Physical requirements for mine rescue team) requires that each member of a mine rescue team be examined annually by a physician who must certify that each person is physically fit to perform mine rescue and recovery work.
30 CFR 49.18 (Training for mine rescue teams) requires that a record of the training received by each mine rescue team member be made and kept on file at the mine rescue station for a period of 1 year. The operator must provide the District Manager information concerning the schedule of upcoming training when requested.
30 CFR 49.19 (Mine emergency notification plan) requires that each mine have a mine rescue notification plan outlining the procedures to be followed in notifying the mine rescue teams when there is an emergency that requires their services.
30 CFR 49.50 (Certification of coal mine rescue teams) requires underground coal mine operators to certify that each designated coal mine rescue team meets the requirements of 30 CFR part 49 subpart B.
30 CFR 75.1713-1 and 77.1702 (Arrangements for emergency medical assistance and transportation for injured persons; agreements; reporting requirements; posting requirements) require coal mine operators to make arrangements for 24-hour emergency medical assistance and transportation for injured persons and to post this information at appropriate places at the mine, including the names, titles, addresses, and telephone numbers of all persons or services currently available under those arrangements.
MSHA is soliciting comments concerning the proposed information collection related to Mine Rescue Teams; Arrangements for Emergency Medical Assistance and Transportation for Injured Persons; Agreements; Reporting Requirements; Posting Requirements. MSHA is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information has practical utility;
• Evaluate the accuracy of MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
The information collection request will be available on
The public may also examine publicly available documents at DOL-MSHA, Office of Standards, Regulations, and Variances, 201 12th Street South, Suite 4E401, Arlington, VA 22202-5452. Sign in at the receptionist's desk on the 4th floor via the East elevator. Before visiting MSHA in person, call 202-693-9455 to make an appointment, in keeping with the Department of Labor's
Questions about the information collection requirements may be directed to the person listed in the
This request for collection of information contains provisions for Mine Rescue Teams; Arrangements for Emergency Medical Assistance and Transportation for Injured Persons; Agreements; Reporting Requirements; Posting Requirements. MSHA has updated the data with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request.
Comments submitted in response to this notice will be summarized and included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
The National Science Board's (NSB) Committee on Oversight hereby gives notice of the scheduling of a videoconference meeting for the transaction of National Science Board business pursuant to the National Science Foundation Act and the Government in the Sunshine Act.
Wednesday, January 18, 2023, from 10:30—11:30 p.m. EST.
This meeting will be held by videoconference through the National Science Foundation.
Open.
The agenda of the meeting is: Committee Chair's opening remarks; Presentations and Discussion of NSF's Established Program to Stimulate Competitive Research (EPSCoR); Committee Chair's closing remarks.
Point of contact for this meeting is: (Chris Blair,
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued an exemption in response to a December 16, 2021, request from Southern California Edison, as supplemented on February 28 and September 29, 2022, that would allow the licensee to establish the Controlled Area Boundary (CAB) for the San Onofre Nuclear Generating Station (SONGS) independent spent fuel storage installation (ISFSI) at a distance less than 100 meters from the ISFSI as required by NRC regulation.
The exemption was issued on January 5, 2023, and was effective upon issuance.
Please refer to Docket ID NRC-2022-0219 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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Amy M. Snyder, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-6822, email:
The text of the exemption is attached.
For the Nuclear Regulatory Commission.
San Onofre Nuclear Generating Station (SONGS), Units 1, 2, and 3, are licensed to Southern California Edison (SCE)
On December 16, 2021 (Agencywide Documents Access and Management System (ADAMS) Package Accession No. ML21355A245), SCE submitted a request, as supplemented on February 28, 2022 (ML22062B028), and September 29, 2022 (ML22277A016), for an exemption from a requirement of paragraph (b) of Section 72.106, “Controlled area of an [independent spent fuel storage installation] ISFSI or [monitored retrievable storage installation] MRS,” for the SONGS ISFSI. In the request, SCE states that it wishes to establish the ISFSI Controlled Area Boundary (CAB) at or within the site boundary, which coincides with physical boundaries that in some places are less than the 100 meters from the ISFSI required by 10 CFR 72.106(b). Specifically, SCE indicated that the areas that would be less than 100 meters from the ISFSI would be the North Industrial Area seawall to the west of the ISFSI and the Owner Controlled Area fence line to the east of the ISFSI.
SCE is requesting the exemption in response to a lease condition granted by the California State Lands Commission (CSLC) in 2019 in relation to the land upon which the ISFSI is situated. Specifically, Lease Condition 32 states:
At the conclusion of the transfer of the SONGS spent nuclear fuel to the Approved Independent Spent Fuel Storage Installation (Approved ISFSI), the Lessee shall seek approval from the NRC to decrease the size of the Exclusion Area Boundary (EAB) to the minimum required by law. Lessee and Lessor shall jointly consult with the California Coastal Commission (CCC) to ensure that such an approval, if granted, will not interfere with the Lessee's compliance with the CCC permit conditions.
To meet the lease condition, SCE would pursue the disestablishment of the EAB in accordance with 10 CFR 50.59, “Changes, tests, and experiments,” which allows reactor licensees to make certain changes without prior NRC approval. Since SONGS has permanently ceased reactor operations in Unit 2 and 3, an EAB is no longer required to be maintained. If this change meets the requirements of 10 CFR 50.59, SCE would reflect removal of the EAB in the SONGS final safety analysis report. While compliance with this lease condition only requires an attempt to decrease the size of the EAB, SCE states that an exemption to 10 CFR 72.106(b) to decrease the size of the SONGS ISFSI CAB will also serve the public's interest related to beach access. However, the public already has full access to the beach area, the bluff overlooking the ISFSI, and the Pacific Ocean on the seaward side of SONGS. These public thoroughfares are allowed in accordance with 10 CFR 72.106(c). However, SCE has an agreement with Camp Pendleton, the State of California, and local agencies to restrict public access to these areas and thoroughfares during an emergency such as a hostile action, natural disaster, or fire.
If the exemption is approved, SCE would modify their agreements with the Camp Pendleton, State of California, or local agencies to respond and perform duties within the ISFSI CAB under emergency conditions because SCE would no longer control areas beyond their site boundary. However, in any emergency, first responders would likely secure access to the beach area based upon the circumstances, to protect the public in the event of an emergency.
Paragraph (b) of 10 CFR 72.106 requires that any individual located on or beyond the nearest boundary of the controlled area may not receive from any design basis accident the more limiting of a total effective dose equivalent of 0.05 Sieverts (Sv) (5 roentgen equivalent man (rem)), or the sum of the deep-dose equivalent and the committed dose equivalent to any individual organ or tissue (other than the lens of the eye) of 0.5 Sv (50 rem). The lens dose equivalent may not exceed 0.15 Sv (15 rem) and the shallow dose equivalent to skin or any extremity may not exceed 0.5 Sv (50 rem). The minimum distance from the spent fuel, high-level radioactive waste, or reactor-related Greater Than Class C (GTCC) waste handling and storage facilities to the nearest boundary of the controlled area must be at least 100 meters.
Under the provisions of 10 CFR 72.7, “Specific exemptions,” the Commission may, upon application by any interested person or upon its own initiative, grant such exemptions from the requirements of 10 CFR 72.106(b) as it determines are authorized by law and will not endanger life or property or the common defense and security and are otherwise in the public interest.
The NRC regulations in 10 CFR 72.7 allow the Commission to grant exemptions from the requirements of the regulations in 10 CFR part 72, “Licensing Requirements for the Independent Storage of Spent Nuclear Fuel, High-Level Radioactive Waste, and Reactor-Related Greater Than Class C Waste,” if it determines, among other things that the exemption would be authorized by law. There are no provisions in the Atomic Energy Act of 1954, as amended (or in any other Federal statute) that impose a requirement to maintain the ISFSI controlled area boundary at a specific distance. Therefore, the NRC concludes that there is no statutory prohibition on the issuance of the requested exemption and the NRC is authorized to grant the exemption by law.
The regulation at 10 CFR 72.106(b) establishes specific dose constraints for the ISFSI CAB to protect the public, and requires that the CAB be located at a minimum distance of 100 meters. To support its request for an exemption from this minimum distance, SCE provided calculations and direct radiation measurements to demonstrate that the dose limits during normal operations and anticipated occurrences under paragraph (a) of 10 CFR 72.104, “Criteria for radioactive materials in effluents and direct radiation from an ISFSI or MRS,” and during design basis accidents under 10 CFR 72.106(b), are still met at a reduced ISFSI CAB distance.
In order to estimate the radiation dose at the modified SONGS ISFSI CAB, the licensee performed analyses for the SONGS ISFSI to calculate the dose from possible releases at multiple locations along the modified CAB. These shielding analyses included dose contributions from SONGS Units 1, 2, and 3 fuel stored in Transnuclear (TN) 24PT1 and 24PT4 fuel storage canisters in TN Advanced Horizontal Storage Modules (AHSMs), SONGS Units 1, 2,
The licensee modeled spent fuel in the TN and Holtec storage systems with design basis characteristics for the Westinghouse 14x14 (SONGS Unit 1) and Combustion Engineering 16x16 (SONGS Units 2 and 3) pressurized-water reactor fuel configurations. These design basis characteristics include an initial enrichment of 3.8 percent, burnup of 45 GigaWatt-days per metric ton uranium (GWd/MTU), a cooling time of 10 years for Unit 1 fuel, and a cooling time of 5 years for Units 2 and 3 fuel. The NRC staff finds that these design basis parameters are appropriate for determining doses at the modified SONGS ISFSI CAB. In particular, the cooling times assumed are conservative relative to the actual shut down dates for the three SONGS units (1992 for Unit 1, 2012 for Units 2 and 3), such that the dose at the modified ISFSI CAB is significantly overestimated.
The licensee used the three-dimensional Monte Carlo N-Particle (MCNP) transport code to estimate doses around the SONGS ISFSI due to stored Units 1, 2, and 3 fuel, GTCC, and future canister transfer operations, as discussed in SCE Calculation SO1-207-1-C116, Revision 2, “Modified Control Area Boundary ISFSI Dose Calculation” (ML22062B039). The dose points considered in the licensee's analysis are shown in Figure 1.2 of SO1-207-1-C116 and are either at or beyond the modified SONGS ISFSI CAB. The dose points of primary interest for this exemption request are dose points 29, 30, 31, and 40, which are all on the seawall closest to the fuel stored in Holtec UMAX storage systems. The closest of these dose points is 38 meters from the nearest UMAX storage system.
The licensee assumed occupancy factors that estimate the amount of time a member of the public may be present in modeled dose locations. The occupancy factors assumed by the licensee for this analysis are summarized in Table 2.2.1 of SO1-207-1-C116 and are based on Enclosure 1 to the SCE letter dated September 29, 2022, “Occupancy Factors at San Onofre Owner Controlled Area Boundaries.” This document states that areas near the facility to the north, east, and south of the facility are inhospitable, and unlikely to be accessed by any member of the public for any significant amount of time. The beach area to the west of the facility is unlikely to be accessed by any member of the public for any significant amount of time due to the terrain and vegetation, and the licensee assumes a member of the public may be present there for 300 hours out of a year.
The licensee also notes that due to beach erosion and the placement of additional riprap to protect the facility seawall, this area is likely less attractive to members of the public than more accessible beaches nearby, meaning that the estimate of 300 hours of yearly occupancy is likely conservative. The NRC staff finds that the assumed occupancy factors are acceptable for the calculation of modified SONGS ISFSI CAB dose during normal operations and anticipated occurrences, since most locations around the modified ISFSI CAB are unlikely to be occupied for a significant amount of time and the applicant has recent direct radiation measurements demonstrating that actual radiation doses at the modified ISFSI CAB under normal operations and anticipated occurrences are less than the 10 CFR 72.104(a) limits for full year occupancy.
The licensee's results for the modified ISFSI CAB annual doses are summarized in Table 3.6.1 of SO1-207-1-C116. The results include dose contributions from stored fuel in both the TN AHSMs and Holtec VVMs, GTCC waste stored in TN AHSMs, and from canister transfer operations for up to 20 transfers per year. The maximum estimated annual dose from these dose contributions at the nearest point on the modified SONGS ISFSI CAB is 22.63 millirem (mrem) (0.2263 millisievert (mSv)) per year. This is less than the 10 CFR 72.104(a) whole body radiation limit of 25 mrem (0.25 mSv) per year.
The licensee also provided recent Annual Radiological Effluent Release Report results from 2020, which included fixed thermo-luminescent dosimeter (TLD) measurements of dose at the limiting location along the proposed modified SONGS ISFSI CAB. The TLD measured doses include contributions from the majority of fuel currently stored, as well as multiple canister transfer operations that occurred in 2020 to move fuel canisters into stored locations. The TLD doses reported by the licensee correspond to a full occupancy (8,760 hours per year) dose of 17.52 mrem (0.1752 mSv), which is less than the 10 CFR 72.104(a) whole body radiation limit of 25 mrem (0.25 mSv) per year. These measured results demonstrate that the licensee's calculations significantly overestimate the modified SONGS ISFSI CAB dose, due to the many conservatisms incorporated into the analysis.
The NRC staff performed independent confirmatory analyses of the modified SONGS ISFSI CAB dose under normal operations and anticipated occurrences. The staff modeled the fuel and GTCC waste using assumptions similar to the licensee's, in terms of initial fuel enrichment, fuel burnup, cooling time, and storage system arrangement. The NRC staff performed confirmatory calculations using the MAVRIC/Monaco sequence of the SCALE 6.2.4 code system. The staff's results are within the calculation uncertainty of the licensee's results, confirming that the licensee's radiation shielding model is appropriate, and that the facility will continue to meet the dose limits for normal operations and anticipated occurrences established under 10 CFR 72.104(a) with a modified ISFSI CAB.
The licensee also evaluated the facility with the modified ISFSI CAB under design basis accidents to ensure that the facility continues to meet the dose limits of 10 CFR 72.106(b). There are no design basis accidents that significantly affect the shielding capabilities of the TN AHSMs or Holtec VVMs or result in a canister release of radioactive material. However, the licensee determined that a loss of water jacket for the Holtec HI-TRAC VW transfer cask could have dose consequences at the modified ISFSI CAB. The licensee provided an analysis of dose versus distance from a loaded HI-TRAC VW transfer cask with the outer water jacket removed. The details of this analysis are contained in Holtec Calculation Hl-2210810, “SONGS HI-TRAC VW Accident Conditions Dose versus Distance.” The licensee assumed an accident duration of 30 days, with full time occupancy at the nearest dose location on the modified ISFSI CAB, 38 meters from the transfer cask. The resulting accident dose is 3.87 rem (38.7 mSv), which is less than the 10 CFR 72.106(b) design basis accident dose limit of 5.0 rem (50 mSv).
Based on the results of the licensee's modified SONGS ISFSI CAB dose analysis, and the NRC staff's confirmatory analysis, the staff finds that the doses at the modified ISFSI CAB are below the limits specified during normal operations and anticipated occurrences in 10 CFR 72.104(a), as well as the limits specified during design basis accident conditions in 10 CFR 72.106(b). The evaluation includes appropriate dose analyses for the configurations of SONGS ISFSI features that exist during the different
The NRC staff has determined that the thermal, structural, criticality, retrievability, and radiation protection requirements of 10 CFR part 72 and the offsite dose limits of 10 CFR part 20, “Standards for Protection Against Radiation,” will be maintained. There are no changes proposed in the licensee's exemption request that affect the thermal, structural, criticality, or retrievability functions of the SONGS ISFSI. Due to the potential for the modified ISFSI CAB to affect radiation protection outside of the CAB, the licensee provided an analysis to demonstrate that the dose limits during normal operations and anticipated occurrences under 10 CFR 72.104(a), as well as during postulated design basis accidents under 10 CFR 72.106(b), will not be exceeded. The NRC staff reviewed the licensee's dose analysis and finds that the licensee has shown with reasonable assurance that these regulatory dose limits will not be exceeded for the modified SONGS ISFSI CAB.
Further, the modified SONGS ISFSI CAB does not have any effect on the measures for physical protection at the site, or otherwise require changes to the approved physical security plan. The licensee will continue to maintain its security program in accordance with the security plan, NRC regulations, and applicable security orders.
Accordingly, the NRC staff finds the risk to the public from operation of the SONGS ISFSI with the proposed modified CAB boundaries continues to ensure that public health and safety are not reduced under normal operations, anticipated occurrences, and accident conditions (transfer cask water jacket failure). The same level of safety and security will be maintained for the ISFSI CAB modification proposed by the licensee. Therefore, for these reasons the NRC staff concludes that the exemption presents no undue risk to public health and safety and will not endanger life or property or the common defense and security.
SCE is requesting this exemption in response to a condition of a lease that was granted by the CSLC
While compliance with the lease condition only requires an attempt to decrease the size of the EAB, the licensee believes that also shrinking the ISFSI CAB to or within the SONGS site boundary will similarly serve the public's interest related to beach access that underlies the lease condition. The proposed SONGS ISFSI CAB would allow the licensee to relinquish all explicit control of areas beyond the site boundary during both normal operations and post-accident conditions. The proposed exemption would also bring the part of the ISFSI CAB that now extends past the beach front into or within the SONGS site boundary, which would allow the licensee to modify an associated land agreement with Camp Pendleton because the licensee will no longer have control of areas beyond the site boundary.
The licensee in its application commits to continue to monitor onsite conditions at the SONGS ISFSI and will maintain procedural requirements to inform Camp Pendleton and other agencies of any emergency declaration so that they may take appropriate action in accordance with their all-hazards emergency plans. Upon NRC approval of this exemption request, the licensee will establish the SONGS ISFSI CAB at or within the site boundary in order to take advantage of physical barriers and associated access controls. Access is currently allowed to the public on the beach walkway and seaward of the walkway, which are the areas that would no longer be within the SONGS ISFSI CAB as a result of this proposed exemption.
The licensee in its application explains that the proposed exemption supports the public interest of increased access to California's natural resources—in this case, the beach, shoreline, and ocean adjacent to the SONGS ISFSI—which was the impetus for CSLC Lease Condition 32. With this approval the licensee can relinquish control of areas that are otherwise subject to control via agreements with various outside entities during off normal and emergency conditions. The licensee states in its application that “these agreements have been interpreted by some as imposing potential constraints on public access to the beach.” Furthermore, the licensee states that it has briefed and will continue to brief and consult with the CSLC and CCC regarding the proposed exemption to ensure that its being granted will not interfere with the licensee's compliance with CCC permit conditions.
The NRC staff evaluated the information above and concludes that the exemption is in the interest of the public because it would allow unfettered access to the beachfront during operations at the SONGS ISFSI, to include normal and accident conditions, while still meeting all NRC safety and security regulatory requirements, including the dose limits established in 10 CFR 72.106(b) and 10 CFR 72.104(a).
With respect to compliance with section 102(2) of the National Environmental Policy Act, 42 U.S.C. 4332(2) (NEPA), the NRC staff performed an Environmental Assessment.
Based on its review of the exemption request, in accordance with the requirements of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC staff has determined that moving the SONGS ISFSI CAB will not significantly affect the quality of the human environment. Approval of the exemption request would not result in any new construction. The SONGS ISFSI is a passive facility that produces no liquid or gaseous effluents. This exemption will have no effect on the consequences of a hypothetical terrorist attack.
No significant radiological or non-radiological impacts are expected from continued normal operations. Occupational dose estimates associated with the proposed action and continued normal operation and maintenance of the SONGS ISFSI are expected to be at levels that are as low as reasonably achievable (ALARA) and within the limits of 10 CFR 20.1201, “Occupational dose limits for adults.”
Therefore, pursuant to 10 CFR 51.31, “Determinations based on environmental assessment,” the NRC staff has determined that preparation of an environmental impact statement is not required for the proposed action and no further analysis is required under NEPA. Pursuant to 10 CFR 51.32,
Accordingly, the Commission has determined that, pursuant to 10 CFR 72.7, the exemption is authorized by law, will not endanger life or property or the common defense and security and is otherwise in the public interest. Therefore, effective immediately, the Commission hereby grants SCE an exemption from 10 CFR 72.106(b) to reduce the SONGS ISFSI CAB in areas as identified in its application to less than 100 meters.
For the Nuclear Regulatory Commission.
Pursuant to section 19(b)(1)
Pursuant to the provisions of section 19(b)(1) under the Act,
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statement 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 COVID-19 pandemic has caused a host of operational disruptions to the securities industry and impacted IEX Members,
FINRA has filed with the Commission File No. SR-FINRA-2022-021, a proposed rule change to adopt a voluntary, remote inspections pilot program that is currently pending Commission review. The FINRA Pilot Program would provide for a voluntary, three-year remote inspection pilot program to allow broker-dealers to elect to fulfill their obligation under FINRA Rule 3110(c) (Internal Inspections) by conducting inspections of some or all branch offices and non-branch locations remotely without an on-site visit to such office or location, subject to specified
To provide regulatory certainty while the pilot program filing is pending, and to avoid overlapping provisions if it is approved, IEX is proposing to amend Supplementary Material .15 of Rule 5.110 so that the temporary relief would expire on the earlier of the effective date of the FINRA Pilot Program or December 31, 2023. In the event the FINRA Pilot Program is not approved by December 31, 2023, the proposed rule change will automatically sunset on December 31, 2023. IEX will submit a separate rule filing if it seeks to extend the duration of the temporary proposed rule beyond December 31, 2023. In the event the FINRA Pilot Program is approved prior to December 31, 2023, IEX will file a conforming rule change with the Commission.
The proposed rule change will conform IEX's rules with those of FINRA, which has extended the same temporary remote inspection relief to all FINRA member firms.
The proposed amendment would provide that Members have the option to conduct remotely those inspections described in Supplementary Material .15 to IEX Rule 5.110 through the earlier of the effective date of the FINRA Pilot program, if approved, or December 31, 2023. IEX is not proposing to amend the other conditions of the temporary relief in Supplementary Material .15 of IEX Rule 5.110. The current conditions of Supplementary Material .15 of IEX Rule 5.110 for Members that elect to conduct remote inspections would remain unchanged: such firms must still amend or supplement their written supervisory procedures for remote inspections, use remote inspections as part of an effective supervisory system, and maintain the required documentation. The additional period of time would also allow IEX to further monitor the effectiveness of remote inspections and their impacts—positive or negative—on Members' overall supervisory systems in the evolving workplace.
IEX continues to believe this temporary remote inspection option is a reasonable alternative to provide to Members to fulfill their IEX Rule 5.110 obligations during the ongoing pandemic, and is designed to achieve the investor protection objectives of the inspection requirements under these unique circumstances. Members should consider whether, under their particular operating conditions, reliance on remote inspections would be reasonable under the circumstances. For example, Members with offices that are open to the public or that are otherwise doing business as usual should consider whether some form of in-person inspections would be feasible and appropriately contribute to a supervisory system that is reasonably designed to achieve compliance with applicable securities laws and regulations, and with applicable IEX rules.
IEX has filed the proposed rule change for immediate effectiveness and has requested that the SEC waive the requirement that the proposed rule change not become operative for 30 days after the date of the filing, so IEX can implement the proposed rule change immediately.
IEX believes that the proposed rule change is consistent with the provisions of Section 6(b)
In recognition of the impact of COVID-19 on performing on-site inspections, the proposed rule change is intended to provide firms a temporary regulatory option to conduct inspections of offices and locations remotely for calendar year 2023 inspections (or until the effective date of the FINRA pilot program). This proposed supplementary material does not relieve firms from meeting the core regulatory obligation to establish and maintain a system to supervise the activities of each associated person that is reasonably designed to achieve compliance with applicable securities laws and regulations, and with applicable IEX rules that directly serve investor protection. In a time when faced with unique challenges resulting from the COVID-19 pandemic, IEX believes that the proposed rule change provides sensibly tailored relief that will afford firms the ability to observe the recommendations of public health officials to provide for the health and safety of their personnel, while continuing to serve and promote the protection of investors and the public interest.
IEX 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. The proposed rule change is not designed to address any competitive issue but to align the Exchange's rules with those of FINRA, which will assist FINRA in its oversight work done pursuant to a regulatory services agreement with IEX. The proposed rule change will also provide for consistent application of the Exchange's supervision rules with those of FINRA, on which they are based. Consequently, the Exchange does not
Written comments on the proposed rule change were neither solicited nor received.
The Exchange has designated this rule filing as non-controversial under section 19(b)(3)(A)
A proposed rule change filed under Rule 19b-4(f)(6)
IEX has indicated that extending the relief provided in SR-IEX-2022-12 would provide assurances to its member firms that they can plan their 2023 inspection program and conduct remote inspections for any inspections to be conducted through the earlier of the effective date of the FINRA Pilot Program, if approved, or December 31, 2023. Importantly, extending the relief immediately upon filing and without a 30-day operative delay would allow IEX's member firms to continue performing their supervisory obligations, while addressing the ongoing impacts of the COVID-19 pandemic. Moreover, like SR-IEX-2022-12, the proposed extension would provide only temporary relief during the period in which IEX's member firms' operations remain impacted by COVID-19. Thus, the amended rules will revert back to their original state at the conclusion of the temporary relief period and, if applicable, any extension thereof. For these reasons, the Commission believes that waiver of the 30-day operative delay for this proposed rule change is consistent with the protection of investors and the public interest. Accordingly, the Commission hereby waives the 30-day operative delay and designates the proposed rule change operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
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.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 17(d) (15 U.S.C. 80a-17(d)) of the Investment Company Act of 1940 (15 U.S.C. 80a
Rule 17d-1 also contains a number of exceptions to the requirement that a fund must obtain Commission approval prior to entering into joint transactions or arrangements with affiliates. For example, funds do not have to obtain Commission approval for certain employee compensation plans, certain tax-deferred employee benefit plans, certain transactions involving small business investment companies, the receipt of securities or cash by certain affiliates pursuant to a plan of reorganization, certain arrangements regarding liability insurance policies and transactions with “portfolio affiliates” (companies that are affiliated with the fund solely as a result of the fund (or an affiliated fund) controlling them or owning more than five percent of their voting securities) so long as certain other affiliated persons of the fund (
Thus, the rule contains two filing and recordkeeping requirements that constitute collections of information. First, rule 17d-1 requires funds that wish to engage in a joint transaction or arrangement with affiliates to meet the procedural requirements for obtaining exemptive relief from the rule's prohibition on joint transactions or arrangements involving first- or second-tier affiliates. Second, rule 17d-1 permits a portfolio affiliate to enter into a joint transaction or arrangement with the fund if a prohibited participant has a financial interest that the fund's board determines is not material and records the basis for this finding in their meeting minutes. These requirements of rule 17d-1 are designed to prevent fund insiders from managing funds for their own benefit, rather than for the benefit of the funds' shareholders.
Based on an analysis of past filings, Commission staff estimates that 43 funds file applications under section 17(d) and rule 17d-1 per year. The staff understands that funds that file an application generally obtain assistance from outside counsel to prepare the application. The cost burden of using outside counsel is discussed below. The Commission staff estimates that each applicant will spend an average of 75 hours to comply with the Commission's applications process. The Commission staff therefore estimates the annual burden hours per year for all funds under rule 17d-1's application process to be 3,225 hours at a cost of $1,428,675.
As noted above, the Commission staff understands that funds that file an application under rule 17d-1 generally use outside counsel to assist in preparing the application. The staff estimates that, on average, funds spend an additional $53,100 for outside legal services in connection with seeking Commission approval of affiliated joint transactions. Thus, the staff estimates that the total annual cost burden imposed by the exemptive application requirements of rule 17d-1 is $2,283,300.
We estimate that funds currently do not rely on the exemption from the term “financial interest” with respect to any interest that the fund's board of directors (including a majority of the directors who are not interested persons of the fund) finds to be not material. Accordingly, we estimate that annually there will be no transactions under rule 17d-1 that will result in this aspect of the collection of information.
Based on these calculations, the total annual hour burden is estimated to be 3,225 hours and the total annual cost burden is estimated to be $2,283,300.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Complying with these collections of information requirement is necessary to obtain the benefit of relying on rule 17d-1. Responses will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549 or send an email to:
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act” or “Exchange Act”)
FINRA is proposing to amend the Code of Arbitration Procedure for Customer Disputes (“Customer Code”) and the Code of Arbitration Procedure for Industry Disputes (“Industry Code”) (together, “Codes”) to make changes to provisions relating to the arbitrator list selection process in response to recommendations in the report of independent counsel Lowenstein Sandler LLP. The proposed rule change also makes clarifying and technical changes to requirements in the Codes for holding prehearing conferences and hearing sessions, initiating and responding to claims, motion practice, claim and case dismissals, and providing a hearing record.
The text of the proposed rule change is available on FINRA's website at
In its filing with the Commission, FINRA 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. FINRA has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
FINRA is proposing to amend the Codes to provide greater transparency and consistency regarding the arbitrator list selection process, and to clarify the application of certain procedures and include expressly these procedures in various rules in the Codes. The proposed rule change would enhance the transparency of the arbitration forum administered by FINRA Dispute Resolution Services (“DRS”).
In June 2022, FINRA published the report from Lowenstein Sandler LLP relating to an independent review and analysis of the DRS arbitrator list selection process (“Report”).
The Codes provide that a list selection algorithm will randomly generate the ranking lists of arbitrators from the DRS roster of arbitrators,
The proposed rule change would amend the Codes to clarify the current practice that the Director will exclude arbitrators from the lists based upon a review of current conflicts of interest not identified within the list selection algorithm.
The Codes do not require the Director to provide a written explanation when deciding a party-initiated challenge to remove an arbitrator. The Report recommended that, to improve transparency, DRS should consider amending its policies to require a written explanation whenever a challenge to remove an arbitrator is granted or denied, if a written explanation is requested by either party.
Effective September 1, 2022, DRS updated its policy to provide a written explanation whenever a party-initiated challenge to remove an arbitrator is granted or denied, regardless of whether an explanation is requested by either party.
Although not a specific recommendation in the Report, the proposed rule change would make an additional clarifying change to provisions in the Codes relating to party-initiated challenges for cause. Specifically, the Codes provide that before the first hearing session begins, the Director may remove an arbitrator for conflict of interest or bias, either upon request of a party or on the Director's own initiative.
The Codes include requirements for holding prehearing conferences and hearing sessions, initiating and responding to claims, motion practice, claim and case dismissals, and providing a hearing record. Over the years, DRS has developed practices to help implement these requirements so that arbitration cases are timely and efficiently administered in its forum. The proposed rule change would amend the Codes to incorporate these practices, as described below.
Under the Codes, prehearing conferences are generally held by telephone.
In contrast to prehearing conferences, under the Codes, hearings are generally held in person.
Arbitrations involving $50,000 or less, called simplified arbitrations, generally are decided by a single arbitrator based on the parties' written submissions, unless the customer requests a hearing.
Following suggestions from customers that they would prefer also to have the option to have a special proceeding by video conference, FINRA is proposing to amend the Codes to provide customers with this option. Specifically, the proposed rule change would amend the Codes to provide that a special proceeding will be held by video conference, unless the customer requests at least 60 days before the first scheduled hearing that it be held by telephone, or the parties agree to another type of hearing session.
Under the Codes, when parties submit pleadings and supporting documents to DRS, the parties must redact personal confidential information (“PCI”) such as an individual's Social Security number, taxpayer identification number or financial account number to include only the last four digits of such numbers.
Due to increasing concerns with customers' identities being used for fraudulent purposes in the securities industry,
Under the Codes, a “hearing session” is any meeting between the parties and arbitrators of four hours or less, including a hearing or a prehearing conference.
DRS's current practice is to calculate the number of hearing sessions per day by adding the number of hearing hours, subtracting time spent for lunch, and dividing that number by four hours.
Under the Codes, respondents must serve a signed and dated Submission Agreement and an answer on each other party within 45 days of receipt of the statement of claim.
Because the Codes do not have express procedures related to the filing of Submission Agreements if the answer includes a third party claim, often, when a respondent includes a third party claim in the answer, the respondent does not execute a Submission Agreement that lists the name of the third party. Under the Codes, the Director will not serve any claim that is deficient. A claim is deficient if the Submission Agreement does not name all parties named in the claim.
To clarify to parties the requirements related to third party claims and Submission Agreements, the proposed rule change would amend the Codes to provide that if the answer contains a
As discussed above, currently, the Codes include provisions related to including a third party claim in an answer to a statement of claim.
The proposed rule change would also amend the Codes to clarify the processes related to amending pleadings and filing third party claims. Specifically, the proposed rule change would clarify that: (1) arbitrators are “appointed to” the panel, rather than placed “on” the panel;
The proposed rule change would also amend provisions of the Customer Code related to filing amended pleadings when a customer in an arbitration is notified by FINRA that a member or associated person in the arbitration has become inactive.
Under the Customer Code, after panel appointment, a party may amend a pleading if FINRA notifies a customer that a member or an associated person has become inactive as set forth in FINRA Rule 12202.
Before ranked arbitrator lists are due to the Director, the Codes permit the Director to combine separate but related claims into one arbitration.
Under current practice, if a panel has been appointed to the lowest numbered case (
For transparency and consistency, FINRA is proposing to codify current practice by amending the Codes to provide that if a panel has been appointed to the lowest numbered case, the panel in that case may: (a) combine separate but related claims into one arbitration; and (b) reconsider the Director's decision upon motion of a party.
Currently, some parties assume that the Party Portal automatically sends the parties' responses and replies to the panel. In practice, DRS sends all motions and all responses to the panel after the last reply date has elapsed, unless otherwise directed by the panel. This practice helps ensure that the arbitrators have the complete set of motion papers before they begin considering the motion. Parties are often unaware of this practice because the Codes do not address how DRS processes motions including responses and replies.
To provide transparency and consistency, the proposed rule change would amend the Codes to codify the current practice by providing that the Director will send all motions, responses, and replies to the panel after the last reply date has elapsed, unless otherwise directed by the panel.
In addition, the proposed rule change would amend the Codes to clarify who has the authority to decide motions related to separating and combining claims or arbitrations. Specifically, the proposed rule change would amend the Codes to include cross-references to FINRA Rules 12312, 12313, 13312 and 13313, as applicable, which provide that motions relating to separating claims or arbitrations are decided by the Director before a panel is appointed, or by the panel after the panel is appointed.
Under the Codes, at least 20 days before the first scheduled hearing date, all parties must provide all other parties with copies of all documents and other materials in their possession or control that they intend to use at the hearing that have not already been produced. The parties should not file the documents with the Director or arbitrators before the hearing.
Often, parties file with the Director one document that contains both the list of documents and other materials, such as exhibits, they intend to use at the hearing that have not already been produced and the witness list. As the list of documents and other materials could contain prejudicial or inadmissible material, as a service to forum users, the Director will manually remove this information from the document containing the witness list before forwarding it to the panel. However, on occasion, the Director may inadvertently disseminate the list of documents and other materials to the arbitrators, which could reveal potentially prejudicial or inadmissible information to the arbitrators before the hearing.
Because the Codes do not currently include language regarding the sharing of document lists before the hearing, the proposed rule change would specify that if the parties create lists of documents and other materials in their possession or control that they intend to use at the hearing and have not already been produced, the parties may serve the lists on all other parties, but shall not combine the lists with the witness lists filed with the Director.
Under the Codes, the Director will make a tape, digital or other recording of every hearing with certain exceptions as specified in the Codes.
The Codes do not set forth which party must provide to each arbitrator, serve on each party and file with the Director a copy of a transcription of a recording or the stenographic record if it is the official record of the proceeding. Accordingly, the proposed rule change would amend the Codes to provide that if the panel orders a transcription, or the stenographic record is the official record of the proceeding, a copy of the transcription or stenographic record must be provided to each arbitrator, served on each party, and filed with the Director by the party or parties ordered to make the transcription or electing to make the stenographic record, as applicable.
Executive sessions are discussions among arbitrators outside the presence of the parties and their representatives, witnesses and stenographers and are not recorded as they are not part of the official record of the hearing. For transparency and consistency, the proposed rule change would amend the Codes to provide that executive sessions held by the panel will not be recorded.
Under the Codes, parties, except for
For transparency and consistency, the proposed rule change would codify current practice by amending the Codes to provide that the panel may dismiss without prejudice a claim or an arbitration for lack of sufficient service upon a respondent.
Under the Codes, an award is a document stating the disposition of a case,
FINRA believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
The proposed rule change will enhance the transparency of the arbitrator selection process by addressing recommendations in the Report by codifying DRS's practice of conducting a manual review for conflicts of interest prior to sending an arbitrator list to the parties and requiring the Director to provide a written explanation to parties of the Director's decision to grant or deny a party's request to remove an arbitrator. In addition, the proposed rule change will clarify for forum users that parties may challenge an arbitrator for cause at any point after receipt of the arbitrator lists until the first hearing session begins.
The proposed rule change will address the preferences of forum users to hold prehearing conferences by video conference and of customers in simplified arbitrations to have the option to hold simplified proceedings by video conference or by telephone, unless the parties agree to another type of hearing session. It may also help facilitate parties' ability to participate or interact in such arbitration proceedings. The proposed rule change will also clarify for forum users that hearings will generally be held in person unless the parties agree to, or the panel grants a motion for, another type of hearing session.
The proposed rule change will enhance the transparency and efficiency of the DRS arbitration forum for forum users, including investors, by codifying current practices relating to how parties must distribute transcriptions or stenographic records of hearings; clarifying that an answer with a third party claim must include an updated Submission Agreement that lists the name of the third party; clarifying the processes relating to amending pleadings and filing third party claims; codifying current practices relating to how DRS processes motions; codifying current practice that the panel appointed to the lowest numbered case makes decisions regarding combining claims; codifying current practice to allow a panel to dismiss without prejudice a claim or an arbitration for lack of sufficient service upon a respondent; clarifying that executive sessions held by the panel will not be recorded; and codifying current practice requiring a panel to render a written award if the panel grants a motion to dismiss all of the claimant's claims made after the conclusion of a party's case.
Finally, the proposed rule change will help protect forum users, including
FINRA believes the proposed rule change reflects and aligns with DRS's current practices and procedures, and enhances the transparency and efficiency of the DRS arbitration forum by codifying and clarifying these practices and procedures.
FINRA has undertaken an economic impact assessment to analyze the regulatory need for the proposed rule change, its potential economic impacts, including anticipated costs, benefits, and distributional and competitive effects, relative to the current baseline, and the alternatives FINRA considered in assessing how best to meet FINRA's regulatory objectives. As discussed below, FINRA does not believe that the proposed rule change would result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act.
Certain arbitration procedures are not formally described in the Codes, whereas certain other arbitration procedures are formally described in the Codes but questions arise regarding their application. This potential ambiguity may reduce the ability of parties to anticipate their future actions or obligations and thus may cause parties to incur additional costs to prepare and participate in the DRS arbitration forum. Parties and arbitrators may also incur the time to make inquiries to DRS to clarify these arbitration procedures. In addition, potential ambiguity regarding certain
The economic baseline for the proposed rule change consists of the current provisions under the Codes that address the administration of arbitration proceedings. The economic baseline also includes current practices concerning the administration of arbitration proceedings. The proposed rule change is expected to affect parties to cases in the DRS arbitration forum, their legal representatives, and arbitrators.
The proposed rule change may affect any of the cases parties file in the DRS arbitration forum. To describe the potential impact of the proposed rule change, however, FINRA uses the cases that closed from January 2017 to December 2021 (“sample period”). During the sample period, 19,141 cases closed in the DRS arbitration forum. The 19,141 cases include 12,205 cases involving one or more customers and 6,936 cases involving only industry parties.
Many of the proposed amendments would clarify in the Codes forum procedures and the obligations of parties and arbitrators and, in some instances, codify current practice. To the extent that these amendments would permit forum users to better understand their options or to anticipate their future actions or obligations, the proposed rule change may also increase their ability to prepare and participate in the forum. These amendments would also decrease the need for forum users to inquire with DRS when questions arise. Where the actions of parties or arbitrators vary from general current practice, clarification and codification should increase the consistency of the DRS arbitration forum. Relative to the baseline, such parties may incur costs to adhere to the proposed requirements, but there should be few such parties.
Some of the proposed amendments may have other economic effects. The proposed amendments would clarify that parties may challenge an arbitrator for cause after receipt of the arbitrator lists. To the extent that parties currently believe that they may seek to remove an arbitrator through the challenge process only once the arbitrator is appointed, the proposed clarification may help create efficiencies in the DRS arbitration forum by minimizing potential delays from challenges to arbitrators later in the arbitration proceedings. Among the 19,141 cases that were closed during the sample period, FINRA can identify 236 challenges to remove an arbitrator in 204 cases (one percent).
The proposed amendments would provide that prehearing conferences would generally be held by video conference, unless the customer requests at least 60 days before the first scheduled hearing that it be held by telephone, or the parties agree to another type of hearing session, and may affect the options parties have in arbitration. Among the 19,141 cases that were closed during the sample period, a prehearing conference was held in 14,648 cases (77 percent, with an average of 1.7 prehearing conferences held per case) and a special proceeding was held in 290 cases (two percent). For these hearings, the use of video conference would generally be used in place of telephone.
Some parties may perceive an increase in their ability to participate or interact in the hearings by video conference. As noted above, forum users have expressed a preference to hold prehearing conferences by video conference.
The proposed amendments related to combining claims may help parties decide whether to move to combine claims and how to respond to such motions in arbitration. Among the 19,141 cases that were closed during the sample period, 143 cases (one percent) were closed and consolidated with another case. The proposed rule change may improve the ability of parties to the higher numbered case to weigh the potential benefits of combining claims (
The parties to cases that combine as a result of the proposed amendments may benefit from lower legal and forum fees relative to the total fees parties would similarly incur in separate arbitrations. Parties that would choose to combine claims under the baseline due to a misunderstanding of the current practice, but not under the proposed rule change, would incur the legal and forum fees to separately arbitrate their dispute and have their claim decided by the panel to their case. The fees these parties incur may be greater than their share if they instead combined claims. The decision not to combine claims and incur the higher fees, however, results from improved information. The parties that do not want to combine claims, therefore, must anticipate that the higher fees are justified.
Finally, the proposed amendments would better organize the handling of certain documents and records in the DRS arbitration forum by imposing new obligations and requirements on parties. These new obligations and requirements would reduce the level of involvement by DRS, allow for more efficient document management and help protect parties from the inadvertent sharing of potentially prejudicial or confidential information. For example, the proposed rule change would prohibit parties from combining lists of documents and other materials with the witness list to help protect against the inadvertent sharing of such document lists with the arbitrators before the hearing. In addition, the proposed requirement to redact PCI from filings with claims of $50,000 or less, exclusive of interest and expenses, would benefit parties by reducing the risk of identity theft. However, parties may incur additional costs to redact this information. Among the 19,141 cases that closed during the sample period, 4,431 cases (23 percent) relate to claims of $50,000 or less. At least one party appeared
FINRA developed the proposed amendments over a multi-year process during which FINRA considered and modified proposals based on feedback from forum users, including investors, securities industry professionals and
Written comments were neither solicited nor received.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
All submissions should refer to File Number SR-FINRA-2022-033 and should be submitted on or before February 2, 2023.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Small Business Administration publishes an interest rate called the optional “peg” rate (13 CFR 120.214) on a quarterly basis. This rate is a weighted average cost of money to the government for maturities similar to the average SBA direct loan. This rate may be used as a base rate for guaranteed fluctuating interest rate SBA loans. This rate will be 4.13 percent for the January-March quarter of FY 2023.
Pursuant to 13 CFR 120.921(b), the maximum legal interest rate for any third-party lender's commercial loan which funds any portion of the cost of a 504 project (see 13 CFR 120.801) shall be 6% over the New York Prime rate or, if that exceeds the maximum interest rate permitted by the constitution or laws of a given State, the maximum interest rate will be the rate permitted by the constitution or laws of the given State.
Surface Transportation Board.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Surface Transportation Board (Board) gives notice of its intent to seek approval from the Office of Management and Budget (OMB) for an extension and modification of an existing and approved information collection, as described below. An emergency approval was granted for this collection (OMB Control Number 2140-0041), expiring on January 31, 2023. The Board is now seeking to extend and modify that collection with a submission through OMB's regular PRA clearance process.
Comments on these information collections should be submitted by February 13, 2023.
Written comments should be identified as “Paperwork Reduction Act Comments, Surface Transportation Board: Urgent Rail Service Issues.” Written comments for the proposed information collection should be submitted via
Please also direct all comments to Chris Oehrle, PRA Officer, Surface Transportation Board, 395 E Street SW, Washington, DC 20423-0001, or to
The Board previously published a notice about this collection in the
Comments are requested concerning each collection as to (1) whether the particular collection of information is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. Submitted comments will be included and summarized in the Board's request for OMB approval.
At the Board's April 26 and 27, 2022 public hearing in
In a decision served on May 6, 2022, the Board found that immediate action was needed to address significant service problems, and it ordered certain railroads to immediately submit relevant information. The Board took this action to better inform its assessment of actions that may be warranted to address rail service issues. In a decision served on June 13, 2022, the Board required UP, BNSF, CSXT, and NS to correct deficiencies in their service recovery plans and provide additional information on their actions to improve service and communications with customers.
Now, in a decision served on October 28, 2022, the Board extended the temporary reporting period for all seven Class I carriers and required certain updated information from UP, BNSF, CSXT, and NS. The Board directed these four carriers to continue to submit biweekly service progress reports for an additional six-month period, until May 5, 2023. The Board also directed all Class I railroads to submit weekly performance data during this period.
Although not all Class I carriers are experiencing service problems to the same degree, the U.S. rail system is an interconnected network and problems in one geographic area can quickly spread elsewhere. The application of certain reporting requirements to all Class I carriers allows the Board to assess the current service issues across the entire rail network. All Class I carriers must also continue to submit monthly employment data in this
The information received by the Board from this collection will continue to be filed in Docket No. EP 770 (Sub-No. 1) and will be publicly available at
Under the PRA, a federal agency that conducts or sponsors a collection of information must display a currently valid OMB control number. A collection of information, which is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c), includes agency requirements that persons submit reports, keep records, or provide information to the agency, third parties, or the public. Section 3507(b) of the PRA requires, concurrent with an agency's submitting a collection to OMB for approval, a 30-day notice and comment period through publication in the
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion nor omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before February 1, 2023.
Send comments identified by docket number FAA-2022-1033 using any of the following methods:
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Andrew Thai at (202) 267-0175, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion nor omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before February 1, 2023.
Send comments identified by docket number [FAA-2022-1193] using any of the following methods:
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Jake Troutman, (202) 683-7788, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Texas Department of Transportation (TxDOT), Federal Highway Administration (FHWA), U.S. Department of Transportation.
Notice of limitation on claims for judicial review of actions by TxDOT and Federal agencies.
This notice announces actions taken by TxDOT and Federal agencies that are final. The environmental review, consultation, and other actions required by applicable Federal environmental laws for these projects are being, or have been, carried out by TxDOT pursuant to an assignment agreement executed by FHWA and TxDOT. The actions relate to various proposed highway projects in the State of Texas. These actions grant licenses, permits, and approvals for the projects.
By this notice, TxDOT is advising the public of final agency actions subject to 23 U.S.C. 139(l)(1). A claim seeking judicial review of TxDOT and Federal agency actions on the highway projects will be barred unless the claim is filed on or before the deadline. For the projects listed below, the deadline is June 12, 2023. If the Federal law that authorizes judicial review of a claim provides a time period of less than 150 days for filing such a claim, then that shorter time period still applies.
Patrick Lee, Environmental Affairs Division, Texas Department of Transportation, 125 East 11th Street, Austin, Texas 78701; telephone: (512) 416-2358; email:
The environmental review, consultation, and other actions required by applicable Federal environmental laws for these projects are being, or have been, carried out by TxDOT pursuant to 23 U.S.C. 327 and a Memorandum of Understanding dated December 9, 2019, and executed by FHWA and TxDOT.
Notice is hereby given that TxDOT and Federal agencies have taken final agency actions by issuing licenses, permits, and approvals for the highway projects in the State of Texas that are listed below.
The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion (CE), Environmental Assessment (EA), or Environmental Impact Statement (EIS) issued in connection with the projects and in other key project documents. The CE, EA, or EIS and other key documents for the listed projects are available by contacting the local TxDOT office at the address or telephone number provided for each project below.
This notice applies to all TxDOT and Federal agency decisions as of the issuance date of this notice and all laws under which such actions were taken, including but not limited to:
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The projects subject to this notice are:
1. Garth Road from I-10 to SH 146 in Harris County, Texas. The proposed
2. FM 2931 From US 380 to FM 428 in Denton County, Texas. The proposed project would include the widening of FM 2931 to a 6-lane urban roadway section with a raised median and left-turn lanes in various locations within the project limits. The proposed roadway would include three 11- or 12-foot wide (depending on the section) travel lanes in each direction with no shoulders, a raised median, and a 10-foot wide shared use path on each side of the roadway. The proposed project is approximately 6.37 miles in length. The purpose of the proposed project is to improve mobility and safety in the project area. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on September 27, 2022, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting TxDOT at the address provided above or the TxDOT Dallas District Office at 4777 E Highway 80, Mesquite, TX 75150; telephone: (214) 320-4480.
3. US 84 in Mexia, from FM 1365 to 1.05 miles East of FM 1365, Limestone County, Texas. This project is approximately 1.05 miles long. Proposed improvements include widening the roadway from two to four lanes with a two-way left-turn lane, upgrading to a closed storm drain system with curb and gutter, and constructing a sidewalk and a shared-use path. This project would require approximately 1.8 acres of new right of way. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on September 28, 2022, and other documents in the TxDOT project file. The Categorical Exclusion and other documents in the TxDOT project file are available by contacting the TxDOT Waco District Office at 100 South Loop Drive, Waco, TX 76704; telephone: (254) 867-2700.
4. IH 69E, from Spur 54 in Harlingen to Spur 413 in Sebastian, Cameron and Willacy Counties, Texas. The purpose of the project is to improve safety and mobility by upgrading the facility to interstate standards, which would include widening and reconstructing IH 69E to a six-lane controlled access facility, with three 12 foot-wide travel lanes in each direction, 10 foot-wide inside and outside shoulders, and ramp improvements. The proposed project length is approximately 12 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on September 30, 2022, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting the TxDOT Pharr District Office 600 W Expressway 83, Pharr, TX 78577; telephone: (956) 702-6100.
5. Slaughter Lane from Brodie Lane to South Loop 1 NB (Mopac), Travis County, Texas. The project will improve Slaughter Lane from a four-lane roadway to a six-lane roadway. In addition, new pedestrian/bicycle facilities will be constructed along both sides of Slaughter Lane. The project is approximately 1.6 miles in length. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on September 30, 2022, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting the TxDOT Austin District Office at 7901 North I-35, Austin, TX 78753; telephone: (512) 832-7000.
6. FM 1082 Fort Phantom Hill Dam Road Project, from west of Cheyenne Creek Road to east of the
7. SH 151 from Loop 1604 to east of I-410, Bexar County, Texas. The project would widen SH 151 from a four-lane to a six-lane divided roadway. Other improvements include a direct connector from westbound SH 151 to northbound Loop 1604, frontage road improvements, a ramp reversal along Loop 1604, additional exit ramps, a collector distributor and turn-around bridges. The project is approximately 6.5 miles along SH 151 and approximately 2.7 miles along Loop 1604. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Categorical Exclusion Determination issued on November 15, 2022, and other documents in the TxDOT project file. The Categorical Exclusion Determination and other documents in the TxDOT project file are available by contacting the TxDOT San Antonio District Office at 4615 NW Loop 410, San Antonio, TX 78229; telephone: (210) 615-5839.
8. FM 434 widening project from FM 3400 to the Falls County Line in McLennan County, Texas. The proposed roadway would generally consist of a single 12-foot wide travel lane in each direction with 8-foot wide shoulders. The intersection at FM 3400 would have center and right-turn lanes up to 14-foot wide, as well as striped medians up to 12 feet wide at the intersection. The proposed right-of-way would vary between 100 and 280 feet wide. Access would remain at-grade and non-controlled. No new overpasses, underpasses, or bridges would be constructed, but Bull Hide bridge would be widened 11 feet on the downstream. Approximately 30.90 acres of additional right-of-way would be required for the proposed project, as well as approximately 12.02 acres for permanent drainage easements. The
9. TxDOT, in conjunction with the Dallas/Fort Worth International Airport (DFW Airport), proposes to construct the East-West Connector (Rental Car Drive) project in eastern Tarrant County, Texas. The proposed roadway has project limits from SH 360 to International Parkway (Spur 97) and would consist of a new four-lane, divided urban arterial roadway. The project length is 1.65 miles. The purpose of the project is to reduce travel times and improve mobility to and from the DFW Airport. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA), the Finding of No Significant Impact (FONSI) issued on September 1, 2022, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting the TxDOT Fort Worth District Office at 2501 SW Loop 820, Fort Worth, TX 76133; telephone: (817) 370-6772.
10. FM 2220 (Ware Road) from FM 1925 to Mile 5 Road in Hidalgo County, Texas. The purpose of the project is to improve safety and mobility by widening and reconstructing FM 2220 to a six-lane urban facility, to include three 12-foot-wide travel lanes in each direction, 10-foot-wide shoulders, sidewalks, a raised median, and drainage improvements. The proposed project length is approximately 5.4 miles. The actions by TxDOT and Federal agencies and the laws under which such actions were taken are described in the Final Environmental Assessment (EA), the Finding of No Significant Impact (FONSI) issued on October 14, 2022, and other documents in the TxDOT project file. The EA, FONSI, and other documents in the TxDOT project file are available by contacting the TxDOT Pharr District Office at 600 W Expressway 83, Pharr, TX 78577; telephone: (956) 702-6100.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of final disposition.
FMCSA announces its decision to renew exemptions for nine individuals from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these hard of hearing and deaf individuals to continue to operate CMVs in interstate commerce.
The exemptions were applicable on November 30, 2022. The exemptions expire on November 30, 2024.
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room W64-224, Washington, DC 20590-0001, (202) 366-4001,
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption requests. DOT posts these comments, without edit, including any personal information the commenter provides, to
On November 29, 2022, FMCSA published a notice announcing its decision to renew exemptions for nine individuals from the hearing standard in 49 CFR 391.41(b)(11) to operate a CMV in interstate commerce and requested comments from the public (87 FR 73384). The public comment period ended on December 29, 2022, and no comments were received.
FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved by complying with § 391.41(b)(11).
The physical qualification standard for drivers regarding hearing found in § 391.41(b)(11) states that a person is physically qualified to drive a CMV if that person first perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5—1951.
This standard was adopted in 1970 and was revised in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid (35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 8, 1971), respectively).
FMCSA received no comments in this proceeding.
Based upon its evaluation of the nine renewal exemption applications, FMCSA announces its decision to exempt the following drivers from the hearing requirement in § 391.41(b)(11).
As of November 30, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following nine individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers (87 FR 73384):
The drivers were included in docket numbers FMCSA-2014-0104, FMCSA-2017-0058, FMCSA-2017-0060, FMCSA-2018-0135, or FMCSA-2019-0109. Their exemptions were applicable as of November 30, 2022 and will expire on November 30, 2024.
In accordance with 49 U.S.C. 31315(b), each exemption will be valid for 2 years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) the person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136, 49 U.S.C. chapter 313, or the FMCSRs.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of final disposition.
FMCSA announces its decision to renew exemptions for five individuals from the hearing requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) for interstate commercial motor vehicle (CMV) drivers. The exemptions enable these hard of hearing and deaf individuals to continue to operate CMVs in interstate commerce.
The exemptions were applicable on December 16, 2022. The exemptions expire on December 16, 2024.
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room W64-224, Washington, DC 20590-0001, (202) 366-4001,
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption requests. DOT posts these comments, without edit, including any personal information the commenter provides, to
On November 29, 2022, FMCSA published a notice announcing its decision to renew exemptions for five individuals from the hearing standard in 49 CFR 391.41(b)(11) to operate a CMV in interstate commerce and requested comments from the public (87 FR 73388). The public comment period ended on December 29, 2022, and no comments were received.
FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved by complying with § 391.41(b)(11).
The physical qualification standard for drivers regarding hearing found in § 391.41(b)(11) states that a person is physically qualified to drive a CMV if that person first perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5—1951.
This standard was adopted in 1970 and was revised in 1971 to allow drivers to be qualified under this standard while wearing a hearing aid (35 FR 6458, 6463 (Apr. 22, 1970) and 36 FR 12857 (July 8, 1971), respectively).
FMCSA received no comments in this proceeding.
Based upon its evaluation of the five renewal exemption applications, FMCSA announces its decision to exempt the following drivers from the hearing requirement in § 391.41 (b)(11).
As of December 16, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following five individuals have satisfied the renewal conditions for obtaining an exemption from the hearing requirement in the FMCSRs for interstate CMV drivers (87 FR 73388):
The drivers were included in docket numbers FMCSA-2013-0121, FMCSA-2014-0102, or FMCSA-2018-0136. Their exemptions were applicable as of December 16, 2022 and will expire on December 16, 2024.
In accordance with 49 U.S.C. 31315(b), each exemption will be valid for 2 years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; denial of application for exemption.
FMCSA announces its decision to deny the exemption request from the National Ground Water Association (NGWA). NGWA sought an exemption from the entry-level driver training (ELDT) regulations “for individuals operating class B ground water well drilling rigs.” FMCSA analyzed the exemption application and public comments and determined that the exemption would not achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.
Mr. Richard Clemente, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202-366-2722. Email:
To view comments, go to
To view documents mentioned in this notice as being available in the docket, go to
If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, 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 the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The ELDT regulations, implemented on February 7, 2022 and set forth in 49 CFR part 380, subparts F and G, establish minimum training standards for individuals applying for certain commercial driver's licenses (CDLs) and define curriculum standards for theory and behind-the-wheel (BTW) training. They also established an online training provider registry (TPR), eligibility requirements for providers to be listed on the TPR, and requirements for ELDT instructors. Under 49 CFR 380.609(a), an individual who applies, for the first time, for a Class A or Class B CDL, or who upgrades to a Class A or B CDL, must complete driver training from a provider listed on the TPR, as set forth in subpart G.
NGWA states that it is the country's largest professional association representing water well contractors, groundwater scientists, and manufacturers and suppliers of groundwater technology. NGWA seeks an exemption from the ELDT regulations “for individuals operating class B ground water well drilling rigs” which transport water well field equipment used to access ground water. NGWA states that increasing demands for groundwater and private water wells, along with labor and supply shortages, have contributed to delays in drilling new water wells. NGWA believes that the exemption, if granted, would allow ground water well drilling rig operators to receive on-the-job training, which could save hundreds of hours each year for water well contractors. NGWA asserts that, if the exemption was granted, on-the-job “safe driver” training would be provided to drivers covered by the exemption prior to “taking their CDL exam.” NGWA did not, however, provide details regarding such training or how the training would achieve a level of safety equivalent to or greater than the level of safety achieved by complying with the ELDT regulations.
On July 7, 2022, FMCSA published notice of this application and requested public comments (87 FR 40581). The Agency received 18 comments: nine in support, eight in opposition, and one neutral. The Owner-Operator Independent Driver's Association (OOIDA) and the AFL-CIO/Transportation Trades Department (AFL-CIO/TTD) both strongly opposed the exemption request, along with six other individuals/small companies. OOIDA cited a number of reasons for its opposition, including its participation as an industry stakeholder on the Entry-Level Driver Training Advisory Committee when the “framework” of the ELDT regulations were agreed upon. OOIDA believes this exemption could allow individuals who drive Group B water well drilling rigs to drive other types of Group B vehicles without sufficient knowledge of basic commercial motor vehicle maneuvers, which would not result in an equivalent level of safety. The AFL-CIO/TTD also opposed the request, stating that there are alternatives that would ensure equivalent levels of safety without
Nine commenters supported the request, including representatives from the ground water well industry, such as the Florida Ground Water Association and the Georgia Association of Ground Water Professionals. Those filing in support primarily cited the shortage of CDL drivers in their industry, and the fact that ground water well companies are, for the most part, already conducting in-house driver training. They further cited the added costs of the ELDT requirements, which they assert discourage younger individuals from seeking and applying for a CDL in their industry.
FMCSA denies the exemption. Although the NGWA stated that it would provide on-the-job “safe driver” training to drivers covered by the exemption prior to obtaining their CDL, NGWA did not provide any details of that training or explain how such training would provide an equivalent or greater level of safety as compliance with the existing regulations, as required by 49 CFR 381.310(c)(5). FMCSA therefore has no basis to conclude that the training would likely ensure an equivalent or greater level of safety as would be achieved absent the exemption, as required by statute (49 U.S.C. 31315(b)(1)).
For the above reasons, NGWA's exemption application is denied.
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of final disposition.
FMCSA announces its decision to renew exemptions for 15 individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
The exemptions were applicable on November 27, 2022. The exemptions expire on November 27, 2024.
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room W64-224, Washington, DC 20590-0001, (202) 366-4001,
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption request. DOT posts these comments, without edit, including any personal information the commenter provides, to
On November 29, 2022, FMCSA published a notice announcing its decision to renew exemptions for 15 individuals from the epilepsy and seizure disorders prohibition in 49 CFR 391.41(b)(8) to operate a CMV in interstate commerce and requested comments from the public (87 FR 73392). The public comment period ended on December 29, 2022, and no comments were received.
FMCSA has evaluated the eligibility of these applicants and determined that renewing these exemptions would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved by complying with § 391.41(b)(8).
The physical qualification standard for drivers regarding epilepsy found in § 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria
FMCSA received no comments in this proceeding. However, FMCSA is aware Mr. Keith Hubbard's state of licensure was incorrectly stated in the November 2022 notice. Mr. Hubbard's state of licensure has been corrected in this notice exempting him from the seizure standard in § 391.41(b)(8).
Based on its evaluation of the 15 renewal exemption applications, FMCSA announces its decision to exempt the following drivers from the epilepsy and seizure disorders prohibition in § 391.41(b)(8).
As of November 27, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following 15 individuals have satisfied the renewal conditions for obtaining an exemption from the epilepsy and seizure disorders
The drivers were included in docket number FMCSA-2014-0212, FMCSA-2014-0215, FMCSA-2015-0323, FMCSA-2016-0007, FMCSA-2018-0052, FMCSA-2018-0053, FMCSA-2018-0054, FMCSA-2020-0050, or FMCSA-2020-0051. Their exemptions were applicable as of November 27, 2022 and will expire on November 27, 2024.
In accordance with 49 U.S.C. 31315(b), each exemption will be valid for 2 years from the effective date unless revoked earlier by FMCSA. The exemption will be revoked if the following occurs: (1) the person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained prior to being granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b).
Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).
Notice of renewal of exemptions; request for comments.
FMCSA announces its decision to renew exemptions for six individuals from the requirement in the Federal Motor Carrier Safety Regulations (FMCSRs) that interstate commercial motor vehicle (CMV) drivers have “no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause loss of consciousness or any loss of ability to control a CMV.” The exemptions enable these individuals who have had one or more seizures and are taking anti-seizure medication to continue to operate CMVs in interstate commerce.
Each group of renewed exemptions were applicable on the dates stated in the discussions below and will expire on the dates stated in the discussions below. Comments must be received on or before February 13, 2023.
You may submit comments identified by the Federal Docket Management System Docket No. FMCSA-2013-0442, Docket No. FMCSA-2015-0116, Docket No. FMCSA-2015-0323, Docket No. FMCSA-2016-0007, or Docket No. FMCSA-2018-0053 using any of the following methods:
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•
•
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To avoid duplication, please use only one of these four methods. See the “Public Participation” portion of the
Ms. Christine A. Hydock, Chief, Medical Programs Division, FMCSA, DOT, 1200 New Jersey Avenue SE, Room W64-224, Washington, DC 20590-0001, (202) 366-4001,
If you submit a comment, please include the docket number for this notice (Docket No. FMCSA-2013-0442, Docket No. FMCSA-2015-0116, Docket No. FMCSA-2015-0323, Docket No. FMCSA-2016-0007, or Docket No. FMCSA-2018-0053), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. 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 that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
To view comments go to
In accordance with 49 U.S.C. 31315(b)(6), DOT solicits comments from the public on the exemption request. DOT posts these comments, without edit, including any personal information the commenter provides, to
Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption from the FMCSRs for no longer than a 5-year period if it finds such exemption would likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The statutes also allow the Agency to renew exemptions at the end of the 5-year period. However, FMCSA grants medical exemptions from the FMCSRs for a 2-year period to align with the maximum duration of a driver's medical certification.
The physical qualification standard for drivers regarding epilepsy found in 49 CFR 391.41(b)(8) states that a person is physically qualified to drive a CMV if that person has no established medical history or clinical diagnosis of epilepsy or any other condition which is likely to cause the loss of consciousness or any loss of ability to control a CMV.
In addition to the regulations, FMCSA has published advisory criteria
The six individuals listed in this notice have requested renewal of their exemptions from the epilepsy and seizure disorders prohibition in § 391.41(b)(8), in accordance with FMCSA procedures. Accordingly, FMCSA has evaluated these applications for renewal on their merits and decided to extend each exemption for a renewable 2-year period.
Interested parties or organizations possessing information that would otherwise show that any, or all, of these drivers are not currently achieving the statutory level of safety should immediately notify FMCSA. The Agency will evaluate any adverse evidence submitted and, if safety is being compromised or if continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b), FMCSA will take immediate steps to revoke the exemption of a driver.
In accordance with 49 U.S.C. 31136(e) and 31315(b), each of the six applicants has satisfied the renewal conditions for obtaining an exemption from the epilepsy and seizure disorders prohibition. The six drivers in this notice remain in good standing with the Agency, have maintained their medical monitoring and have not exhibited any medical issues that would compromise their ability to safely operate a CMV during the previous 2-year exemption period. In addition, for commercial driver's license (CDL) holders, the Commercial Driver's License Information System and the Motor Carrier Management Information System are searched for crash and violation data. For non-CDL holders, the Agency reviews the driving records from the State Driver's Licensing Agency. These factors provide an adequate basis for predicting each driver's ability to continue to safely operate a CMV in interstate commerce. Therefore, FMCSA concludes that extending the exemption for each renewal applicant for a period of 2 years is likely to achieve a level of safety equal to that existing without the exemption.
In accordance with 49 U.S.C. 31136(e) and 31315(b), the following groups of drivers received renewed exemptions in the month of December and are discussed below.
As of December 3, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following four individuals have satisfied the renewal conditions for obtaining an exemption from the epilepsy and seizure disorders prohibition in the FMCSRs for interstate CMV drivers:
The drivers were included in docket number FMCSA-2013-0442, FMCSA-2016-0007, or FMCSA-2018-0053. Their exemptions were applicable as of December 3, 2022 and will expire on December 3, 2024.
As of December 16, 2022, and in accordance with 49 U.S.C. 31136(e) and 31315(b), the following two individuals have satisfied the renewal conditions for obtaining an exemption from the epilepsy and seizure disorders prohibition in the FMCSRs for interstate CMV drivers:
The drivers were included in docket number FMCSA-2015-0116 or FMCSA-2015-0323. Their exemptions were applicable as of December 16, 2022 and will expire on December 16, 2024.
The exemptions are extended subject to the following conditions: (1) each driver must remain seizure-free and maintain a stable treatment during the 2-year exemption period; (2) each driver must submit annual reports from their treating physicians attesting to the stability of treatment and that the driver has remained seizure-free; (3) each driver must undergo an annual medical examination by a certified ME, as defined by § 390.5; and (4) each driver must provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy of his/her driver's qualification file if he/she is self-employed. The driver must also have a copy of the exemption when driving, for presentation to a duly authorized Federal, State, or local enforcement official. The exemption will be rescinded if: (1) the person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b).
During the period the exemption is in effect, no State shall enforce any law or regulation that conflicts with this exemption with respect to a person operating under the exemption.
Based on its evaluation of the six exemption applications, FMCSA renews the exemptions of the aforementioned drivers from the epilepsy and seizure disorders prohibition in § 391.41(b)(8). In accordance with 49 U.S.C. 31136(e) and 31315(b), each exemption will be
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; grant of application for exemption.
FMCSA announces its decision to grant the application submitted by Rex Railsback, Owner, Railsback HazMat Safety Professionals, LLC (Railsback HMSP), for an exemption from the theory instructor qualification requirements in the entry-level driver training (ELDT) regulations. The exemption will allow Mr. Railsback to conduct theory (
The exemption is effective from January 12, 2023 through January 12, 2028.
Mr. Richard Clemente, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; (202) 366-2722;
To view comments, go to
To view documents mentioned in this notice as being available in the docket, go to
If you do not have access to the internet, you may view the docket by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, 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 the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The ELDT regulations, implemented on February 7, 2022, and set forth in 49 CFR 380, subparts F and G, established minimum training standards for individuals applying for certain CDLs and defined curriculum standards for theory and behind-the-wheel (BTW) training. The ELDT regulations also established an online training provider registry (TPR), eligibility requirements for providers to be listed on the TPR, and requirements for instructors. Under 49 CFR 380.713, a training provider must use instructors who meet the definition of “theory instructor” in 49 CFR 380.605. The definition requires that the instructor hold a CDL of the same (or higher) class, with all endorsements necessary to operate the commercial motor vehicle (CMV) for which training is to be provided, and have either: (1) a minimum of 2 years of experience driving a CMV requiring a CDL of the same or higher class and/or the same endorsement; or (2) at least two years of experience as a BTW CMV instructor. In addition, the instructor must meet applicable state qualification requirements for CMV instructors. The definition also includes an exception to the requirement that a theory instructor currently possess an applicable CDL, if the instructor previously held a CDL and meets the other qualification requirements. The regulations were based in part on consensus recommendations from the Agency's ELDT Advisory Committee (ELDTAC), a negotiated rulemaking committee.
Rex Railsback, Owner, Railsback HazMat Safety Professionals, LLC, requests an exemption from the requirement that a driver training instructor must possess a CDL with all applicable endorsements to perform ELDT theory instruction. Mr. Railsback would perform theory (
Mr. Railsback states that his experience and expertise in the HM field would be equal to or supersede theory training offered by others and would enhance the safety of HM transportation for prospective driver trainees. Mr. Railsback provided the following list of his credentials in his application for exemption to the Agency:
• Over 24 years' experience as a certified truck inspector holding certifications in Commercial Vehicle Safety Alliance (CVSA) NAS Inspection Part A and B, General Hazardous
• 20 years' experience as an FMCSA, National Training Center (NTC) North American Standard (NAS) Inspection Part B and HM Instructor;
• 5 years' experience as an FMCSA, NTC Master Instructor for NAS Inspection Part A and B, General HM, Cargo Tank Inspection, and other Bulk Packaging Inspection;
• 14 years' experience as an FMCSA, NTC Instructor Development Coach;
• 9 years' experience conducting compliance reviews, specializing in HM carriers and shippers;
• 5 years' experience conducting Cargo Tank facility reviews;
• Member and subject matter expert for several FMCSA, NTC course development and update working groups;
• Previous Region III COHMED Chairman;
• Previous COHMED International Chairman;
• Former Lead MCSAP Trainer, Training Coordinator and Training Lieutenant for the Kansas Highway Patrol Troop 1;
• Certified civilian CVSA Hazardous Materials Instructor (HMIT).
On July 8, 2022, FMCSA published notice of the Rex Railsback application and requested public comment [87 FR 40876]. The Agency received eight comments. Six individual respondents submitted comments favoring the exemption application, while the Owner-Operator Independent Drivers Association (OOIDA) and one other individual commenter filed in opposition to the request.
Those individuals who filed in support cite Mr. Railsback's numerous years as a recognized industry expert in the field of HM training, including his previous employment with the Kansas Highway Patrol, his time as an active member of the CVSA and the Pipeline and Hazardous Materials Administration, and the Cooperative Hazardous Materials Enforcement Development (COHMED) programs. One individual commenter, Nick Wright, who filed in support of the exemption request, stated:
While Mr. Railsback does not possess a CDL as required by the ELDT regulations, he is not requesting to teach new CDL applicants how to operate commercial vehicles. Instead, he is intending to instruct the classroom portion (
Five other individual commenters filed comments echoing support of the exemption request, for similar reasons.
OOIDA commented in opposition citing several reasons, including OOIDA's participation as a primary industry stakeholder on the ELDTAC when the “framework” of the ELDT rule was agreed upon. OOIDA noted its support for the provision in the final ELDT rule that required CDL experience for training instructors, stating that “we feel there is no substitute for an experienced behind-the-wheel trainer and employing these instructors will help achieve the objectives of the ELDT rulemaking.” One other individual commenter opposed the exemption request, stating that while Mr. Railsback is a “well-qualified HM instructor,” he is not a qualified theory instructor under Part 380 because he has never held a CDL.
FMCSA has evaluated Rex Railsback's application for exemption and the filed public comments and has independently verified Mr. Railsback's credentials. FMCSA grants the exemption. While OOIDA commented in opposition regarding the experience requirements in the ELDT regulations for training instructors, it bears note that for a theory instructor for HM training, there is no BTW training involved, as there is no skills test for an HM endorsement. Mr. Railsback has extensive experience teaching HM-related subjects and is a widely acknowledged subject matter expert in the transportation of hazardous materials by CMV. Further, because the theory instruction curriculum for the H endorsement does not include any BTW training, the Agency believes that the exemption will likely achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption, in accordance with § 381.305(a).
This exemption is granted to Mr. Rex Railsback as the owner of Railsback HMSP. The exemption from the requirement in 49 CFR 380.713(a) that training instructors must utilize theory instructors meeting the qualification requirements set forth in the definition of “theory instructor” in 49 CFR 380.605, will allow Mr. Railsback, through Railsback HMSP, to provide ELDT theory instruction for the H endorsement curriculum in Appendix E of Part 380 without meeting these requirements. The exemption is effective January 12, 2023 through January 12, 2028.
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of final guidance.
FRA is publishing final guidance on the development and implementation of railroad capital projects that may be funded, in whole or in part, by FRA (“final guidance”). This final guidance follows publication of the proposed guidance (“proposed guidance”) on June 28, 2022.
The final guidance is available at
For further information, please contact Mr. David Valenstein, Office of Railroad Development, at
Over the next five years, the Infrastructure Investment and Jobs Act (IIJA) (Pub. L. 117-58, also known as the “Bipartisan Infrastructure Law”) will provide unprecedented Federal funding
The final guidance will assist project sponsors in developing effective capital projects and enhance the management of capital projects. The audience of the final guidance includes project sponsors and partners, as well as the wide range of professionals who contribute to the planning, development, and implementation of railroad capital projects. The final guidance: (1) defines the stages in the railroad capital project lifecycle and project development process from inception to operation; (2) describes the project management tools, processes, and documentation that FRA requires when providing grants that fund the development or implementation of a railroad capital project; (3) differentiates between Non-Major projects and Major projects by defining a “Major Project” as a railroad capital project with a Capital Cost Estimate equal to or greater than $500 million and with at least $100 million in total Federal assistance.
FRA strongly encourages project sponsors to follow the final guidance when developing, implementing, and managing railroad capital projects. FRA may use the final guidance to inform its grant application reviews and decisions in accordance with a process described in a notice of funding opportunity for the relevant grant program and may require compliance with the guidance as part of grant agreements funding railroad capital projects in accordance with 2 CFR parts 200 and 1201. The practices contained in the guidance draw from FRA's experience and from established programs of other DOT operating administrations that have enhanced the delivery of major highway and transit projects.
FRA is adopting the guidance largely as it was proposed, with changes to the guidance text as discussed in Section II.
FRA received a total of nine comments on the proposed guidance: eight generally supported the proposed guidance and provided feedback, and one was considered outside of the scope of the proposed guidance. FRA received comments from the following respondents: American Association of State Highway and Transportation Officials (AASHTO); American Public Transportation Association (APTA); National Railroad Passenger Corporation (Amtrak); Association for Innovative Passenger Rail Operations (AIPRO); Brotherhood of Maintenance of Way Employees Division/International Brotherhood of Teamsters (BMWED/IBT); California High-Speed Rail Authority (CHSRA); Front Range Passenger Rail District (comments were intended for Docket #FRA-2022-0031 and are not addressed here); Metropolitan Transportation Authority (MTA); and New Jersey Transit (NJT).
Several commenters provided feedback on the definitions established in Section II of the proposed guidance, as summarized below.
1. Major Project, Section II(a). The proposed guidance defined “major project” as a railroad capital project with an estimated total project cost equal to, or greater than, $300 million, and receiving at least $100 million in Federal assistance. CHSRA, Amtrak, and APTA suggested a change from the $300 million total project cost threshold to $500 million for consistency with the Federal Highway Administration (FHWA) definition and the USDOT Mega grant program.
2. Project Sponsor, Section II(c). APTA recommended that FRA revise the definition of Project Sponsor to allow for joint or multiple sponsors. BMWED recommended adding compliance with FRA grant labor requirements to the definition of project sponsor. FRA made no changes to the definition of project sponsor in the final guidance. The proposed definition is broad enough to accommodate multiple project sponsors and the labor requirements described in BMWED's comment are imposed through existing laws and authorities as well as through the terms and conditions of individual grant agreements.
3. Capital Cost Estimate, Section II(f). APTA recommended including operations and maintenance costs in the capital cost estimate. FRA made no changes to the final guidance in response to this comment. The capital cost estimate is for delivery of the capital project, which typically does not include operations and maintenance costs. However, those costs are accounted for elsewhere in the guidance. For example, the project development stage includes analysis of benefits and costs that would include operations and maintenance costs for the project. In addition, maintenance costs are separately addressed in the project management plan and the financial plan.
4. Financial Plan, Section II(g). The definition of financial plan in the proposed guidance stated that for projects involving debt-based financing, the financial plan identifies the up-front capital for the project. MTA asked for clarification that the financial plan identifies all project funds rather than the up-front capital. In response, FRA revised the language in the definition in the final guidance to clarify that the financial plan identifies all project funds for the project.
APTA, MTA, and CHSRA sought clarification that project sponsors should be able to self-certify compliance with the guidance (for example, self-certify that stages have been completed, documentation prepared, or program requirements have been met). FRA made no changes to the proposed guidance in response to this comment. The final guidance states that FRA will address application of the guidance in grant agreements, including when FRA will permit self-certification. CHSRA also suggested the guidance clarify that it would not apply retroactively to projects that are already in development or subject to a grant agreement. FRA did not make changes the final guidance in response to this comment, since Section I(b) of the guidance states FRA may require compliance with the guidance as part of grant agreements or notice of funding opportunity.
Several commenters provided feedback on the Project Lifecycle Stages in Sections III and IV of the guidance, as summarized below.
1. Lifecycle Stages, Section III. APTA, Amtrak and CHSRA asked for flexibility in combining stages and for clarity about when procurement happens. Amtrak and CHSRA also asked about how innovative delivery methods flow through and change the stages. In response, FRA revised the final guidance to clarify that procurement may be initiated in the project development stage of the lifecycle and specify that Project Sponsors may use innovative contracting and delivery methods.
2. Project Planning, Section IV(b). Amtrak asked to change the language about design in planning and project development to align with their grant process. FRA made clarifying edits to the final guidance in this section but did not make all changes requested, because FRA will continue to work to align all grants, including those to Amtrak, with this guidance.
3. Final Design, Section IV(d). Amtrak suggested including final design as part of the development stages in the project lifecycle rather than as part of the implementation stages. FRA did not change the final guidance in response to this suggestion. The final guidance is consistent with FRA's approach regarding final design and construction as implementation stages in its grant programs.
4. Operations, Section IV(f). APTA suggested changing the name of the final stage from “Operation” to “Operation and Maintenance.” In response, FRA added a reference to maintenance in the description of the operation stage in the final guidance.
Several commenters provided feedback on the Project Lifecycle Completion Measures in Section IV of the guidance. NJT proposed that the guidance include “commissioning” as a part of construction completion. FRA agrees and revised Section IV(e) of the final guidance to include commissioning as part of construction completion.
Amtrak and CHSRA commented that criteria or processes for determining completion of each lifecycle stage should be added to the guidance. FRA did not add prescriptive criteria or processes that determine the completion of each lifecycle stages in order to provide flexibility for a range of projects.
Several commenters provided feedback on the Project Management Tools in Section V of the guidance.
1. Project Management Plan (PMP), Section V(b). Several commenters suggested that the PMP should allow for flexibility to define project budgets. FRA finds that no change is necessary because the final guidance does not specify how Project Sponsors structure budgets, providing the appropriate flexibility. BMWED asked that that statutorily mandated employee protections be recognized in the PMP. FRA recognizes the importance of these statutorily mandated employee protections but believes they are more appropriately addressed in the context of the grant agreement and are thus outside of the scope of the guidance. However, FRA added a workforce sub-plan element to the PMP for major projects to address railroad labor forces required to implement the project, if applicable.
2. Capital Cost Estimate, Section V(d). NJT, APTA, and MTA commented that the capital cost estimate should use a midpoint of construction instead of year-of-expenditure. FRA agrees and revised the text accordingly. MTA suggested the final guidance specify that the independent party conducting major project risk reviews may be Project Sponsor internal staff independent from the project team. FRA did not incorporate the suggestion to allow Project Sponsor staff to conduct the risk review into the final guidance; FHWA and FTA practice is for independent parties to conduct the risk review for Federally funded projects and the guidance is consistent with this approach. MTA also suggested that FRA oversight of risk review be limited to FRA participation in a workshop led by the Project Sponsor. This approach would also be inconsistent with FHWA and FTA practice of direct Federal agency involvement or leadership of the entire risk review for Federally funded projects. Therefore, FRA did not modify the final guidance in response to this comment.
3. Financial Plan, Section V(e). APTA and MTA sought certainty that documenting the “availability of funding” in the Initial Financial Plan means that all required approvals for funding from governing bodies have been secured, such as an approved capital plan. FRA determined the suggested edits are unnecessary because the guidance addresses availability of funding and associated documentation in Section V(e)(ii)(A)(4), which provides as examples official board resolution or an adopted budget committing the funds to the project, or evidence that the project and funding amounts are included in the sponsor's adopted multi-year capital program. APTA and MTA also suggested adding internal project sponsor review of the Initial Financial Plan and annual updates that the project sponsor self-certifies. FRA did not modify the final guidance in response to this comment because self-certification measures, if appropriate, would be addressed in the grant agreement.
Several commenters provided feedback on the lifecycle progression of project delivery planning and implementation. CHSRA, APTA, and Amtrak sought clarification on when procurement happens and how innovative delivery is recognized in the lifecycle stages. FRA made edits to Section III.a. to recognize sponsor flexibilities, early procurements, and early works.
BMWED commented that the guidance should specify railroad labor organizations as stakeholders in project planning and consider labor from initial construction to established maintenance. FRA made edits to Section V.b by modifying the PMP contents to address labor agreements at Section V.b. BMWED also proposed that the guidance require Project Sponsors to be Railroad Labor Act (RLA) at 45 U.S.C. 151
FRA received several miscellaneous comments to enhance the guidance.
1. Amtrak suggested broadening the guidance to address technology integration and other project types. In response, FRA amended the construction stage definition at Section IV(e) and the PMP language at Section V(b).
2. APTA commented that the guidance should address climate resilience. FRA responded by adding resilience consideration to the project planning and project development at Sections IV(b) and (c), respectively.
3. AIPRO, NJT, and APTA commented that effective maintenance should be recognized in early analyses and the
4. BMWED commented that capital projects that are fully covered by RLA, RRA, and RUIA should be prioritized. FRA finds that no change is necessary because grant programs address statutory labor requirements.
Issued in Washington, DC.
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice of availability of final initial updated Capital Investment Grants program policy guidance.
The Federal Transit Administration (FTA) is making available, on its website and in the docket, final initial updates to the Capital Investment Grants (CIG) program policy guidance. These revisions amend FTA's CIG Final Interim Policy Guidance last published in June 2016 to reflect changes made to the program by the Infrastructure Investment and Jobs Act (IIJA), also known as the “Bipartisan Infrastructure Law”. In March 2022, FTA published initial guidance proposals for implementing changes made to the CIG program by the IIJA for public comment. FTA appreciates the thoughtful comments received and has incorporated some of the suggestions into the initial updated CIG program policy guidance. FTA is placing formal responses to the comments received in the docket. This policy guidance continues to complement FTA's regulations that govern the CIG program.
This final initial guidance is effective January 12, 2023.
Elizabeth Day, FTA Office of Planning and Environment, telephone (202) 366-5159 or
This final initial guidance document contains binding obligations, which 49 U.S.C. 5334(k) defines as “a substantive policy statement, rule, or guidance document issued by the Federal Transit Administration that grants rights, imposes obligations, produces significant effects on private interests, or effects a significant change in existing policy.” Under 49 U.S.C. 5334(k), FTA may issue binding obligations if it follows notice and comment rulemaking procedures under 5 U.S.C. 553. Prior to making the amendments announced today, FTA followed such procedures. The policy guidance that FTA periodically issues for the CIG program complements the FTA regulations that govern the CIG program, codified at 49 CFR part 611. The regulations set forth the process that grant applicants must follow to be considered for discretionary funding under the CIG program, and the procedures and criteria FTA uses to rate and evaluate projects to determine their eligibility for discretionary CIG program funding. The policy guidance provides a greater level of detail about the methods FTA uses and the sequential steps a sponsor must follow in developing a project.
In March 2022, FTA sought comment on three initial proposed changes to FTA's CIG Final Interim Policy Guidance last issued in June 2016 (87 FR 14612). The three proposals were related to changes made by the IIJA to 49 U.S.C. 5309 and included: eligibility as a Core Capacity project; how FTA will determine that a CIG project sponsor has demonstrated progress on meeting Transit Asset Management and State of Good Repair targets; and how bundles of CIG projects can enter the Project Development phase of the program. The initial updated CIG program policy guidance is being made available today on the agency's public website at
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice.
By this notice, the Federal Transit Administration (FTA) is establishing an Emergency Relief Docket for calendar year 2023, so grantees and subgrantees affected by a national or regional emergency or disaster may request temporary relief from FTA administrative and statutory requirements.
Bonnie L. Graves, Attorney-Advisor, Office of Chief Counsel, Federal Transit Administration, 90 Seventh Street, Ste. 15-300, San Francisco, CA 94103; phone: (202) 366-0944, or email,
Pursuant to 49 CFR 601.42, FTA is establishing the Emergency Relief Docket for calendar year 2023. In the case of a national or regional emergency or disaster, or in anticipation of such an event, when FTA requirements impede a grantee or subgrantee's ability to respond to the emergency or disaster, a grantee or subgrantee may submit a request for relief from specific FTA requirements.
If FTA determines that a national or regional emergency or disaster has occurred, or in anticipation of such an event, FTA will place a message on its web page (
All petitions for relief from FTA administrative or statutory requirements must be posted in the docket in order to receive consideration by FTA. The docket is publicly available and can be accessed 24 hours a day, seven days a week, via the internet at
Interested parties may consult 49 CFR part 601, subpart D for information on FTA's emergency procedures for public transportation systems. FTA strongly encourages grantees and subgrantees to contact their FTA regional office and notify FTA of the intent to submit a petition to the docket.
A grantee or subgrantee seeking relief has three avenues for submitting a petition. First, a grantee or subgrantee may submit a petition for waiver of FTA requirements to
Federal public transportation law at 49 U.S.C. 5324(d) provides that a grant awarded under Section 5324, or under 49 U.S.C. 5307 or 49 U.S.C. 5311, that is made to address an emergency shall be subject to the terms and conditions the Secretary determines are necessary. This language allows FTA to waive certain statutory, as well as administrative, requirements.
An FTA grantee or subgrantee receiving financial assistance under 49 U.S.C. 5324, 5307, or 5311 that is affected by a national or regional emergency or disaster may request a waiver of provisions of Chapter 53 of Title 49 of the United States Code in connection with such financial assistance, when a grantee or subgrantee demonstrates that the requirement(s) will limit a grantee's or subgrantee's ability to respond to a national or regional emergency or disaster.
Pursuant to 49 CFR 601.42, a grantee or subgrantee must include certain information when requesting a waiver of statutory or administrative requirements. A petition for relief shall:
(a) Include the agency name (Federal Transit Administration) and docket number FTA-2023-0001;
(b) Identify the grantee or subgrantee and its geographic location;
(c) Identify the section of Chapter 53 of Title 49 of the United States Code, or the portion of an FTA policy statement, circular, guidance document or rule, from which the grantee or subgrantee seeks relief;
(d) Specifically address how a requirement in Chapter 53 of Title 49 of the United States Code, or an FTA requirement in a policy statement, circular, agency guidance or rule, will limit a grantee's or subgrantee's ability to respond to a national or regional emergency or disaster; and
(e) Specify if the petition for relief is one-time or ongoing, and if ongoing identify the time period for which the relief is requested. The time period may not exceed three months; however, additional time may be requested through a second petition for relief.
Pursuant to 49 CFR 601.46, a petition for relief from administrative requirements will be conditionally granted for a period of three (3) business days from the date it is submitted to the Emergency Relief Docket. FTA will review the petition after the expiration of the three business days and review any comments submitted regarding the petition. FTA may contact the grantee or subgrantee that submitted the request for relief, or any party that submits comments to the docket, to obtain more information prior to making a decision. FTA shall then post a decision to the Emergency Relief Docket. FTA's decision will be based on whether the petition meets the criteria for use of these emergency procedures, the substance of the request, and any comments submitted regarding the petition. If FTA does not respond to the request for relief to the docket within three business days, the grantee or subgrantee may assume its petition is granted for a period not to exceed three months until and unless FTA states otherwise.
A petition for relief from statutory requirements will not be conditionally granted and requires a written decision from the FTA Administrator. Further, grantees seeking a waiver from Buy America requirements must follow the procedures in 49 CFR 661.7 and 661.9. Buy America waivers will not be granted through the Emergency Relief Docket.
An FTA decision, either granting or denying a petition, shall be posted in the Emergency Relief Docket and shall reference the document number of the petition to which it relates. FTA reserves the right to reconsider any decision made pursuant to these emergency procedures based upon its own initiative, based upon information or comments received subsequent to the three-business day comment period, or at the request of a grantee or subgrantee upon denial of a request for relief. FTA shall notify the grantee or subgrantee if FTA plans to reconsider a decision.
Pursuant to FTA's Charter Rule at 49 CFR 604.2(f), grantees and subgrantees may assist with evacuations or other movement of people that might otherwise be considered charter transportation when that transportation is in response to an emergency declared by the President, governor or mayor, or in an emergency requiring immediate action prior to a formal declaration, even if a formal declaration of an emergency is not eventually made by the President, governor or mayor. Therefore, a request for relief is not necessary in order to provide this service. However, if the emergency lasts more than 45 calendar days and the grantee will continue to provide service that would otherwise be considered charter service, the grantee or subgrantee shall follow the procedures set out in this notice.
The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies. Grantees and subgrantees should refer to FTA's regulations, including 49 CFR part 601, for requirements for submitting a request for emergency relief.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice and request for comments on a reinstatement of previously approved information collection.
NHTSA invites public comments about our intention to request approval from the Office of Management and Budget (OMB) for a reinstatement with modification of a previously approved information collection. Before a Federal agency can collect certain information from the public, it must receive approval from OMB. Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections. This document describes a collection of information for which NHTSA intends to seek OMB approval on Older Driver Rearview Video Systems.
Comments must be submitted on or before March 13, 2023.
You may submit comments identified by the Docket No. NHTSA-2022-0108 through any of the following methods:
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For additional information or access to background documents, contact Kathy Sifrit, Ph.D., Contracting Officer's Representative, Office of Behavioral Safety Research (NPD-320), National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, W46-470, Washington, DC 20590. Dr. Sifrit's phone number is 202-366-0868, and her email address is
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
NHTSA previously obtained clearance from OMB to conduct the information collections for Parts 1 and 2 of this one-time study. However, NHTSA was unable to complete Part 2 of the study as a result of the public health emergency in 2020 and 2021. The requested reinstatement is 135 fewer burden hours than the previous information collection request because the requested reinstatement is for Part 2 only (120 participants and 225 hours) rather than Parts 1 and 2 (200 participants and 360 hours). The reinstatement requests fewer burden hours because NHTSA previously completed the first part of this collection by observing older drivers
The theory underpinning the assumption that older drivers have an elevated safety risk associated with backing crashes is based upon known age-related deficits. Many older drivers have musculoskeletal difficulties that limit their ability to turn and scan behind the vehicle. For example, Chen et al. (2015) found that older drivers had less neck and trunk rotation and were less successful in detecting targets requiring body rotation in a driving simulator.
An analysis of NHTSA's Non-Traffic Surveillance from 2012 through 2014 indicated that older drivers were involved in an estimated 19,000 backing crashes a year that resulted in death or injury. This represented 22% of all non-traffic backing crashes. Older drivers represented 17% of all licensed drivers but accounted for 22% of all non-traffic backing crashes during this period, indicating an over-representation in non-traffic backing crashes per licensed driver. Studies have found that the most frequent error among older drivers involved in crashes is failure to yield the right-of-way. For example, Cicchino and McCartt (2015) found that “the most frequent error made by crash-involved drivers ages 70 and older was inadequate surveillance, which included looking but not seeing and failing to look.”
RVS is expected to offer more potential benefits to older drivers than younger drivers because older drivers have more room for improvement due to the age-related decline in the ability to rotate one's body. It may also compensate for the fact that older drivers are more likely to have inadequate surveillance or scanning than younger drivers. One published article addressed this question. Cichino (2017) found that RVS reduced backing crash involvement among drivers 70 and older by 36% compared to 16% for drivers younger than 70, but the difference was not statistically significant. The study also found that backing sensors reduced backing crash involvement for drivers 70 and older by 38% compared to no effectiveness for drivers younger than 70, which was a statistically significant difference.
The contractor will use a screening questionnaire (Form 1398) to identify 120 drivers (60 between ages 60 and 69 and 60 age 70 and older) who are properly qualified and choose to participate in the study. Participants will answer the screening questionnaire items either over the phone or in person to determine if they qualify for the study. Respondents are expected to take an estimated average of 5 minutes to complete the initial screening resulting in 15 burden hours for screening up to 180 potential participants. It is estimated that 65% of those who begin the screening process will be eligible and interested in participating. As such, we anticipate screening up to 180 individuals to recruit an estimated 120 potential participants for the consenting process. The consenting process includes an overview of the study and an explanation of the form (Form 1399). Respondents are expected to take an average of 15 minutes for the consenting process including reviewing and completing the form resulting in 30 burden hours. The 120 participants will complete study activities with an estimated burden of 90 minutes per participant for a total estimated burden of 180 hours.
Table 1 describes the calculation of the estimated burden hours for a total of 225 annual hours. To calculate the opportunity cost to participants in this study, NHTSA used the average (mean)
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 continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning application for extension of time to file certain employee plan returns.
Written comments should be received on or before March 13, 2023 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of the form should be directed to Kerry Dennis at (202) 317-5751, 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 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 if 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 information reporting for Nonrecognition Exchanges under Section 897.
Written comments should be received on or before March 13, 2023 to be assured of consideration.
Direct all written comments to Andres Garcia, Internal Revenue Service, Room 6526, 1111 Constitution Avenue NW, Washington, DC 20224, or by email to
Requests for additional information or copies of this collection 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.
Departmental Offices, U.S. Department of the Treasury.
Notice of information collection; request for comment.
The U.S. Department of the Treasury, 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 this continuing information collection, as required by the Paperwork Reduction Act of 1995. The public is invited to submit comments on the collection(s) listed below.
Written comments must be received on or before March 13, 2023.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to Treasury PRA Clearance Officer, 1750 Pennsylvania Ave. NW, Suite 8142, Washington, DC 20220, or email at
Copies of the submissions may be obtained from Melody Braswell by emailing
January 19, 2023, 12 p.m. to 3 p.m., Eastern Time.
This meeting will be accessible via conference call and via Zoom Meeting and Screenshare. Any interested person may call (i) 1-929-205-6099 (US Toll) or 1-669-900-6833 (US Toll) or (ii) 1-877-853-5247 (US Toll Free) or 1-888-788-0099 (US Toll Free), Meeting ID: 921 0221 1185, to listen and participate in this meeting. The website to participate via Zoom Meeting and Screenshare is
Proposed Agenda
The UCR Board Chair will welcome attendees, call the meeting to order, call roll for the Board, confirm the presence of a quorum, and facilitate self-introductions.
The UCR Executive Director will verify publication of the meeting notice on the UCR website and distribution to the UCR contact list via email, followed by subsequent publication of the notice in the
The proposed Agenda will be reviewed, and the Board will consider adoption.
Draft Minutes from the December 8, 2022 UCR Board meeting will be reviewed. The Board will consider action to approve.
The Federal Motor Carrier Safety Administration (FMCSA) will provide a report on relevant activity.
An engagement letter between the UCR Plan and the Bradley Law Firm covering legal services performed by Bradley Law Firm on behalf of the UCR Plan during 2023 will be presented to the UCR Board for its consideration and approval.
The UCR Audit Subcommittee Chair, UCR Audit Subcommittee Vice-Chair, and DSL Transportation will lead a discussion on options to replace the Retreat Audit Program currently utilized by the States with a roadside inspection data driven audit for non-IRP plated commercial motor vehicles and the motor carriers operating this type of registered equipment.
The UCR Audit Subcommittee Chair, UCR Audit Subcommittee Vice-Chair, and DSL Transportation will lead discussion on limiting the SHB reporting period to the current registration year.
The UCR Audit Subcommittee Chair, UCR Audit Subcommittee Vice-Chair and UCR Executive Director will lead a discussion regarding the value of a series of 60-minute virtual question and answer sessions for state auditors.
The UCR Audit Subcommittee Chair will review audit compliance rates for the states for registration years 2021 and 2022 and related compliance percentages for FARs, retreat audits, and registration compliance percentages.
The UCR Finance Subcommittee Chair and the UCR Depository Manager will provide an update on the timing for a distribution of fees from the UCR Depository to states that have not yet
The Education and Training Subcommittee Chair will provide an update on current and planned future training initiatives and the E-Certificate program.
The UCR Industry Advisory Subcommittee Chair will provide an update on current and planned initiatives regarding motor carrier industry concerns.
Update on Current Initiatives—The UCR Enforcement Subcommittee Chair will provide an update on current and planned initiatives.
The UCR Executive Director will provide a report covering recent activity for the UCR Plan.
DSL Transportation Services, Inc. will report on the latest data from the Focused Anomaly Reviews (FARs) program, discuss motor carrier inspection results, pilot projects and other matters.
Seikosoft will provide an update on recent/new activity related to the National Registration System (NRS).
The UCR Chief of Staff will provide a management report covering recent activity for the Depository, Operations, and Communications.
The UCR Board Chair will call for any other business, old or new, from the floor.
The UCR Board Chair will adjourn the meeting.
The agenda will be available no later than 5:00 p.m. Eastern time, January 10, 2023, at:
Elizabeth Leaman, Chair, Unified Carrier Registration Plan Board of Directors, (617) 305-3783,