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Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
In rule document 2023-03357 beginning on page 10654 in the issue of Tuesday, February 21, 2023, make the following correction:
On page 10654, the Docket Number should read as set forth above.
Federal Housing Finance Agency.
Final rule; delay of effective date.
On December 27, 2022, the Federal Housing Finance Agency (FHFA) published in the
The effective date for the final rule amending 12 CFR part 1253, published December 27, 2022, at 87 FR 79217, is delayed until April 28, 2023.
Susan Cooper (202) 649-3121,
On December 27, 2022, FHFA published in the
The final rule was published with an effective date of February 27, 2023. In view of the progress made towards implementation, FHFA has determined that it is appropriate to delay the effective date by 60 days to April 28, 2023. This will allow FHFA and the Enterprises sufficient time to develop the internal infrastructure and processes necessary to comply with the requirements set forth in the final rule. In the interim, FHFA will require the Enterprises to delay commencement of any activities that satisfy the new activity criteria until those activities can be reviewed by FHFA in accordance with the final rule.
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2004-04-09, which applied to certain Pratt & Whitney Canada Corp. (P&WC) JT15D-1, JT15D-1A, and JT15D-1B model turbofan engines. AD 2004-04-09 required a one-time borescope inspection (BSI) of the rear face of certain impellers for evidence of a machined groove or step, and repair or replacement of the impeller if a groove or step is found. Since the FAA issued AD 2004-04-09, the FAA was notified of an uncontained failure of an impeller installed on a P&WC JT15D-1A engine during takeoff and subsequent investigation by the manufacturer that discovered machining marks on the impeller. This AD was prompted by three prior reports of uncontained failure of the impeller, and one additional recent report of an in-service uncontained failure event. This AD requires borescope fluorescent penetrant inspection (FPI) of the rear face of certain impellers for evidence of machining witness lines and, depending on the results of the inspection, replacement of the impeller, as specified in a Transport Canada AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective March 31, 2023.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of March 31, 2023.
• For Transport Canada service information incorporated by reference in this AD, contact Transport Canada, Transport Canada National Aircraft Certification, 159 Cleopatra Drive, Nepean, Ontario K1A 0N5, Canada; phone: (888) 663-3639; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available in the AD docket at
Barbara Caufield, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7146; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2004-04-09, Amendment 39-13490 (69 FR 9520, March 1, 2004) (AD 2004-04-09). AD 2004-04-09 applied to certain P&WC JT15D-1, JT15D-1A, and JT15D-1B model turbofan engines. AD 2004-04-09 required a one-time BSI of the rear face of certain impellers for evidence of a machined groove or step, and repair or replacement of the impeller if a groove or step is found. The FAA issued AD 2004-04-09 to prevent uncontained failure of the impeller and possible damage to the airplane.
The NPRM published in the
You may examine the MCAI in the AD docket at
In the NPRM, the FAA proposed to require borescope FPI of the rear face of certain impellers for evidence of machining witness lines and, depending on the results of the inspection, replacement of the impeller, as specified in Transport Canada AD CF-2022-27. The FAA is issuing this AD to address the unsafe condition on these products.
The FAA received no comments on the NPRM or on the determination of the cost to the public.
These products have been approved by the aviation authority of another country and are 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 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.
The FAA reviewed Transport Canada AD CF-2022-27, which specifies instructions for performing a one-time inspection of the rear face of the impeller and replacing the impeller if unacceptable machining witness lines or crack indications are found. Transport Canada AD CF-2022-27 also specifies instructions for replacing the impeller at the next scheduled engine overhaul. 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 100 engines installed on 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
The FAA has 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 airworthiness directive (AD) is effective March 31, 2023.
This AD replaces AD 2004-04-09, Amendment 39-13490 (69 FR 9520, March 1, 2004).
This AD applies to Pratt & Whitney Canada Corp. JT15D-1, JT15D-1A, and JT15D-1B model turbofan engines as identified in Transport Canada AD CF-2022-27, dated May 19, 2022 (Transport Canada AD CF-2022-27).
Joint Aircraft Service Component (JASC) Code 7230, Turbine Engine Compressor Section.
This AD was prompted by three prior reports of uncontained failure of the impeller, and one additional recent report of an in-service uncontained failure event. The FAA is issuing this AD to prevent uncontained failure of the impeller. The unsafe condition, if not addressed, could result in fracture of the impeller, subsequent uncontained failure of the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Perform all required actions within the compliance times specified in, and in accordance with, Transport Canada AD CF-2022-27.
Although the service information referenced in Transport Canada AD CF-2022-27 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(1) The Manager, ECO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (j) of this AD and email it to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Barbara Caufield, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: (781) 238-7146; 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 the AD specifies otherwise.
(i) Transport Canada AD CF-2022-27, dated May 19, 2022.
(ii) [Reserved]
(3) For Transport Canada AD CF-2022-27, contact Transport Canada, Transport Canada National Aircraft Certification, 159 Cleopatra Drive, Nepean, Ontario K1A 0N5, Canada; phone: 888-663-3639; email:
(4) You may view this service information at FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
(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.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Airbus Helicopters Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters. This AD was prompted by a report of a partially broken tail rotor drive fan support (fan support) and a completely broken fan support. This AD requires repetitively inspecting certain part-numbered fan supports (affected parts), and depending on the results, removing an affected part from service and replacing it with a serviceable part, which constitutes a terminating action for the repetitive inspections. This AD also requires replacing affected parts with serviceable parts unless already accomplished and prohibits installing an affected part on any helicopter, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective March 31, 2023.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of March 31, 2023.
• For EASA material that is incorporated by reference in this final rule, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this material at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Jared Hyman, Aerospace Engineer, Boston ACO Branch, Compliance & Airworthiness Division, FAA, 1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238-7799; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued a series of EASA ADs with the most recent being EASA AD 2022-0180, dated August 29, 2022 (EASA AD 2022-0180), to correct an unsafe condition for Airbus Helicopters Model AS 355 E, AS 355 F, AS 355 F1, AS 355 F2, and AS 355 N helicopters, all serial numbers.
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters. The NPRM published in the
You may examine EASA AD 2022-0180 in the AD docket at
The FAA received no comments on the NPRM or on the determination of the costs.
These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data 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 helicopters. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.
EASA AD 2022-0180 requires repetitively inspecting certain part-numbered RH and LH fan supports for a crack and broken leg and, if there is any crack or broken leg, replacing the affected fan support with a serviceable fan support. If the replacement is not required as a result of the inspection, EASA AD 2022-0180 requires the replacement at a longer compliance time. EASA AD 2022-0180 also states that the replacement constitutes terminating action for the repetitive inspections and prohibits installing an affected part on any helicopter.
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
The FAA also reviewed Airbus Helicopters Alert Service Bulletin No. AS355-05.00.88, Revision 1, dated July 20, 2022. This service information specifies procedures for inspecting the RH and LH fan supports for a crack and failure (broken leg), replacing an affected part with a serviceable part, and performing a balancing of the tail rotor drive shaft.
EASA AD 2022-0180 requires replacing each affected part with a serviceable part if any crack or broken leg is found during any required inspection or if the replacement was not previously performed as a result of an inspection, whereas this AD requires removing each affected part from service and replacing with a serviceable part if any crack or broken leg is found during any required inspection or if the replacement was not previously performed as a result of an inspection.
The FAA estimates that this AD affects 31 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.
Visually inspecting a fan support for a crack and broken leg takes about 1 work-hour for an estimated cost of $170 per helicopter (2 fan supports per helicopter) per inspection cycle and up to $5,270 for the U.S. fleet per inspection cycle.
Replacing a fan support takes about 8 work-hours and parts cost about $600 for an estimated cost of $1,280 per replacement and up to $39,680 for the U.S. fleet.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under
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 March 31, 2023.
None.
This AD applies to Airbus Helicopters Model AS355E, AS355F, AS355F1, AS355F2, and AS355N helicopters, all serial numbers, certificated in any category.
Joint Aircraft Service Component (JASC) Code: 6500, Tail Rotor Drive System.
This AD was prompted by a report of a partially broken right-hand side tail rotor drive fan support (fan support) and a completely broken left-hand side fan support. The FAA is issuing this AD to detect a cracked or broken fan support leg. The unsafe condition, if not addressed, could result in loss of main gearbox and engine oil cooling function, loss of tail rotor drive, and subsequent loss of control of the helicopter.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraphs (h) and (i) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency AD 2022-0180, dated August 29, 2022 (EASA AD 2022-0180).
(1) Where EASA AD 2022-0180 requires compliance in terms of flight hours, this AD requires using hours time-in-service.
(2) Where EASA AD 2022-0180 refers to the effective dates specified in paragraphs (h)(2)(i) and (ii) of this AD, this AD requires using the effective date of this AD.
(i) May 3, 2022 (the effective date of EASA AD 2022-0069, dated April 19, 2022).
(ii) The effective date of EASA AD 2022-0180.
(3) Where paragraphs (2) and (3) of EASA AD 2022-0180 specify “replacing each affected part with a serviceable part,” for this AD, replace that text with “removing each affected part from service and replacing it with a serviceable part.”
(4) Where the service information referenced in EASA AD 2022-0180 specifies to use tooling, this AD allows the use of equivalent tooling.
(5) Where the service information referenced in EASA AD 2022-0180 specifies to discard parts, this AD requires removing those parts from service.
(6) This AD does not adopt the Remarks paragraph of EASA AD 2022-0180.
Although the service information referenced in EASA AD 2022-0180 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
Special flight permits are prohibited.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (l) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Jared Hyman, Aerospace Engineer, Boston ACO Branch, Compliance & Airworthiness Division, FAA, 1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238-7799; 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 2022-0180, dated August 29, 2022.
(ii) [Reserved]
(3) For EASA AD 2022-0180, 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, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.
(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), DOT.
Final rule; request for comments.
The FAA is adopting a new airworthiness directive (AD) for all Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. This AD was prompted by the determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.7-3.98 GHz frequency band (5G C-Band), and a recent determination that this interference can result in unavailable or misleading radio altimeter information, adversely affecting the performance of the automatic flight control system (AFCS) and resulting in increased flightcrew workload during takeoff, approach, and landing below 400 feet above ground level (AGL). This AD requires revising the existing airplane flight manual (AFM) with new limitations to mitigate identified hazards due to 5G C-Band interference as identified by Notices to Air Missions (NOTAMs). The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective March 13, 2023.
The FAA must receive comments on this AD by April 10, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
Steven Dzierzynski, Aerospace Engineer, Avionics and 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 final rule. 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 AD 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 AD, 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 AD. Submissions containing CBI should be sent to Steven Dzierzynski, Aerospace Engineer, Avionics and Electrical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; email
The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), to address the effect of interference from wireless broadband operations in the 3.7-3.98 GHz frequency band (5G C-Band) on all transport and commuter category airplanes equipped with a radio (also known as radar) altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G C-Band. AD 2021-23-12 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations, which require radio altimeter data to land in low visibility conditions, when in the presence of 5G C-Band interference as identified by NOTAMs. Transport Canada, which is the aviation authority for Canada, issued corresponding AD CF-2021-52, dated December 24, 2021, to prohibit certain flight operations requiring radio altimeter data in U.S. airspace affected by 5G C-Band wireless signals.
Since Transport Canada issued AD CF-2021-52, Transport Canada evaluated whether additional 5G-related hazards exist in certain Bombardier model airplanes. Bombardier has determined that 5G C-Band interference can result in unavailable or misleading radio altimeter information, adversely affecting the performance of the AFCS as follows:
• Erroneous radio altimeter information has the potential to cause incorrect gains on approach, flight guidance oscillation, and crew over-correction. The flight director uses the glideslope to linearize the angular deviation and if the radio altimeter erroneously changes to an incorrect value, the resulting pitch command may be inadequate, resulting in flight path oscillations.
• Misleading radio altimeter information can adversely impact the autothrottle function, resulting in early or late activation of the retard mode, leading to an inappropriate level of thrust. This may result in a low energy state or longer landing distance. This
• In the event of a weight-on-wheels (WOW) signal failure in combination with a related Master Minimum Equipment List (MMEL) dispatch, interference may result in the radio altimeter deploying the two pairs of ground spoilers at heights above 7 feet AGL.
These effects may lead to increased flightcrew workload and adversely affect the safe operation of the airplane during takeoff, approach, and landing below 400 feet AGL. Accordingly, Transport Canada determined that additional actions are necessary to address the unsafe condition and issued AD CF-2022-60, dated November 4, 2022 (Transport Canada AD CF-2022-60) (referred to after this as “the MCAI”), on all Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. Transport Canada AD CF-2022-60 prohibits dispatch under MMEL item “WOW FAULT (ADVISORY)” and requires revising the AFM with new limitations to prohibit autopilot and autothrottle operation below 400 feet AGL when in the presence of 5G C-Band interference as identified by NOTAMs.
You may examine the MCAI in the AD docket at
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 described above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This AD requires revising the existing AFM with new limitations to prohibit dispatch under MMEL Section 2, CAS Messages, item “WOW FAULT (ADVISORY)” and to prohibit autopilot and autothrottle operation below 400 feet AGL when in the presence of 5G C-Band interference as identified by NOTAMs.
The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.
Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G C-Band. Further, this interference can result in unavailable or misleading radio altimeter information, adversely affecting the performance of the AFCS, which could lead to increased flightcrew workload and adversely affect the safe operation of the airplane during takeoff, approach, and landing. The required actions to address the unsafe condition must be accomplished within 30 days, which is shorter than the time necessary to allow for public comment and for the FAA to publish a final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).
In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.
The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.
The FAA estimates that this AD affects 165 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, and
(2) Will not affect intrastate aviation in Alaska.
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 March 13, 2023.
None.
This AD applies to all Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 34, Navigation.
This AD was prompted by the determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 3.7-3.98 GHz frequency band (5G C-Band), and a recent determination that this interference can result in unavailable or misleading radio altimeter information, adversely affecting the performance of the automatic flight control system (AFCS) and resulting in increased flightcrew workload during takeoff, approach, and landing below 400 feet above ground level. The FAA is issuing this AD to address the resulting effects on the performance of the AFCS. The unsafe condition, if not addressed, could result in increased flightcrew workload and adversely affect the safe operation of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Within 30 days after the effective date of this AD, revise the Limitations section of the existing AFM to include the information specified in figure 1 to paragraph (g) of this AD.
For airplane serial numbers 9002 through 9998 inclusive, 60001 through 60060 inclusive, and 60062 through 60064 inclusive: Within 30 days after the effective date of this AD, revise the Limitations section of the existing AFM to include the information specified in figure 2 to paragraph (h) of this AD. Using a document with language identical to that of figure 2 to paragraph (h) of this AD is acceptable for compliance with the requirements of this paragraph.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Transport Canada AD CF-2022-60, dated November 4, 2022, for related information. This AD may be found in the AD docket at
(2) For more information about this AD, contact Steven Dzierzynski, Aerospace Engineer, Avionics and Electrical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; email
None.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective February 24, 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 February 24, 2023.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical 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 online 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 amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for Part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.
The FAA has determined that this regulation only involves an established body of technical regulations for which
Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).
Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
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 February 24, 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 February 24, 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 Minimums and/or ODPs as identified in the amendatory language for Part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate 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, 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.
Commodity Futures Trading Commission.
Order.
The Commodity Futures Trading Commission (“Commission”) has issued an Order to designate a unique product identifier and product classification system to be used in swap recordkeeping and data reporting. The Commission has determined that the unique product identifiers issued by the Derivatives Service Bureau Limited for swaps in the credit, equity, foreign exchange, and interest rate asset classes comply with the Commission's requirements for a unique product identifier and product classification system, and have designated them as such. The Order requires registered entities and swap counterparties to use unique product identifiers issued by the Derivatives Service Bureau Limited for swaps in the credit, equity, foreign exchange, and interest rate asset classes to comply with certain of the Commission's swap recordkeeping and reporting requirements.
The Order of Designation is effective on February 24, 2023.
Tom Guerin, Assistant Chief Counsel, Division of Market Oversight, (202) 836-1933,
Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”)
Under the authority granted by section 21(b) of the CEA, which, among other things, directs the Commission to “prescribe standards that specify the data elements for each swap that shall be collected and maintained” by an SDR,
Regulation § 45.7 sets forth requirements for the elements and Commission designation of a unique product identifier and product classification system.
When it adopted § 45.7 in 2012, the Commission acknowledged the absence of a unique product identifier or product classification system that adequately classified and described swaps products.
Following a meticulous, conscientious process of international coordination, the Bank for International Settlements Committee on Payments and Market Infrastructures (“CPMI”) and IOSCO published Technical Guidance on the Harmonization of the Unique Product Identifier (“UPI Technical Guidance”) during September 2017.
The Commission played an integral role in the creation of the UPI Technical Guidance. In addition to approving the issuance of the guidance as an IOSCO Member, the Commission co-chaired the joint CPMI and IOSCO workgroup that drafted the guidance. In this key position, the Commission was able to ensure that the UPI Technical Guidance defined a unique product identifier at a level of specificity and distinctiveness that met the needs of the Commission.
The FSB proposed that an entity or entities (“UPI Service Provider”) provide for the timely issuance of unique product identifier codes and maintenance of the Reference Data Library.
The FSB published its final conclusions and implementation plan regarding governance arrangements for the unique product identifier system during October 2019 (“UPI Governance Report”).
The Commission played a central role in the FSB's review of self-assessments from prospective UPI Service Providers and in the creation of the UPI Governance Report. The Commission co-chaired the FSB workgroup that both reviewed self-assessments from prospective UPI Service Providers and drafted the UPI Governance Report. In this key role, the Commission was able to assist the FSB in ensuring that any UPI Service Provider designated by the FSB had demonstrated an intent and ability to comply with the UPI Technical Guidance.
The Commission is a member of the ROC and participates in oversight of the unique product identifier system and DSB consistent with the UPI Governance Report. The Commission also co-chairs the ROC committee that focuses on oversight of DSB. In these roles at the ROC, the Commission is able to assist the ROC in meeting its FSB-mandated responsibility to oversee DSB and its adherence to the UPI Technical Guidance.
For reasons explained below, the Commission has determined that the unique product identifier codes issued by DSB for swaps in the credit, equity, foreign exchange, and interest rate asset classes (“Covered Asset Classes”) are acceptable to the Commission and satisfy the requirements set forth in part 45.7 of the Commission's regulations in that they identify and describe swap products with sufficient distinctiveness and specificity to: (i) enable the Commission and other regulators to fulfill their regulatory responsibilities, and (ii) assist in real-time public reporting of swap transaction and pricing data.
DSB issues unique product identifier codes for swaps in the Covered Asset Classes in a manner consistent with the UPI Technical Guidance. In accordance with the UPI Technical Guidance, each unique product identifier code issued by DSB for swaps in the Covered Asset Classes maps to a Reference Data Library containing specific reference data elements that vary by asset class. These required reference data elements detail the asset class, asset class sub-types, underlying asset, and other swap product attributes.
Identification of swaps using unique product identifier codes issued by DSB in the Covered Asset Classes would enable the Commission and other regulators to aggregate swap transaction data at various levels of product classification, providing enhanced transparency of market activity and facilitating oversight of the swaps markets. For example, the reporting of unique product identifier codes issued by DSB to all four SDRs provisionally registered with the Commission would enable the Commission to not only aggregate transactions by unique product identifier code across all SDRs, but to aggregate by any reference data element contained in the Reference Data Library. This would allow the Commission to aggregate not just all interest rate swap transactions with the same unique product identifier, but also to aggregate all interest rate swap transactions referencing the same underlying interest rate index.
Combined with other standardized identifiers already used in swaps recordkeeping and reporting, such as legal entity identifiers, unique product identifier codes issued by DSB will provide a crucial regulatory tool to facilitate the Commission's ability to link and aggregate data to detect and mitigate systemic risk and prevent market manipulation, among other important purposes of the Dodd-Frank Act.
Unique product identifier codes issued by DSB for swaps in the Covered Asset Classes would assist the real time reporting of swaps required by the CEA and part 43 of the Commission's regulations in several important ways. Most importantly, inclusion of unique product identifier codes issued by DSB in real-time public swaps reports will assist public transparency because those codes identify products with sufficient precision to allow for price discovery.
Based upon the foregoing, including the following facts:
(1) The Commission played an integral role in the creation of the UPI Technical Guidance to ensure that the guidance defined a unique product identifier at a level of specificity and distinctiveness that met the needs of the Commission.
(2) The Commission worked with FSB to ensure that any UPI Service Provider designated by the FSB had demonstrated an intent and ability to comply with the UPI Technical Guidance.
(3) The UPI Technical Guidance requires that the Reference Data Library contain specific reference data elements that vary by asset class, detailing the asset class, asset class sub-types, underlying asset, and other swap product attributes.
(4) In accordance with the UPI Technical Guidance, each unique product identifier code issued by DSB for swaps in the Covered Asset Classes maps to a Reference Data Library containing specific reference data elements that vary by asset class. These required reference data elements detail the asset class, asset class sub-types, underlying asset, and other swap product attributes.
Accordingly, the Commission FINDS that, as required by Commission regulation § 45.7, the unique product identifiers issued by DSB for swaps in the credit, equity, foreign exchange, and interest rate asset classes are acceptable to the Commission and satisfy the requirements set forth in part 45.7 of the Commission's regulations.
Therefore:
1. Pursuant to section 21(b) of the Act and Commission regulation § 45.7, the product identifiers issued by the Derivatives Service Bureau Limited as unique product identifiers (DSB UPIs) for swaps in the credit, equity, foreign exchange, and interest rate asset classes are designated as the unique product identifier and product classification system to be used in recordkeeping and swap data reporting pursuant to the Commission's regulations; this Order gives notice of this designation.
2. Registered entities and swap counterparties shall use DSB UPIs for swaps in the credit, equity, foreign exchange, and interest rate asset classes in all recordkeeping and swap data reporting pursuant to Part 45, and shall similarly use DSB UPIs for swaps in the credit, equity, foreign exchange, and interest rate asset classes to facilitate real-time public reporting as required by Part 43.
3. The Commission expects compliance with paragraph 2., above, by no later than January 29, 2024. For this purpose, registered entities and swap counterparties may contact the Derivatives Service Bureau Limited at: 107 Cheapside, London, EC2V 6DN, England, +44 20 3880 2200,
7 U.S.C. 24a(b).
The following appendices will not appear in the Code of Federal Regulations.
On this matter, Chairman Behnam and Commissioners Johnson, Goldsmith Romero, Mersinger, and Pham voted in the affirmative. No Commissioner voted in the negative.
Swap data reporting is fundamental to post-crisis financial regulation. Given the important goal of the Dodd-Frank Act to bring transparency to risk in swap markets that was previously hidden, I support the Commission's designation of unique product identifiers for swap data reporting.
By increasing visibility into swap markets through real-time public reporting and swap data repository reporting, the Commission brought light to what was previously an opaque market with hidden risk. Swap data reporting increases regulatory insight into swap market activity, which is necessary to promote market integrity. Real-time public reporting also promotes transparency and price discovery by making swap transaction and pricing information publicly available.
As swap markets are global markets, global harmonization enhances the use of swap data for regulators, market participants, and the public. The CFTC has been collaborating with global regulators on uniform standards for defining and representing swap products. I look forward to increased transparency in swap markets through the use of standardized product identifiers.
Employee Benefits Security Administration, Labor.
Final rule.
This document contains amendments to Department of Labor (DOL) regulations relating to annual reporting requirements under Title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA). The amendments contained in this document conform the DOL reporting regulations to revisions to the Form 5500 Annual Return/Report of Employee Benefit Plan and Form 5500-SF Short Form Annual Return/Report of Small Employee Benefit Plan being published in this issue of the
Janet Song, Florence Novellino or Colleen Brisport Sequeda, Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor, (202) 693-8500 (this is not a toll-free number).
Titles I and IV of the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code), generally require pension and other employee benefit plans to file annual returns/reports concerning, among other things, the financial condition and operations of the plan. Filing a Form 5500 Annual Return/Report of Employee Benefit Plan (Form 5500) or, if eligible, a Form 5500-SF Short Form Annual Return/Report of Small Employee Benefit Plan (Form 5500-SF), together with any required schedules and attachments (together “the Form 5500 Annual Return/Report”), in accordance with their instructions, generally satisfies these annual reporting requirements.
ERISA section 103 and 104 broadly set out annual financial reporting requirements for employee benefit plans
In the United States, there are an estimated 2.5 million health plans,
Recent legislative and regulatory changes affecting MEPs and similar arrangements are spurring the current need to update the Form 5500 Annual Return/Report and related regulations. The Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) included various provisions designed to improve the private employer-based retirement system.
On September 15, 2021, the Agencies published a notice of proposed forms revisions (NPFR) proposing amendments to the Form 5500 Annual Return/Report to implement annual reporting changes related to legislative provisions in the SECURE Act focused on MEPs and defined contribution group reporting arrangements (DCGs or DCG reporting arrangements) but also included other proposed reporting improvements. 86 FR 51488 (Sep. 15, 2021). The DOL simultaneously published a notice of proposed rulemaking (NPRM) setting forth proposed amendments to its Title I annual reporting regulations to implement the proposed forms revisions. 86 FR 51284 (Sep. 15, 2021). The NPFR and the NPRM are collectively referred to as the September 2021 proposal in this rule and the NFFR.
The Agencies received 114 comments on the September 2021 proposal. The comments, which were all posted on the DOL's website, generally focused on the proposed changes for the 2022 plan year forms and on future rulemakings.
In December 2021, the DOL published a final forms revisions rulemaking that set forth a narrow set of changes to the instructions for the Form 5500 and Form 5500-SF, effective for plan years beginning on or after January 1, 2021. 86 FR 73976 (Dec. 29, 2021). Those instruction changes generally implemented annual reporting changes for MEPs, including PEPs, that were described in the September 2021 proposal. That document is referred to herein as Final Rule Phase I.
In May 2022, the Agencies published a second final forms revisions adopting certain aspects of the September 2021 proposal effective for plan years beginning on or after January 1, 2022. 87 FR 31133 (May 23, 2022). Those forms and instruction revisions generally implemented annual reporting changes for defined benefit plans on Schedules MB, SB and R, but also added certain plan characteristics codes for MEPs, including one to specifically identify PEPs, to the list of plan characteristics that must be used to describe the plan on the annual report. That document is referred to herein as Final Rule Phase II.
In Final Rule Phase II, the Agencies stated that the remaining proposed changes to the Form 5500 Annual Return/Report that were set forth in the September 2021 proposal would be addressed either in a further final forms revisions notice, or possibly re-proposed with modifications in a separate proposal as part of a broader range of improvements to the annual reporting requirements.
The Agencies' Notice of Final Forms Revisions (NFFR) published concurrently in this issue of the
Section 2520.103-1 generally describes the content of the Form 5500 Annual Return/Report and includes a description of the content for a simplified report, limited exemption, or alternative method of compliance for ERISA-covered employee welfare and pension benefit plans, as applicable to satisfy annual reporting requirements under Title I of ERISA. This final rule amends § 2520.103-1(a) to add text cross-referencing to the DCG and GIA reporting options in §§ 2520.104-46, 2520.104-51, 2520.104a-6 and 2520.104a-9. It also adds a reference to “section 202 of the SECURE Act” in § 2520.103-1(a)(2) as authority for the consolidated report option under new §§ 2520.103-14 and 2520.104-51 for defined contribution group (DCG) reporting arrangements.
Paragraphs (b) and (c) of § 2520.103-1 generally describe the contents of the annual report for large plans (generally those with 100 or more participants) and small plans (generally those with fewer than 100 participants). This final rule amends § 2520.103-1(b)(1), (c)(1) and (c)(2)(i) to add a new multiple-employer plan schedule, Schedule MEP, to the list of schedules and attachments required to be included with the Form 5500 or Form 5500-SF, as applicable, filed for MEPs.
Paragraph (c) of § 2520.103-1 describes the conditions under which an eligible small plan (generally with fewer than 100 participants) may file the Form 5500-SF. Consistent with the proposed forms revisions to amend the Form 5500 Annual Return/Report published by the Agencies in the September 2021 proposal, and the final forms revisions published by the DOL in December 2021, this final rule adds § 2520.103-1(c)(2)(ii)(F) to state that MEPs that are PEPs as described in ERISA section 3(43) are not permitted to use the Form 5500-SF regardless of whether the plan meets the size and other requirements for filing a Form 5500-SF. The final rule also adds a new § 2520.103-1(c)(2)(ii)(G) to provide a similar prohibition on filing the Form 5500-SF for DCG reporting arrangements, as discussed in more detail below.
The final rule amends ERISA annual reporting regulations to implement the SECURE Act section 202 directive to the Secretary of Labor to jointly with the Secretary of the Treasury provide for a single, consolidated Form 5500 filing option that would satisfy the annual reporting obligations for the defined contribution pension plans participating in the DCG reporting arrangement.
With respect to the content requirements for a DCG consolidated Form 5500 filing, paragraph (b) of § 2520.103-14 provides that the consolidated DCG report would be required to include a Form 5500 “Annual Return/Report of Employee Benefit Plan” and various statements or schedules based on the characteristics and operations of the participating plans, including Schedule A (Insurance Information), Schedule C (Service Provider Information), Schedule D (DFE/Participating Plan Information), Schedule DCG (Individual Plan Information), Schedule G (Financial Transaction Schedules), Schedule H (Financial Information), and supplemental schedules referred to in 29 CFR 2520.103-10 with information aggregated for all the participating plans unless otherwise provided in the instructions to the Form 5500, and an independent qualified public accountant (IQPA) report and opinion for any individual participating plans that would be subject to the audit requirement if filing a separate Form 5500.
Paragraph (c) of § 2520.103-14 makes clear that the DCG reporting arrangement must comply with the electronic filing requirements that apply to all plan filers and direct filing entities (DFE).
The final rule adds a new § 2520.104-51 that authorizes the DCG reporting arrangement to file a consolidated report as an alternative method of compliance under ERISA section 110 for defined contribution pension plans that participate in DCG reporting arrangements. Specifically, filing of a complete and accurate consolidated Form 5500 for the DCG reporting arrangement would relieve the administrator of each individual participating defined contribution pension plan that meets the requirements of paragraph (b) of § 2520.104-51 of the obligation to file an individual annual report under Title I of ERISA. This alternative method of compliance would be available only for
New § 2520.104-51 also provides that the reporting relief for individual plans would apply only if all plans participating in the DCG reporting arrangement: (i) are individual account plans or defined contribution plans; (ii) have—(A) the same trustee meeting the requirements set forth in ERISA section 403(a) (“common trustee”); (B) the same one or more named fiduciaries designated in accordance with the requirements set forth in ERISA section 402(a) (“common named fiduciaries”), however, the employer/plan sponsor may be a named fiduciary of each employer's own plan, provided that the other named fiduciaries under the plans are the same and common to all plans; (C) a designated administrator that is the same plan administrator for all the participating plans (“common plan administrator”); and (D) plan years beginning on the same date (“common plan year”); (iii) provide the same investments or investment options to participants and beneficiaries (“common investments or investment options”) (certain brokerage window arrangements would qualify as a common investment option under this final rule); (iv) not hold any employer securities at any time during the plan year, except this does not prohibit investments in any employer's publicly traded securities held indirectly within one or more “common investments or investment options” available to participants and beneficiaries in all the DCG plans; (v) either be audited by an IQPA, or be eligible for the waiver of the annual examination and report of an IQPA under 29 CFR 2520.104-46; and (vi) may not be a multiemployer plan or a MEP (including association retirement plans, pooled employer plans and professional employer organization plans (PEO plans)).
Further, new § 2520.104-51 expressly states that the alternative method of complying with the Title I annual reporting requirements would not relieve the administrator of the individual participating plans from any other requirement of Title I of ERISA, including, for example, the provisions that require plan administrators to furnish copies of the summary plan description to participants and beneficiaries (ERISA section 104(b)(1)), furnish certain documents to the Secretary of Labor upon request (ERISA section 104(a)(6)), and furnish a copy of a Summary Annual Report (SAR) to participants and beneficiaries of the plan (ERISA section 104(b)(3)). Section 2520.104-51(c)(2)(iii) provides that all plans participating in a DCG reporting arrangement must have a designated common plan administrator that is the same plan administrator for all the participating plans. The SECURE Act was not explicit on whether this was intended to require the same person to be the plan administrator under ERISA section 3(16)(A) for the purpose of meeting the annual reporting requirements for each participating plan or was intended to require that the same person be the plan administrator of each participating plan for all purposes under ERISA. The final rule requires that the same person sign the DCG filing as the plan administrator for each participating plan.
New § 2520.104a-9 provides, as would be the case for all of the participating plans in the DCG reporting arrangement if they were filing individually, that the consolidated Form 5500 for the DCG is due no later than the end of the seventh (7th) month after the end of the common plan year that all the plans must have in order to participate in a DCG reporting arrangement pursuant to the requirement in section 202 of the SECURE Act and the new regulation at § 2520.104-51. Conforming changes have been made to §§ 2520.103-5 and 2520.104a-5 to add a reference to the new § 2520.104a-9.
As noted above, section 110 of ERISA permits the DOL to prescribe for pension plans alternative methods of complying with any of the reporting and disclosure requirements if the Secretary finds that: (1) the use of the alternative method is consistent with the purposes of ERISA and it provides adequate disclosure to plan participants and beneficiaries, and adequate reporting to the Secretary; (2) application of the statutory reporting and disclosure requirements would increase costs to the plan or impose unreasonable administrative burdens with respect to the operation of the plan; and (3) the application of the statutory reporting and disclosure requirements would be adverse to the interests of plan participants in the aggregate. The DOL believes that the final rule on DCG reporting arrangements meets those conditions, especially given the statutory direction in the SECURE Act to create such a reporting option.
As discussed below and in the NFFR, the final rule does not include an option under which a “small” DCG could file as a small plan, as the DOL solicited comments regarding the merits of this option and there were no commenters supporting a simplified reporting option for “small” DCG reporting arrangements. Accordingly, this final rule does not include an option under which such a “small” DCG could file as a small plan, and § 2520.103-1(c)(2)(ii) has been amended accordingly.
Section 2520.104b-10 sets forth the requirements for the Summary Annual Report (SAR) appendix and prescribes formats for such reports. The DOL is updating this regulation to reflect the new filing option for DCG reporting arrangements and the addition of the new Schedule MEP and Schedule DCG to the 5500 Annual Report/Return. This includes adding a requirement to the DOL's regulation that plans provide a brief description of the plan based on the plan characteristic codes listed for the plan on the Form 5500, including whether it is a defined contribution or defined benefit plan, and whether the plan is a pooled employer plan, another type of multiple-employer plan, a single-employer plan, or a plan participating in a DCG reporting arrangement, respectively. For plans participating in a DCG reporting arrangement, the regulation includes new language that plans in DCG reporting arrangements would use to advise participants that the plan participates in a reporting arrangement that files a consolidated Form 5500 Annual Report and explains that the SAR includes aggregate information on all the participating plans from the consolidated Form 5500. The text also
All regulatory amendments are applicable for plan years beginning on or after January 1, 2023, for plans beginning with the 2023 Form 5500 Annual Return/Report of Employee Benefit Plan.
The Form 5500 Annual Return/Report is the primary source of information and data available to the Agencies concerning the operations, funding, and investments of pension and welfare benefit plans covered by ERISA and the Code. Accordingly, the Form 5500 Annual Return/Report is essential to each Agency's enforcement, research, and policy formulation programs and is a source of information and data for use by other Federal agencies, Congress, and the private sector in assessing employee benefit, tax, and economic trends and policies. The Form 5500 Annual Return/Report also serves as the primary means by which the operations of plans can be monitored by plan participants and beneficiaries and the general public. As discussed earlier in this document, the SECURE Act included various provisions designed to improve the private employer-based retirement system by seeking to make it easier for businesses to offer retirement plans, and for individuals to save for retirement, through the creation of new plan structure and reporting options. These new structures will require new annual reporting, which has resulted in the need to update the Form 5500 Annual Return/Report and related regulations.
In general terms these rules and form changes are: (1) adding a DCG consolidated reporting option; (2) adding Schedule MEP to collect MEP information; (3) adding certain new Code compliance questions; (4) changing the methodology for counting participants in defined contribution plans for purposes of determining eligibility for small plan reporting options; (5) Schedule H Breakout Categories for Administrative Expenses; (6) defined benefit plan reporting improvements on schedules SB; and (7) miscellaneous and conforming changes to forms and instructions.
The DOL has examined the effects of these amendments as required by Executive Order 12866,
Executive Orders 13563 and 12866 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 and streamlining rules, and of promoting flexibility. It also requires federal agencies to develop a plan under which the agencies will periodically review their existing significant regulations to make the agencies' regulatory programs more effective or less burdensome in achieving their regulatory objectives.
Under Executive Order 12866, “significant” regulatory actions are subject to the requirements of the executive order and review by the Office of Management and Budget (OMB). Section 3(f) of the executive order defines a “significant regulatory action” as an action that is likely to result in a rule (1) having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
OMB has determined that this rule is economically significant within the meaning of section 3(f)(1) of the Executive order. Therefore, the DOL has provided an assessment of the potential costs, benefits, and transfers associated with these final rules. In accordance with the provisions of Executive Order 12866, this rule was reviewed by OMB. Pursuant to the Congressional Review Act, OMB has designated this rule as a “major rule,” as defined by 5 U.S.C. 804(2).
The SECURE Act amendments first authorized PEPs to begin operating beginning on January 1, 2021, and early adopted PEPs will have done their first filings of Form 5500 starting in July 2022. Similarly, DCG reporting arrangements are a new filing option that will start with the 2023 plan year; thus, the first such consolidated filings will not begin until July 2024. Thus, there is little historical Form 5500 information that the DOL can use to evaluate the number of affected entities. As a result, there is significant uncertainty regarding the DOL's ability to measure costs and benefits that may result from these final rules.
The DOL nonetheless presents an overview of potentially affected entities and an approach to evaluating the possible impacts of these final rules and form changes in the following sections. In evaluating costs and benefits, the DOL took account of the fact that various types of plans could be affected by more than one of the changes.
In 2020, there were 700,034 defined contribution plans with 110.4 million total participants and 85.3 million active participants. Plans with fewer than 100 total participants (small plans) account for 87.6 percent of plans.
As this is a new type of annual reporting method, the DOL does not have data on how many DCGs would be created nor the number of plans that would choose to satisfy their individual filing obligations by meeting the requirements for being part of a DCG, including the filing of a consolidated Form 5500 Annual Return/Report by the common plan administrator. In 2020 there were 531,872 small defined contribution plans that reported the plan characteristic code 3D in their Form 5500-SF to indicate that they are intended to operate as pre-approved plans under sections 401, 403(a), and 4975(e)(7) of the Code. The DOL assumes that a DCG reporting option may suit their existing plan and business models and that some fraction of these plans may find it advantageous to join a DCG for filing purposes.
A MEP, for Form 5500 reporting purposes, generally is a retirement plan maintained by two or more employers that are not members of the same controlled group or affiliated service group under Code section 414(b), (c), or (m), and which is not a multiemployer plan.
An association retirement plan is a defined contribution MEP, sponsored by a bona fide group or association of employers that meets the conditions under 29 CFR 2510.3-55(b). Plan year 2020 is the first year that a significant number of association retirement plans would file a Form 5500.
A PEO MEP is a defined contribution pension plan sponsored by a bona fide professional employer organization (PEO) that meets the conditions under 29 CFR 2510.3-55(c). According to the National Association of Professional Employer Organizations, there are 487 PEOs in the United States.
The SECURE Act amended section 3(2) of ERISA and added section 3(43) to ERISA authorizing a new type of ERISA-covered defined contribution MEP referred to as a “pooled employer plan” to be operated by a “pooled plan provider.” In its 2020 final rule on Registration Requirements for Pooled Plan Providers, the DOL noted the uncertainty surrounding the number of PEPs that could be created based on the final rule, the number of employers that would participate in such plans, and the number of participants and beneficiaries that would be covered by them.
Due to the timing of Form 5500 filing deadlines, complete data from the plan year 2021 filings, which contain information on how many employers are participating in PEPs and the number of participants covered by these, are not available. Therefore, the DOL must rely on other sources and professional judgement to estimate their numbers.
These are plans that reported plan characteristics code 3D when filing the Form 5500 Annual Return/Report. The code 3D indicates “A pre-approved plan under sections 401, 403(a), and 4975(e)(7) of the Code that is subject to a favorable opinion letter from the IRS.” A pre-approved retirement plan is a plan offered to employers by financial institutions and others that are authorized to sponsor pre-approved plans. The pre-approved plan provider then makes the IRS-approved plan available to adopting employers. Providers must make reasonable and diligent efforts to ensure that adopting employers of the plan have actually received, and are aware of, all plan amendments and that such employers complete and sign new plan documents when necessary.
The DOL expects that Form 5500-SF small pension plan filers are the most likely candidates to join a DCG or a PEP; however, the DOL lacks information on
A change in the participant count methodology for defined contribution pension plans to determine whether the plan is a “large plan” (generally, a plan that covers 100 or more participants) for purposes of Form 5500 annual reporting requirements, including the requirement to include an IQPA report and other schedules generally applicable to large pension plans, is adopted in the final rules. Currently, the plan size measure for this annual reporting purpose is based on the total number of participants at the beginning of the plan year and expressly includes employees eligible to participate in a Code section 401(k) plan (“401(k) plan”) even if the employee has not elected to participate and does not have an account balance. The final rules change this methodology and instead counts only the number of participants at the beginning of the plan year with an account balance.
Current Form 5500 filings collect the number of participants at the end of the plan year with an account balance and does not collect such a figure for the beginning of the plan year. Accordingly, the DOL used the end of plan year number of participants with account balance to estimate the number of plans impacted by this change. Using the current definitions of large and small plans, there are 86,744 large defined contribution plans and 613,290 small defined contribution plans. Using the number of participants at the end of the year with an account balance as a proxy for the new participant count methodology yields estimated 68,057 large and 631,976 small defined contribution plans. This results in an estimated 18,699 defined contribution plans experiencing a cost savings by filing as small plans, which allow the possibility of exemption from the IQPA audit and report requirements and from including required financial statements and Schedules of Assets as part of their annual report.
In 2020, there were 46,577 defined benefit plans with 31.9 million total participants and 12 million active participants. There were 45,032 single-employer defined benefit plans and 1,363 multiemployer defined benefit plans.
The SECURE Act established a new type of ERISA-covered defined contribution pension plan, the PEP, which is established and maintained by a pooled plan provider that meets the conditions of the statute. By creating the PEP structure, the SECURE Act permitted multiple unrelated employers to participate without the need for any common interest among the employers (other than having adopted the plan). As discussed below, PEPs need to provide ERISA section 103(g) participating employer information, including certain basic information regarding the pooled plan provider. Potential increased reporting costs for those employers choosing to offer retirement benefits to their employees through participating in a PEP would be offset by other cost reductions or business benefits relative to not having to administer an individual plan as further discussed below.
By participating in a PEP, employers could minimize their fiduciary responsibilities for ongoing administration and operation of the plan. Employers could benefit from reduced risk and liability because the pooled plan provider would bear most of the administrative and fiduciary responsibility for operating the PEP, including hiring and monitoring the ERISA section 3(38) investment managers. Similarly, operating efficiency for participating employers are expected because the pooled plan provider handles the administrative tasks such as participant communications, plan recordkeeping, submitting the Form 5500, and complying with plan audits.
Also, as they are expected to be professional plan providers, it is anticipated that a pooled plan provider, relative to a small employer, would be better equipped to ensure that more accurate and complete data is reported to the Agencies on the Form 5500. Further, as discussed in the regulatory impact analysis to the regulation establishing the Form PR, PEPs should benefit from scale advantages, including the ability to obtain lower fees for investment options.
This concept is supported by research conducted by Szapiro, that found the per employer cost of a large MEP can be lower than the cost of a small single-employer plan.
Another potential outcome is that, due to increases in economic efficiency, small businesses may be better able to compete with larger companies in recruiting and retaining workers due to a competitive employee benefit package.
Finally, PEPs may enable participants to achieve better retirement outcomes. VanDerhei's research finds that the adoption of a MEP in which the members do not need to share a common interest, other than participating in the same plan, with a 25 percent opt-out rate among employees, results in an overall 1.4 percent reduction in the retirement savings deficit, compared to when a MEP is not adopted.
A benefit the new Schedule MEP provides is a unified vehicle to report information related to SECURE Act provisions, including information unique to MEPs. The participating employer information collected pursuant to section 103(g) of ERISA becomes data capturable, and available at a publicly viewable website containing images of the Form 5500 and related data sets. This public data will help protect plan participants and beneficiaries by allowing for improved
The updated Form 5500 annual reporting requirements that allow for consolidated reporting, pursuant to section 202 of the SECURE Act, provides eligible defined contribution pension plans with an alternative method of compliance with annual reporting requirements that would otherwise mandate a separate annual report for each plan.
The consolidated reporting option for defined contribution pension plans also allows for more choice and flexibility in the reporting of information to the government. Eligible plans can choose, based on benefits and preferences, if they want to continue with the plan filing as an individual plan or as part of a DCG. Plans whose individual reporting obligations would be satisfied by a DCG annual return/report filing may see a reduction in reporting costs depending on their circumstances.
The Schedule DCG provides individual plan-level information for those defined contribution pension plans whose annual reporting requirements would be satisfied by a DCG's consolidated filing. The uniformity of the DCG arrangement structure and the benefits of consolidated reporting may reduce the complexity and administrative burden of plans. Also, by having a common plan administrator that is expected to be a professional service provider filing on behalf of a group, the DOL expects an increase in the likelihood that more accurate and complete data is reported to the Agencies. As a result, there may be an increase in annual reporting compliance and compliance with applicable ERISA requirements in general.
Additionally, the Schedule DCG will help compare individual plan participation and aggregate asset and liability information from year to year. The Schedule DCG includes many of the questions that are currently required on the Form 5500-SF, and for large plans and small plans that do not meet the audit waiver conditions, questions regarding the required individual IQPA report and financial statements that must be filed with the Schedule DCG for each individual plan. While this requirement reduces the cost saving of filing as a DCG, the Departments believe the information requested is consistent with the SECURE Act provision permitting the Departments to collect whatever plan level information is needed to perform adequate oversight and vital to provide to participants, beneficiaries, and the Departments information needed to adequately monitor the plans and keep track of their assets from year to year.
The rule redefines the method of counting covered participants for purposes of determining when a defined contribution plan may file as a small plan and whether the plan may be exempt from the IQPA audit requirements generally applicable to large defined contribution pension plans.
Defined contribution pension plans, including 401(k) plans and 403(b) plans, under these final rules, will determine whether they must file as a large plan based on the number of participants with account balances as of the beginning of the plan year. This revises the previous measurement method, which included the total number of eligible participants at the beginning of the plan year, regardless of individual account activity. Since the size of the plan is a major factor in determining whether a plan must attach an IQPA report, this change is expected to reduce administration costs for the plans that are now able to exempt itself from the IQPA audit and report requirements.
Further, some stakeholders have suggested that section 112 of the SECURE Act could make it even more likely that a plan with a small number of active participants might be required to bear the cost of an audit based on eligible, but not participating employees being counted toward the audit threshold. Specifically, section 112 provides that, beginning January 1, 2024, long-term, part time workers that have reached the plan's minimum age requirement and have worked at least 500 hours in each of three consecutive 12-months period must be permitted to make elective contributions to a section 401(k) qualified cash or deferred arrangement.
The DOL expects that excluding from the participant count participants who are eligible to participate but do not have an account balance at the beginning of the plan year will reduce expenses of establishing and maintaining a retirement plan, and consequently encourage more employers to offer workplace-based retirement savings plans to their employees.
The final forms revisions update Schedule H to add new breakout categories to the “Administrative Expenses” category of the Income and Expenses section of the Schedule H balance sheet. The data element breakouts for Administrative Expenses will now be “Salaries and allowances,” “Contract administrator fees,” “Other recordkeeping fees,” “Independent Qualified Public Accountant (IQPA) fees,” “Investment advisory and investment management fees,” “Bank or trust company trustee/custodial fees,” “Actuarial fees,” “Legal fees,” “Valuation/appraisal fees,” “Other Trustee fees/expenses,” and “Other expenses.” The changes to how plan expenses are reported brings greater transparency to plan transactions, makes decisions on plan costs more observable to plan participants, and enhances the efficiency of the Agencies' enforcement efforts. ERISA Section 513(a) authorizes and directs the Secretary of Labor and EBSA to conduct a research program on employee benefits. The Form 5500 Annual Return/Report is a leading source of data used in this research program. Breaking out the administrative expenses also aids in conducting research as the individual plan expenses are observable.
Several questions are being added to the 2023 Form 5500s to help identify plans that are more likely to experience compliance issues, and help the IRS more effectively conduct investigations. The rule adds a nondiscrimination and coverage test question to Form 5500 and Form 5500-SF that was on the Schedule T before it was eliminated. The question
Adding this question allows the IRS to identify these plans for examination. This question is also helpful when performing pre-audit analysis and allows the IRS to narrow any inquiries for information that is requested from the plan sponsor. The restoration of this question also reflects the elimination of optional coverage and nondiscrimination demonstrations in the IRS determination letter process. See Rev. Proc. 2012-6, 2012-1 I.R.B. 235 and Announcement 2011-82, 2011-52 I.R.B. 1052.
The final forms revisions add a question to Form 5500 and Form 5500-SF, for 401(k) plans asking whether the plan sponsor used the design-based safe harbor rules or the “prior year” ADP, or “current year” ADP test, or if it is not applicable. A plan that performs “prior year” or “current year” ADP testing is more likely to have compliance issues than a plan with a “designed-based safe harbor.” Adding this question allows the IRS to identify 401(k) plans that use ADP testing for examination over plans that have designed-based safe harbors. This question will also help the IRS perform pre-audit analysis, and for design-based safe harbor plans allow the IRS to verify whether allocations of required safe harbor contributions comply with the terms of the plan; and whether proper notice requirement is satisfied on an annual basis.
The final forms revisions add a question to Form 5500 and the Form 5500-SF asking whether the employer is an adopter of a pre-approved plan that received a favorable IRS Opinion Letter, the date of the favorable Opinion Letter, and the Opinion Letter serial number.
This question is meant to help the IRS identify whether a plan sponsor has adopted a pre-approved plan, and to determine whether the plan was adopted timely in accordance with the Code section 401(b) remedial amendment period. This question will also assist IRS in determining whether to select a plan for examination as a late amender for changes in the law.
Changes to the Form 5500 Schedules SB and R are intended to clarify instructions, simplify reporting methods, and enhance the usability of data collected regarding asset allocation.
This rule makes important changes to the requirements currently in effect. Some of these changes affect the distribution between the small and large size classes for plans filing the annual report to change. The DOL estimates that a total of 23,533 small plans and 842 large plans would opt to join either a DCG or a PEP, and therefore have their filing requirement fulfilled by these entities. The DOL also estimates that 18,699 large plans would be redefined and file as small plans due to the change in the participant count methodology for determining when a defined contribution plan may file as a small plan.
The DOL anticipates that the costs for plans to satisfy their annual reporting obligations will typically decrease under these regulations relative to the current regime.
To estimate the net change in cost burden, because of the interaction of the changes, the DOL has also analyzed the cost impact of the individual revisions on classes of filers. In doing so, the DOL took account of the fact that various types of plans would be affected by more than one revision and that the sequence of multiple revisions would create an interaction in the cumulative burden on those plans. The total changes in Table 1 show the estimated accumulated changes. The other tables below show estimates for individual changes from the same baseline prior to the enactment of any of these rules or revisions; therefore, the tables cannot be added to arrive at the estimates in Table 1.
The new Schedule MEP will be filed by all MEPs, including PEPs, and includes participating employer
As discussed in the affected entities section, estimates are available for MEPs that have filed a Form 5500 previously, but not for the newly created PEPs that have yet to file a Form 5500. The impacts of the recent DOL rulemaking concerning association retirement plans and PEO MEPs also carries some uncertainty regarding the number of MEPs that may be affected. By the end of year 2021, 71 entities filed the Form PR to register as pooled plan providers with approximately 3 PEPs per provider. These are the providers assumed most likely to provide these services for the year 2021. Therefore, for purposes of this analysis, the DOL assumes there to be a total of 202 PEPs. As it is the case with MEPs, joining a PEP translates into less plan maintenance expenditures due to economies of scale. Additionally, the DOL believes the information requested on the Schedule MEP is already available to plans, so the burden is primarily entering the information onto the form. The burden to file the Schedule MEP is estimated to average 10 minutes for MEPs and 14 minutes for PEPs, with variation depending on the number of participating employers.
Although the DOL does not know how many plans would decide to offer benefits through a PEP, the current average number of participating employers in a MEP is a reasonable proxy for PEPs that may be established in the future. DOL data suggests that MEPs, on average, have 11 participating employers, nine employers with fewer than 100 participants (small) and two employers with 100 or more participants (large). The DOL uses this information in its estimates for PEPs. Combined with one pooled plan provider registrant that has already listed 2,000 participating employers, it is estimated that a total of 3,369 small participating plans and 842 large participating plans would provide benefits through PEPs.
As discussed above, a DCG filing for a group of plans likely reduces reporting burden as only one Form 5500 is filed and signed by a common plan administrator, eliminating the need for separate administrators from participating plans. However, the burden from the consolidated Form 5500 filed by the DCG, including the Schedule DCG to report individual plan information for each participating plans may offset some or all of these savings. In 2020, there were 531,872 small defined contribution plans that file the Form 5500-SF and reported the plan characteristic code 3D; this type of plan may find it advantageous to adopt this new structure of providing benefits and therefore a fraction of them will join a DCG.
The change in burden from allowing a DCG to file on behalf of plans is estimated in the following manner. Apart from the 531,872 small defined contribution plans mentioned above, there are 1,813 pre-approved plans.
With the availability of DCGs as an option, some service providers may discontinue their provision of individual Form 5500 filing services, and only offer to file as DCGs. Some plans that contract with service providers that do so may choose to be moved into DCG filings, while others may change service providers because they don't want to comply with the additional filing obligations placed on DCG filers. For purposes of this analysis, we assume that half of the plans currently associated with a pre-approved plan provider that decide to file as a DCG are offered and accept the DCG requirements to stay with the same provider. The DOL uses these assumptions to estimate that 142 DCGs with a total of 20,827 small plans will have their annual return/report filing obligation satisfied by the filing of a DCG Form 5500.
As described above, the consolidated return/report to be filed by the DCG to satisfy the annual reporting requirements of participating plans is required to include a Schedule DCG for each participating plan. The cost calculation must consider this cost on a per participating plan basis. The DOL believes that once individual plans join a DCG, the average cost of filing a Schedule DCG, which would be done for each of the estimated 20,164 participating plans, would be lower than the cost of filing a Form 5500-SF separately, which was the cost incurred by a small plan before joining a DCG. Although the DOL does not know how much lower this new cost would be, it estimates that completing a Schedule DCG as part of the DCG's Form 5500 annual return/report would take about 40 percent less time than completing a Form 5500-SF for each individual plan.
As Table 3 shows, assuming the number of DCGs and plans per DCG as described above, along with the estimated cost of filing a schedule DCG, the DOL expects an overall cost reduction of $2.1 million. This cost reduction assumes, as a baseline, the current definition of large and small plans, and would be the result of a decrease in the number of Form 5500-SF filers, from 864,100 to 843,400. The reduction in Form 5500-SF filers would be partially offset by an increase in DFE filings, which reflects the introduction of DCGs as filing entities. This total reduction considers both changes in the number of filings.
These final rules revise the Schedule H to collect more detailed information on plan expenses to allow for more transparency, accountability, and increase the usefulness of the data in regulating employee benefit plans. The revision does not request any additional information, instead recategorizing the information that is already reported on Schedule C and Schedule H; therefore, the DOL believes the cost of this change to be de minimis.
The regulation changes the method of counting participants for purposes of determining when a defined contribution plan may file as a small plan, which also factors into whether the plan may be exempt from the IQPA audit requirement. Specifically, plans are directed to count only the number of participants/beneficiaries with account balances as of the beginning of the plan year, as compared to the current rule that counts all the employees eligible to participate in the plan. This is facilitated through the Form 5500 and Form 5500-SF which asks for the number of participants with account balances at the beginning of the plan year, for defined contribution pension plans only.
This change reduces costs for plans. The additional question imposes little burden as the number of participants with account balances at the end of year is already tracked and reported; but to the defined contribution pension plans which now qualify as a small plan, the savings could be significant. EBSA estimates that the reporting burden of all required schedules for a small pension plan is, on average, approximately $330 while the same estimate for a large pension plan is around $1,756.
These plans and their participants may no longer have the protections provided by the audit, which could result in an increased risk of errors and
For small pension plans to be eligible for the audit waiver they must meet conditions related to investment assets, financial institutions holding plan assets, disclosures to participants and beneficiaries, and enhanced fidelity bonding for persons who handle certain assets. Consistent with the DOL's goal of encouraging pension plan establishment and maintenance, particularly in the small business community, the DOL concluded that engaging an accountant should not be the only means by which the security of small plan assets can be adequately protected. Rather, in developing these final rules, consistent with the existing regulatory conditions for the small plan audit waiver, the DOL attempted to balance the interest in providing secure retirement savings for participants and beneficiaries with the interest in minimizing costs and burdens on small pension plans and the sponsors of those plans.
The DOL estimates that there could be a reduction of 19,541 large plans filing under the final rules and form changes, 842 large participating plans that could provide benefits through PEPs, and 18,699 defined contribution plans due to the changing definition of who can file as a small plan. Further, an estimated 10,714 of these plans currently provide the IQPA report and audited financial statements and would therefore save in audit costs.
As discussed above, there are an estimated 18,699 defined contribution plans that would now be able to file as a small plan. Other reporting cost savings for these plans are based on their filing the Form 5500-SF instead of the Form 5500 and the correspondent schedules. As shown in Table 4, the DOL estimates that this redefinition of small and large plan alone would translate into a decrease of filing costs of $27.3 million, with a reduction from 148,800 to 130,100 in large plan filers.
The regulation includes changes related to Internal Revenue Code requirements and reporting requirements for defined benefit pensions subject to filing Schedules MB, SB, and R. The Agencies believe the additional questions reflect information plans have close at hand and expect that reporting this information would result in a de minimis marginal burden.
The cost and burden associated with the annual reporting requirements for any given plan depend upon the specific information that must be provided, given the plan's characteristics, practices, operations, and other factors. For example, a small, single-employer defined contribution pension plan eligible to file the Form 5500-SF should incur far lower costs than a large, multiemployer defined benefit pension plan that holds multiple insurance contracts, engages in reportable transactions, and has many service providers that each received over $5,000 in compensation. The DOL separately considered the cost to different types of plans in arriving at its aggregate cost estimates. The DOL's basis for these estimates follows.
The DOL's analysis assumes that all benefits and costs would be realized in the first year of the reporting cycle to which the changes apply and within each year thereafter. This assumption is premised on the requirement that each plan will be required to file the Form 5500 Annual Return/Report. The DOL has used a “status quo” baseline for this analysis, which assumes the future will resemble the present, absent the final regulations and forms revisions. The DOL does not include a separate one-time transition cost for learning or updating systems during the first year in which the reporting changes apply. Cost to read instructions is already included in the estimates of the burden. The changes would largely apply requirements currently in effect for large MEPs to PEPs and DCGs. The financial services providers and recordkeepers that service such plans and DCGs generally are already providing Form 5500 filings services for the employee benefit plans they service so we do not anticipate material start-up costs for them to file Form 5500s on behalf of PEPs or DCGs. We also do not anticipate that individual plans that participate in a DCG reporting arrangement would expend more time to supply information to DCG reporting arrangements during the first year than what they currently incur to supply annual reporting data to service providers that prepare their annual reports (and may in fact incur less time even during the first year). Similarly, the creation of the Schedule MEP mostly reorganizes the way annual reporting data is provided by affected plans, rather than adding significant additional information collection.
Further, it is not anticipated that the limited number of additional questions for (1) defined benefit pension plans, and (2) Code related questions for pension plans related to existing compliance obligations, will entail material start-up or learning costs. The changes largely apply existing requirements in the context of a new schedule for some filers and as an attachment to current filings for others.
Mathematica Policy Research, Inc. (MPR) developed the underlying cost data, which has been used by the Agencies in estimating burden related to the Form 5500 Annual Return/Report since 1999. See 65 FR 21068, 21077-78 (Apr. 19, 2000); Borden, William S.,
For this form revision, the DOL used the adjusted MPR unit cost data for pension and non-health welfare plans. The DOL developed the unit cost data for group health plans using the best available data. To develop unit costs for DFEs, the DOL created weighted averages of the unit costs for plans.
The DOL used historical counts of Form 5500 Annual Return/Report filers tabulated by type and reported characteristics to estimate filer counts for pension plans, welfare plans, and DFEs.
The DOL modeled its approach to calculating burden on the approach used during the 2009 forms revision and the 2016 modernization proposal.
To estimate aggregate burdens, types of plans with similar reporting requirements were grouped together in various groups and subgroups. Calculations of aggregate cost were prepared for each of the various subgroups, both under requirements in effect prior to this action and under the forms as revised. The universe of filers was divided into four basic types: Defined benefit pension plans, defined contribution pension plans, welfare plans, and DFEs. Each of these major plan types was further subdivided into multiemployer and single-employer plans.
Since the filing requirements differ substantially for small and large plans, the plan types were also divided by plan size. For large plans (100 or more participants), the defined benefit plans were further divided between very large (1,000 or more participants) and other large plans (at least 100 participants, but fewer than 1,000 participants). Small plans (less than 100 participants) were divided similarly, except that they were divided into Form 5500-SF eligible and Form 5500-SF ineligible plans, as applicable.
Welfare plans were divided into group health plans and plans that do not provide any group health benefits; plans that provide group health benefits and have fewer than 100 participants were divided into fully insured group health plans and unfunded, combination unfunded/fully insured plans, or funded with a trust group health plans.
DFEs were divided into Master Trusts/MTIAs, CCTs, PSAs, 103-12 IEs, GIAs, and DCGs. For each of these sets of respondents, burden hours per respondent were estimated for the Form 5500 Annual Return/Report itself and up to seven schedules or the Form 5500-SF (and the Schedule SB, for Form 5500-SF eligible defined benefit pension plans).
The costs for each of the forms and schedules that are part of the Form 5500 Annual Return/Report were also estimated separately. When items on a schedule are required by more than one Agency, the estimated burden associated with that schedule is allocated among the Agencies. This allocation is based on how many items are required by each Agency. The burden associated with reading the instructions for each item also is tallied and allocated accordingly.
The reporting burden for each type of plan is estimated considering the circumstances that are known to apply or that are generally expected to apply to such plans, including plan size, funding method, usual investment structures, and the specific items and schedules such plans ordinarily complete. For example, a large single- employer defined benefit pension plan that is intended to be tax-qualified that has insurance products among its investments and whose service providers received compensation above the Schedule C reporting thresholds would be required to submit an annual report completing almost all the line items of the Form 5500, plus Schedule A (Insurance Information), Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information), Schedule C (Service Provider Information), possibly Schedule G (Financial Transaction Schedules), Schedule H (Financial Information), and Schedule R (Retirement Plan Information), and would be required to submit an IQPA report. In this way, the Agencies intend
The DOL has not attributed a recordkeeping burden to the Form 5500 Annual Return/Report in this analysis or in the Paperwork Reduction Act analysis because it believes that plan administrators' practice of keeping financial records necessary to complete the 5500 forms and schedules arises from usual and customary management practices that would be used by any financial entity and does not result from ERISA or Code annual reporting and filing requirements.
The aggregate baseline burden is the sum of the burden per form and schedule as filed prior to this action multiplied by the estimated aggregate number of forms and schedules filed.
The SECURE Act created PEPs and directed the DOL and the Department of the Treasury to make available a consolidated reporting option for defined contribution pension plans that meet certain requirements. Due to these final rules designed to implement the SECURE Act, as well as the new Schedule DCG and Schedule MEP, which requires MEPs to indicate the MEP type by checkbox (association retirement plans, PEO plans, PEPs, and other MEPs), the DOL assumes that these entities will identify the type of entity when they file a Form 5500 with the applicable new schedules. However, until they file, the Departments face significant uncertainty about the number of each type of entity and whether they are merely providing coverage in a different manner than was already provided by employers to their employees through single-employer plans or already existing MEPs (including association retirement plans and PEO plans) or whether with the availability of additional commercial arrangements and plans, more employers will establish plans for their employees.
While pooled plan providers have filed a Form PR which lists plans they are forming, they do not report the number of participating employers. Some of the first PEPs to be created would be filing the 2021 Form 5500 series. The submission of the 2021 Forms is underway but not complete. As previously stated, due to the filing deadlines the 2021 Form 5500 dataset is not complete, therefore the DOL is relying on alternative sources and professional judgement to estimate PEPs. The DOL has identified 646,111 defined contribution plans that reported code 3D, of which 531,872 are considered small defined contribution plans filing the Form 5500-SF as possible plans that could join a DCG or a PEP. However, the decision depends not only on cost savings and administrative ease, but also on employers' preferences and perceptions about the advantages and disadvantages of joining either group.
The SECURE Act 2.0, which passed at the end of 2022, allows for the formation of 403(b) PEPs. There is a great deal of uncertainty in how to estimate the impact of this change in the statute due to the lack of data on any such arrangement within the 403(b) universe of plans, and the fact that it is likely that few plans or providers are positioned to act in the short term. Using the estimates from PEP creation discussed earlier in the analysis (which may not be representative of 403(b) plan/provider), an estimate of roughly 140 employers joining a 403(b) PEPs in future years can be derived by scaling the estimate of the number of employers joining a PEP presented earlier by the ratio of 403(b) plans (20,732) to 401(l)-type plans (621,509).
The Agencies requested information during the proposed rule stage that would help improve its estimates of the numbers of affected entities, employers, and the burdens they would experience, but did not receive comments that would help improve its estimates.
As described above, the DOL changes to Title I annual reporting requirements are primarily designed to implement statutory changes enacted as part of the SECURE Act. The DOL considered several alternative approaches to address these statutory changes, including:
• Retaining the proposed requirement of auditing both a DCG trust and plan level audit.
• Not requiring a plan-level audit and instead requiring just an audit of the DCG's trust. Retaining the proposed “eligible plan asset” restriction on investments for plans that are part of a DCG. Retaining the proposed requirement that small plans that are part of a DCG must satisfy the small plan audit waiver but not by virtue of enhanced bonding. Not permitting any brokerage windows in DCGs. Not allowing direct or indirect holding of employer securities.
• Including more or fewer questions on the Schedule DCG and the Schedule MEP.
• Including more or fewer questions for defined benefit plans on issues under Title IV of ERISA or questions for retirement plans on Code compliance issues.
• Not adding new content elements to the Schedules of Assets and requiring the Schedules of Assets to be filed in a data-capturable format.
• Not changing the methodology for participant count for determining whether a defined contribution retirement plan is subject to the annual reporting requirements applicable to large plans versus small plans.
• Allowing a DCG with under 100 total participants to file as a small plan rather than requiring all DCGs to generally follow the annual reporting requirements applicable to large plans—
• Requiring non-plan MEWAs and/or non-group health MEWA plans to report the participating plan information on the Form M-1 and Form 5500, respectively.
In accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)), the Agencies solicited comments concerning the information collection request (ICR) included in the revision of the Form 5500 Annual Return/Report.
The Agencies did not receive comments that specifically addressed the paperwork burden analysis of the information collection requirement contained in the proposed rule.
In connection with publication of the final regulations and final forms revision, the Agencies are submitting an ICRs to OMB requesting a revision of the collections of information under OMB Control Numbers 1210-0110 (DOL), 1545-1610 (IRS), 1212-0057 (PBGC) and 1210-0040 (DOL for SAR) reflecting the final regulations and instruction changes being finalized in this document. The accompanying Notice of Final Forms Revisions includes a separate PRA discussion that includes tables breaking out the average time for filing the Form 5500, Form 5500-SF, and each schedule, broken down by pension plans (sub-grouped by large plans filing the Form 5500, small plan filing the Form 5500, small plan filing the Form 5500-SF), welfare plans that include health benefits (sub-grouped by large plans and small, unfunded, combination unfunded/fully insured, or funded with a trust 5500-SF), welfare plans that do not include health benefits (sub-grouped by large plans filing the Form 5500, small plan filing the Form 5500, small plan filing the Form 5500-SF), and DFEs (sub-grouped by master trusts, CCTs, PSAs, 103-1IEs, GIAs, and DCGs). The discussion also includes a table with the estimated PRA burdens attributable the Form 5500 Annual Return/Report broken down by the portions allocated to the DOL and the IRS. The DOL is also submitting revisions to the Summary Annual Report ICR. A copy of the ICRs may be obtained by contacting the person listed in the PRA Addressee section below. The Agencies will notify the public when OMB approves the ICRs.
A copy of the ICRs may be obtained by contacting the PRA addressee shown. PRA ADDRESSEE: Address requests for copies of the ICRs to James Butikofer, Office of Research and Analysis, U.S. Department of Labor, Employee Benefits Security Administration, 200 Constitution Avenue NW, Room N-5655, Washington, DC 20210 or email:
The Regulatory Flexibility Act (RFA)
For purposes of this FRFA, an entity is considered a small entity if it is an employee benefit plan with fewer than 100 participants.
The following subsections address specific components of an FRFA, as required by the RFA.
The DOL is publishing separately today in the
The optimal design for reporting requirements changes over time. In addition, the technologies available to manage and transmit information continually advance. Therefore, it is incumbent on the Agencies to revise their reporting requirements from time to time to keep pace with such changes. The final forms revisions, and associated DOL regulatory amendments are intended to implement the reporting requirements required by the SECURE Act, taking into account certain recent changes in markets, other laws, and technology, many of which are referred to above in this document.
The Agencies received 114 comments on the proposals. The Form 5500 Annual Return/Report and regulations provide for simplified reporting for small plans. These final forms revisions and final regulations provide additional filing options and benefits to small plans. Provisions particularly benefiting small plans include DCGs consolidated reporting option, the change in the participant count methodology for definition of a small defined contribution plan, and reporting for PEPs using the Schedule MEP. Comments for these topics are extensively discuss in sections I.D.1, I.D.2, and I.D.4 of the notice of final forms revisions.
Comments received did not directly address the initial regulatory flexibility analysis (IRFA) nor did the Chief Counsel of Advocacy file a comment on the IRFA.
The rule changes the current method of counting covered participants for purposes of determining when a defined contribution plan may file as a small plan and whether the plan may be exempt from the audit requirement. Specifically, the change allows defined contribution plans to count just the number of participants/beneficiaries with account balances as of the beginning of the plan year, as compared to the current rule that counts all the employees eligible to participant in the plan. This change allows an estimated 18,699 large defined contribution plans to be re-defined and file as small defined contribution plans. The estimated distribution of these plans by amount of assets is shown in Table 6.
As described in the regulatory impact analysis above, the DOL estimates that 142 DCGs will form in the first year, filing for 20,827 small plans. These plans would no longer need to file a Form 5500 or Form 5500-SF; their DCG filing a complete Form 5500 Annual Return/Report in accordance with its instructions, including the requirement to include the new Schedule DCG for each individual participating plan,
There also may be some cases in which sponsors of small defined contribution plans decide to participate in a PEP, which would result in small plans being terminated and merged into the PEP and no longer filing a Form 5500 or Form 5500-SF. Small employers without a plan could also decide to join a PEP. As discussed above, the DOL is estimating that 3,369 small employers/plans will join a PEP.
Due to the change in the participant count methodology for defined contribution plans, approximately 631,976 defined contribution pension plans covering fewer than 100 participants with account balances are eligible to comply with annual reporting requirements applicable to small plans, whereas before the change in the participant count methodology approximately 613,290 defined contribution plans were filing as small plans. In total, the DOL estimates there would be now 678,553 small plans where previously were 652,934. Estimates of the number of small pension plans are based on 2020 Form 5500 filing data.
While many small plans could experience a reduced burden as a result of the final changes, the 18,699 large plans filing under the current participant count methodology, but who will file as small plans under the new participant count methodology, are the ones who would experience a significant impact.
Specifically, due to the change in the participant count methodology, 18,699 defined contribution plans are re-defined as small plans and eligible for an audit waiver. An estimated 10,714 of those affected plans currently provide the IQPA report and audited financial statements that would save in audit costs under these final rule and final forms revisions.
Table 6 above shows that number of plans by the amount of assets in the plans. This shows an estimate of 4,443 plans (those with less than $1 million in assets) that would see a costs savings of about one percent of plan assets.
The establishment of DCGs, the use of Schedules DCG ($168 per plan), Schedule MEP ($18 for most MEPs and $25 per PEP), and the other changes could impact a substantial number of small plans, as discussed above, but the impacts per plan are small in magnitude and do not meet the qualifications for a significant impact for this analysis.
The DOL us unaware of any relevant Federal rules for small plans that duplicate, overlap, or conflict with these regulations.
These final regulations and related changes to the Form 5500 Annual Return/Report generally implement or otherwise relate to SECURE Act changes to ERISA and the Code, and do not include significant modifications to existing small plan simplified reporting options other than expanding the number of plans that will be eligible for simplified reporting options by reason of the change in the method of counting participants for determining small plans versus large plan status. Small pension plans that are invested in “eligible” plan assets and otherwise meet certain requirements can elect to use a simplified reporting option of filing Form 5500-SF, which was established by regulation in part to comply with provisions of the Pension Protection Act requiring a simplified form of reporting for plans with fewer than 25 participants. Since the majority of small plans required to file an ERISA annual report cover fewer than 25 participants, the simplified reporting option also constitutes the DOL's efforts to further reduce the information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
The DOL, in developing the final changes for Form 5500 filings by DCGs, carried forward an audit waiver for small plans participating in a DCG consolidated Form 5500 filing. We also, in developing the Schedule MEP filing requirements for PEPs and other MEPs, did not expand small plan reporting requirements. We generally limited the information collection to consolidating information collected on the Schedule MEP that is already reported elsewhere by MEPs on the current Form 5500, as discussed elsewhere in this preamble and in the separate notice of final rulemaking being published with this notice. Overall, the DOL believes that the final changes to the reporting requirements reduce the burden on small plans, while allowing the DOL to collect sufficient information for it to fulfill its statutory responsibilities.
Title II of the Unfunded Mandates Reform Act of 1995 requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector.
Executive Order 13132 outlines fundamental principles of federalism, and requires the adherence to specific criteria by Federal agencies in the process of their formulation and implementation of policies that have “substantial direct effects” on the States, the relationship between the National Government and States, or on the distribution of power and responsibilities among the various levels of government.
In the DOL's view, these final regulations and final forms revisions would not have federalism implications because they would not have direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among various levels of government.
Section 514 of ERISA provides, with certain exceptions specifically enumerated, that the provisions of Titles I and IV of ERISA supersede any and all laws of the States as they relate to any employee benefit plan covered under ERISA. The requirements being implemented in these rules do not alter the fundamental provisions of the statute with respect to employee benefit plans, and as such would have no implications for the States or the relationship or distribution of power between the National Government and the States.
Accounting, Employee benefit plans, Freedom of information, Pensions, Public assistance programs, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, 29 CFR part 2520 is amended as follows:
29 U.S.C. 1002(44), 1021-1025, 1027, 1029-31, 1059, 1134, and 1135; and Secretary of Labor's Order 1-2011, 77 FR 1088. Sec. 2520.101-2 also issued under 29 U.S.C. 1132, 1181-1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Sec. 2520.101-5 also issued under 29 U.S.C. 1021 note; sec. 501, Pub. L. 109-280, 120 Stat. 780; sec. 105(a), Pub. L. 110-458, 122 Stat. 5092. Secs. 2520.102-3, 2520.104b-1, and 2520.104b-3 also issued under 29 U.S.C. 1003, 1181-1183, 1181 note, 1185, 1185a-b, 1191, and 1191a-c. Secs. 2520.104b-1 and 2520.107 also issued under 26 U.S.C. 401 note; sec. 1510, Pub. L. 105-34, 111 Stat. 1068.
(a) Except as provided in §§ 2520.104-43, 2520.104-51, 2520.104a-6, and 2520.104a-9, the administrator of a plan required to file an annual report in accordance with section 104(a)(1) of the Act shall include with the annual report the information prescribed in paragraph (a)(1) of this section or in the simplified report, limited exemption or alternative method of compliance described in paragraph (a)(2) of this section.
(2) Under the authority of subsections 104(a)(2), 104(a)(3), and 110 of the Act, section 1103(b) of the Pension Protection Act of 2006, and section 202 of the SECURE Act, a simplified report, limited exemption, or alternative method of compliance is prescribed for employee welfare and pension benefit plans, as applicable. A plan filing a simplified report or electing the limited exemption, or an alternative method of compliance shall file an annual report containing the information prescribed in paragraph (b) or (c) of this section, as applicable, and shall furnish a summary annual report as prescribed in § 2520.104b-10.
(b)
(1) A Form 5500 “Annual Return/Report of Employee Benefit Plan” and any statements or schedules required to be attached to the form, completed in accordance with the instructions for the form, including Schedule A (Insurance Information), Schedule C (Service Provider Information), Schedule D (DFE/Participating Plan Information), Schedule G (Financial Transaction Schedules), Schedule H (Financial Information), Schedule MEP (Multiple-Employer Plan), Schedule MB (Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information), Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information), Schedule R (Retirement Plan Information), and other financial schedules described in § 2520.103-10. See the instructions for this form.
(c) * * *
(1) Except as provided in paragraphs (c)(2), (d), (e), and (f) of this section, and in §§ 2520.104-43, 2520.104-44, 2520.104-51, 2520.104a-6, and 2520.104a-9, the annual report of an employee benefit plan that covers fewer than 100 participants at the beginning of the plan year shall include a Form 5500 “Annual Return/Report of Employee Benefit Plan” and any statements or schedules required to be attached to the form, completed in accordance with the instructions for the form, including Schedule A (Insurance Information), Schedule D (DFE/Participating Plan Information), Schedule I (Financial Information—Small Plan), Schedule MEP (Multiple-Employer Plan), Schedule MB (Multiemployer Defined Benefit Plan and Certain Money Purchase Plan Actuarial Information), Schedule SB (Single-Employer Defined Benefit Plan Actuarial Information) and Schedule R (Retirement Plan Information). See the instructions for this form.
(2)(i) The annual report of an employee pension benefit plan or
(ii) * * *
(D) Is not a multiemployer plan;
(E) Is not a plan subject to the Form M-1 requirements under § 2520.101-2;
(F) Is not a multiple-employer pension plan that is a pooled employer plan described in section 3(43) of the Act; and
(G) Is not a DCG reporting arrangement described in § 2520.104-51.
(a)
The revisions and addition read as follows:
(a)
(c)
(2) In the case of direct filing entities (including DCG reporting arrangements) required to file a schedule of assets held for investment purposes at the end of the plan year and the schedule of assets acquired and disposed of during the plan year, the entries on the schedules shall be completed by including the assets held by the DFE or held in the DCG reporting arrangement's trust or trusts for the individual plans that report in the DCG, and shall include the number of plans with an allocable interest in each listed investment.
(a)
(b)
(2) Where some or all of the assets of plans participating in the DCG are held in a pooled separate account maintained by an insurance carrier, or in a common or collective trust maintained by a bank, trust company or similar institution, a copy of the annual statement of assets and liabilities of such account or trust for the fiscal year of the account or trust which ends with or within the plan year for which the DCG's annual report is made is required to be furnished by such account or trust under § 2520.103-5(c). Although the statement of assets and liabilities referred to in § 2520.103-5(c) shall be considered part of the DCG's consolidated annual report, such statement of assets and liabilities need not be filed with the DCG's annual report. See §§ 2520.103-3 and 2520.103-4 for reporting requirements for plans some or all of the assets of which are held in a pooled separate account maintained by an insurance company, or a common or collective trust maintained by a bank or similar institution; and see § 2520.104-51(b)(2) for when the term “DCG reporting arrangement” or “DCG” shall be used in place of the term “plan.”
(3)(i) Except for employee pension benefit plans that cover fewer than 100 participants at the beginning of the plan year that meet the conditions for being eligible for a waiver of the audit and accountant opinion requirements in section 103(a)(3)(A) of the Act pursuant to § 2520.104-46, the Schedule DCG for each participating plan shall include:
(A) A report of an independent qualified public accountant for the participating plan that meets the requirements in § 2520.103-1(a)(5).
(B) Separate financial statements meeting the requirements of § 2520.103-1(b)(2) if such financial statements and schedules are prepared in order for the independent qualified public accountant to form the opinion required by section 103(a)(3)(A) of the Act and this paragraph.
(C) Notes to the financial statements described in paragraph (b)(1) or (b)(3)(i)(B) of this section, which contain the information set forth in § 2520.103-1(b)(3).
(ii) For purposes of this section, an employee pension benefit plan described in § 2520.103-1(d) will be treated as a plan that covers fewer than 100 participants as of the beginning of the plan year.
(d)
(a)
(b)
(i) Such plan participates in a defined contribution group (DCG) reporting arrangement described in paragraph (c) of this section; and
(ii) A consolidated annual report containing the items set forth in § 2520.103-14 has been filed with the Secretary of Labor in accordance with § 2520.104a-9 by the common plan administrator (as described in paragraph (c)(2)(iii) of this section) for all of the plans participating in the DCG reporting arrangement (as described in paragraph (c) of this section).
(2) For purposes of this section, the terms “DCG reporting arrangement,” “DCG” or “common plan administrator” shall be used in place of the terms “plan” and “plan administrator,” in §§ 2520.103-3, 2520.103-4, 2520.103-6, 2520.103-9, 2520.103-10 and elsewhere in subpart C of this part and this subpart, as applicable.
(c)
(1) Are individual account plans or defined contribution plans as defined in section 3(34) of the Act;
(2) Have—
(i) The same trustee meeting the requirements set forth in section 403(a) of the Act (“common trustee”);
(ii) The same one or more named fiduciaries designated in accordance with the requirements set forth in section 402(a) of the Act (“common named fiduciaries”), except that nothing in this paragraph (c)(2)(ii) precludes an individual employer from acting as an additional named fiduciary with respect to the individual plan it sponsors, provided that the other named fiduciaries are the same and common to all plans;
(iii) A designated plan administrator as defined in section 3(16)(A) of the Act that is the same plan administrator and common to all plans (“common plan administrator”); and
(iv) Plan years beginning on the same date (“common plan year”);
(3)(i) Provide the same investments or investment options to participants and beneficiaries in all the plans (“common investments or common investment options”);
(ii) A single dedicated brokerage window provided by the same designated registered broker-dealer common to all plans that restricts participant and beneficiary investments solely to assets with a readily determinable fair market value as described in § 2520.103-1(c)(2)(ii)(C) will be treated as a common investment option for purposes of this paragraph (c)(3);
(4) Do not hold any employer securities at any time during the plan year, except that nothing in this paragraph (c)(4) prohibits investments in any employer's publicly traded securities within the otherwise “same investment option” described in paragraph (c)(3);
(5) Are either audited by an independent qualified public accountant (IQPA) or satisfy the audit waiver conditions in § 2520.104-46;
(6) Are not a multiemployer plan; and
(7) Are not a multiple-employer pension plan (including a pooled employer plan described in section 3(43) of the Act and a multiple-employer defined contribution pension plan described in § 2510.3-55 of this chapter).
(d)
(a)
(a)
(b)
(c)
The revisions and additions read as follows:
(d) * * *
(3) * * *
This is a summary of the annual report [insert as applicable either Form 5500 Annual Return/Report of Employee Benefit Plan or Form 5500-SF Annual Return/Report of Small Employee Benefit Plan] of [insert name of plan and EIN/PN] for [insert period covered by this report]. The [insert as applicable either Form 5500 or Form 5500-SF] annual report has been filed with the Employee Benefits Security Administration, as required under the Employee Retirement Income Security Act of 1974 (ERISA). Your plan is a [insert a brief description of the plan based on the plan characteristic codes listed for the plan on the Form 5500, including whether it is a defined contribution or defined benefit plan, and whether the plan is a pooled employer plan, another type of multiple-employer plan or a single-employer plan].
[If the plan is participating in a DCG reporting arrangement]:
Your plan participates in an annual reporting arrangement that files a consolidated Form 5500 Annual Report for all the separate plans in the arrangement. This summary includes aggregate information on all the participating plans from the consolidated Form 5500. The consolidated Form 5500 also includes a separate schedule (Schedule DCG) that provides specific plan level information for each individual plan, as well as an accountant's report regarding your individual plan, unless the plan is eligible for a small plan audit waiver under Department of Labor regulations. As noted below regarding your rights to additional information, you have a right to receive a copy of the Schedule DCG relating to your plan on request from the plan administrator.
11. a Schedule DCG for plans participating in a consolidated group Form 5500 filing that includes your plan sponsor's name, EIN, plan administrator's name, EIN and telephone number, total number of participants in your plan, and basic financial information about the plan.)
12. a Schedule MEP, including name and EIN of the employers participating in the MEP, each participating employer's percentage of the total contributions (employer and employee) made by all employers participating in the MEP and, for defined contribution pension plans only, the aggregate account balance for each of the employers participating in the MEP.)
You also have the legally protected right to examine the annual report at the main office of the plan ( address ), (at any other location where the report is available for examination), and at the U.S. Department of Labor in Washington, DC, or to obtain a copy from the U.S. Department of Labor upon payment of copying costs. Requests to the Department should be addressed to: Public Disclosure Room, Room N-1513, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. The annual report is also available online at the Department of Labor website
Office of Foreign Assets Control, Treasury.
Publication of web general licenses.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing two general licenses (GLs) issued pursuant to the Nicaragua Sanctions Regulations: GLs 3 and 4, each of which was previously made available on OFAC's website and is now expired.
GL 3 expired on July 18, 2022. GL 4 expired on November 23, 2022. See
OFAC: Assistant Director for Licensing, 202-622-2480; Assistant Director for Regulatory Affairs, 202-622-4855; or Assistant Director for Sanctions Compliance & Evaluation, 202-622-2490.
This document and additional information concerning OFAC are available on OFAC's website:
On June 17, 2022 and October 24, 2022, OFAC issued GLs 3 and 4, respectively, to authorize certain transactions otherwise prohibited by the Nicaragua Sanctions Regulations, 31 CFR part 582. Each GL was made available on OFAC's website (
(a) Except as provided in paragraph (b) of this general license, all transactions ordinarily incident and necessary to the wind down of transactions involving ENIMINAS, or any entity in which ENIMINAS owns, directly or indirectly, a 50 percent or greater interest that are prohibited by the Nicaragua Sanctions Regulations, 31 CFR part 582 (the NSR), are authorized through 12:01 a.m. eastern daylight time, July 18, 2022, provided that any payment to a blocked person must be made into a blocked account in accordance with the NSR.
(b) This general license does not authorize any transactions otherwise prohibited by the NSR, including transactions involving any person blocked pursuant to the NSR other than the blocked persons described in paragraph (a) of this general license, unless separately authorized.
(a) Except as provided in paragraph (b) of this general license, all transactions ordinarily incident and necessary to the wind down of any transaction involving the Directorate General of Mines (DGM) of the Nicaraguan Ministry of Energy and Mines, or any entity in which DGM owns, directly or indirectly, a 50 percent or greater interest that are prohibited by the Nicaragua Sanctions Regulations, 31 CFR part 582 (NSR), are authorized through 12:01 a.m. eastern standard time, November 23, 2022, provided that any payment to a blocked person must be made into a blocked account in accordance with the NSR.
(b) This general license does not authorize any transactions otherwise prohibited by the NSR, including transactions involving any person blocked pursuant to the NSR, other than the blocked persons described in paragraph (a) of this general license, unless separately authorized.
Office of Foreign Assets Control, Treasury.
Publication of web general licenses.
The Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing two general licenses (GLs) issued pursuant to the Global Magnitsky Sanctions Regulations: GLs 5 and 6, each of which was previously made available on OFAC's website.
GLs 5 and 6 were issued on January 26, 2023. See
OFAC: Assistant Director for Licensing, 202-622-2480; Assistant Director for Regulatory Affairs, 202-622-4855; or Assistant Director for Sanctions Compliance & Evaluation, 202-622-2490.
This document and additional information concerning OFAC are available on OFAC's website:
On January 26, 2023, OFAC issued GLs 5 and 6 to authorize certain transactions otherwise prohibited by the Global Magnitsky Sanctions Regulations, 31 CFR part 583. Each GL was made available on OFAC's website (
(a) Except as provided in paragraphs (d) and (e) of this general license, all transactions prohibited by the Global Magnitsky Sanctions Regulations, 31 CFR part 583 (GMSR), that are ordinarily incident and necessary to the divestment or transfer, or the facilitation of the divestment or transfer, of debt or equity of Frigorifico Chajha S.A.E. (Frigorifico Chajha), to a non-U.S. person are authorized through 12:01 a.m. eastern daylight time, March 27, 2023.
(b) Except as provided in paragraph (e) of this general license, all transactions prohibited by the GMSR that are ordinarily incident and necessary to facilitating, clearing, and settling trades of debt or equity of Frigorifico Chajha that were placed prior to 4:00 p.m. eastern standard time, January 26, 2023, are authorized through 12:01 a.m. eastern daylight time, March 27, 2023.
(c) Except as provided in paragraph (e) of this general license, all transactions prohibited by the GMSR that are ordinarily incident and necessary to the wind down of derivative contracts entered into prior to 4:00 p.m. eastern standard time, January 26, 2023, that (i) include Frigorifico Chajha as a counterparty or (ii) are linked to the debt or equity of Frigorifico Chajha are authorized through 12:01 a.m. eastern daylight time, March 27, 2023, provided that any payments to a blocked person are made into a blocked account in accordance with the GMSR.
(d) Paragraph (a) of this general license does not authorize:
(1) U.S. persons to sell, or to facilitate the sale of, debt or equity of Frigorifico Chajha to, directly or indirectly, any person whose property and interests in property are blocked; or
(2) U.S. persons to purchase or invest in, or to facilitate the purchase of or investment in, directly or indirectly, debt or equity of Frigorifico Chajha, other than purchases of or investments in debt or equity of Frigorifico Chajha that are ordinarily incident and necessary to the divestment or transfer of debt or equity of Frigorifico Chajha, as described in paragraph (a) of this general license.
(e) This general license does not authorize any transactions otherwise prohibited by the GMSR, including transactions involving any person blocked pursuant to the GMSR other than Frigorifico Chajha, unless separately authorized.
(a) Except as provided in paragraph (b) of this general license, all transactions prohibited by the Global Magnitsky Sanctions Regulations, 31 CFR part 583 (GMSR), that are ordinarily incident and necessary to the wind down of any transaction involving Bebidas USA Inc., Tabacos USA Inc., Frigorifico Chajha S.A.E., or Dominicana Acquisition S.A. (collectively, the “designated Cartes entities”), or any entity in which Horacio Manuel Cartes Jara or the designated Cartes entities own, directly or indirectly, a 50 percent or greater interest, are authorized through 12:01 a.m. eastern daylight time, March 27, 2023, provided that any payment to a blocked person must be made into a blocked account in accordance with the GMSR.
(b) This general license does not authorize any transactions otherwise prohibited by the GMSR, including transactions involving any person blocked pursuant to the GMSR other than the blocked entities described in paragraph (a) of this general license, unless separately authorized.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain navigable waters of the Sabine River, extending the entire width of the river, adjacent to the public boat ramp located in Orange, TX. This action is necessary to protect persons and vessels from hazards associated with a high-speed Jet Ski race competition in Orange, TX. Entry of vessels or persons into this zone is prohibited unless authorized by the Captain of the Port
This rule is effective from 9 a.m. on March 17, 2023 through 6 p.m. on March 18, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email Mr. Scott Whalen, Marine Safety Unit Port Arthur, U.S. Coast Guard; telephone 409-719-5086, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. This safety zone must be established by March 17, 2023 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the dates of the jet ski races and compromise public safety.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Marine Safety Unit Port Arthur (COTP) has determined that the potential hazards associated with high-speed jet ski races are a safety concern for persons and vessels operating on the Sabine River. Possible hazards include risks of injury or death from near or actual contact among participant vessels and spectators or mariners traversing through the safety zone. This rule is needed to protect all waterway users, including event participants and spectators, before, during, and after the scheduled event.
This rule establishes a temporary safety zone from 9 a.m. through 6 p.m. each day from March 17, 2023 through March 18, 2023. The safety zone covers all navigable waters of the Sabine River, extending the entire width of the river, adjacent to the public boat ramp located in Orange, TX bounded by the Orange Municipal Wharf, latitude 30°05′50″ N and latitude 30°05′33″ N. The duration of the safety zone is intended to protect participants, spectators, and other persons and vessels, in the navigable waters of the Sabine River during high-speed jet ski races and will include breaks and opportunity for vessels to transit through the regulated area.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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, and duration of the safety zone. This safety zone encompasses a less than half-mile stretch of the Sabine River for eight hours on each of two days. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNMs) via VHF-FM marine channel 16 about the zone, daily enforcement periods will include breaks that will provide an opportunity for vessels to transit through the regulated area, and the rule allows vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (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 rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 8 hours on each of two days that will prohibit entry on less than a one-half mile stretch of the Sabine River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email 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, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(d)
(2) All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the regulated area.
(3) Spectator vessels desiring to transit the regulated area may do so only with prior approval of the Patrol Commander and when so directed by that officer will be operated at a minimum safe navigation speed in a manner which will not endanger participants in the regulated area or any other vessels.
(4) No spectator vessel shall anchor, block, loiter, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by or through an official patrol vessel.
(5) Any spectator vessel may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel. Spectator vessels may be moored to a waterfront facility within the regulated area in such a way that they shall not interfere with the progress of the event. Such mooring must be complete at least 30 minutes prior to the establishment of the regulated area and remain moored through the duration of the event.
(6) The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.
(7) The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property.
(8) The COTP or a designated representative will terminate enforcement of the special local regulations at the conclusion of the event.
(e)
Bureau of Land Management, Interior.
Final rule.
This final rule adjusts the level of civil monetary penalties contained in the Bureau of Land Management's (BLM) regulations governing onshore oil and gas operations and coal trespass as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. This final rule is consistent with applicable Office of Management and Budget (OMB) guidance. The penalty adjustments made by this final rule constitute the 2023 annual inflation adjustments, accounting for one year of inflation spanning the period from October 2021 through October 2022.
This rule is effective on February 24, 2023.
For information regarding the BLM's Fluid Minerals Program, please contact Lonny Bagley, Acting Division Chief, Fluid Minerals Division, telephone: 307-622-6956; email:
For questions relating to regulatory process issues, please contact Jennifer Noe, Division of Regulatory Affairs, email:
Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (sec. 701, Pub. L. 114-74) (the 2015 Act) became law, amending the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410).
The 2015 Act requires agencies to:
1. Adjust the level of civil monetary penalties for inflation with an initial “catch-up” adjustment through an interim final rulemaking in 2016;
2. Make subsequent annual adjustments for inflation beginning in 2017; and
3. Report annually in Agency Financial Reports on these inflation adjustments.
The purpose of these adjustments is to maintain the deterrent effect of civil monetary penalties and promote compliance with the law (
As required by the 2015 Act, the BLM issued an interim final rule that adjusted the level of civil monetary penalties in BLM regulations with the initial “catch-up” adjustment (RIN 1004-AE46, 81 FR 41860), which was published on June 28, 2016, and became effective on July 28, 2016. On January 19, 2017, the BLM published a final rule (RIN 1004-AE49, 82 FR 6305) updating the civil penalty amounts to the 2017 annual adjustment levels. Final rules updating the civil penalty amounts to 2018 through 2022 annual adjustment levels were published in subsequent years.
OMB issued Memorandum M-23-05 on December 15, 2022, entitled, Implementation of Penalty Inflation Adjustments for 2023, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which explains agency responsibilities for identifying applicable penalties and calculating the annual adjustment for 2023 in accordance with the 2015 Act.
In accordance with the 2015 Act and OMB Memorandum M-23-05, the BLM has identified applicable civil monetary penalties in its regulations and calculated the annual adjustments. A civil monetary penalty is any assessment with a dollar amount that is levied for a violation of a Federal civil statute or regulation and is assessed or enforceable through a civil action in Federal court or an administrative proceeding. A civil monetary penalty does not include a penalty levied for violation of a criminal statute, nor does it include fees for services, licenses, permits, or other regulatory review. The calculated annual inflation adjustments are based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the October preceding the date of the adjustment and the prior year's October CPI-U. Consistent with guidance in OMB Memorandum M-23-05, the BLM divided the October 2022 CPI-U by the October 2021 CPI-U to calculate the multiplier. In this case, October 2022 CPI-U (298.012)/October 2021 CPI-U (276.589) = 1.07745. OMB Memorandum M-23-05 confirms that this is the proper multiplier. (OMB Memorandum M-23-05 at 1 and n. 4.)
The 2015 Act requires the BLM to adjust the civil penalty amounts in 43 CFR 3163.2 and 9239.5-3(f)(1). To accomplish this, the BLM multiplied the current penalty amounts in those paragraphs by the multiplier set forth in OMB Memorandum M-23-05 (1.07745) to obtain the adjusted penalty amounts. The 2015 Act requires that the resulting amounts be rounded to the nearest $1.00 at the end of the calculation process.
The adjusted penalty amounts will take effect immediately upon publication of this rule. Pursuant to the 2015 Act, the adjusted civil penalty amounts apply to civil penalties assessed after the date the increase takes effect, even if the associated violation predates such increase. This final rule adjusts the following civil penalties:
In accordance with the 2015 Act, agencies must adjust civil monetary penalties “notwithstanding Section 553 of the Administrative Procedure Act” (sec. 4(b)(2), 2015 Act). The BLM is promulgating this 2023 inflation adjustment for civil penalties as a final rule pursuant to the provisions of the 2015 Act and OMB guidance. A proposed rule is not required because the 2015 Act expressly exempts the annual inflation adjustments from the notice and comment requirements of the Administrative Procedure Act. In addition, the 2015 Act does not give the BLM any discretion to vary the amount of the annual inflation adjustment for any given penalty to reflect any views or suggestions provided by commenters. Accordingly, the BLM will not provide an opportunity for public comment on this rule.
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the OMB will review all significant rules. OIRA has determined that this rule is not significant. (
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability and to reduce uncertainty and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science, and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner that is consistent with these requirements to the extent permitted by the 2015 Act.
The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for all rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule.
This rule is not a major rule under the Congressional Review Act. This rule:
(a) Will not have an annual effect on the economy of $100 million or more;
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and
(c) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
This rule does not effect a taking of private property or otherwise have takings implications under E.O. 12630. Therefore, a takings implication assessment is not required.
Under the criteria in section 1 of E.O. 13132, this rule does not have federalism implications that warrant the preparation of a federalism summary impact statement. Therefore, a federalism summary impact statement is not required.
This rule complies with the requirements of E.O. 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in E.O. 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required.
This rule does not contain information collection requirements, and a submission to OMB under the Paperwork Reduction Act (44 U.S.C. 3501
This rule does not constitute a Major Federal Action because of the non-discretionary nature of the civil penalty adjustment as required by law (see 40
This rule is not a significant energy action under the definition in E.O. 13211. Therefore, a Statement of Energy Effects is not required.
Administrative practice and procedure, Government contracts, Indians—lands, Mineral royalties, Oil and gas exploration, Penalties, Public lands—mineral resources, Reporting and recordkeeping requirements.
Penalties, Public lands.
For the reasons given in the preamble, the BLM amends chapter II of title 43 of the Code of Federal Regulations as follows:
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; 43 U.S.C. 1732(b), 1733, 1740; and Sec. 107, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.
R.S. 2478 and 43 U.S.C. 1201.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS closes the southern area Angling category fishery for large medium and giant (“trophy” (
Effective 11:30 p.m., local time, February 22, 2023, through December 31, 2023.
Larry Redd, Jr.,
Atlantic HMS fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
Under § 635.28(a)(1), NMFS files a closure notice with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on and after the effective date and time of a closure notice for that category, for the remainder of the fishing year, until the opening of the subsequent quota period or until such date as specified.
The 2023 BFT fishing year, which is managed on a calendar-year basis and subject to an annual calendar-year quota, began January 1, 2023. The Angling category season opened January 1, 2023, and continues through December 31, 2023. The Angling category baseline quota is 297.4 metric tons (mt), of which 9.2 mt is suballocated for the harvest of large medium and giant (trophy) BFT by vessels fishing under the Angling category quota, with 2.3 mt allocated for each of the following areas: North of 42° N lat. (the Gulf of Maine area); south of 42° N lat. and north of 39°18′ N lat. (the southern New England area); south of 39°18′ N lat., and outside of the Gulf of Mexico (the southern area); and the Gulf of Mexico region. Trophy BFT measure 73 inches (185 cm) curved fork length or greater. This action applies to the southern area.
Based on landings data from the NMFS Automated Catch Reporting System and the North Carolina Tagging Program, as well as average catch rates and anticipated fishing conditions, NMFS projects the Angling category southern area trophy BFT subquota of 2.3 mt has been reached and exceeded. Therefore, retaining, possessing, or landing large medium or giant (
If needed, subsequent Angling category adjustments will be published in the
HMS Angling and HMS Charter/Headboat permitted vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act and regulations at 50 CFR part 635 and is exempt from review under Executive Order 12866.
The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons. Specifically, the regulations implementing the 2006 Consolidated HMS FMP and its amendments provide for inseason adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Providing for prior notice and opportunity to comment is impracticable and contrary to the public interest as this fishery is currently underway and delaying this action could result in excessive trophy BFT landings that may result in future potential quota reductions for the Angling category, depending on the magnitude of a potential Angling category overharvest. NMFS must close the southern area trophy BFT fishery before additional landings of these sizes of BFT occur. Taking this action does not raise conservation and management concerns. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria.
For all of the above reasons, the AA also finds that pursuant to 5 U.S.C. 553(d), there is good cause to waive the 30-day delay in effectiveness.
16 U.S.C. 971
Agricultural Marketing Service, Department of Agriculture (USDA).
Proposed rule.
This proposed rule would implement a recommendation from the Cherry Industry Administrative Board (Board) to increase the assessment rate established for the 2022-23 and subsequent fiscal periods. The proposed assessment rate would remain in effect indefinitely unless modified, suspended, or terminated.
Comments must be received by March 27, 2023.
Interested persons are invited to submit written comments concerning this proposed rule. Comments may be sent to the Docket Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237. Comments may also be submitted to the Docket Clerk electronically by Email:
Interested persons are invited to submit written comments concerning this proposed rule. Comments can be sent to the Docket Clerk, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237. Comments can also be submitted to the Docket Clerk electronically by Email:
Delaney Fuhrmeister, Marketing Specialist, or Christian D. Nissen, Branch Chief, Southeast Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email:
This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rule is issued under Marketing Order No. 930 as amended (7 CFR part 930), regulating the handling of tart cherries grown in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Part 930, (referred to as “the Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board locally administers the Order and is comprised of producers and handlers of tart cherries operating within the area of production, and a public member.
The Agricultural Marketing Service (AMS) is issuing this proposed rule in conformance with Executive Orders 12866 and 13563. 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, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This proposed rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. AMS has determined that this proposed rule is unlikely to have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, tart cherry handlers are subject to assessments. Funds to administer the Order are derived from such assessments. It is intended that the assessment rate as proposed herein would be applicable to all assessable tart cherries for the 2022-23 crop year, and continue until amended, suspended, or terminated.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for
This proposed rule would increase the assessment rate for the 2022-23 and subsequent fiscal periods from $0.00575 to $0.0075 per pound of tart cherries. This change would also increase the portion of the assessment rate allocated to research and promotion from $0.00275 to $0.0055 per pound and would decrease the portion allocated to administrative expenses from $0.003 to $0.002 per pound.
The Order authorizes the Board, with the approval of AMS, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are familiar with the Board's needs and with the costs for goods and services in their local area and can formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting, and all directly affected persons have an opportunity to participate and provide input.
For the 2020-21 and subsequent fiscal periods, the Board recommended, and AMS approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Board or other information available to AMS.
The Board met on September 8, 2022, and unanimously recommended 2022-23 expenditures of $1,667,000 and an assessment rate of $0.0075 per pound, divided into $0.0055 for research and promotion program and $0.002 for administrative expenses. In comparison, last year's budgeted expenditures were $1,086,500. The assessment rate of $0.0075 is $0.00175 higher than the rate currently in effect.
The Board recommended increasing the assessment rate to allow for more spending on health benefit research, increased spending on promotion, and to add funds to Board reserves, which have been depleted due to reduced production in previous seasons. The production during the 2022-23 fiscal period was 242,352,172 million pounds, an increase from the 172,354,783 million pounds produced the previous year. However, at the current assessment rate, assessment income would equal $1,393,525, which does not meet the Board's anticipated expenditures of $1,667,000. By increasing the assessment rate by $0.00175, assessment income would be $1,817,641. This amount along with reserve funds and interest income should provide sufficient funds to meet 2022-23 anticipated expenses.
Major expenditures recommended by the Board for the 2022-23 year include $850,000 for promotion, $250,000 for health benefits research, and $200,000 for salaries. Budgeted expenses for these items in 2021-22 were $600,000, $0, and $258,000, respectively.
The assessment rate recommended by the Board was derived by reviewing anticipated expenses, production of tart cherries, and the level of funds in reserve. The 2022-23 crop produced 242,352,172 pounds of tart cherries, which should provide $1,817,641 in assessment income (242,352,172 pounds multiplied by $0.0075). However, the Board anticipates that due to approved exemptions and loss adjustments the actual income from assessments will be closer to $1,784,641. Income derived from handler assessments at the proposed rate, along with reserve funds and interest income, would be adequate to cover budgeted expenses. Funds in the reserve (currently about $262,732) are expected to be kept within the maximum permitted by the Order (approximately one fiscal period's expenses as authorized in § 930.42).
The proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Board or other available information.
Although this assessment rate would be in effect for an indefinite period, the Board would continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. Dates and times of Board meetings are available from the Board or AMS. Board meetings are open to the public and interested persons may express their views at these meetings. AMS evaluates Board recommendations and other available information to determine whether modification of the assessment rate is needed, and further rulemaking would be undertaken as necessary. The Board's 2022-23 budget and those for subsequent fiscal periods would be reviewed and, as appropriate, approved by AMS.
After consideration of all relevant material presented, including the information and recommendations submitted by the Board and other available information, AMS has determined that this proposed rule is consistent with and would effectuate the purposes of the Act.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA)(5 U.S.C. 601-612), AMS has considered the economic impact of this proposed rule on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
There are approximately 400 tart cherry growers in the production area and approximately 40 handlers subject to regulation under the Order. The Small Business Administration (SBA) standard for small agricultural producers applicable to tart cherries is annual receipts of less than $3,000,000 (Other Noncitrus Fruit Farming, NAICS 111339). Small agricultural service firms are defined as those having annual receipts of less than $30,000,000 (13 CFR 121.201).
The National Agricultural Statistics Service (NASS) reported that the 2021-22 value of the tart cherry crop for processed utilization was approximately $83 million. Production utilized for processing was 171.0 million pounds and the season average grower price for processed tart cherries was $0.485 per pound. Dividing the crop value by the estimated number of producers (400) yields an estimated average annual receipts per producer of $207,500 ($83 million divided by 400 producers). This is well below the SBA threshold for small producers.
An estimate of the season average price per pound received by handlers for processed tart cherries was derived from AMS's purchases of dried tart cherries for feeding programs in the 2021-2022 season at an average price of $4.70 per pound. The dried cherry price was converted to a raw product equivalent price of $0.94 per pound at an industry recognized ratio of five to one. Multiplying this price by 2021 total processed utilization of 171.0 million pounds results in an estimated handler-level tart cherry value of $160.7 million. Dividing this figure by the number of handlers ($160.7 million divided by 40 handlers) yields estimated average
This proposal would increase the assessment rate established for the Board and collected from handlers for the 2022-23 and subsequent fiscal periods from $0.00575 to $0.0075 per pound of tart cherries. This change would also increase the portion of the assessment rate allocated to research and promotion from $0.00275 to $0.0055 per pound and would decrease the portion allocated to administrative expenses from $0.003 to $0.002 per pound. The Board unanimously recommended 2022-23 expenditures of $1,667,000 and the assessment rate of $0.0075 per pound. The proposed assessment rate of $0.0075 is $0.00175 higher than the previous rate. The 2022-23 crop produced 242,352,172 pounds of tart cherries, which should provide $1,817,641 in assessment income (242,352,172 pounds multiplied by $0.0075). However, the Board anticipates that due to approved exemptions and loss adjustments the actual income from assessments will be closer to $1,784,641. Income derived from handler assessments and funds from the Board's authorized reserve, would be adequate to cover budgeted expenses.
Major expenditures recommended by the Board for the 2022-23 year include $850,000 for promotion, $250,000 for health benefits research, and $200,000 for salaries. Budgeted expenses for these items in 2021-22 were $600,000, $0, and $258,000, respectively.
The Board voted to increase the assessment rate to allow for more spending on health benefit research, increased spending on promotion, and to add funds to Board reserves, which have been depleted due to reduced production in previous seasons. At the current assessment rate of $0.00575 and with the 2022-23 crop production at 242,352,172 million pounds, assessment income would equal $1,393,525 ($0.00575 multiplied by 242,352,172), an amount insufficient to cover the Committee's anticipated expenditures of $1,667,000. By increasing the assessment rate by $0.00175, assessment income would be approximately $1,817,641 ($0.0075 multiplied by 242,352,172). This amount, along with interest income, and funds from the reserve, should provide sufficient funds to meet 2022-23 anticipated expenses.
Prior to arriving at this budget and assessment rate, the Board considered the level of production, projected expenditures, and the amount in the authorized reserve. The Board discussed alternatives, including maintaining the current assessment rate of $0.00575. However, leaving the assessment unchanged would not generate sufficient revenue to meet Board expenses for the 2022-23 fiscal period. Consequently, the Board determined that the assessment rate should be increased to $0.0075 per pound to generate sufficient revenue to meet expenses. Therefore, the Committee rejected the idea of maintaining the current assessment rate.
A review of historical information and preliminary information pertaining to the upcoming season indicates the producer price for the 2022-23 season should be approximately $0.23 per pound of tart cherries. The proposed assessment rate of $0.0075 per pound represents 3.26 percent of the $0.23 revenue for the 2021-22 fiscal period as a percentage of total producer revenue ($0.0075 divided by $0.23 multiplied by 100).
This proposed rule would increase the assessment obligation imposed on handlers. While assessments impose additional costs on handlers, the costs are minimal and uniform on all handlers, and some of the costs may be passed on to growers. However, these costs are expected to be offset by the benefits derived by the operation of the Order.
The Board's meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the September 8, 2022, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the OMB and assigned OMB No. 0581-0177, Tart Cherries Grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. No changes in those requirements would be necessary because of this proposed rule. If any changes become necessary, they would be submitted to OMB for approval.
This proposed rule would not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
A 30-day comment period is provided to allow interested persons to respond to this proposed rule. All written comments timely received will be considered before a final determination is made on this matter.
Cherries, Marketing agreements, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 930 as follows:
7 U.S.C. 601-674.
On and after October 1, 2022, the assessment rate imposed on handlers shall be $0.0075 per pound of tart cherries grown in the production area and utilized in the production of tart cherry products. Included in this rate is $0.0055 per pound of tart cherries to cover the cost of the research and promotion program and $0.002 per
U.S. Citizenship and Immigration Services, Department of Homeland Security.
Proposed rule; extension of the comment period.
On January 4, 2023, DHS published a proposed rule in the
The comment period for the proposed rule published on January 4, 2023, at 86 FR 402 is extended. Written comments and related material must be submitted on or before March 13, 2023. Please refer to the instructions and guidance in the published proposed rule in the
Carol Cribbs, Deputy Chief Financial Officer, U.S. Citizenship and Immigration Services, Department of Homeland Security, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-3000 (this is not a toll-free number). Individuals with hearing or speech impairments may access the telephone numbers above via TTY by calling the toll-free Federal Information Relay Service at 877-889-5627 (TTY/TDD).
On January 4, 2023, DHS published a proposed rule 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-700-2A12 airplanes. This proposed AD was prompted by a report that certain environmental control system (ECS) pre-cooler clamp assemblies may not conform to specifications. This proposed AD would require an inspection of the pre-cooler clamps and replacement of non-conforming pre-cooler clamps. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by April 10, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For service information identified in this NPRM, contact 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.
Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; 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 Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2022-39, dated July 18, 2022 (Transport Canada AD CF-2022-39) (also referred to after this as the MCAI), to correct an unsafe condition on certain Bombardier, Inc., Model BD-700-2A12 airplanes. The MCAI states that a disclosure letter from the supplier advised that certain pre-cooler clamp assemblies securing the ducting connection on the ECS pre-cooler inlet assembly may not conform to drawing. If left uncorrected, the clamp may fail and cause excessive leakage at that connection. This could lead to increased operating temperatures in climate-controlled zones, or, in combination with other failures, a complete loss of the ECS.
You may examine the MCAI in the AD docket at
The FAA reviewed Bombardier Service Bulletin 700-36-7504, dated June 27, 2022. This service information specifies procedures for inspecting the pre-cooler clamps for non-conformance to the drawing and replacing non-conforming pre-cooler clamps. The clamp replacement includes a general visual inspection of non-conforming pre-cooler clamps around the silicone bellow for signs of damage, and corrective action including 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
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 and service information described above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in the service information already described.
The FAA estimates that this AD, if adopted as proposed, would affect 12 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this proposed AD.
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 April 10, 2023.
None.
This AD applies to Bombardier, Inc., Model BD-700-2A12 airplanes, certificated in any category, serial numbers 70032, 70047 through 70056 inclusive, 70058 through 70061 inclusive, and 70063 through 70075 inclusive.
Air Transport Association (ATA) of America Code 36, Pneumatic.
This AD was prompted by a report that certain environmental control system (ECS) pre-cooler clamp assemblies may not conform to specifications. The FAA is issuing this AD to address possible excessive leakage caused by clamp failure. The unsafe condition, if not addressed, could result in increased operating temperatures in climate-controlled zones, or, in combination with other failures, a complete loss of the ECS.
Comply with this AD within the compliance times specified, unless already done.
Within 36 months after the effective date of this AD: Identify and replace, as applicable, the ECS pre-cooler clamps in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 700-36-7504, dated June 27, 2022.
Although Bombardier Service Bulletin 700-36-7504, dated June 27, 2022, specifies to submit certain information to the manufacturer or discard affected clamps, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Transport Canada AD CF-2022-39, dated July 18, 2022, for related information. This Transport Canada AD may be found in the AD docket at
(2) For more information about this AD, contact Elizabeth Dowling, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; 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 700-36-7504, dated June 27, 2022.
(ii) [Reserved]
(3) For 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 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 April 10, 2023.
You may send comments, using the procedures found in 14 CFR
•
•
•
•
• 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 Street, 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
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 Dan Rodina, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone 206-231-3225; email
EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0192, dated September 23, 2022 (EASA AD 2022-0192) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A300B4-601, A300B4-603, A300B4-620, A300B4-622, A300B4-605R, A300B4-622R, A300C4-605R Variant F, A300C4-620, A300F4-605R, and A300F4-622R airplanes. Model A300 C4-620 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability. The MCAI states that new or more restrictive airworthiness limitations have been developed.
EASA AD 2022-0192 specifies that it requires certain tasks (limitations) already in Airbus A300-600 ALS Part 2 DT-ALI, Revision 03, that is required by EASA AD 2019-0090, dated April 26, 2019 (which corresponds to FAA AD 2019-21-01, Amendment 39-19767 (84 FR 56935, October 24, 2019) (AD 2019-21-01)), and that incorporation of EASA AD 2022-0192 invalidates (terminates) prior instructions for those tasks. This proposed AD would therefore terminate the limitations required by paragraph (g) of AD 2019-21-01, for the tasks identified in the service information referred to in EASA AD 2022-0192 only.
The FAA is proposing this AD to address fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane. You may examine the MCAI in the AD docket at
The FAA reviewed EASA AD 2022-0192, which specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.
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 2022-0192 described previously, as incorporated by reference. Any differences with EASA AD 2022-0192 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 2022-0192 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0192 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 2022-0192 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 2022-0192. Service information required by EASA AD 2022-0192 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2023-0171 after the FAA final rule is published.
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 April 10, 2023.
This AD affects AD 2019-21-01, Amendment 39-19767 (84 FR 56935, October 24, 2019) (AD 2019-21-01).
This AD applies to all Airbus SAS airplanes identified in paragraphs (c)(1) through (4) of this AD, certificated in any category.
(1) Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes.
(2) Model A300 B4-605R and B4-622R airplanes.
(3) Model A300 F4-605R and F4-622R airplanes.
(4) Model A300 C4-605R Variant F airplanes.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address fatigue cracking, damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.
Comply with this AD within the compliance times specified, unless already done.
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 2022-0192, dated September 23, 2022 (EASA AD 2022-0192).
(1) This AD does not adopt the requirements specified in paragraphs (1) and (2) of EASA AD 2022-0192.
(2) Paragraph (3) of EASA AD 2022-0192 specifies revising “the 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 2022-0192 is at the applicable “associated thresholds” as incorporated by the requirements of paragraph (3) of EASA AD 2022-0192, 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 2022-0192.
(5) This AD does not adopt the “Remarks” section of EASA AD 2022-0192.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative no alternative actions (
Accomplishing the actions required by this AD terminates the corresponding requirements of AD 2019-21-01 for the tasks identified in the service information referred to in EASA AD 2022-0192 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 Street, Des Moines, WA 98198; telephone 206-231-3225; 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 2022-0192, dated September 23, 2022.
(ii) [Reserved]
(3) For EASA AD 2022-0192, 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.
Supplemental notice of proposed rulemaking (SNPRM).
The FAA is revising a notice of proposed rulemaking (NPRM) that would have applied to certain Embraer S.A. Model ERJ 170 airplanes. This action revises the NPRM by adding airplanes to the applicability. The FAA is proposing this airworthiness directive (AD) to address the unsafe condition on these products. Since these actions would impose an additional burden over those in the NPRM, the FAA is requesting comments on this SNPRM.
The FAA must receive comments on this SNPRM by April 10, 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 incorporation by reference in this SNPRM, contact National Civil Aviation Agency (ANAC), Aeronautical Products Certification Branch (GGCP), Rua Dr.
• 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.
Hassan M. 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 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 SNPRM 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 SNPRM, 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 SNPRM. Submissions containing CBI should be sent to Hassan M. 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 an NPRM to amend 14 CFR part 39 by adding an AD that would apply to certain Embraer S.A. Model ERJ 170 airplanes. The NPRM published in the
In the NPRM, the FAA proposed to require an inspection of certain flight control electrical harnesses for incorrect routing, and modifying any incorrect electrical harness installations.
Since the FAA issued the NPRM, ANAC superseded ANAC AD 2022-04-01 and issued ANAC AD 2022-04-01R1, effective October 31, 2022 (ANAC AD 2022-04-01R1) (also referred to as the MCAI), to correct an unsafe condition for certain Embraer S.A. Model ERJ 170 airplanes. ANAC AD 2022-04-01R1 has a revised applicability that includes additional serial numbers. The MCAI states that certain flight control electrical harnesses were routed incorrectly, providing inadequate separation from other electrical harness installations.
The FAA is proposing this AD to address incorrect routing of flight control electrical harnesses near critical fuel quantity indication harnesses, which could possibly result in fuel tank ignition and subsequent loss of the airplane.
You may examine the MCAI in the AD docket at
The FAA received comments from four commenters, including Embraer, Horizon Air, Republic Airways, and SkyWest Airlines. The following presents the comments received on the NPRM and the FAA's response to each comment.
Embraer requested that the proposed AD be withdrawn because ANAC AD 2022-04-01R1, effective October 31, 2022, has superseded AD 2022-04-01, effective April 29, 2022, to revise the applicability. Embraer suggested that the FAA could withdraw the proposed AD or issue a new proposed AD to avoid the need for a new FAA AD to include the additional airplanes.
The FAA updated the applicability to match ANAC AD 2022-04-01R1. However, the FAA is not withdrawing the NPRM, but is instead issuing this SNPRM to include the new applicability. This proposed AD has been revised to reference ANAC AD 2022-04-01R1 throughout.
Republic Airways and SkyWest Airlines requested that the compliance time be changed. Republic requested a change to three years to align with the heavy maintenance schedule and noted that certain parts of the service information require inspecting an area that is difficult to access due to the proximity of the 195 aft wing-to-fuselage fairing (WTFF), which is removed during heavy maintenance. SkyWest requested a change to 10,000 flight hours or 60 months to align with the recommended compliance time specified in the service information referenced in ANAC AD 2022-04-01.
The FAA disagrees with the commenters' requests to revise the compliance time. ANAC, as the state of design authority, conducted a safety analysis and determined that a 12-month compliance time is appropriate to mitigate the identified unsafe condition. The FAA concurs with ANAC's assessment. However, under the provisions specified in paragraph (i)(1) of this AD, operators may request an alternative method of compliance (AMOC) to use a different compliance time. This proposed AD has not been changed with regard to these requests.
Horizon Air commenter requested that the exceptions in paragraph (h)(2) of the proposed AD be limited to paragraph (b) of ANAC AD 2022-04-01, instead of the entire “Alternative
The FAA agrees with the commenter's request for the reasons provided and notes that the service information referenced in ANAC AD 2022-04-01R1 contains steps labeled RC. However, in ANAC AD 2022-04-01R1, the corresponding paragraph not required by this proposed AD is now labeled paragraph (c), while the paragraphs explaining RC service information are in paragraphs (d), (d)(1), and (d)(2) of ANAC AD 2022-04-01R1. Therefore, paragraph (h)(2) of this proposed AD has been revised to refer only to paragraph (c) of ANAC AD 2022-04-01R1.
ANAC AD 2022-04-01R1 specifies procedures for inspecting the installation of flight control electrical harnesses W126 and W127 for incorrect routing and modifying any incorrect electrical harness installations. 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 SNPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
Certain changes described above expand the scope of the NPRM. As a result, it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.
This proposed AD would require accomplishing the actions specified in ANAC AD 2022-04-01R1 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 ANAC AD 2022-04-01R1 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with ANAC AD 2022-04-01R1 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information required by ANAC AD 2022-04-01R1 for compliance will be available at
The FAA estimates that this AD, if adopted as proposed, would affect 701 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 these on-condition actions:
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 April 10, 2023.
None.
This AD applies to Embraer S.A. (Type Certificate previously held by Yaborã Indústria Aeronáutica S.A.; Embraer S.A.) Model ERJ 170-100 LR, -100 STD, -100 SE, and -100 SU airplanes; and Model ERJ 170-200 LR, -200 SU, -200 STD, and -200 LL airplanes, certificated in any category, as identified in Agência Nacional de Aviação Civil (ANAC) AD 2022-04-01R1, effective October 31, 2022 (ANAC AD 2022-04-01R1).
Air Transport Association (ATA) of America Code 27, Flight controls.
This AD was prompted by reports indicating that certain flight control electrical harnesses were routed incorrectly, providing inadequate separation from other electrical harness installations. The FAA is issuing this AD to address the incorrect routing of flight control electrical harnesses near critical fuel quantity indication harnesses, which could possibly result in fuel tank ignition and subsequent loss 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 2022-04-01R1.
(1) Where ANAC AD 2022-04-01R1 refers to April 29, 2022 (the effective date of ANAC AD 2022-04-01), this AD requires using the effective date of this AD.
(2) Where ANAC AD 2022-04-01R1 refers to its effective date, this AD requires using the effective date of this AD.
(3) Where ANAC AD 2022-04-01R1 refers to August 3, 2022 (the Revision 02 date of Embraer Service Bulletin), the correct date is August 5, 2022.
(4) Paragraph (c) of ANAC AD 2022-04-01R1 does not apply to this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.
(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.
For more information about this AD, contact Hassan M. 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 (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) Agência Nacional de Aviação Civil (ANAC) AD 2022-04-01R1, effective October 31, 2022.
(ii) [Reserved]
(3) For ANAC AD 2022-04-01, contact National Civil Aviation Agency (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 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).
This action proposes to establish Class E airspace extending upward from 700 feet above the surface for Maine Coast Memorial Heliport, Ellsworth, Maine; Maine General Medical Center/Augusta Heliport, Augusta, Maine; Maine General Medical Center-Waterville Heliport, Waterville, Maine, as instrument approach procedures have been designed for each heliport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.
Comments must be received on or before April 10, 2023.
Send comments on this proposal to: the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; Telephone: (800) 647-5527, or (202) 366-9826. You must identify Docket No. FAA-2023-0099; Airspace Docket No. 22-ANE-12 at the beginning of your comments. You may also submit comments through the internet at
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 would establish Class E airspace extending upward from 700 feet above the surface for Maine Coast Memorial Heliport, Ellsworth, Maine, and Maine General Medical Center/Augusta Heliport, Augusta, Maine, and Maine General Medical Center-Waterville Heliport, Waterville, Maine, to support IFR operations in the area. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide a factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (Docket No. FAA-2023-0099; Airspace Docket No. 22-ANE-12) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2023-0099; Airspace Docket No. 22-ANE-12.” The postcard will be dated/time stamped and returned to the commenter.
All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this document may be changed in light of the comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see
Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, This document proposes to amend FAA Order JO 7400.11G, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. These updates would be published subsequently in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11G is publicly available as listed in the
FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.
The FAA proposes an amendment to 14 CFR part 71 to establish Class E airspace extending upward from 700 feet above the surface for Maine Coast Memorial Heliport, Ellsworth, Maine; Maine General Medical Center/Augusta Heliport, Augusta, Maine; and Maine General Medical Center-Waterville Heliport, Waterville, Maine, as instrument approach procedures have been designed for each heliport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of the point in space coordinates for Maine Coast Memorial Heliport.
That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of the point in space coordinates for Maine General Medical Center/Augusta Heliport.
That airspace extending upward from 700 feet above the surface within a 6.0-mile radius of the point in space coordinates for Maine General Medical Center-Waterville Heliport.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to update the current ozone absorption cross-section to the recommended consensus-based cross-section value of 1.1329x10
Comments must be received on or before March 27, 2023.
•
•
•
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Ms. Joann Rice, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Ambient Air Monitoring Group (C304-06), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-3372; email address:
The supplementary information in this preamble is organized as follows:
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2022-0007, at
The EPA will begin pre-registering speakers for the hearing upon publication of this document in the
The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.
The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically by emailing it to
The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing are posted online at
In 1961, the ozone absorption cross-section was measured to be 1.1476 x10
The Gas Analysis Working Group of the Consultive Committee for Metrology in Chemistry and Biology (CCQM-GAWG) of the Bureau of Weights and Measures in France (BIPM) convened a task group in 2016 to review all published measurements of the ozone cross-section since 1950. This task group was also charged with recommending a consensus-based cross-section value and associated uncertainty to be adopted in standard UV photometric instruments, including the SRP, for measurements of ozone concentrations (Hodges et al., 2019).
After publication in Hodges et al., 2019, the CCQM-GAWG
40 CFR part 50, Appendix D, “Reference Measurement Principle and Calibration Procedure for the Measurement of Ozone in the Atmosphere,” currently provides EPA's ozone calibration procedure with a stated value of 308 ± 4 atmosphere atm
The new value would reduce the uncertainty to 0.31% from the current 1.4%. The new value would also be 1.2% lower than the current value, a change that could result in increases in measured ozone concentrations. However, there are several factors that EPA believes would make it unlikely that this change would have a measurable, predictable influence on any particular set of ozone monitoring data.
Design Values, the metric used to compare ambient ozone concentrations measured at a monitor to the National Ambient Air Quality Standard (NAAQS) to determine compliance, are determined using the data reporting, data handling, and computation procedures provided in 40 CFR part 50, Appendix U, “Interpretation of the Primary and Secondary National
Multiple factors can contribute to variability in monitoring data, including but not limited to the precision of the monitoring method, the acceptance criteria for Standard Reference Photometer (SRP) calibration and verification, the acceptance criterion for bench and field standards used to calibrate ozone monitors in the field, how agencies perform calibration and adjust analyzer response, the precision and bias acceptance criteria in EPA's Quality Assurance (QA) Handbook,
The inherent precision (variability) of the measurements from analyzers used to measure ozone is about ±1 ppb, or ±0.001 ppm. The variability in the measurement in either the positive or negative direction should be considered relative to the change in monitoring data due to the new cross-section value.
When the new cross-section value is implemented, all SRPs maintained by BIPM, NIST, and the EPA will be updated to incorporate the new value. The update would be achieved through software/firmware modification and would not require any hardware changes. The EPA is proposing to modify the EPA SRPs simultaneously, versus through a phased approach, to minimize disruption of the SRP network. To establish and maintain traceability, the readings of an ozone analyzer are compared through a hierarchy of standards to a NIST ozone SRP. The process of using NIST-traceable standards to verify the ozone concentrations is implemented for all regulatory network ozone analyzers used for comparison to the NAAQS. There are 12 SRPs within the EPA's network: three at EPA's Office of Research and Development (ORD) and nine at various EPA Regional offices and the California Air Resources Board (CARB). One of ORD's SRPs is sent to NIST to be re-verified against the NIST SRP annually. That SRP serves as the reference for the two other ORD SRPs. Each SRP in the U.S. is re-verified against one of ORD's three SRPs annually. Under normal verification operations, implementing the ozone standards traceability process for the entire SRP network could take two or more years starting from when the SRP software/firmware is updated. During this time, the implementation progress and monitoring data collected with the new cross-section would need to be tracked.
The acceptance criteria used in comparing the SRPs (Level 1 standards) to each other is a slope of 1.00 ± 0.01 (or 1%) and an intercept 0.00 ± 1 ppb. Field and bench standards (Level 2 standard) used to calibrate ozone analyzers in the field have acceptance criteria for the slope of 1.00 ± 0.03 (or 3%) and an intercept of 0 ± 3 ppb. The 1.2% change in cross-section value is well within the 3% acceptance for Level 2 standards.
The goal for measurement uncertainty for ozone in 40 CFR part 58, “Ambient Air Quality Surveillance,” for an annual measurement uncertainty is an upper 90 percent confidence limit for the coefficient of variation of 7% for precision and for bias an upper 95 percent confidence limit of 7%. Bias and precision estimates are determined using data obtained from the comparison of the ozone analyzer response to one point Quality Control (QC) checks using a Level 2 calibration standard. The 1.2% change in cross-section value is well within the bias and precision goal of 7%. Data reported to the EPA's Air Quality System by state, local, and tribal monitoring agencies is used to assess bias and precision. The 2021 national average precision for all ozone analyzers in the U.S. is 2.3% and the national average bias is 1.6%.
The QA Handbook, Volume II, Appendix D Validation Template
Ozone analyzers are calibrated or verified every 182 days if one-point zero and span checks are performed every 14 days, and every 365 days if one-point zero and span checks are done daily. The acceptance criteria for multi-point calibration is all points < ±2.1% or ≤ ±1.5 ppb difference of the best fit straight line, whichever is greater, and a slope of 1 ± 0.05 or 5%. The 1.2% change is also well within this acceptance criteria for calibration.
Design values are the 3-year average of the annual 4th highest daily maximum 8-hour value measured at each monitoring site. If the proposed cross-section value is timely adopted, design values for 2026 will have all three years (2024-2026) of monitoring data generated with the new cross-section value. Design values for 2024 will have one year based on the new value, and design values for 2025 will have two years of monitoring data generated with the new value. Appendix U provides for three levels of truncation for the hourly, daily 8-hour maximum, and design value calculations. Hourly averaged ozone monitoring data are to be reported in ppm to the third decimal place, with additional digits to the right truncated (
In assessing how and if this proposed change may affect ozone design values, it is important to note that other factors, including meteorology, can also influence design values. The effects of meteorology on hourly ozone concentrations can contribute to an increase or decrease in design values for a site because formation of ozone is heavily dependent on meteorological conditions. Interannual meteorological variations are known to affect daily and seasonal average ozone concentrations. Therefore, while we do not have reason to believe this proposal will significantly increase design values, meteorology would be a confounding factor in determining the effect of today's proposal on 3-year design values.
Taking these factors into consideration, EPA believes it is unlikely that the proposed cross section change will have a measurable, predictable influence on any given ozone design value or monitoring data set.
Because the EPA believes that adoption of the new cross-section would improve the accuracy of measured
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. This action proposes to revise the ozone absorption cross-section and revise and amend relevant references. It does not contain any information collection activities.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities if the rule has no net burden on the small entities subject to the rule. This proposed action would update the ozone absorption cross-section value for surface ozone monitoring under 40 CFR part 50, and we anticipate that there will be minimal costs associated with this change. We have, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local, or tribal governments, or the private sector.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. This action proposes updates to a reference measurement principle and calibration procedure for the measurement of ambient ozone under 40 CFR part 50. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking involves technical standards. The EPA used voluntary consensus standards in the preparation of this measurement principle and procedure; it is the benchmark against which all ambient ozone monitoring methods are compared. This action is simply updating the reference measurement principle in light of updated information.
Executive Order 12898 (59 FR 7629, Feb. 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color) and low-income populations.
The EPA believes that this type of action does not concern human health or environmental conditions and, therefore, cannot be evaluated with respect to potentially disproportionate and adverse effects on people of color, low-income populations and/or indigenous peoples. This regulatory action is an update to a previously promulgated analytical method and does not have any impact on human health or the environment.
Environmental protection, Air pollution control, Ozone.
For the reasons set forth in the preamble, the EPA proposes to amend 40 CFR part 50 as follows:
42 U.S.C. 7401,
The revisions and addition read as follows.
4.1
A stable O
The calculated O
4.5.3.10. Calculate the O
Some commercial photometers may automatically evaluate all or part of equation 4. It is the operator's responsibility to verify that all of the information required for equation 4 is obtained, either automatically by the photometer or manually. For “automatic” photometers which evaluate the first term of equation 4 based on a linear approximation, a manual correction may be required, particularly at higher O
Environmental Protection Agency (EPA).
Proposed action.
Consistent with the Environmental Protection Agency's (EPA's) policy interpretation for State Implementation Plan (SIP) provisions applying to excess emissions during periods of Startup, Shutdown and Malfunction (SSM) as outlined in EPA's 2015 SSM SIP Action, the EPA is proposing to reinstate its findings of substantial inadequacy and associated “SIP calls” that were withdrawn in 2020 for the states of Texas, North Carolina, and Iowa for SSM provisions in those states' SIPs that do not comply with statutory requirements and EPA's SSM Policy. The EPA is also proposing to issue new findings of substantial inadequacy and SIP calls to the state of Connecticut (CT); the state of Maine (ME); Shelby County, Tennessee (TN); the state of North Carolina (NC); Buncombe County, NC; Mecklenburg County, NC; the state of Wisconsin (WI); and the state of Louisiana (LA), for additional SSM provisions identified as deficient by the Agency.
The EPA has established a docket for this action under Docket ID EPA-HQ-OAR-2022-0814. All documents in the docket are listed on the
For information about this proposed action, contact Sydney Lawrence, Office of Air Quality Planning and Standards, Air Quality Policy Division, C504-05, U.S. Environmental Protection Agency, Research Triangle Park, NC; telephone number: (919) 541-4768; email address:
Throughout this document, “we,” “us” and “our” refer to the EPA. For information related to a specific SIP, please contact the appropriate EPA Regional office:
The information presented in this document is organized as follows:
Entities potentially affected by this action include states, U.S. territories, local authorities and eligible Tribes that are currently administering, or may in the future administer, the EPA approved implementation plans (“air agencies”). While recognizing similarity to (and in some instances overlap with) issues concerning other air programs,
Through this action, the EPA is applying an interpretation consistent with the CAA outlined in its 2015 SSM SIP Action
The EPA has established a docket for this action under Docket ID EPA-HQ-OAR-2022-0814. Publicly available docket materials are available either electronically through
1.
2.
• Identify the rulemaking by docket number and other identifying information (subject heading,
• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
• Describe any assumptions and provide any technical information and/or data that you used.
• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
• Provide specific examples to illustrate your concerns and suggest alternatives.
• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
• Make sure to submit your comments by the comment period deadline identified.
For the purpose of this document, the following definitions apply unless the context indicates otherwise:
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This section provides a brief timeline of several relevant past actions that provide context for the proposed action included in this document. Additional detail about these past actions is provided in section V., Statutory, Regulatory, and Policy Background of this document.
In this document, in accordance with EPA's policy for SIP provisions applying to excess emissions during periods of SSM outlined in EPA's 2015 SSM SIP Action, EPA is proposing to reinstate its findings of substantial inadequacy and associated SIP calls that were withdrawn in 2020 for the states of Texas, North Carolina, and Iowa for SSM provisions in those SIPs that do not comply with statutory requirements and EPA's SSM Policy. EPA is also proposing to issue new findings of substantial inadequacy and SIP calls to the state of Connecticut; the state of Maine; the state of North Carolina; Shelby County, Tennessee; Buncombe County, North Carolina; Mecklenburg County, North Carolina; the state of Wisconsin; and the state of Louisiana for additional SSM provisions identified as deficient by the Agency.
These actions apply interpretations consistent with EPA's SSM SIP policy as outlined in the 2015 SSM SIP Action, which explained in detail the reasons why the EPA finds certain types of SSM provisions to be substantially inadequate as a matter of both law and policy under the CAA. Generally, in the 2015 SSM SIP Action, the EPA found that these types of provisions, described in section V.A of this document, are inconsistent with certain requirements of the CAA, also described in more detail in that section. The EPA also described policy rationales to support this action. The EPA noted in the 2015 SSM SIP Action that the identified types of provisions allow opportunities for sources to emit pollutants during SSM periods repeatedly and in quantities that could cause unacceptable air pollution in nearby communities with no legal pathway within the existing EPA-approved SIP for air agencies, the EPA, the public or the courts to require the sources to make reasonable efforts to reduce these emissions.
This proposed action applies to the states with statewide and/or local provisions relevant to excess emissions that the EPA has determined are impermissible because they are inconsistent with CAA requirements as interpreted by EPA's SSM Policy. Specifically, the EPA is proposing to issue findings of substantial inadequacy with respect to reinstating the 2015 findings for three states (North Carolina, Texas, and Iowa) and issuing new findings with respect to the specific existing SIP provisions in six states (Maine, Connecticut, North Carolina, Tennessee, Louisiana, and Wisconsin) that the EPA is proposing to find are inconsistent with the CAA and EPA's SSM Policy. The eight states in total (for provisions applicable in 10 statewide and local jurisdictions) are listed in Table 1, “List of States and/or Local Jurisdictions with SSM Provisions for Which EPA Proposes to SIP Call.”
If the EPA finalizes a finding of substantial inadequacy and issues a SIP call for any state, EPA's final action will establish a deadline by which the state must make a SIP submission to rectify the deficiency. Pursuant to CAA section 110(k)(5), the EPA has authority to set a SIP submission deadline up to 18 months from the date of the final finding of substantial inadequacy. Accordingly, the EPA is proposing that if it issues a final finding of substantial inadequacy and SIP call for a state, the EPA will establish a date 18 months from the date of promulgation of the final finding for the state to respond to the SIP call. Thereafter, the EPA will review the adequacy of that new SIP submission in accordance with the CAA requirements of sections 110(a), 110(k), 110(l), 113(b), 113(e), 193, and 304, including EPA's interpretation of the CAA reflected in the SSM Policy as explained in the 2015 SSM SIP Action. Considering the affected air agencies' need to develop appropriate regulatory provisions to address the SIP call and conduct any required processes for developing a SIP, we are proposing the 18-month due date because we believe that states should be provided the maximum time allowable under CAA section 110(k)(5) in order to ensure they have sufficient time. EPA expects that such a schedule will allow for the necessary SIP development process to correct the deficiencies yet still achieve the necessary SIP improvements as expeditiously as practicable. In light of the potential for public health impacts during this time period, we solicit comment on whether establishing a shorter time period than 18 months could instead be sufficient for the affected air agencies to develop their submittals.
The issuance of a SIP call would require an affected state
The legal effect of a final SIP call is to direct the state to revise its SIP. Thus, the EPA anticipates that affected states will undertake their processes to determine how to resolve the identified deficiencies. The EPA further anticipates that the remedy may differ depending on what type of provision is implicated in the SIP call. For example, where specific emission limits applicable to specific sources are implicated, states may choose to consider reassessing particular emission limitations to determine whether those limits can be revised such that well-managed emissions during planned operations such as startup and shutdown would not exceed the revised emission limitation, while still protecting air quality. A revision of an emission limitation made in response to a SIP call must be submitted to the EPA for approval. The EPA would then review the SIP revision for consistency with the CAA requirements of sections 110(a), 110(k), 110(l), 113(b), 113(e), 193, and 304, including EPA's interpretation of the CAA reflected in its SSM Policy, as explained in the 2015 SSM SIP Action. A state that chooses to revise particular emission limitations, in addition to removing the aspect of the existing provision that is inconsistent with CAA requirements, could include those revisions in the same SIP submission that addresses the SSM provisions identified in the SIP call, or it could submit them separately.
When the EPA issues a final SIP call to a state, that action alone does not cause any automatic change in the legal status of the existing affected provision(s) in the SIP or as a matter of state law. The SIP revision process typically begins with a state regulatory action to revise the underlying state provision. Once that action is completed, and consistent with state regulatory processes, a rule may be in effect at the state level even before it is submitted to the EPA as part of a SIP. Furthermore, the rule may be in effect at the state level during the time in which the SIP revision is pending before the EPA for review. During the time that the state takes to develop a SIP revision in response to the SIP call and the time that the EPA takes to evaluate and act upon the resulting SIP submission from the state pursuant to CAA section 110(k), the existing affected SIP provision(s) will remain in place. The EPA recognizes that in the interim period, there may continue to be instances of excess emissions that adversely affect attainment and maintenance of the NAAQS, interfere
If, in the future, the EPA finds that a state that is subject to this SIP call, should it be finalized, has failed to submit a complete SIP revision as required by the final rule, or the EPA disapproves such a SIP revision, then the finding or disapproval would trigger an obligation for the EPA to impose a federal implementation plan (FIP) within 24 months after that date. In addition, if a state fails to make the required SIP revision, or if the EPA disapproves the required SIP revision, then either event can also trigger mandatory 18-month and 24-month sanctions clocks under CAA section 179. The two sanctions that apply under CAA section 179(b) are the 2-to-1 emission offset requirement for all new and modified major sources subject to the nonattainment new source review program, and restrictions on highway funding in nonattainment areas. More details concerning the timing and process of the SIP call, and potential consequences of the SIP call, are provided in section VIII. of this document.
While the 2015 SSM SIP Action was published in response to a Sierra Club petition for rulemaking, this 2023 SSM SIP Call proposed action is not intended to serve as a response to any petitions for rulemaking. The EPA is aware that the subject matter of this proposed action overlaps with two petitions.
This section provides relevant background on EPA's SSM policy under the CAA, as outlined in the 2015 SSM SIP Action. It briefly describes the 2015 SSM SIP Action and the types of provisions EPA found to be deficient in issuing the SIP Calls in 2015. The EPA is applying an interpretation consistent with its SSM policy in issuing the notices of deficiency in the current action. This section also describes the three SIP Call withdrawals made by EPA in 2020 for North Carolina, Texas, and Iowa, as further background for the proposal to reinstate them. It also provides background on an October 2020 EPA memorandum announcing changes to EPA's SSM Policy, the subsequent withdrawal of that memorandum in September 2021, and the reinstatement of EPA's SSM Policy as outlined in the 2015 SSM SIP Action.
This section is provided as background and is not intended to interpret or alter these previous withdrawal actions. For details, consult the original actions using the references provided. We emphasize that the SIP calls in the current action are an application of existing policy from the 2015 Action that was adopted through notice and comment rulemaking, and that the EPA's SSM policy as outlined in the 2015 SSM SIP Action remains valid, binding, and in effect. By providing these descriptions, the EPA is not reopening its interpretation of the CAA regarding SSM provisions in SIPs for comment. The Agency had an extensive comment period for the policy interpretations underlying the 2015 SSM SIP Action. Any comments on EPA's interpretation of the CAA should have been filed in that Action. Because the current Proposed Action is simply an application of EPA's SSM policy, the EPA is seeking comments only on the applicability of the 2015 SSM SIP Action's interpretation of the Act to the states that the EPA proposes to SIP call in later sections of this document.
On June 30, 2011, Sierra Club filed a petition for rulemaking (June 2011 Sierra Club petition) asking the EPA to consider how identified air agency rules in EPA-approved SIPs treated excess emissions during periods of startup, shutdown, or malfunction of industrial process or emission control equipment. On June 12, 2015, the EPA responded to the Sierra Club petition, restated and updated its national policy regarding SSM provisions in SIPs, and found pursuant to CAA section 110(k)(5) that a number of the identified provisions were “substantially inadequate” to meet CAA requirements, requiring certain states to amend those provisions. As mentioned previously in this document, this action is referred to as the 2015 SSM SIP Action.
In the 2015 SSM SIP Action, among other things, the EPA clarified its position on the following issues.
The term emission limitation is explicitly defined in section 302(k) of the CAA: “a requirement established by the State or the Administrator which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice or operational standard promulgated under this chapter.” In the context of a SIP, EPA views an emission limitation as a legally binding restriction on emissions from a source or source category, such as a numerical emission limitation, a numerical emission limitation with higher or lower levels applicable during specific modes of source operation, a specific technological control measure requirement, a work practice standard, or a combination of these things as components of a comprehensive and continuous emission limitation in a SIP provision. By definition, an emission limitation can take various forms or a combination of forms, but in order to be permissible in a SIP it must be applicable to the source continuously,
Automatic exemption provisions are generally applicable provisions in a SIP that would provide that if certain conditions exist during a period of excess emissions, then those exceedances would not be considered violations of the applicable emission limitations.
Director's discretion provisions, in general, are regulatory provisions that authorize a state regulatory official unilaterally to grant exemptions or variances from otherwise applicable emission limitations or control measures, or to excuse noncompliance with otherwise applicable emission limitations or control measures, which would be binding on the EPA and the public.
The 2015 document went on to explain that section 110(k) of the CAA imposes procedural and substantive requirements on the EPA for action upon any SIP revision. Sections 110(l) and 193 of the CAA both impose additional procedural and substantive requirements on the state and the EPA in the event of a SIP revision. Key among these many requirements for a SIP revision would be the necessary demonstration that the SIP revision in question would not interfere with any requirement concerning attainment and reasonable further progress or “any other applicable requirement of” the CAA to meet the requirements of CAA section 110(l). The EPA interprets the statute to prohibit director's discretion provisions unless they would be consistent with the statutory and regulatory requirements that apply to SIP revisions.
In addition, discretionary exemptions undermine effective enforcement of the SIP by the EPA or through a citizen suit, because often there may have been little or no public process concerning the exercise of director's discretion to grant the exemptions, or easily accessible documentation of those exemptions. Thus, even ascertaining the possible existence of such
Affirmative defense provisions, in the context of enforcement proceedings, mean that a state law provision in a SIP that specifies particular criteria or preconditions that, if met, would purport to preclude a court from imposing monetary penalties or other forms of relief for violations of SIP requirements in accordance with CAA section 113 or CAA section 304.
Finally, the EPA also provided in the 2015 SSM SIP Action a description of the SIP Call mechanism that it used to address the substantial inadequacies it identified. This is the same mechanism we are proposing to use to address the inadequacies identified in this document. In 2015, the EPA noted that the CAA provides a mechanism for the correction of flawed SIPs, under CAA section 110(k)(5), which provides that, “Whenever the Administrator finds that the applicable implementation plan for any area is substantially inadequate . . . or to otherwise comply with any requirement of [the Act], the Administrator shall require the State to revise the plan as necessary to correct such inadequacies.”
By its explicit terms, this provision authorizes the EPA to find that a state's existing SIP is “substantially inadequate” to meet CAA requirements and, based on that finding, to “require the State to revise the [SIP] as necessary to correct such inadequacies.” This type of action is commonly referred to as a “SIP call.”
Consistent with the approach taken in the 2015 SSM SIP Action, section 110(k)(5) explicitly authorizes the EPA to issue a SIP call “whenever” the EPA makes a finding that the existing SIP is substantially inadequate, thus providing authority for the EPA to take action to correct existing inadequate SIP provisions even long after their initial approval, or even if the provisions only become inadequate due to subsequent events.
In the 2015 SSM SIP Action, the EPA granted a June 30, 2011, Sierra Club petition with respect to 30 TAC 101.222(b)-(e), finding that these provisions were substantially inadequate to meet the requirements of the CAA and issuing a SIP call for those provisions.
In that action, the EPA found 30 TAC 101.222(b)-(e) to be substantially
On February 7, 2020, EPA Region 6 published a final action finding that 30 TAC 101.222(b)-(e) were permissible affirmative defense provisions after seeking the EPA headquarters concurrence to deviate from EPA's national policy announced in the 2015 SSM SIP Action.
In the 2015 SSM SIP Action, the EPA granted a June 30, 2011, Sierra Club petition with respect to provisions 15A NCAC 02D .0535(c) and 15A NCAC 02D .0535(g), finding that those provisions were substantially inadequate to meet the requirements of the CAA and issuing a SIP call for those provisions.
In that action, the EPA found 15A NCAC 02D .0535(c) and 15A NCAC 02D .0535(g) to be substantially inadequate to meet the requirements of the Act on the basis that these provisions provide exemptions for emissions exceeding otherwise applicable SIP emission limitations at the discretion of the state agency during SSM events.
On April 28, 2020, EPA Region 4 published a final action adopting an alternative policy allowing certain automatic exemption provisions and director's discretion provisions in SIPs for the state of North Carolina.
In light of the alternative policy regarding automatic exemption provisions for North Carolina, Region 4 determined that 15A NCAC 02D .0535(c) and 15A NCAC 02D .0535(g) were not substantially inadequate to meet the requirements of the Act and withdrew the SIP call issued to North Carolina as part of the 2015 SSM SIP Action. Additionally, the Region 4 notice approved a SIP revision submitted by the NC Department of Air Quality (DAQ), through a letter dated June 5, 2017, which sought to change North Carolina's SIP-approved rule regarding nitrogen oxides (NO
In the 2015 SSM SIP Action, the EPA granted the Sierra Club's petition with respect to IAC 567-24.1(1), finding that the provision was substantially inadequate to meet the requirements of the CAA and issued a SIP call for that provision.
In that action, the EPA found IAC 567-24.1(1) to be substantially inadequate to meet the requirements of the Act on the basis that this provision automatically allows for automatic exemptions from the otherwise applicable SIP emission limitations.
In a June 22, 2020, supplemental notice of proposed rulemaking, EPA Region 7 articulated the interpretation that the general requirements in CAA section 110 to attain and maintain the NAAQS, along with the latitude provided to states through the SIP development process, create a framework in which a state may be able to ensure attainment and maintenance of the NAAQS notwithstanding the presence of SSM exemptions in the SIP.
As mentioned in section V.B. of this document, on October 9, 2020, the EPA issued a guidance memorandum outlining a new national policy related to specific SIP provisions governing excess emissions during SSM events.
Specifically, with regard to exemption provisions, the Wheeler memo stated that such provisions—both those referred to as “automatic exemptions” and those termed “director discretion provisions” in the 2015 SSM SIP Action—may be permissible in SIPs under certain circumstances. The EPA stated that the general requirements in CAA section 110 to attain and maintain the NAAQS and the latitude provided to states through the SIP development process create a framework in which a state may be able to ensure attainment and maintenance of the NAAQS notwithstanding the presence of SSM exemptions in the SIP. Additionally, the EPA stated that it is permissible for a SIP to contain SSM exemptions only if the SIP is composed of numerous planning requirements that are collectively NAAQS-protective by design. Such redundancies, the EPA stated, help to ensure that the NAAQS are both attained and maintained, which was Congress's goal in creating the SIP development and adoption process. In evaluating whether the requirements of a SIP are collectively NAAQS protective despite the inclusion of an SSM exemption provision, the guidance memorandum stated that the EPA would conduct an in-depth analysis of the SIP, including a multifactor, weight-of-evidence exercise that balances many considerations. For director's discretion provisions, the EPA stated that any such provisions would necessarily be more protective of the NAAQS than a similarly-applicable automatic exemption provision, and may be appropriate in similar circumstances.
With respect to affirmative defenses, the Wheeler memo stated that affirmative defenses may be permissible in SIPs if they are narrowly tailored so as not to undermine the fundamental requirement of attainment and maintenance of the NAAQS, or any other requirement of the CAA. The Wheeler memo reflected a policy interpretation previously held by the EPA in its 1999 SSM Guidance stating that an affirmative defense provision could generally be considered narrowly tailored if it provides that a defendant has the burden of demonstrating that 10 certain factors were met.
Following the issuance of the Wheeler memo, the EPA initiated a review of the policy and rationale described therein. This review resulted in the EPA issuing a new memorandum on September 30, 2021, signed by Deputy Administrator Janet McCabe, withdrawing the Wheeler memo.
In addition to withdrawing the Wheeler memo and reinstating EPA's SSM Policy, the McCabe memo provided information about additional related actions that EPA intended to take with respect to the SSM SIP issues, specifically: (1) expeditiously revisiting the three state-specific SSM SIP call withdrawals for NC, TX, and IA and, also through notice-and-comment rulemaking, to consider whether any of the findings underlying these actions should be retained in light of the Agency's reaffirmation of EPA's SSM Policy, and (2) implementing EPA's SSM Policy on an ongoing basis through future notice-and-comment actions on SIP submissions, including implementing the 2015 SIP call and taking additional SIP actions consistent with EPA's SSM Policy. This document addresses those intended actions by initiating the notice-and-comment action for the NC, TX, and IA withdrawals and also by initiating additional SIP calls consistent with EPA's SSM Policy for additional deficient SSM provisions of which EPA is aware. Moreover, although not related to the current action, EPA notes that it is continuing to implement the 2015 SIP calls for the remaining states through separate SIP actions.
As explained in section V.B. of this document, on April 28, 2020, EPA Region 4 published a final action adopting an alternative policy allowing automatic exemption provisions and director's discretion provisions in SIPs for the state of North Carolina.
In EPA's 2020 SIP call withdrawal for the state of North Carolina, Region 4 determined that it was reasonable to allow automatic exemption provisions and director's discretion provisions in the North Carolina SIP. The rationale for that determination was based on an evaluation of the SIP as a whole and finding the SIP, collectively, to be protective of the NAAQS, notwithstanding the existence of SSM provisions in the SIP. In that action, Region 4 stated that, although the North Carolina SIP contains SSM exemptions for limited periods applicable to discrete standards, the SIP is composed of numerous planning requirements that are collectively NAAQS-protective. Region 4 determined that the North Carolina SIP's overlapping requirements provide additional protection of the standards such that the SIP adequately provides for attainment and maintenance of the NAAQS, even if the SIP allows exemptions to specific emission limits for discrete periods, such as SSM events. Region 4 stated that such redundancy helps to ensure attainment and maintenance of the NAAQS, one of the goals of Congress when it created the SIP adoption and approval process in the CAA. Region 4 also noted that North Carolina currently does not have any nonattainment areas for any NAAQS and that air quality in the state has steadily improved over the years even though the exemption provisions have been included in the SIP, concluding that the SSM exemptions have not interfered with attainment or maintenance of the NAAQS.
Furthermore, in that action, Region 4 found that the alternative policy for North Carolina was reasonable because the D.C. Circuit's decision in
In its April 28, 2020, action, Region 4 found that its interpretation is consistent with the concept that the CAA requires that some CAA section 110 standards apply continuously. Specifically, CAA 110(a)(2)(A) requires the SIP to include “enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this Act.” Region 4 argued that the phrase “as may be necessary or appropriate to meet the applicable requirements of [the] Act” allows the state some flexibility to develop SIP provisions that are best suited for their purposes.
Accordingly, Region 4 evaluated specific overlapping planning requirements in the North Carolina SIP that it found to be protective of each individual criteria pollutant NAAQS.
After reconsidering its prior action, the EPA is now proposing that the withdrawal of the SIP call for North Carolina was inappropriate. In this action, EPA is proposing to return to its interpretation of the Act in the 2015 SSM SIP action, which is consistent with
Crucially, exemption provisions are impermissible under the CAA section 302(k) requirement that emissions limitations must apply “on a continuous basis.” In
With respect to discretionary exemptions from emission limitations in SIPs, the EPA also has a longstanding interpretation of the CAA that prohibits director's discretion provisions in SIPs if they provide discretion to allow what would amount to a case-specific revision of the SIP without meeting the statutory requirements of the CAA for SIP revisions.
While this argument was not made explicitly in the EPA's action withdrawing the North Carolina SIP call, one could claim that the overlapping planning requirements cited to in that action themselves constitute an alternative emission limitation that applies during the SSM exemptions in North Carolina's otherwise applicable emission limitations, creating a single, continuous emission limitation. The EPA is proposing that such a claim is not consistent with the Agency's interpretation of the requirements of the CAA and the 2015 SSM SIP Policy, which lays out a clear set of criteria that the EPA considers when assessing whether an alternative emission limitation is acceptable.
For these reasons, the EPA correctly determined in its 2015 SSM SIP Action that automatic exemption and director's discretion provisions in SIPs are impermissible because they violate fundamental requirements of the CAA. The EPA reaffirmed that policy position in the McCabe memo and, as such, is proposing to reinstate the SIP call for 15A NCAC 02D .0535(c) and 15A NCAC 02D .0535(g) as they are substantially inadequate to meet the requirements of the Act. The EPA is also proposing to make additional findings of substantial inadequacy to be included in the SIP call for North Carolina. These provisions and findings of substantial inadequacy will be discussed in further detail in section VII.C. of this document.
As explained in section V.B. of this document, on January 7, 2020, EPA Region 6 adopted an alternative policy regarding the permissibility of affirmative defense provisions for Texas and subsequently withdrew the SIP call that was issued to Texas as part of the 2015 SSM SIP Action. In light of EPA's SSM policy as outlined in the 2015 SSM SIP Action and McCabe memo, EPA is proposing in this document to reinstate the SIP call that was issued to Texas in 2015 on the basis that affirmative defense provisions are impermissible in SIPs.
In EPA's 2020 SIP call withdrawal for Texas, EPA stated that that imposition of a penalty for sudden and unavoidable malfunctions caused by circumstances beyond the control of the owner or operator may not be appropriate. Region 6 concluded that the Texas SIP provisions containing affirmative defenses were appropriately narrowly tailored and would not undermine the fundamental requirement of attainment and maintenance of the NAAQS, or any other requirement of the CAA. Region 6 explained in that action that the
The EPA is now proposing that the withdrawal of the SIP call for Texas was inappropriate. In this action, EPA is proposing to return to its interpretation of the CAA in the 2015 SSM SIP action, which is more consistent with the reasoning of the D.C. Circuit in
Further support for EPA's proposal is as follows. Section 113(b) of the CAA provides courts with explicit jurisdiction to determine liability and to impose remedies of various kinds, including injunctive relief, compliance orders and monetary penalties, in judicial enforcement proceedings. This grant of jurisdiction comes directly from Congress, and the EPA is not authorized to alter or eliminate this jurisdiction under the CAA or any other law. With respect to monetary penalties, CAA section 113(e) explicitly includes the factors that courts and the EPA are required to consider in the event of judicial or administrative enforcement for violations of CAA requirements, including SIP provisions. Because Congress has already given federal courts the jurisdiction to determine what monetary penalties are appropriate in the event of judicial enforcement for a violation of a SIP provision, neither the EPA nor states can alter or eliminate that jurisdiction by superimposing restrictions on that jurisdiction and discretion granted by Congress to federal courts. Affirmative defense provisions by their nature purport to limit or eliminate the authority of federal courts to determine liability or to impose remedies through factual considerations that differ from, or are contrary to, the explicit grants of authority in CAA section 113(b) and section 113(e). Accordingly, pursuant to CAA section 110(k) and section 110(l), the approval of affirmative defense provisions in SIPs would be inconsistent with the above-articulated interpretations of CAA sections 113(b) and (e).
In the 2020 SIP call withdrawal for Texas, Region 6 incorrectly relied on a rationale that the 2015 SSM SIP Action inappropriately applied the
As is discussed at length in the 2015 SSM SIP Action, and in light of the reasoning of the D.C. Circuit in the
While the D.C. Circuit in the
In the 2020 SIP call withdrawal for Texas, Region 6 focused on whether the affirmative defense provisions at issue were narrowly tailored enough to threaten the fundamental requirement of
For the reasons noted in the 2015 SSM SIP Action and those discussed in this document, the EPA reasonably determined that affirmative defense provisions in SIPs are inappropriate. The EPA reaffirmed that policy position in the McCabe memo and is proposing to apply that policy to Texas's affirmative defense provisions and reinstate the SIP call for 30 TAC 101.222(b)-(e) on the basis that those provisions are substantially inadequate to meet the requirements of the Act.
As explained in section V.B. of this action, on December 17, 2020, EPA Region 7 issued a final action that withdrew the SIP call issued to Iowa as part of EPA's 2015 SSM SIP Action. In light of EPA's SSM policy as outlined in the 2015 SSM SIP Action and McCabe memo, the EPA is proposing in this document to reinstate the SIP call that was issued to Iowa in 2015 on the basis that automatic exemption provisions are impermissible in SIPs. The statutory interpretations extensively discussed in the 2015 SSM SIP Action are more consistent with the CAA and relevant case law for the reasons explained in the 2015 SSM SIP Action.
In the 2020 SIP call withdrawal for Iowa, EPA Region 7 applied a policy regarding SSM provisions that was consistent with EPA's national policy at that time, as outlined in the Wheeler memo. As noted in section V.C. of this action, on October 9, 2020, the EPA issued the Wheeler Memo which outlined a new national policy related to specific SIP provisions governing excess emissions during SSM events. In light of that policy and EPA's evaluation of Iowa's SIP, Region 7 withdrew the SIP call issued to Iowa as part of the 2015 SSM SIP Action.
In the Wheeler memo, consistent with the rationale presented by Region 4 in the North Carolina action, the EPA expressed that exemption provisions may be permissible in SIPs under certain circumstances. Specifically, the Wheeler memo stated that the general requirements in CAA section 110 to attain and maintain the NAAQS and the latitude provided to states through the SIP development process create a framework in which a state may be able to ensure attainment and maintenance of the NAAQS notwithstanding the presence of SSM exemptions in the SIP. The Wheeler memo stated that it is permissible for a SIP to contain SSM exemptions only if the SIP is composed of numerous planning requirements that are collectively NAAQS-protective by design. Such redundancy helps to ensure that the NAAQS are both attained and maintained, which was Congress's goal in creating the SIP development and adoption process. In evaluating whether the requirements of a SIP are collectively NAAQS protective despite the inclusion of an SSM exemption provision, the Wheeler memo stated that the EPA would conduct an in-depth analysis of the SIP, including a multifactor, weight-of-evidence exercise that balances many considerations. If the SIP contains limitations on whether SSM events are considered emission standard violations or requires that source owners or operators limit the duration and severity of SSM events, it may be reasonable to conclude that such a provision, when considered alongside other factors, would not jeopardize a state's ability to attain and maintain the NAAQS.
Accordingly, Region 7 evaluated the Iowa SIP and identified numerous provisions in the SIP that, when taken as a whole, led Region 7 to conclude that the SIP in its entirety is protective of the NAAQS. Specifically, Region 7 found that the Iowa SIP includes a series of overlapping requirements that provide for testing, reporting, and accountability for sources, including during periods of excess emissions. Region 7 argued that such overlapping requirements enable Iowa Department of Natural Resources (IDNR) to implement the NAAQS, allowing IDNR to maintain oversight, work with sources to maintain compliant operation, and, if necessary, enforce against sources. The specific Iowa provision that was SIP called in 2015 does allow for an exemption during excess emissions, but Region 7 stated that it also provides for two backstops that protect air quality and help to ensure attainment and maintenance of the NAAQS: (1) startup, shutdown and cleaning is to be accomplished expeditiously; and, (2) startup, shutdown, and cleaning is to be accomplished in a way that is consistent with good practice for minimizing emissions. In light of EPA's 2020 national policy, as outlined in the Wheeler Memo, and informed by a weight-of-evidence analysis of the Iowa SIP, Region 7 withdrew the SIP call that was issued to Iowa.
The EPA is now proposing that the withdrawal of the SIP call for Iowa was inappropriate. In this action, EPA is proposing to return to its interpretation of the Act in the 2015 SSM SIP action, which is consistent with
The backstops identified by Region 7 in its weight-of-evidence analysis of the Iowa SIP in its SIP call withdrawal points to a number of provisions that lack meaningful measures and means for ensuring the attainment and maintenance of the NAAQS. The two specific backstops in the originally SIP called provision, IAC 567-24.1(1,) are vague and unenforceable, and certainly would not constitute alternative emissions limitations that would appropriately fill the gap left by Iowa's automatic exemption. The provision lays out the two cited backstops by stating that excess emissions during SSM periods are not violations if the startup and shutdown events are accomplished “expeditiously and in a manner consistent with good practice for minimizing emissions.” This terminology is not defined in the Iowa SIP and is not practically enforceable. Practically speaking, a source could be excused from an applicable emission limit for a long period during which the EPA would have absolutely no assurance that the NAAQS is being attained or maintained (not to mention assurance of compliance with all of the other requirements of the Act).
For those reasons, the reasons laid out in section VI.A of this action, and the reasons laid out in the 2015 SSM SIP Action, the EPA correctly determined in its 2015 SSM SIP Action that automatic exemption provisions in SIPs are impermissible because they are inconsistent with fundamental requirements of the CAA. The EPA reaffirmed that policy position in the McCabe memo and, as such, is proposing to find that IAC 567-24.1(1) is substantially inadequate to comply with CAA requirements, and thus is reinstating the SIP call for IAC 567-24.1(1).
The EPA is proposing in this document to make a finding of substantial inadequacy and issue a SIP call to Connecticut for CT Sec. 22a-174-38(c)(11) on the basis that it constitutes an impermissible automatic exemption. As explained earlier in this document, EPA's position is that the best reading of the CAA is that it does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), emission limitations that appear in SIPs must be continuous, in accordance with the definition of “emission limitations” in CAA section 302(k). Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs.
CT Sec. 22a-174-38(c)(11), which applies to municipal waste combustors (MWCs), states, “The emission limits and operating requirements of this section shall apply at all times except during periods of startup, shutdown or malfunction provided in this subdivision: (A) For determining compliance with an applicable carbon monoxide emissions limit, if a loss of boiler water level control or a loss of combustion air control is determined to be a malfunction, the duration of the malfunction period shall be limited to fifteen (15) hours per occurrence. Otherwise, the duration of each startup, shutdown or malfunction period shall be limited to three hours per occurrence for all MWC units; (B) For the purpose of compliance with the opacity emission limits, during each period of startup, shutdown or malfunction, the opacity limits shall not be exceeded during more than five (5) 6-minute arithmetic average measurements; and (C) During periods of startup, shutdown, or malfunction, monitoring data shall be excluded from calculations of compliance with the emission limits and operating requirements of this subdivision but shall be recorded and reported in accordance with subsections (k) and (
The EPA proposes to find that this provision is impermissible even though the state has imposed some time limitations on its potential scope. For example, CT Sec. 22a-174-38(c)(11)(A) limits malfunction periods to “fifteen (15) hours per occurrence” and the duration of SSM periods to: three hours per occurrence for all MWC units.” CT Sec. 22a-174-38(c)(11)(B) limits opacity limit exceedances during SSM events to “five (5) 6-minute arithmetic measurements.” Although the CAA does allow for alternative emission limitations or other enforceable control measures or techniques that apply during startup or shutdown, the CT SIP provision does not comply with the CAA's requirements as interpreted in EPA's SSM policy
The EPA is proposing in this document to make a finding of substantial inadequacy and issue a SIP call to Maine for provision ME 06-096 Chapter 138-3-O on the basis that it constitutes an impermissible automatic exemption. As explained earlier in this document, EPA's position is that the best reading of the CAA is that it does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), emission limitations that appear in SIPs must be continuous, in accordance with the definition of
This provision, which applies to Reasonably Available Control Technology (RACT) standards for stationary sources of Nitrogen Oxides (NO
The EPA proposes to find that this exemption is impermissible even though the state has imposed some factual limitations on its potential scope: the requirement to provide operating records “to demonstrate that the facility was being operated to minimize emissions.” While the CAA does allow for alternative emission limitations or other enforceable control measures or techniques that apply during startup or shutdown, this SIP provision does not comply with the Act's requirements for an alternative emission limit as interpreted in EPA's SSM policy. The provision does not adequately address emissions limitations during SSM events. Instead, it only explains how facilities will ensure that emissions are “minimized.” In addition, similar to the Iowa provision discussed above, such a vague requirement is not legally and practically enforceable, as it does not provide a meaningful and objective standard for a court to assess. This provision thus appears to provide for an automatic exemption from the emission limitations that would otherwise apply to RACT standards for stationary sources of NO
The EPA is proposing in this document to make a finding of substantial inadequacy and issue a SIP call to Maine for provision ME 06-0096 Chapter 150-4-C on the basis that it constitutes an impermissible automatic exemption. As explained earlier in this document, EPA's position is that the best reading of the CAA is that it does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), emission limitations that appear in SIPs must be continuous, in accordance with the definition of “emission limitations” in CAA section 302(k). Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs.
This provision, which applies to visible emission standards for outdoor wood boilers and outdoor pellet boilers, states, “No person shall cause or allow the emission of a smoke plume from any outdoor wood boiler or outdoor pellet boiler to exceed an average of 30 percent opacity on a six-minute block average basis, except for no more than two six minute block averages in a 3-hour period.” While this provision does not explicitly mention periods of startup, shutdown, or malfunction, the EPA is proposing to find that the provision is impermissible under the CAA requirement that some emission limit must apply at all times. There are no other provisions in the ME SIP that could act as an appropriate alternative emission limit to fill the periods of time the emission limit does not apply. This provision appears to provide for an automatic exemption from the emission limitations that would otherwise apply to visible emission standards for outdoor wood boilers and outdoor pellet boilers in the Maine SIP and is substantially inadequate to comply with CAA requirements under sections 110(a)(2)(A), 110(a)(2)(C), and 302(k).
Separately from the reinstatement of the 2015 SIP Call discussed in the previous section, the EPA is also proposing in this document to make a finding of substantial inadequacy and issue a SIP Call to North Carolina for provision 15A NCAC 02D .1423(g) on the basis that it contains an impermissible automatic exemption.
As explained earlier in this document, EPA's position is that the best reading of the CAA is that it does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), emission limitations that appear in SIPs must be continuous, in accordance with the definition of “emission limitations” in CAA section 302(k). Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs.
The provision 15A NCAC 02D .1423(g), which applies to large internal combustion engines, states, “The emission standards of this Rule shall not apply to the following periods of operation: (1) start-up and shut-down periods and periods of malfunction, not to exceed 36 consecutive hours; (2) regularly scheduled maintenance activities.”
The EPA is proposing in this document to make a finding of substantial inadequacy and issue a SIP call to North Carolina for local provision MACAPCO Rule 2.0535(c) on the basis
The local provision, which applies to excess emissions reporting and malfunctions, states “Any excess emissions that do not occur during start-up or shut-down are considered a violation of the appropriate Regulation unless the owner or operator of the source of excess emissions demonstrates to the Director, that the excess emissions are the result of a malfunction.” The provision relies on the same unbounded director's discretion language found in 15A NCAC 02D .0535(c), including the list of factors to be considered by the director, and is inadequate for the same reasons. As explained in EPA's February 22, 2013, SIP call proposal on the state's rule, and reiterated in part earlier in this document, this director's discretion provision authorizes exemptions from otherwise applicable emission limitations, in violation of EPA's SSM Policy that emission limits apply at all times. In addition, this provision makes the state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation, which could preclude enforcement by the EPA or the public who might disagree about whether enforcement action is warranted. There are no other provisions in the NC SIP that could act as an appropriate alternative emission limit to fill the periods of time the emission limit does not apply, as is discussed in more detail above. The EPA is proposing to find that the provision MCAPCO Rule 2.0434(c) appears to provide for of an unbounded director's discretion exemption and is thus substantially inadequate to meet CAA requirements in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k).
The EPA is also proposing in this document to make a finding of substantial inadequacy and issue a SIP Call to North Carolina for local provision WNCRAQ Air Quality Code section 1-137(c) on the basis that it contains an impermissible director's discretion exemption. As explained earlier in this document, EPA's position is that the best reading of the CAA is that it does not allow for exemptions through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), emission limitations that appear in SIPs must be continuous, in accordance with the definition of “emission limitations” in CAA section 302(k). Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. In addition, director's discretion provisions functionally could allow
The local provision, which applies to excess emissions reporting and malfunctions, states “Any excess emissions that do not occur during start-up or shut-down are considered a violation of the appropriate Regulation unless the owner or operator of the source of excess emissions demonstrates to the Director, that the excess emissions are the result of a malfunction.” The provision relies on the same unbounded director's discretion language found in MCAPCO Rule 2.0535(c) and 15A NCAC 02D .0535(c), including the list of factors to be considered by the director, and is inadequate for the same reasons. This director's discretion provision authorizes exemptions from otherwise applicable emission limitations, in violation of EPA's SSM Policy that emission limits apply at all times. There are no other provisions in the NC SIP that could act as an appropriate alternative emission limit to fill the periods of time the emission limit does not apply, as is discussed in more detail above. In addition, this provision makes the state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation, which could preclude enforcement by the EPA or the public who might disagree about whether enforcement action is warranted. The EPA is proposing to find provision WNCRAQ Air Quality Code section 1-137(c) appears to provide for an unbounded director's discretion exemption and is thus substantially inadequate to meet CAA requirements 110(a)(2)(A), 110(a)(2)(C), and 302(k).
The EPA is proposing in this document to make a finding of substantial inadequacy and issue a SIP Call to Tennessee for local provisions Shelby County Air Code 3-17 (City of Memphis Code 16-83)
As explained earlier in this document, EPA's position is that the best reading of the CAA is that it does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), emission limitations that appear in SIPs must be continuous, in accordance with the definition of “emission limitations” in CAA section 302(k). Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs.
Shelby County Air Code 3-17 (City of Memphis Code 16-83), which incorporates by reference Chapter 1200-3-5 of the Tennessee Air Pollution Control Regulations, applies to visible emissions from stationary sources. Tennessee Compilation of Rules and Regulations (Tenn. Comp. R. & Regs) 1200-3-5-.02(1), which was SIP-called in 2015, states, “Consistent with the requirements of Chapter 1200-3-20, due allowance may be made for visible emissions in excess of that permitted in this chapter which are necessary or unavoidable due to routine startup and shutdown conditions.” As explained in EPA's February 22, 2013, SIP call proposal, this provision creates an unbounded director's discretion provision because it allows a state official to excuse excess visible emissions after giving “due allowance” to the fact that they were emitted during startup or shutdown events.
As such, the EPA is proposing to find Shelby County Air Code 3-17 (City of Memphis Code 16-83), which appears to provide for director's discretion exemptions from the emission limitations that would otherwise apply to visible emission standards from stationary sources in the TN SIP, is substantially inadequate to meet CAA requirements sections 110(a)(2)(A), 110(a)(2)(C), and 302(k) as interpreted in EPA's SSM Policy.
The EPA is proposing in this document to make a finding of substantial inadequacy and issue a SIP call to the state of Wisconsin for Wis. Admin. Code provisions NR 431.05(1)-(2) and NR 436.03(2) on the basis that these provisions contain impermissible automatic and director's discretion exemptions.
As explained earlier in this document, EPA's position is that the best reading of the CAA is that it does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), emission limitations that appear in SIPs must be continuous, in accordance with the definition of “emission limitations” in CAA section 302(k). Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs. In addition, director's discretion provisions functionally could allow
The provision NR 431.05(1), which applies to emissions limitations and visible emissions control for all air contaminant sources, states, “No owner or operator of a direct or portable source on which construction or modification is commenced after April 1, 1972 may cause or allow emissions of shade or density greater than number 1 of the Ringlemann chart or 20% opacity with the following exceptions: (1) When combustion equipment is being cleaned or a new fire started, emissions may exceed number 1 of the Ringlemann chart or 20% opacity but may not exceed number 4 of the Ringlemann chart or 80% opacity for 6 minutes in any one hour. Combustion equipment may not be cleaned nor a fire started more than 3 times per day.” While the CAA does allow for alternative emission limitations or other enforceable control measures or techniques that apply during startup or shutdown, 431.05(1) does not comply with the Act's requirements for an alternative emission limit as interpreted in EPA's SSM policy. While the provision appears on its face to provide for a numerical limitation on visible emissions exceedances at all times, an 80% opacity limit provides for functionally uncontrolled emissions. In EPA's experience, for most source categories, a source displaying 80% opacity would likely be operating without any emissions controls at all. Opacity limits in EPA rules and permits that represent controlled sources are typically much lower than 80% (most often 20% or lower). While framed as an alternative emissions limitation, EPA views this provision as operating in practice as an automatic exemption, which does not comply with the CAA or EPA's SSM policy. Further, the limit applies to emissions limitations and visible emissions control for all air contaminant sources—it is not “limited to specific, narrowly defined source categories” as EPA's SSM Policy for alternative emission limits recommends. As articulated in 1999 SSM SIP Guidance and 2015 SSM SIP Action, for some source categories, given the types of control technologies available, there may exist short periods of emissions during startup and shutdown when, despite best efforts regarding planning, design, and operating procedures, otherwise applicable emission limitation cannot be met. In these instances, it may be appropriate to create SIP revisions providing for alternative emission limitations, so long as they meet the criteria for developing and evaluating alternative emission limitations laid out by EPA, including that the revision be “limited to specific, narrowly defined source categories.”
Both NR 431.05(2) and NR 436.03(2) provide for unbounded director's discretion exemptions, authorizing exemptions from otherwise applicable emission limitations, in violation of EPA's SSM Policy that emission limits apply at all times. NR 431.05(2), which applies to emission limitations and visible emissions control for all air contaminant sources, states, “No owner or operation of a direct or portable source on which construction or modification is commenced after April 1, 1972 may cause or allow emissions of shade or density greater than number 1 of the Ringlemann chart or 2 percent opacity with the following exceptions: (2) Emissions may exceed number 1 of the Ringlemann chart or 20 percent opacity for stated periods of time, as permitted by the department, for such
NR 436.03(2), which applies to emission limitations exceptions for all air contaminant sources, states, “Emissions in excess of the emission limitations set in NR 400 to 499 may be allowed in the following circumstances: (a) When an approved program or plan with a time schedule for correction has been undertaken and correction is being pursued with diligence; (b) When emissions in excess of the limits are temporary and due to scheduled maintenance, startup or shutdown of operations carried out in accord with a plan and schedule approved by the department; (c) The use of emergency or reserve equipment needed for meeting of high peak loads, testing of the equipment or other uses approved by the department. Such equipment must be specified in writing as emergency or reserve equipment by the department. Upon startup of this equipment notification must be given to the department which may or may not give approval for continued equipment use.”
This provision constitutes a director's discretion exemption because, for example, NR 436.03(2) references exceptions to emissions limitations during periods of SSM as being acceptable so long as the emissions are “carried out in accord with a plan and schedule approved by the department.” Like NR 431.05(2), this vague language provides the department head or director with extremely broad discretion to approve emissions exceedances in accordance with an unspecified department plan, which could preclude enforcement by the EPA or the public who might disagree about whether enforcement action is warranted. Most importantly, however, the provision may be read to authorize the state official to create an exemption from applicable emission limitations, and such an exemption is impermissible in the first instance. There are no other provisions in the WI SIP that could act as an appropriate alternative emission limit to fill the periods of time the emission limits do not apply.
As such, the EPA proposes to find that Wis. Admin. Code NC 431.05(1)-(2) and NR 436.03(2), which appears to provide for automatic and director's discretion exemptions from the emission limitations that would otherwise apply to air contaminant sources in the WI SIP, are substantially inadequate to comply with the CAA requirements in sections 110(a)(2)(A), 110(a)(2)(C), and 302(k) and, thus, are impermissible for the aforementioned reasons.
The EPA is proposing in this document to make a finding of substantial inadequacy and issue a SIP call to Louisiana for the LA. Admin Code Tit. 33 section 917 provision on the basis that it contains an impermissible director's discretion exemption.
As explained earlier in this document, EPA's position is that the best reading of the CAA is that it does not allow for exemptions from otherwise applicable SIP emission limitations, whether automatic or through the exercise of a state official's discretion. In accordance with the requirements of CAA section 110(a)(2)(A), emission limitations that appear in SIPs must be continuous, in accordance with the definition of “emission limitations” in CAA section 302(k). Thus, any excess emissions above the level of the applicable emission limitation must be considered violations, whether or not the state elects to exercise its enforcement discretion. SIP provisions that seek to provide or create exemptions such that the excess emissions during startup, shutdown, or malfunctions are not violations are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs.
The EPA proposes to find that a provision in Louisiana's SIP that allows emissions in excess of otherwise applicable SIP emission limitations due to “exceptional circumstances” (LA. Admin Code Tit. 33 section 917) is impermissible under the CAA as interpreted in EPA's SSM Policy because it includes an unbounded director's discretion provision. The provision authorizes a state official to grant a “variance” from any generally applicable SIP emission limitation if the state official “finds that by reason of exceptional circumstances strict conformity with any provisions of [Louisiana's air quality] regulations would cause undue hardship, would be unreasonable, impractical or not feasible under the circumstances.” This provision could be read to mean that once the state official has granted a variance for excess emissions due to conditions that make it difficult for sources to comply with otherwise applicable SIP limitations, those excess emissions are not violations. In fact, the state of Louisiana has granted several variances in recent years to allow for excess emissions during periods of SSM.
As discussed in section V.A. of this document, such director's discretion provisions are impermissible. Such an interpretation would make the state official the unilateral arbiter of whether the excess emissions in a given event constitute a violation, which could preclude enforcement by the EPA or the public who might disagree about whether enforcement action is warranted. Most importantly, however, the provision may be read to authorize the state official to create an exemption from applicable emission limitations, and such an exemption is impermissible in the first instance. Inclusion of an unbounded director's discretion provision in LA. Admin Code Tit. 33 section 917 is thus a substantial inadequacy and renders this specific SIP provision impermissible for this reason.
The EPA notes that the Louisiana provision also states that “No variance may permit or authorize the maintenance of a nuisance, or a danger to public health or safety.” While this seems to be meant to limit the scope of Louisiana's authority to grant such a variance, the EPA does not believe that it provides any objective criteria that might allow for meaningful EPA or citizen enforcement. Such a vague limitation does not remedy the CAA inadequacies discussed above and does not comply with EPA's interpretation of the CAA as applied through EPA's SSM Policy regarding alternative emission limitations. There are no other provisions in the LA SIP that could act as an appropriate alternative emission limit to fill the periods of time the emission limits do not apply.
The EPA proposes to find that LA. Admin Code Tit. 33 section 917 provision appears to provide for exemptions from otherwise applicable emission limitations through a state official's unilateral exercise of discretionary authority that is unbounded. Such provisions are inconsistent with the fundamental requirements of the CAA with respect to emission limitations in SIPs as required by CAA sections 110(a)(2)(A), 110(a)(2)(C), and 302(k). For these reasons, the EPA is proposing to find that this provision is substantially inadequate to meet CAA requirements and thus proposing to issue a SIP call with respect to this provision.
Section 110(k)(5) of the CAA provides the EPA with authority to determine whether a SIP is substantially inadequate to attain or maintain the NAAQS or otherwise comply with any requirement of the CAA. Where the EPA makes such a determination, the EPA then has a duty to issue a SIP call. In addition to providing general authority for a SIP call, CAA section 110(k)(5) sets forth the process and timing for such an action.
First, the statute requires the EPA to notify the state of the final finding of substantial inadequacy. The EPA intends to provide notice to states via letter to the appropriate state officials in addition to publication of the final action in the
If the state fails to submit the corrective SIP revision concerning the deficiency by the deadline that the EPA finalizes as part of the SIP call, CAA section 110(c) authorizes the EPA to “find that [the] State has failed to make a required submission.”
The finding of failure to submit a revision in response to a SIP call, or EPA's disapproval of that corrective SIP revision, can also trigger sanctions under CAA section 179. If a state fails to submit a complete SIP revision that responds to a final SIP call, CAA section 179(a) provides for the EPA to issue a finding of state failure. Such a finding starts mandatory 18-month and 24-month sanctions clocks. The two sanctions that apply under CAA section 179(b) are the 2-to-1 emission offset requirement for all new and modified major sources subject to the nonattainment new source review program and restrictions on highway funding. However, CAA section 179 leaves it to the EPA to decide the order in which these sanctions apply. The EPA issued an order of sanctions rule in 1994 but did not specify the order of sanctions where a state fails to submit or submits a deficient SIP revision in response to a SIP call.
Mandatory sanctions under CAA section 179 generally apply only in nonattainment areas. By its definition, the emission offset sanction applies only in areas required to have a part D NSR program, typically areas designated nonattainment. CAA section 179(b)(1) expressly limits the highway funding restriction to nonattainment areas. Additionally, EPA interprets the section 179 sanctions to apply only in the area or areas of the state that are subject to or required to have in place the deficient SIP and for the pollutant or pollutants the specific SIP element addresses. For example, if the deficient provision applies statewide and applies for all NAAQS pollutants, then the mandatory sanctions would apply in all areas designated nonattainment for all NAAQS within the state. Following through on this interpretation, it is reasonable to expect that any newly designated nonattainment areas subsequent to the EPA taking final action on this proposal would also be subject to sanctions for failure to comply with SIP submittal obligations stemming from this SIP call, if finalized (or failure to comply with similar obligations for previously identified deficient statewide SSM provisions). In such cases, the EPA will evaluate the geographic scope of potential sanctions at the time it makes a final determination whether the state's SIP is substantially inadequate and issues a SIP call, as this may vary depending upon the provisions at issue.
If the EPA finalizes a proposed finding of substantial inadequacy and a proposed SIP call for any state, CAA section 110(k)(5) requires EPA to establish a SIP submission deadline by which the state must make a SIP submission to rectify the identified deficiency. Pursuant to CAA section 110(k)(5), the EPA has authority to set a SIP submission deadline up to 18 months from the signature date of the final finding of inadequacy. The EPA is proposing here that if it promulgates a final finding of inadequacy and a SIP call for a state, it will establish a date 18 months from the date of
Considering the affected air agencies' need to develop appropriate regulatory provisions to address the SIP call and conduct any required processes for developing a SIP, we are proposing the 18-month due date because we believe that states should be provided the maximum time allowable under CAA section 110(k)(5) in order to ensure they have sufficient time. EPA expects that such a schedule will allow for the necessary SIP development process to correct the deficiencies yet still achieve the necessary SIP improvements as expeditiously as practicable. In light of the potential for public health impacts during this time period, we solicit comment on whether establishing a shorter time period than 18 months could instead be sufficient for the affected air agencies to develop and submit their SIP revisions.
The EPA acknowledges that the longstanding existence of many of the provisions at issue, such as automatic exemptions for SSM events, may have resulted in undue reliance on them as a compliance mechanism by some sources. As a result, development of appropriate SIP revisions may entail reexamination of the applicable emission limitations themselves, and this process may require the maximum time allowed by the CAA. Nevertheless, the EPA encourages the affected states to make the necessary revisions in as timely a fashion as possible and encourages the states to work with the respective EPA Regional office as they develop the corrective SIP revisions.
The EPA notes that the SIP calls that it is proposing for affected states in this document would be narrow and apply only to the specific SIP provisions determined to be inconsistent with the requirements of the CAA. To the extent that a state is concerned that elimination of a particular aspect of an existing emission limitation, such as an impermissible exemption, will render that emission limitation more stringent than the state originally intended and more stringent than needed to meet the CAA requirements it was intended to address, EPA anticipates that the state will revise the emission limitation accordingly, but without the impermissible exemption or other feature that necessitated the SIP call. The EPA will evaluate any such SIP revision in accordance with applicable CAA requirements, including CAA section 110(l).
Finally, the EPA notes that its authority under CAA section 110(k)(5) does not extend to requiring a state to adopt a particular control measure in its SIP in response to the SIP call. Under principles of cooperative federalism, the CAA vests air agencies with substantial discretion to develop SIP provisions, so long as the provisions meet the legal requirements and objectives of the CAA.
The findings of substantial inadequacy discussed in this action are based on an individual analysis of whether each SIP at issue contains provisions that are inconsistent with the CAA and EPA's SSM SIP policy. As such, it is reasonable to consider each SIP call as severable from the others because the SIP calls do not depend on one another. If any particular SIP call is stayed or determined to be invalid by a court, it is the EPA's intention that the remaining SIP calls shall continue in effect.
This proposal applies, but does not change, EPA's interpretation of the statutory requirements of the CAA outlined in its 2015 SSM SIP Action. Through the SIP calls issued to certain states as part of this SIP call action under CAA section 110(k)(5), EPA is requiring each affected state to revise its SIP to comply with existing requirements of the CAA. EPA's action, therefore, leaves to each affected state the flexibility bound by the CAA as to how to revise the SIP provision in question to make it consistent with CAA requirements and to determine, among other things, which of the several lawful approaches to the treatment of excess emissions during SSM events will be applied to particular sources. In the 2015 SSM SIP Action, the EPA did not perform an environmental justice analysis for purposes of this action, because it determined that it cannot geographically identify or quantify the resulting source-specific emission reductions.
The EPA believes it is not practicable to assess whether the conditions that exist prior to this proposed action result in disproportionate and adverse effects on people of color, low-income populations, and/or indigenous peoples. While it is difficult to assess the environmental justice implications of this proposed action because the EPA cannot geographically identify or quantify the resulting source-specific emission reductions, the EPA believes that this proposed action is likely to either reduce or have no adverse impact on existing disproportionate and adverse effects on people of color, low-income populations and/or indigenous peoples.
As articulated in the 2021 McCabe memo, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. While there are many different kinds of SSM provisions with varying scope and effect, the EPA notes that the overarching effect of these provisions is to allow or excuse excess emissions that exceed SIP limitations. Eliminating impermissible SSM provisions is intended to ensure that all communities and populations, including overburdened communities, receive the full health and environmental protections provided by the CAA. The correction of SIP deficiencies by the states affected by this document is, therefore, expected to contribute to reduced excess emissions during SSM periods and improve human and environmental health for U.S. citizens, including people of color, low-income populations, and/or indigenous peoples.
Although not a basis for this proposed action, EPA would be interested in hearing from communities that have
The EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
This action does not impose any new information collection burden. This proposed action is merely reiterates EPA's interpretation of the statutory requirements of the CAA and does not require states to collect any additional information. To the extent that the EPA proposes to issue a SIP call to a state under CAA section 110(k)(5), the EPA is only proposing an action that requires the state to revise its SIP to comply with existing requirements of the CAA.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities.
This action does not contain an unfunded of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action may impose a duty on certain state governments to meet their existing obligations to revise their SIPs to comply with CAA requirements. The direct costs of this action on states would be those associated with preparation and submission of a SIP revision by those states for which the EPA issues a SIP call. Examples of such costs could include development of a state rule, conducting notice and public hearing, and other costs incurred in connection with a SIP submission. These aggregate costs would be far less than the $100-million threshold in any 1 year. Thus, this action is not subject to the requirements of sections 202 or 205 of the Unfunded Mandates Reform Act (UMRA).
This proposed action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The regulatory requirements of this action would apply to the states for which the EPA issues a SIP call. To the extent that such states allow local air districts or planning organizations to implement portions of the state's obligation under the CAA, the regulatory requirements of this action would not significantly or uniquely affect small governments because those governments have already undertaken the obligation to comply with the CAA.
This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). In this document, the EPA is not addressing any tribal implementation plans. This action is limited to states. Thus, Executive Order 13175 does not apply to this action. However, the EPA invites comment on this action from tribal officials.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it because it merely prescribes EPA's action for states regarding their obligations for SIPs under the CAA.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
Executive Order 12898 (59 FR 7629, February 16, 1994) directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color and/or indigenous peoples) and low-income populations.
The EPA believes it is not practicable to assess whether the conditions that exist prior to this proposed action result in disproportionate and adverse effects
Section 307(b)(1) of the CAA governs judicial review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” For locally or regionally applicable final actions, the CAA reserves to the EPA complete discretion whether to invoke the exception in (ii).
The EPA is proposing to issue SIP calls to eight states (applicable in 10 statewide and local jurisdictions) located in four of the ten EPA regions pursuant to a uniform process and analytical approach. The EPA is proposing to apply a nationally consistent policy regarding SSM provisions in SIPs in each of these eight states as a follow-up to EPA's larger 2015 SSM SIP Action, in which the Agency issued SIP calls pursuant to the same nationally consistent policy to 36 states (applicable in 45 statewide and local jurisdictions), for which petitions for review were all filed in the D.C. Circuit in 2015. The jurisdictions that would be affected by this action, if finalized, represent a wide geographic area and fall within six different judicial circuits.
If the Administrator takes final action on this proposal, then, in consideration of the effects of the action across the country, the EPA views this action to be “nationally applicable” within the meaning of CAA section 307(b)(1). In the alternative, to the extent a court finds this proposal, if finalized, to be locally or regionally applicable, the Administrator intends to exercise the complete discretion afforded to him under the CAA to make and publish a finding that this action is based on a determination of “nationwide scope or effect” within the meaning of CAA section 307(b)(1).
The statutory authority for this proposed action is provided in CAA section 101
Environmental protection, Affirmative defense, Air pollution control, Carbon dioxide, Carbon dioxide equivalents, Carbon monoxide, Excess emissions, Greenhouse gases, Hydrofluorocarbons, Incorporation by reference, Intergovernmental relations, Lead, Methane, Nitrogen dioxide, Nitrous oxide, Ozone, Particulate matter, Perfluorocarbons, Reporting and recordkeeping requirements, Shutdown and malfunction, Startup, State implementation plan, Sulfur hexafluoride, Sulfur oxides, Volatile organic compounds.
Centers for Medicare & Medicaid Services (CMS), Department of Health and Human Services (HHS).
Proposed rule.
This proposed rule would address recent legislative changes to the Social Security Act, which governs the hospital-specific limit on Medicaid disproportionate share hospital (DSH) payments, as a result of the Consolidated Appropriations Act, 2021. This proposed rule would afford States and hospitals more clarity on how the limit, the changes to which took effect on October 1, 2021, will be calculated. Additionally, this proposed rule would enhance administrative efficiency by making technical changes and clarifications to the DSH program.
To be assured consideration, comments must be received at one of the addresses provided below, no later than 5 p.m. on April 25, 2023.
In commenting, please refer to file code CMS-2445-P. Because of staff and resource limitations, we cannot accept comments by facsimile (FAX) transmission.
Comments, including mass comment submissions, must be submitted in one of the following three ways (please choose only one of the ways listed):
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Lia Adams, (410) 786-8258, Charlie Arnold, (404) 562-7425, Richard Cuno, (410) 786-1111, Stuart Goldstein, (410) 786-0694, Charles Hines, (410) 786-0252, and Mark Wong, (415) 744-3561, for Medicaid Disproportionate Share Hospital Payments and Overpayments. Jennifer Clark, (410) 786-2013, for Children's Health Insurance Program (CHIP).
Title XIX of the Social Security Act (the Act) established the Medicaid program as a Federal-State partnership for the purpose of providing and financing medical assistance to specified groups of eligible individuals. States have considerable flexibility in designing their programs, but must abide by requirements specified in the Federal Medicaid statute and regulations. Each State is responsible for administering its Medicaid program in accordance with an approved State plan, which specifies the scope of covered services, groups of eligible individuals, payment methodologies, and all other information necessary to assure the State plan describes a comprehensive and sound structure for operating the Medicaid program, and ultimately, provides a clear basis for claiming Federal matching funds.
Section 1902(a)(13)(A)(iv) of the Act requires that States consider the situation of hospitals that serve a disproportionate share of low-income patients with special needs, in a manner consistent with section 1923 of Act, in determining payments. The purpose of this proposed rule is to update the regulatory requirements of the disproportionate share hospital (DSH) program in response to the Consolidated Appropriations Act, 2021 (herein, referred to as the CAA) (Pub. L. 116-260, December 27, 2020) and to further improve upon the program. More specifically, the proposed provisions seek to implement the DSH-related provisions of the CAA concerning the treatment of third-party payments for purposes of calculating Medicaid hospital-specific DSH limits. We note that the CAA also created new supplemental payment reporting requirements through the addition of section 1903(bb) of the Act; however, DSH payments were specifically excluded from these requirements, and we have issued guidance on those requirements.
This proposed rule also seeks to clarify regulatory payment and financing definitions and other regulatory language that could be subject to misinterpretation, refine administrative procedures used by States to comply with Federal regulations, and remove regulatory requirements that have been difficult to administer and do not further the program's objectives.
For the CAA-related provisions of this proposed rule, we propose an applicability date of October 1, 2021, to align with the effective date in the statute. This information is noted in each of the CAA-related provision sections. We propose that the remaining provisions, if finalized, would be effective 60 days after publication of the final rule.
States are statutorily required to make DSH payments to qualifying hospitals that serve patients who are uninsured and enrolled in the Medicaid program, as described in section 1923(d) of the Act. States generally have flexibility regarding the specific hospitals to which they make payments and how they determine the amount of those payments, within certain parameters. Section 1902(a)(13)(A)(iv) of the Act requires that States consider the situation of hospitals that serve a disproportionate number of low-income patients with special needs, in a manner consistent with section 1923 of the Act. DSH payments are not considered part of base payments or supplemental payments to providers, as they are made under distinct statutory authority. Section 1923 of the Act contains specific requirements related to DSH payments, including aggregate annual State-specific DSH allotments that limit Federal financial participation (FFP) for Statewide total DSH payments under section 1923(f) of the Act, and hospital-specific limits on DSH payments under section 1923(g) of the Act. Under the statutory hospital-specific limits, a hospital's DSH payments may not exceed the costs incurred by that hospital in furnishing inpatient and outpatient hospital services during the year to certain Medicaid beneficiaries and the uninsured, less payments received under title XIX (other than section 1923 of the Act) and payments by uninsured patients. In addition, section 1923(a)(2)(D) of the Act requires States to provide an annual report to the Secretary describing the DSH payment adjustments made to each DSH.
Section 1001(d) of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) (Pub. L. 108-173, December 8, 2003) added section 1923(j) of the Act to require States to report additional information about their DSH programs. Section 1923(j)(1) of the Act requires States to submit an annual report including an identification of each hospital that received a DSH payment adjustment during the preceding fiscal year (FY) and the amount of such adjustment, and such other information as the Secretary determines necessary to ensure the appropriateness of the DSH payment adjustments for such FY. Additionally, section 1923(j)(2) of the Act requires States to submit an independent certified audit of the State's DSH program, including specified content, annually to the Secretary.
The CAA was enacted on December 27, 2020. It modified the Medicaid statute in several ways, including by updating section 1923 of the Act. Specifically, Division CC, Title II, Section 203 of the CAA (herein referred to as section 203) amended section 1923(g) of the Act, which describes the methodology for calculating hospital-specific Medicaid DSH limits. This provision took effect October 1, 2021. For purposes of calculating the hospital-specific DSH limit, section 203 of the CAA modified the calculation of the Medicaid portion of the hospital-specific DSH limit to include only costs and payments for services furnished to beneficiaries for whom Medicaid is the primary payer for such services, as specified in section 1923(g)(1)(B)(i) of the Act. Accordingly, the limit excludes costs and payments for services provided to Medicaid beneficiaries with other sources of coverage, including Medicare and commercial insurance). Section 1923(g) of the Act, as modified
We acknowledge there are data limitations, which we describe later in this rule, that have delayed CMS' ability to clarify which hospitals qualify for the exception for 97th percentile hospitals. This rule proposes how CMS would determine which hospitals qualify for this exception.
The “Medicaid Program; Disproportionate Share Hospital Payments” final rule published in the December 19, 2008
Consequently, at times we are unable to determine whether a DSH overpayment to a provider has occurred, the root causes of any overpayments, and the amount of the overpayments associated with each cause. In current practice, an auditor may include a finding (or “caveat”) in the audit, stating that the missing information may impact the calculation of total eligible uncompensated care costs, rather than making a determination of the actual financial impact of the identified issue. This lack of transparency results in uncertainty even if costs are ultimately correct, and restricts CMS' and States' ability to ensure proper recovery of all FFP associated with DSH overpayments identified through annual DSH audits in instances where errors did occur.
In the past, the Office of Inspector General (OIG) and the Government Accountability Office (GAO) have raised concerns similar to ours regarding oversight of the Medicaid DSH program. The 2008 DSH audit final rule addressed concerns raised by the OIG
We agree with the report that more transparency is needed, but to obtain the necessary overpayment amounts under current reporting processes, CMS or the State would have to conduct a secondary review or audit, which would be burdensome and largely redundant. By proposing that States must submit to CMS in its annual reports described in § 447.299(c) an additional data element requiring a dollar estimate of any Medicaid DSH provider overpayments, as discussed further in section II. of this rule, we hope to further enhance our oversight to better ensure the integrity of hospital-specific limit calculations.
Amounts in excess of the hospital-specific limit are regarded as overpayments to providers, under 42 CFR part 433, subpart F. Section 1903(d)(2)(C) of the Act provides that, when an overpayment by a State is discovered, the State has a 1-year period to recover or attempt to recover the overpayment before an adjustment is made to FFP to account for the overpayment. FFP is not available for DSH payments that are found in the independent certified audit to exceed the hospital-specific limit. Currently, regulations in § 433.316 provide for determining the date of discovery of an overpayment, which is necessary to determine the statutory 1-year period, but it does not specify how this relates to the independent certified DSH audits required under section 1923(j)(2) of the Act and 42 CFR part 455, subpart D.
Accordingly, the discovery of overpayments necessitates the return of the Federal share, or redistribution by the State of the overpaid amounts to other qualifying hospitals, in accordance with the State's approved Medicaid State plan. While the preamble to the 2008 DSH audit final rule generally addressed the return or redistribution of provider overpayments identified through DSH audits, it did not include specific procedural requirements for returning or redistributing overpayments. Therefore, we have identified this area as an opportunity to strengthen program oversight and integrity protections,
Section 2551 of the Affordable Care Act
Section 1923(f)(7) of the Act requires the Secretary to develop a methodology to determine the annual, State-by-State DSH allotment reduction amounts based on five factors: uninsured factor (UPF); Medicaid volume factor (HMF); uncompensated care factor (HUF); low DSH State factor (LDF); and the budget neutrality factor (BNF). The 2019 final rule assigned weights to the annual reduction amount for the three core factors: UPF, HMF, and HUF. The remaining two factors, the LDF and the BNF, affect the allocation of the reduction amounts within the three core factors. The LDF accomplishes this allocation at the front end of the calculations by shifting a portion of the reduction amount specified under section 1923(f)(7)(A)(ii) of the Act to non-low DSH States. Following this step, we determine the reduction calculations prescribed by the three core factors. We then perform additional reductions associated with the BNF within the HMF and HUF for States that divert DSH allotment amounts under section 1115 demonstrations. We then reallocate these reduction amounts away from States that do not divert DSH allotment amounts under section 1115 demonstrations, in order to comply with the aggregate reduction amounts specified under statute at section 1923(f)(7)(A)(ii) of the Act. The five factors are specified in section 1923(f)(7)(B) of the Act as follows:
• UPF—The statute requires that States with
• HMF—The statute requires that States that target DSH payments to hospitals with high Medicaid volume receive a
• HUF—As required by statute, States that target DSH payments to hospitals with high levels of uncompensated care receive a
• Low DSH State factor—Section 1923(f)(7)(B)(ii) of the Act requires that statutorily defined “low DSH States” receive a lower overall DSH reduction percentage than non-low DSH States. To accomplish this, low DSH States and non-low DSH States are separated into two cohorts before applying the reduction methodology.
• BNF—DSH allotment amounts diverted for coverage expansion under section 1115 demonstrations approved as of July 31, 2009, receive a limited protection from reduction.
Section 447.297 provides a process and timeline for us to publish preliminary and final annual DSH allotments and national expenditure targets in the
Similarly, section 2104 of the Act provides appropriations for FY CHIP allotments for FYs 1998 through 2027. Regulations at 42 CFR 457.609 describe the process for calculating State CHIP allotments for a FY after FY 2008. Section 457.609(h) provides that CHIP allotments for a FY may be published as preliminary or final allotments in the
Section 1903(d)(2)(C) of the Act provides that, when an overpayment by a State is discovered, the State has a 1-year period to recover or attempt to recover the overpayment before an adjustment is made to FFP to account for the overpayment. Currently, regulations in § 433.316 provide for determining the date of discovery of an overpayment to a provider, which is necessary to determine the statutory 1-year period, in three distinct cases: when the overpayment results from a situation other than fraud, under § 433.316(c); when the overpayment results from fraud, under § 433.316(d); and when the overpayment is identified through a Federal review, under § 433.316(e). It is not explicitly clear in the current regulations how the date of discovery is determined when an overpayment is discovered through the annual DSH independent certified audit required under § 455.304. Therefore, we believe an amendment is appropriate to specify the date of discovery of overpayments, as it relates to the annual DSH independent certified audit.
Accordingly, we are proposing to redesignate paragraphs (f) through (h) of § 433.316 as paragraphs (g) through (i), respectively, and to add a new proposed paragraph (f). In the new paragraph (f), we are proposing that, in the case of an
As discussed in section I.B.4 of this proposed rule, section 1923(f)(7)(B)(iii) of the Act requires that the methodology for calculating each State's Medicaid DSH allotment reduction, as first established by the ACA, consider the extent to which the DSH allotment for a State was included in the budget neutrality calculation for a coverage expansion approved under section 1115 (that is, a section 1115 demonstration to provide coverage to individuals not otherwise eligible for Medicaid) as of July 31, 2009. In the 2019 final rule, we finalized a policy to exclude from DSH allotment reductions the amount of DSH allotment States had approved as of July 31, 2009, under a coverage expansion section 1115 demonstration. Any DSH allotment amounts included in budget neutrality calculations for non-coverage expansion purposes (for example, where DSH allotment amounts included in budget neutrality calculations have been used to match State expenditures for approved delivery system reform initiatives) under approved 1115 demonstrations are still subject to reduction regardless of when they were approved. Further, the preamble to the 2019 final rule indicates that for any section 1115 demonstrations not approved as of July 31, 2009, these DSH allotment amounts included in budget neutrality calculations, whether for coverage expansion or otherwise, would also be subject to reduction. We note that all section 1115 demonstrations approved as of or before July 31, 2009, have expired and the protection does not apply to renewals or extensions of those 1115 demonstrations. Therefore, there no longer exist any amounts related to coverage expansion for us to exclude from future DSH allotment reductions scheduled to begin in FY 2024.
In the absence of DSH audit data relating to how States expend DSH allotment amounts diverted under section 1115 demonstrations, we propose to assign average HUF and HMF reduction percentages to these amounts.
While the provisions of § 447.294(e)(12) are clear that we will assign average reductions to amounts associated with non-coverage expansion purposes in effect as of July 31, 2009, only the preamble to the 2019 final rule addresses the amounts diverted under a section 1115 demonstration approved after July 31, 2009. Additionally, the regulations are not specific regarding how these amounts are determined and accounted for in the DSH allotment reduction methodology. As such, we propose to update the regulations at § 447.294(e)(12) to clearly specify that amounts diverted under a section 1115 demonstration approved after July 31, 2009, are subject to average reductions under the HUF and HMF so that the regulation may better reflect the policy finalized in the 2019 final rule preamble.
In addition, we propose to remove the language, “for the specific fiscal year subject to reduction” in § 447.294(e)(12) introductory text and (e)(12)(i), because we are concerned that the current regulatory language could lead to anomalous results, as discussed later in this section. We propose that the determination of diverted amounts that are subject to average reductions under the HUF and HMF would align with the State plan rate year (SPRY) for the DSH audits utilized in the DSH allotment reduction calculations, as specified in § 447.294(d), rather than the fiscal year subject to reduction. For example, when calculating the statutorily required DSH allotment reductions for FY 2024 (the fiscal year subject to reduction), we would utilize data from each State's SPRY 2019 DSH audit data because this would be the most recent data available to us. For States that do not divert their entire DSH allotment, we would include the amount of each State's DSH allotment diverted under a section 1115 demonstration for the time period that aligns with the associated SPRY (in this example, SPRY 2019). A discussion of States that divert their entire DSH allotment follows this proposal. Each State would then be assigned the average HUF and HMF reduction amounts for the State's respective State group based on this diverted amount.
Section 477.294(e)(12) introductory text and (e)(12)(i) currently align the amount of DSH allotment diverted under a section 1115 demonstration for a fiscal year with the fiscal year of the DSH allotment subject to reduction under section 1923(f)(7)(A)(ii) of the Act. We recognize that this non-alignment between the SPRY 2019 DSH audit data that we would use to determine the HUF and HMF, and the FY 2024 section 1115 demonstration budget neutrality calculation diversion amount that would be used under the current regulation, could result in inappropriate and illogical outcomes. For example, in a case where a State claimed all or almost all of its DSH allotment amount for DSH expenditures for the SPRY DSH audit utilized in the DHRM (here, SPRY 2019), but later diverted a large portion of its DSH allotment amount under a section 1115 demonstration during a year subject to DSH allotment reductions (here, FY 2024), the State could receive a reduction on an amount (including both DSH payments and DSH allotment diverted under a section 1115 demonstration) that is excess of the amount available under its current DSH allotment subject to reductions. Therefore, we believe our proposed approach is reasonable because in the absence of DSH audit data relating to how States expend DSH allotment amounts diverted under section 1115 demonstrations, CMS will assign average HUF and HMF reduction percentages to these diverted amounts. As such, it is appropriate that the amounts diverted under section 1115 demonstrations should align with the SPRY of the DSH audit used in the DHRM and that the amounts subject to reduction do not exceed what States
For States that divert their entire DSH allotment, and as such do not complete DSH audits, we are unable to use a DSH audit SPRY. Therefore, we are proposing to apply reductions under the HMF and HUF to the DSH allotment that the State would have had available during the demonstration year (DY) coinciding with the SPRY DSH audits utilized in the DHRM. We are also proposing to prorate the FFY allotment amount to determine this reduction in cases where the DY of the section 1115 demonstration crosses two FFYs. For example, as stated previously we would use SPRY 2019 DSH audit data for FFY 2024 DSH allotment reductions. However, if a State that diverts its entire DSH allotment has a DY that begins July 1, 2018, and ends June 30, 2019, we would have to determine the reduction amount associated with the diverted DSH allotment to reflect the amount of the FFY 2018 DSH allotment available from July 1, 2018, through September 30, 2018, and the amount of FFY 2019 DSH allotment available from October 1, 2018, through June 30, 2019. We do not believe it would be appropriate to calculate the reduction associated with the diverted DSH allotment using the full FFY 2019 DSH allotment because the diverted DSH funds would not have been available for the full DY ending June 30, 2019. For a State that diverts part of its DSH allotment, it would have a SPRY DSH audit already utilized in the DHRM. We would use the diverted DSH amount from the same SPRY, which may also involve prorating diverted DSH amounts from a DY, depending on whether the DY as specified in the section 1115 demonstration aligns with the SPRY. In previous rulemaking, we proposed and finalized a policy to utilize the most recent year available for all data sources and to align the SPRY of data sources whenever possible.
Effective October 1, 2021, the amendments to section 1923(g) of the Act made by section 203 of the CAA change the methodology for calculating the Medicaid shortfall portion (Medicaid costs less Medicaid payments) of the hospital-specific DSH limit to only include costs and payments for hospital services furnished to beneficiaries for whom Medicaid is the primary payer. From June 2, 2017, to the effective date of the CAA, costs and payments for hospital services furnished to beneficiaries who were eligible for Medicaid, even when there was a third-party payer such as Medicare or other insurer, that pays primary to Medicaid for inpatient and outpatient hospital services, would all be included in the calculation of Medicaid shortfall portion of the hospital-specific DSH limits in accordance with the “DSH Payments—Treatment of Third-Party Payers in Calculating Uncompensated Care Costs” final rule in the April 3, 2017
For the October 1, 2021, effective date of the amendments to section 1923(g) of the Act made by section 203 of the CAA, we interpret these new requirements to be applicable for SPRYs “beginning on or after” the October 1, 2021, effective date. Previously, certain statutory references to “fiscal year,” such as in section 1923(g)(1) and (2) and (j)(1) of the Act, have also been interpreted as referring to each State's SPRY, instead of the FFY, when establishing requirements for the hospital-specific DSH limit (and audit requirements to ensure that payments comply with hospital-specific DSH limits). In the 2008 DSH audit final rule, CMS indicated that this interpretation was in “recognition of varying fiscal periods between hospitals and States” and that “[t]he Medicaid [SPRY] is the period which each State has elected to use for purposes of DSH payments and other payments made in reference to annual limits.” Further, we believe interpreting this provision to be applicable on an FFY basis would impose an excessive burden on States and hospitals. In particular, we believe such an interpretation would create a significant burden in situations when a hospital would qualify to meet the exception for 97th percentile hospitals for a portion of its SPRY, but not for the full SPRY, if qualification were determined on the basis of the FFY. This result would be likely to occur, given that the majority of States have SPRYs that do not align with the FFY. In these instances, States would need to prorate the uncompensated care costs, for affected hospitals, within a SPRY accordingly
Hospitals meeting the definition of a 97th percentile hospital, and therefore, qualifying for the 97th percentile exception will, by statute, calculate their hospital-specific DSH limit using the higher value of either the hospital-specific DSH limit amount determined for the hospital under section 1923(g)(1)(A) of the Act as amended by section 203 of the CAA 2021, or the amount determined for the hospital under section 1923(g)(1)(A) of the Act as in effect on January 1, 2020. Where section 1923(g)(2)(A)(ii) of the Act, as amended by section 203 of the CAA, refers to “the amount determined for the hospital under paragraph (1)(A) as in effect on January 1, 2020,” we interpret this to refer to the hospital-specific limit calculation methodology that was in effect on January 1, 2020, and not the specific dollar amount that was applicable on that date.
We are proposing to revise § 447.295(d) to reflect the statutory changes made by section 203 of the CAA to update the methodology for the calculation of the hospital-specific DSH limit to only include costs and payments for hospital services furnished to beneficiaries for whom Medicaid is the primary payer. In addition, we are proposing to revise § 447.295(d) to specify the methodology that hospitals meeting the exception for 97th percentile hospitals will utilize in the calculation of the hospital-specific DSH limit. Specifically, in § 447.295(d)(1), we propose to specify that for each State's Medicaid SPRYs beginning prior to October 1, 2021 and subject to proposed paragraph (d)(3), only costs incurred in providing inpatient hospital and outpatient hospital services to Medicaid individuals, and revenues received with respect to those services, and costs incurred in providing inpatient hospital and outpatient hospital services, and revenues received with respect to those services, for which a determination has been made in accordance with § 447.295(c) that the services were furnished to individuals who have no source of third-party coverage for the specific inpatient hospital or outpatient hospital service are included when calculating the costs and revenues for Medicaid individuals and individuals who have no health insurance or other source of third-party coverage for purposes of section 1923(g)(1) of the Act. In § 447.295(d)(2), we propose to specify that for each State's first Medicaid SPRY beginning on or after October 1, 2021, and thereafter, subject to proposed paragraph (d)(3), only costs incurred in providing inpatient hospital and outpatient hospital services to Medicaid individuals when Medicaid is the primary payer for such services, and revenues received with respect to those services, and costs incurred in providing inpatient hospital and outpatient hospital services, and revenues received with respect to those services, for which a determination has been made in accordance with § 447.295(c) that the services were furnished to individuals who have no source of third-party coverage for the specific inpatient hospital or outpatient hospital service are included when calculating the costs and revenues for Medicaid individuals and individuals who have no health insurance or other source of third-party coverage for purposes of section 1923(g)(1) of the Act. As noted above, we propose to implement the 97th percentile hospital exception in proposed § 447.295(d)(3), which would specify that, effective for each State's first Medicaid SPRY beginning on or after October 1, 2021, and thereafter, the hospital-specific DSH limit for a 97th percentile hospital defined in proposed paragraph (b) is the higher of the values from the calculations described in proposed paragraphs (d)(1) and (2).
We are also proposing to develop a data set, compiling cost report, claims, and eligibility data, to determine which hospitals, ranked on a national level, qualify to meet the statutory 97th percentile hospital exception. We are proposing to publish these data for use in determining which hospitals qualify as a 97th percentile hospital on an annual basis, electronically or in another format as determined by CMS, prior to the SPRY to which it will apply. We would determine these hospitals on an annual basis prior to each SPRY beginning on or after October 1. In this way, we would be able to qualify hospitals on the basis of SPRYs, while also accounting for non-alignment of SPRYs across States. Again, this would not be done on the basis of the FFY, but rather would be an annual process to qualify hospitals for each SPRY. We would publish these data once a year, prior to October 1. Each State would use these data to determine which hospitals qualify for the 97th percentile hospital exception for the State's SPRY that begins between that October 1 and September 30 of the following calendar year.
We are proposing to determine a hospital's qualification for the 97th percentile exception for each SPRY on a prospective basis. We believe this to be a reasonable interpretation in that the statute specifically refers to the “most recent cost reporting period” in determining a hospital's qualification “for the fiscal year,” which, as noted, we interpret to mean SPRY. That is, we believe it is reasonable to interpret the reference to the “most recent cost reporting period” in section 1923(g)(2)(B) of the Act to mean the most recent cost reporting period for which there is a cost report available before the beginning of the SPRY for which the 97th percentile hospitals are being identified.
By applying this exception prospectively, we eliminate the need to retroactively rank and qualify hospitals based on actual Medicare SSI days and ratios for services furnished during the SPRY. This application would allow for States and hospitals to know prior to the beginning of the SPRY which hospitals qualify for the exception. That knowledge would allow States and hospitals to gauge how payments should be made and measured against hospital-specific DSH limits and provide greater payment predictability than a retroactive application. We believe this interpretation to also be the most feasible from an operational standpoint.
To compile this source of data, we would use data originating from various systems and sources, including the Healthcare Cost Report Information System (HCRIS) and Medicare Provider Analysis and Review (MEDPAR) files, and SSI eligibility data from the Social Security Administration (SSA). Utilizing HCRIS, we would identify the universe of hospitals that have filed a Medicare cost report and each hospital's most recent cost reporting period, including acute care hospitals paid under the inpatient prospective payment system (IPPS), critical access hospitals, inpatient rehabilitation facilities, and inpatient psychiatric facilities.
We would determine each hospital's Medicare SSI days for discharges
To determine each hospital's percentage of Medicare SSI days to total inpatient days, we would divide the Medicare SSI days by each hospital's total inpatient days for that same cost reporting period from HCRIS to obtain a percentage. We would then compile two lists, ranking the hospitals based on the absolute number of Medicare SSI days, and the percentage of inpatient days that are Medicare SSI days, respectively. A hospital may qualify to meet the 97th percentile exception on the basis of either of the two lists.
We are proposing to utilize the Medicare SSI days and total inpatient days data to mathematically determine a threshold of acceptance to identify hospitals meeting the 97th percentile exception. The array includes either the values of Medicare SSI days or the percentage of inpatient days that are Medicare SSI days, for the universe of hospitals nationwide identified through this data process. For the Medicare SSI days, the 97th percentile threshold would be rounded to the nearest whole number, with x.5 or higher rounded up, and less than x.5 rounded down. Any hospital with Medicare SSI days for its most recent cost reporting period greater than or equal to the 97th percentile threshold would qualify as a 97th percentile hospital. For the percentage of inpatient days that are Medicare SSI days, all values would be rounded to the fourth decimal place (0.xxxx, alternatively stated as xx.xx percent), including each hospital's own percentage and the 97th percentile threshold. Values of 0.xxxx5 or higher would be rounded up, and less than 0.xxxx5 would be rounded down. Any hospital that has a percentage of total inpatient days that are Medicare SSI days from its most recent cost reporting period that is greater than or equal to the 97th percentile threshold would qualify as a 97th percentile hospital. The ranking will be on a national level, as the statutory language under section 203 of the CAA refers to “97th percentile of all hospitals,” which we believe is most consistent with a national, rather than a State-level ranking.
To follow the statutory requirement to utilize information from the most recent cost reporting period, we are proposing to utilize each hospital's most recent cost reporting period for which there is a filed cost report in HCRIS, at a particular point in time in advance of the SPRY to which the 97th percentile qualification would apply. A filed cost report would first have an “as submitted” status in HCRIS, which subsequently would change to “amended,” “settled without audit,” “settled with audit,” or “reopened” status, which indicates a final report that was previously reopened and re-settled. We considered utilizing the most recent settled cost reporting period, but we have determined that the use of the as-submitted cost report will result in the use of more current and more consistent reporting periods across hospitals, consistent with the statutory directive to rely on “the most recent cost reporting period.” Moreover, we have determined that the total inpatient days seldom change between the as-submitted and the settled cost reports. The total inpatient days count is the primary data element needed from the cost report in order for us to determine which hospitals meet the 97th percentile exception. However, if that most recent cost reporting period for which there is an as-submitted cost report happens to already have an amended cost report, a settled cost report, or a reopened cost report as of the date that CMS obtains data from HCRIS for use in determining which hospitals meet the 97th percentile hospital exception, we propose that we would use the total inpatient day count from the amended cost report, settled cost report, or reopened cost report for that period because that is the most updated information available for that period. We will elaborate on the timing of this process in more detail later in this section.
We are proposing to utilize both covered and non-covered Medicare Part A days when collecting data and calculating hospital percentiles. The statutory language in section 1923(g)(2)(B)(i) of the Act as modified by section 203 of the CAA specifically refers to patients who were entitled to benefits under part A of title XVIII. A patient's status as entitled to benefits under part A of title XVIII does not depend on whether payment for a particular inpatient day was available under Medicare Part A payment principles, and a qualifying Medicare beneficiary remains entitled to benefits under Part A even if Medicare payment is not available with respect to a particular inpatient day.
Hospitals may provide acute inpatient hospital services, as well as other inpatient hospital services in distinct part units of the hospital. The distinct part units of a hospital that provide inpatient hospital services which are reported separately on the hospital's Medicare cost report are rehabilitation distinct part units and psychiatric distinct part units. We are proposing to include all inpatient days for inpatient hospital services reported on each hospital's Medicare cost report, including days furnished in distinct part units of the hospital that provide
In determining when we can begin to collect and assemble the necessary data prior to the beginning of each upcoming SPRY that begins on or after October 1 each year, we are proposing to use HCRIS data as it exists as of March 31, in advance of October 1 of that same calendar year. Using the HCRIS data as of March 31, we will identify each hospital's most recent cost reporting period for which the hospital has an available cost report, and also identify the total inpatient days from the latest cost report available for that most recent cost reporting period. We are also proposing to use the latest available MEDPAR files and SSI eligibility data, as of the same March 31 date, to determine the Medicare SSI days data that correspond to that same most recent cost reporting period for each hospital.
For example, for the 97th percentile determination applicable to SPRYs beginning October 1, 2023 through September 30, 2024, (that is, SPRYs beginning during FFY 2024), we would determine a hospital's most recent cost reporting period in which it has a cost report in HCRIS as of March 31, 2023. For instance, if a hospital's most recent cost reporting period with a cost report in HCRIS as of March 31, 2023, is for the cost reporting period of July 1, 2021 to June 30, 2022, we would take the total inpatient day count from that cost report. Then we would utilize the MEDPAR files and SSI eligibility data available as of March 31, 2023, to determine the hospital's Medicare SSI days for the discharges occurring in that same cost reporting period of July 1, 2021, to June 30, 2022.
Using the most recently available data as of March 31 in advance of October 1 each year would allow us a reasonable 6-month timeframe to pull data from each of these data sources, address any potential data issues, complete the necessary compiling and calculations, perform any data integrity checks, determine the 97th percentile and the hospitals meeting the threshold based either on the Medicare SSI days or the percentage of total inpatient days that are Medicare SSI days, and make the results available prior to October 1. States would then have the 97th percentile results applicable to the State's SPRY that begins between October 1 of that calendar year and September 30 of the following calendar year. The proposed March 31 date establishes a snapshot for a point in time each year that is reasonably close to October 1 of that same calendar year that we would use to determine what is the “most recent” data available for application to the upcoming SPRYs, while allowing us sufficient time to process the data and make the results available before the start of those SPRYs.
Given the timing of this rulemaking and the October 1, 2021 effective date of the amendments made by section 203 of the CAA, we are proposing to produce the 97th percentile hospital data for both SPRYs beginning during FFY 2022 and SPRYs beginning during FFY 2023 using the necessary Medicare SSI days and cost report information as it would have been available to us under the timelines proposed herein. For example, for the data necessary to determine hospitals meeting the 97th percentile exception for SPRYs beginning during FFY 2022, we would obtain a snapshot of the HCRIS, MEDPAR, and SSI eligibility data as would have been available on March 31, 2021.
While we propose to include all hospitals that provide Medicaid-covered inpatient services and file a Medicare cost report in our data set, there will be circumstances that will result in some hospitals being omitted from the data set. We will begin gathering all necessary data after March of each year, based on the data availability described previously, in order to develop the data set that will be used to rank and indicate which hospitals qualify to meet the 97th percentile hospital exception for each State's upcoming SPRY that begins on or after October 1 of that year. In accordance to 42 CFR 413.24(f)(2), cost reports are generally due 5 months from the end of each hospital's cost-reporting period. For example, a hospital with a cost reporting year end of September 30th would generally be expected to file a cost report by the end of February the following year, while a hospital with a cost reporting year end of June 30 would generally be expected to file its cost report by the end of November of that year. However, we also want to build in a reasonable window for late filing and cost report processing into HCRIS. Therefore, we are proposing to include in the data set any hospital that has filed a cost report dating back to at least September 30, 3 years prior in order to capture as many hospitals as possible in our data set. It is unlikely that there would be a delay greater than 3 years from when a hospital's cost report is generally due to when that cost report is captured in HCRIS. For example, when we begin the data-development process for data available through March 2023, we would exclude a hospital from the data set that does not have a cost report in HCRIS from a cost-reporting period ending by September 30, 2020, or later. We are proposing this cutoff in order to capture as many hospitals in our data set as possible, but to also prevent significant variability in the cost-reporting periods by excluding Medicare hospitals whose most recent cost-reporting period for which there is a cost report in HCRIS dates back more than 3 years. This cutoff is intended to help exclude hospitals that may be inactive or terminated from our data set.
As noted earlier in this section, we are also proposing to include in the data set only hospitals that file a Medicare cost report. Because the Medicare cost report data are the source of total inpatient days, it is necessary for a hospital to file a Medicare cost report to calculate a hospital's Medicare SSI day as a percentage of total inpatient days. We cannot perform the calculations without this cost report information. Therefore, we propose to include only hospitals that file a Medicare cost report in the data set. Section 1923(g)(2)(B) of the Act recognizes the necessity of the Medicare cost report for the implementation of the 97th percentile exception by basing the qualification for the exception on the number or percentage of Medicare SSI days “most recent cost reporting period.” Therefore, we believe it is appropriate and consistent with the statutory requirements to include only these hospitals that have submitted Medicare cost reports in the data set for both 97th percentile exception lists. We do not anticipate this to be a problem, since any hospital serving Medicaid patients, but that does not file a Medicare cost report, would not qualify for the 97th percentile hospital exception. In accordance with § 413.24(f), Medicare-participating hospitals are required to file cost reports, which are generally due 5 months after the close of each cost reporting period. In accordance with Medicare Provider Reimbursement Manual, Part II, Section 110, hospitals with no Medicare utilization do not
Given that we are proposing to use snapshot cost report, claims, and eligibility data in advance of October 1 each year to produce nationwide lists applicable for each State's upcoming SPRY beginning on or after that October 1, we would not modify the 97th percentile qualification results based on a request by one or more individual hospitals (or by one or more States, with respect to one or more individual hospitals) to update or reconsider hospital cost report, claims, or eligibility data. The proposed snapshot approach recognizes that, at a given point in time, a hospital's most recent cost reporting period for which there is a cost report available in HCRIS, as well as the hospital's number of total inpatient days as reported in that most recent cost report and number of Medicare SSI days as determined from MEDPAR and SSI eligibility data sources, may be subject to future revision. However, to determine qualification for the 97th percentile hospital exception, we must select a point in time to capture snapshot data, and the resulting lists must provide reasonable certainty to hospitals and States nationwide regarding which hospitals qualify for the exception. This proposed rule would specify the snapshots (and their timing) that we would use in qualifying 97th percentile hospitals for each SPRY. It would not be prudent or reasonable to continuously revisit the 97th percentile hospital qualifications based on changing cost report, claims, or eligibility data, outside of those established snapshot parameters.
Nonetheless, we recognize there is a possibility of a mathematical or other similar technical error by CMS that could lead to a misidentification of the hospitals that qualify for the 97th percentile exception. In such a circumstance, we believe that it would be appropriate for us to correct our error, recognizing that this could result in some hospitals being determined eligible for the 97th percentile hospital exception that previously (erroneously) were not so listed, and other hospitals losing their previous (erroneous) designation as qualifying for the exception. At the same time, we must balance this consideration with the recognition that the published lists will be relied upon by States and hospitals for identifying which hospitals qualify for the exception, hospital-specific limits will be set accordingly, and DSH payments will be made; all interested parties (including hospitals, the States, and CMS) have an interest in finality for these payments after a reasonable time. Accordingly, we are proposing to allow 1 year from the posting of the 97th percentile hospital lists for States, hospitals, CMS, or other interested parties to identify any mathematical or other similar technical error, according to instructions that would appear on the published lists. Upon CMS verification that an error occurred that affected the hospitals appearing on a list of 97th percentile hospitals for a given year, we would determine and publish a revised list as soon as practicable. We believe 1 year is a reasonable timeline for identifying any mathematical or other similar technical error made by CMS, and would also allow a corrected qualifying list to be available in advance of the start of the independent DSH audit for the respective SPRY in most instances. For example, if this rule is finalized as proposed and we publish the qualifying lists in 2023 for application retroactively to a SPRY that begins October 1, 2021 (that is, SPRY 2022), we could post a corrected qualifying list, if necessary, sometime in 2024. Then, when the independent audit is performed for that SPRY in 2025, the final 97th percentile qualification lists would be available and not subject to any further changes. Accordingly, in paragraph (2) of the proposed definition of “97th percentile hospital” in § 447.295(b), we propose that CMS would publish lists identifying each 97th percentile hospital annually in advance of October 1 of each year. We propose that CMS would revise a published list only to correct a mathematical or other similar technical error that is identified to CMS during the one-year period beginning on the date the list is published.
We propose that the effective date for this and other CAA-related proposals, noted in the respective sections, be applicable to fiscal years beginning on or after October 1, 2021, to align with the effective date of the CAA.
We are proposing to eliminate the § 447.297(c) requirement to publish annual DSH allotments in the
Additionally, we are proposing in § 447.297(b) and (d)(1) to remove the date on which final national targets and allotments are published, currently specified as April 1, and revise this timeframe to as soon as practicable. In § 447.297(d)(1), we are also proposing to remove the phrase “prior to the April 1 publication date,” and to add in its place the phrase, “prior to the posting date” for consistency with the new timeframe. We are proposing to remove the April 1 publication date to allow for Medicaid expenditures associated with the FFY DSH allotment to be finalized. CMS utilizes these amounts in the calculations of the 12 percent limit under section 1923(f)(3)(B)(ii) of the Act. Finally, we are proposing to remove § 447.297(e), which consists of redundant publication requirements already identified in § 447.297(b) through (d), in its entirety, to align with our proposed changes § 447.297(c).
We are proposing to revise § 447.299(c)(6), (7), (10), and (16) to reflect the statutory changes made by section 203 of the CAA to update the methodology for calculating the
Accordingly, we are proposing to revise § 447.299(c)(6), which specifies that this data element should include inpatient and outpatient Medicaid fee-for-service (FFS) basic rate payments paid to hospitals, “not including DSH payments or supplemental/enhanced Medicaid payments, for inpatient and outpatient services furnished to Medicaid eligible individuals.” We are proposing this change because, for most hospitals, for SPRYs beginning on or after October 1, 2021, only those FFS payments for Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we are proposing to revise § 447.299(c)(6) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that FFS payments for inpatient and outpatient hospital services furnished to Medicaid individuals in accordance with § 447.295(d) should be included in this data element.
We are also proposing to revise § 447.299(c)(7), which specifies that this data element includes payments made to the hospitals “by Medicaid managed care organizations for inpatient hospital and outpatient hospital services furnished to Medicaid eligible individuals.” We are proposing this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, only payments made by Medicaid managed care organizations for Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we are proposing to revise § 447.299(c)(7) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that Medicaid managed care payments for inpatient and outpatient hospital services furnished to Medicaid individuals in accordance with § 447.295(d) should be included in this data element.
We are also proposing to revise § 447.299(c)(10), which specifies that this data element includes “costs incurred by each hospital for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals.” We are proposing this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, only costs incurred on behalf of Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we are proposing to revise § 447.299(c)(10) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that costs incurred by each hospital for furnishing inpatient hospital and outpatient hospital services to Medicaid individuals as determined pursuant to § 447.295(d) should be included in this data element.
Finally, we are proposing to revise § 447.299(c)(16), which specifies the calculation of uncompensated care costs, which include “the total cost of care for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals” and the uninsured, which are to be offset by “Medicaid FFS rate payments, Medicaid managed care organization payments, supplemental/enhanced Medicaid payments, uninsured revenues, and section 1011 payments for inpatient and outpatient hospital services.” Therefore, we are proposing to revise § 447.299(c)(16) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that total annual uncompensated care cost equals the total cost of care for furnishing inpatient hospital and outpatient hospital services to Medicaid individuals, as determined in accordance with § 447.295(d), and to individuals with no source of third-party coverage for the hospital services they receive, less the sum of payments received on their behalf, should be included in this data element.
We propose that the effective date for this and other CAA-related proposals, noted in the respective sections, be applicable to fiscal years beginning on or after October 1, 2021, to align with the effective date of the CAA.
To improve the accuracy of identification of provider overpayments discovered through the DSH audit process, we are proposing to add an additional reporting requirement for annual DSH audit reporting required by § 447.299. We are proposing to redesignate § 447.299(c)(21) as paragraph (c)(22) of that section, and to add a proposed new § 447.299(c)(21) to require an additional data element for the required annual DSH audit reporting. The new data element we are proposing would require auditors to quantify the financial impact of any finding, including those resulting from incomplete or missing data, lack of documentation, non-compliance with Federal statutes or regulations, or other deficiencies identified in the independent certified audit, which may affect whether each hospital has received DSH payments for which it is eligible within its hospital-specific DSH limit.
Currently, audits may include a caveat indicating the auditors are unable to quantify the financial impact of an identified audit finding. We propose that, for purposes of this section, audit finding means an issue identified in the independent certified audit required under § 455.304 concerning the methodology for computing the hospital-specific DSH limit or the DSH payments made to the hospital, including compliance with the hospital-specific DSH limit as defined in § 447.299(c)(16). For example, an audit may identify that a hospital was unable to satisfactorily document the outpatient services it provided to Medicaid-eligible patients, resulting in the exclusion of associated costs and payments from the Medicaid shortfall calculation. Based on this lack of documentation, the audit may include a caveat noting the auditor's finding that the hospital's total uncompensated care cost may be misstated as a result of this exclusion, with unknown impact on the hospital-specific DSH limit. Given this lack of quantification of the financial impact of this finding, CMS and the State would be unable to determine whether an overpayment has resulted related to this
Auditors would be afforded the professional discretion and the flexibility to determine how to best quantify these amounts in the audit findings. For example, auditors would be able to use alternative source documentation, utilize a methodology to estimate the financial impact in terms of the dollar amount at risk, or provide an estimated range of financial impact if a determination of an exact dollar amount is not possible. However, we also understand that, due to the complexity of issues that may arise, the actual financial impact of an audit finding may not always be calculable. Therefore, we propose that, in the expectedly rare event that the actual financial impact cannot be calculated, a statement of the estimated financial impact for each audit finding identified in the independent certified audit that is not reflected in the other data elements identified in § 447.299(c) would be required. We propose that actual financial impact means the total amount associated with audit findings calculated using the documentation sources identified in § 455.304(c). Estimated financial impact means the total amount associated with audit findings calculated on the basis of the most reliable available information to quantify the amount of an audit finding in circumstances where complete and accurate information necessary to determine the actual financial impact is not available from the documentation sources identified in § 455.304(c). The estimated financial impact would use the most reliable available information (for example, related source documentation such as data from State systems, hospitals' audited financial statements, and Medicare cost reports) to quantify an audit finding as accurately as possible. We believe this additional data reporting element is necessary to better enable our oversight of the Medicaid DSH program to better ensure compliance with the hospital-specific DSH limit in section 1923(g) of the Act.
Additionally, we are proposing to add § 447.299(f), which would codify our existing policy for how overpayments identified through the annual independent certified DSH audits required under part 455, subpart D, must be handled and reported to CMS. Specifically, we propose that DSH payments found in the independent certified audit process under part 455, subpart D to exceed hospital-specific cost limits are provider overpayments which must be returned to the Federal Government in accordance with the requirements in 42 CFR part 433, subpart F, or redistributed by the State to other qualifying hospitals, if redistribution is provided for under the approved State plan. We propose that overpayment amounts returned to the Federal Government must be separately reported on the Form CMS-64 as a decreasing adjustment which corresponds to the fiscal year DSH allotment and Medicaid SPRY of the original DSH expenditure claimed by the State.
We further propose to add § 447.299(g), which would establish reporting requirements concerning the redistribution of DSH overpayments in accordance with a State's redistribution methodology in its Medicaid State plan, as applicable. Specifically, we propose that, as applicable, States would be required to report any overpayment redistribution amounts on the Form CMS-64 within 2 years from the date of discovery that a hospital-specific limit has been exceeded, as determined under § 433.316(f) in accordance with a redistribution methodology in the approved Medicaid State plan. The State must report redistribution of DSH overpayments on the Form CMS-64 as separately identifiable decreasing adjustments reflecting the return of the overpayment as specified in § 447.299(f) and increasing adjustments representing the redistribution by the State. Both adjustments must correspond to the fiscal year DSH allotment and Medicaid SPRY of the related original DSH expenditure claimed by the State. These proposed additions of paragraphs (f) and (g) to § 447.299 would memorialize our current policy concerning the return of FFP in or redistribution of Medicaid DSH payments in excess of the hospital-specific limit in regulation, and thereby promote clarity and transparency, avoid misunderstanding, and enhance oversight of the Medicaid DSH program.
These proposals for the independent certified audit and DSH-related claims reporting would enhance Federal oversight of the Medicaid DSH program and improve the accuracy of DSH audit overpayments identified and collected through annual DSH audits. We invite comments on these proposals.
We are proposing to revise the definition of the “independent certified audit” to include the requirement for auditors to quantify the financial impact of each audit finding, or caveat, on an individual basis, for each hospital, per the reporting requirement in proposed § 447.299(c)(21) and under section 1923(j)(1)(B) of the Act. Updating this definition is consistent with the goals of the updates to § 447.299(c)(21) to facilitate our determination of whether the State made DSH payments that exceeded any hospital's specific DSH limit in the Medicaid SPRY under audit. Specifically, as discussed in item five of the proposed provisions, we are proposing to add to annual DSH reporting required under § 447.299(c) a requirement for States to report the financial impact of audit findings identified by the State's independent auditor. To align with this proposal, we propose to revise the definition of the independent certified audit under § 455.301 an inclusion of the auditor's certification of “a quantification of the financial impact of each audit finding on a hospital-specific basis.” As previously discussed, based on current independent certified DSH audit submissions, we are at times unable to determine whether a DSH overpayment to a provider has occurred, the underlying cause of any overpayment, and the amount of the overpayment(s) associated with each cause. This is the result of an auditor including audit findings or caveats indicating that missing information or other issues may have an impact on the calculation of total uncompensated care costs (that is, the DSH hospital-specific limit), while not making a determination of the actual (or estimated) financial impact of the identified issue. As such, we believe that revising the definition to include a quantification of the financial impact of any issues identified in the audit is necessary to better ensure proper oversight and integrity of the DSH program.
We are soliciting comments related to this proposed change.
We are proposing to revise § 455.304(d)(1), (3), (4), and (6) to reflect the proposed revisions to the independent certified data elements at § 447.299(c)(6), (7), (10), and (16). The revisions would reflect the statutory changes made by section 203 of the CAA, updating the independent certified audit verifications as they relate to the treatment of Medicaid eligibles and third-party payers. We reviewed the other independent certified audit verifications in § 455.304(d) to determine if additional updates were necessary to account for the changes made by section 203 of the CAA. However, we believe these are the only verifications requiring updates because these are the verifications that consider the treatment of Medicaid eligibles for purposes of the independent certified audit. Therefore, it is only necessary to revise § 455.304(d)(1), (3), (4), and (6) in order to account for the statutory changes made by section 203 of the CAA.
Accordingly, we are proposing to revise § 455.304(d)(1), which specifies that auditors should verify that each qualifying hospital that receives DSH payments, associated with the provisions of services to “Medicaid eligible individuals and individuals with no source of third-party coverage,” is allowed to retain that payment. We are proposing this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, the methodology by which these DSH payments were calculated and paid will be reflective of Medicaid costs and payments associated with Medicaid eligible individuals for whom Medicaid is the primary payer. Therefore, we are proposing to revise § 455.304(d)(1) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that the DSH payments are associated with inpatient hospital and outpatient hospital services provided to Medicaid individuals as determined in accordance with § 447.295(d).
We are also proposing to revise § 455.304(d)(3), which specifies that “Only uncompensated care costs of furnishing inpatient and outpatient hospital services to Medicaid eligible individuals” and the uninsured should be included in the calculation of the hospital-specific DSH limit. We are proposing this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, only costs incurred on behalf of Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we are proposing to revise § 455.304(d)(3) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that uncompensated care costs for furnishing inpatient hospital and outpatient hospital services to Medicaid individuals is determined in accordance with § 447.295(d). We are also proposing to revise § 455.304(d)(3) to streamline this provision by removing a redundant reference to section 1923(g)(1)(A) of the Act.
Further, we are proposing to revise § 455.304(d)(4), which specifies that Medicaid payments, including FFS, supplemental/enhanced, and Medicaid managed care payments made to a hospital “for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals,” should be included in the calculation of the hospital-specific DSH limit. We are proposing this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, only costs incurred on behalf of Medicaid eligible individuals for whom Medicaid is the primary payer will be counted in the calculation of the hospital-specific DSH limit. Therefore, we are proposing to revise § 455.304(d)(4) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that the DSH payments associated with inpatient hospital and outpatient hospital services provided to Medicaid individuals as determined in accordance with § 447.295(d) are included in the calculation of hospital-specific DSH limit.
Finally, we are proposing to revise § 455.304(d)(6), which requires that auditors include a description of the methodology for calculation each hospital's hospital-specific DSH limit, including “how the State defines incurred inpatient hospital and outpatient hospital costs for furnishing inpatient hospital and outpatient hospital services to Medicaid eligible individuals.” We are proposing this change because for most hospitals, for SPRYs beginning on or after October 1, 2021, the methodology by which these DSH payments were calculated and paid will be reflective of Medicaid costs and payments associated with Medicaid eligible individuals for whom Medicaid is the primary payer. Therefore, we are proposing to revise § 455.304(d)(6) to remove the reference to Medicaid eligible individuals and update the regulatory text to indicate that inpatient hospital and outpatient hospital services provided to Medicaid individuals are determined in accordance with § 447.295(d).
We propose that the effective date for this and other CAA-related proposals, noted in the respective sections, be applicable to fiscal years beginning on or after October 1, 2021, to align with the effective date of the CAA.
We have not published CHIP allotments in the
We are soliciting any comments related to these proposed changes.
The amendments made by section Division CC, Title II, section 203 of the Consolidated Appropriations Act, 2021, require that the changes to the calculations of Medicaid hospital-specific DSH limits take effect on October 1, 2021, and apply to payment adjustments made under section 1923 of the Act during fiscal years beginning on or after that date. Accordingly, these provisions of this proposed rule, if finalized, will apply retroactively as set out in statute.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
To fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the PRA requires that we solicit comment on the following issues:
• The need for the information collection and its usefulness in carrying out the proper functions of our agency.
• The accuracy of our estimate of the information collection burden.
• The quality, utility, and clarity of the information to be collected.
• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.
We are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements. Comments, if received, will be responded to within the subsequent final rule.
To derive average costs, we used data from the U.S. Bureau of Labor Statistics' (BLS) May 2021 National Occupational Employment and Wage Estimates for all salary estimates (
As indicated, we are adjusting our employee hourly wage estimates by a factor of 100 percent. This is necessarily a rough adjustment, both because fringe benefit and overhead costs vary significantly from employer to employer, and because methods of estimating these costs vary widely from study to study. Nonetheless, we believe that doubling the hourly wage to estimate total cost is a reasonably accurate estimation method.
The following regulatory sections of this rule contain proposed collection of information requirements (or “ICRs”) that are subject to OMB review and approval under the authority of the PRA. Our analysis of the proposed requirements and burden follow.
The remaining provisions are not associated with any information collection requirements. In that regard they are not subject to the requirements of the PRA and are not addressed under this section of the preamble. For this rule's full burden implications, please see the Regulatory Impact Analysis under section V. of this preamble.
The following proposed changes will be submitted to OMB for review under control number 0938-0746 (CMS-R-266).
Under § 447.299, this proposed rule would require States to provide an additional data element as part of its annual DSH audit report. This additional element would require a State auditor to quantify the financial impact of any audit finding not captured within any other data element under § 447.299(c), which may affect whether each hospital has received DSH payments for which it is eligible within its hospital-specific DSH limit.
The proposed additional data element would require auditors to indicate the financial impact of all findings rather than indicating that the financial impact of any finding is unknown.
The burden consists of the time it would take each of the States to quantify any audit finding identified during the independent certified audit required under section 1923(j)(2) of the Act. As we rarely receive audits with no identified findings, we will assume for the purposes of this estimate that all applicable States will complete this work. The territories have been excluded from this proposed requirement since they do not receive a DSH allotment under section 1923(f) of the Act. We have also excluded Massachusetts from the total burden estimate, as it currently does not complete DSH audits because its entire DSH allotment amount is diverted for payments under a section 1115 demonstration project.
We believe the additional burden associated with the new data element would be 2 hours given that auditors are already engaged in a focused review of available documentation to quantify the aggregate amounts that comprise each of the existing data elements required under § 447.299(c). We also estimate that the additional 2 hours would consist of 1 hour at $77.28/hr. for a financial specialist to add the additional data to the report and 1 hour at $124.72/hr for management and professional staff to review the additional data in the report. In aggregate we estimate an annual burden of 102 hours (50 States × 2 hr/response × 1 response/year) at a cost of $10,100 (50 States × [(1 hr × $124.72/hr) + (1 hr × $77.28/hr)]).
If the auditor is unable to determine the actual financial impact amount of an audit finding, the auditor would be required to provide a statement of the estimated financial impact for each audit finding identified in the independent certified audit. For the purposes of this burden estimate, we will assume every State may have some quantifiable findings and some unquantifiable findings. As such, we anticipate that a State auditor would have to spend an additional 1 hour at $80.74/hr quantifying the financial impact of DSH findings that are classified as unknown. The estimated annual burden would be 50 hours (50 States × 1 hr) at a cost of $4,037 (50 hr × $80.74/hr).
Table 2 summarizes the burden for the proposed provisions.
The audit requirement proposal represents the only information collection provision of this rule. As such, we estimate there would be a total annual burden of 153 hours at a cost of $14,420 and an average per State burden of 3 hours (153 hr/51 States) and $282.75 ($14,420/51 States).
We have submitted a copy of this proposed rule to OMB for its review of the rule's ICRs. The requirements would not be effective until they have been approved by OMB.
To obtain copies of the supporting statement and any related forms for the proposed collections discussed in this rule, please visit the CMS website at
We invite public comments on this potential ICR. If you wish to comment, please submit your comments electronically as specified in the
Because of the large number of public comments we normally receive on
This proposed rule would codify in Federal regulations the statutory requirements of Division CC, Title II, section 203 of the CAA, which relate to Medicaid shortfall and third-party payments. These changes are necessary to align with Federal statute, and to provide States and hospitals an understanding of how qualifying hospitals' DSH payments may be impacted by the legislation. These changes are necessary in order to reflect the statutory changes to section 1923(g) of the Act to update the methodology for calculating the Medicaid shortfall portion of the hospital-specific DSH limit to only include costs and payments for hospital services furnished to beneficiaries for whom Medicaid is the primary payer, and to codify the exception for certain hospitals that are in the 97th percentile or above of all hospitals with respect to the number of Medicare SSI days or percentage of Medicare SSI days to total inpatient days.
Since we were required to engage in rulemaking in order to codify the statutory changes made under the CAA, we are also taking the opportunity to update certain DSH regulations in order to provide additional clarity and efficiency. The proposed changes to the BNF and associated calculations performed under the DHRM will provide better clarity for States that divert all or a portion of their DSH allotment under an approved section 1115 demonstration.
Additional Medicaid DSH payments and requirements are addressed in this proposed rule. We propose to add additional specificity to the reporting requirements of the annual DSH audit conducted by an independent auditor to enhance Federal oversight of the Medicaid DSH program. Additionally, we seek to improve the accurate identification of and collection efforts related to overpayments identified through the annual DSH independent certified audits by specifying the date of discovery and standards for return of FFP or redistribution of DSH payments made to providers in excess of the hospital-specific limit. The proposed rule also seeks to alleviate the administrative burden of publishing the annual DSH and CHIP allotments in the
We have examined the impacts of this proposed rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), and the Congressional Review Act (5 U.S.C. 804(2)).
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of beneficiaries thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive order.
Based on our estimates using a ”no action” baseline, OMB's Office of Information and Regulatory Affairs has determined that this rulemaking is “economically significant,” as discussed in more detail in this section.
Some amendments made by the CAA required us to propose regulatory updates, but there are statutory changes that are effective regardless of our actions. Typically, under OMB Circular
Because the impact of our rule depends on downstream impacts of changes created in statute unaffected by this rulemaking, such as the change to only include Medicaid costs and payments in the hospital-specific DSH limit when Medicaid is the primary payer, calculating financial cost and transfer impacts specific to this rulemaking presents challenges which we will discuss further in those sections.
The policies in this proposed rule, if finalized, would enhance Federal oversight of the Medicaid DSH program, improve the accuracy of DSH audit overpayments identified through and collected as a result of annual DSH audits, and provide clarity on certain existing Medicaid DSH policies. This proposed rule would clarify existing CMS policy by codifying that the date of discovery of DSH overpayments is determined according to the date on which the State submits its annual DSH independent certified audit to CMS, or any of the dates specified in § 433.316(c). Further, this proposed rule would provide additional transparency regarding the DSH allotment reductions calculated under the DHRM, specifically regarding the BNF, by updating the applicable regulations to specify that amounts diverted under a section 1115 demonstration approved after July 31, 2009, or approved as of that date but for a purpose other than coverage expansion, are subject to reduction under the HMF and HUF. Further, these regulatory updates would provide transparency regarding how the amounts diverted under a section 1115 demonstration are to be determined and applied in the DHRM. In addition, this proposed rule includes specific details related to the development and application of the data set used to determine the qualification for the exception for 97th percentile hospitals. This proposed rule details how hospital-specific DSH limits should be calculated under section 1923(g) of the Act and reported in the independent certified audit, as specified in § 447.299(c). Further, the proposed additional data reporting element in § 447.299(c)(21) would strengthen CMS oversight of the Medicaid DSH program and better ensure compliance with the hospital-specific DSH limit under section 1923(g) of the Act. Finally, this proposed rule would also allow CMS to provide annual DSH and CHIP allotment information in a timely and assessible manner while reducing unnecessary administrative burden by eliminating the §§ 447.297(c) and 457.609 requirement and option, respectively, to publish these annual allotments in a
Under § 447.299, this proposed rule would require States to determine the hospital-specific DSH limit for hospitals meeting the exception for 97th percentile hospitals. For these hospitals, the hospital-specific DSH limit is calculated using the higher value of either the hospital-specific DSH limit amount determined for the hospital under section 1923(g)(1)(A) of the Act as amended by section 203 of the CAA or the amount determined for the hospital under section 1923(g)(1)(A) of the Act as in effect on January 1, 2020. This amount will be captured under the reporting element at § 447.299(c)(10). While we propose that CMS will produce the source of data used to identify hospitals qualifying to meet the exception for 97th percentile hospitals, this will require a State auditor to calculate two separate hospital-specific DSH limits and determine the higher value thereof for hospitals meeting this exception. Given this exception applies to a limited number of hospitals and that the identity of these hospitals and the information required to determine their hospital-specific DSH limit amounts under both calculations would be based on readily available information, we believe the additional burden associated with determining the hospital-specific DSH limit for hospitals qualifying under this exception to be minimal.
To estimate the overall burden of adding this requirement for the calculation of the hospital-specific DSH limit for hospitals meeting the exception for 97th percentile hospitals, we considered the number of annual independent certified audits received by CMS in addition to the limited number of hospitals that will qualify under this exception. In order for States to assess which hospitals meet the exception, we estimate that it would take approximately 2 hours, consisting of: 1 hour at $77.28/hr for a financial specialist to prepare the aforementioned spreadsheet report, and 1 hour at $124.72/hr for management and professional staff to review the report. In the aggregate, we estimate an ongoing annual burden of 102 hours (51 States × 2 hr/response × 1 response/year) at a cost of $10,302 ((51 States × [(1 hr $124.72/hr) + (1 hr × $77.28/hr)] or $202 per State ($10,302/51 States). Additionally, we anticipate that a State auditor would have to spend an additional hour verifying the hospital-specific DSH limits for hospitals meeting the exception for 97th percentile hospitals. The estimated annual burden would be 1 hour per State (51 States × 1 hour) 51 hours × $80.74/hr for auditors to complete the audit at a cost of $4,118 per year (51 States × 1 hour × $80.74 per hour). The total cost of this provision of the proposed rule would be $14,420 ($10,302 + $4,118) and 153 hours, or $282.74 and 3 hours per State.
The additional DSH audit data reporting element creates a burden of 153 hours at a cost of $14,420, with an average of 3 hours ($282.74 hr/51 States) at a cost of $282.74 per State Medicaid agency per year ($14,420/51 States).
We do not estimate there will be a cost impact related to the DHRM BNF proposal. This proposal merely provides clarification regarding how amounts are determined, and the impact of the policy itself was accounted for the in the 2019 final rule that finalized the factor amounts. Therefore, the only costs would be associated with review of this rule, which are accounted for in Part 4 of this section.
Similarly, there will be no cost impact related to the proposals to publish DSH and CHIP allotments through an alternative means. Under current CMS practice, States are already informed of their allotment amounts prior to the
Although the policies discussed in this proposed rule would affect the calculation of the hospital-specific DSH limit established at section 1923(g) of the Act and some providers may see a decrease in their historic hospital-specific DSH limits, these effects are a direct result of statutory changes rather
If regulations impose administrative costs on private entities, such as the time needed to read and interpret this proposed rule, we estimate the cost associated with regulatory review. Due to the uncertainty involved with accurately quantifying the number of entities that will review the rule, we assume that States, Medicaid DSH hospitals, and independent auditors will be likely reviewers of this proposed rule. We acknowledge that this assumption may understate or overstate the costs of reviewing this rule. It is possible that not all Medicaid DSH hospitals will choose to review individually, or that State agencies will have multiple people in different roles review. Nevertheless, we thought the entities directly or indirectly impacted by this rule served as the best basis. As such, we will assume half of the approximately 2,700 Medicaid DSH hospitals will review the rule, in addition to at least one person from each of the 51 State agencies impacted by this rule, and at least one person from the independent DSH auditor for each of the 51 States, resulting in 1,502 total entities. We welcome any comments on the approach in estimating the number of entities which will review this proposed rule.
Although this rule has a number of provisions, they more or less all relate to DSH, and we assume entities with DSH equities will review the entire rule. Using the wage information from the BLS,
In developing this proposed rule, the following alternatives were considered:
Before undertaking this rulemaking, we examined if States and hospitals could have the necessary information regarding the changes made by the CAA through alternative sub-regulatory guidance. However, upon review we concluded that, due to the changes to regulatory language necessitated by the legislation, rulemaking was necessary. Apart from that, we considered not including the additional DSH proposals and maintaining the status quo. However, based on the generally favorable response these proposals received in prior rulemaking that was not finalized, we determined it the best use of our time and resources to include them once the need for rulemaking was identified.
We considered using a readily existing data source to determine the application of this exception. In State Medicaid Director letter #21-006, we indicated that we assessed the ability to utilize the Medicare SSI days and ratio information for use in the Medicare DSH adjustment calculation for IPPS hospitals. However, we determined that this data source is not appropriate because the Medicare SSI ratio is determined using total Medicare Part A days in the denominator, while section 1923(g)(2)(B) of the Act specifies that a hospital must be at least in the 97th percentile of all hospitals with respect to its percentage of total inpatient days made up of patients who are both entitled to Medicare Part A and entitled to SSI benefits. In addition, the Medicare SSI days and ratio information made available by CMS for the Medicare DSH adjustment calculations does not include all types of hospitals that receive Medicaid DSH payments, including critical access hospitals and inpatient psychiatric facilities. Finally, the Medicare SSI days and ratio data made available by CMS for the Medicare DSH adjustment calculations are calculated based on the FFY, while the 97th percentile determination under section 1923(g)(2)(B) of the Act is based on the hospitals' most recent cost reporting periods. As such, we determined that it is necessary for CMS to develop an appropriate source of data that both featured a broader, although not exhaustive, universe of hospitals and aligned with statutory definition for the exception as set forth in section 1923(g)(2)(B) of the Act. The data we are using for the 97th percentile determination is inclusive of all hospital types; however, an individual hospital would be excluded if it does not have a Medicare cost report in the most recent cost reporting period that meets our selection parameters as discussed in this proposed rule.
We considered that the October 1, 2021 statutory effective date of section 203 of the CAA would apply to the FFY beginning October 1, 2021. However, we believe that this application does not align with how, for purposes of the DSH program, FY has been interpreted to refer to the applicable to the SPRY in prior rulemaking. Further, we believe an FFY application would be burdensome on States and hospitals. For example, if a State has a SPRY that does not align with the FFY and a hospital qualifies for the 97th percentile hospital exception for one FFY but not the next, the State would potentially need to prorate the total uncompensated care costs within a SPRY to account for this scenario. This process would need to be performed for each hospital and in each SPRY when this scenario occurs.
We considered proposing that the exception for 97th percentile hospitals be applied on a Statewide rather than a national level. However, the statutory language under section 203 of the CAA refers to “97th percentile of all hospitals,” which we believe is most consistent with a national, rather than a State-level ranking.
We considered determining a hospital's qualification for the 97th percentile exception for each SPRY on a retroactive basis in order to better align the time periods associated with the cost report and SSI eligibility data with the SPRY subject to qualification. However, this application would require CMS to retroactively rank and qualify hospitals for a SPRY based on actual Medicare SSI days and ratios for services furnished during that SPRY. This application would create uncertainty for States and hospitals in making DSH payments and calculating hospital-specific DSH limits, given the time delay inherent in a retroactive application of the exception. This
With respect to rounding, for performing the calculations necessary for the determination of hospitals qualifying for the 97th percentile exception, we considered various mathematical approaches. We considered an approach of rounding down the 97th percentile threshold while rounding up each hospital's own value in order to be more generous to potentially allow additional hospitals qualify for the exception. However, we believe this would create an inconsistent rounding policy and could be viewed as arbitrary. Therefore, we proposed what we believe to be a more consistent mathematical approach.
We considered utilizing only most recent audited or settled cost reporting period, but have determined that the use of as-submitted cost reporting period would result in more current and more consistent reporting periods across hospitals. Further, we considered using the total patient day count from only the “as submitted” cost report from the most recent cost reporting period even if there happens to be a later status (such as amended or settled or reopened) on that same cost report. However, we have determined that even though the total patient days seldom change between the as-submitted, amended, settled, and reopened cost reports, we should still use the latest available data. As such, we have proposed to use the total inpatient days from the cost report with the most updated cost report status, for the most recent cost reporting period, available on the day that the data are pulled, in determining the hospitals that meet the 97th percentile threshold.
We are proposing to use Medicare SSI days associated with discharges occurring within each hospital's most recent cost reporting period. We did consider identifying Medicare SSI days for the inpatient days occurring within each hospital's most recent cost reporting period instead. However, the claims data that we are using identifies the number of Medicare SSI days for each inpatient hospital stay as a whole. We do not believe it is practical or necessary to attempt to allocate Medicare SSI days between two cost reporting periods for those inpatient hospital stays that straddle between two cost reporting periods, when using days associated with discharges occurring within a cost reporting also results in an equitable counting of days and is consistent with how Medicare identifies Medicare SSI days for Medicare DSH purposes, as explained earlier in this rule.
We considered proposing to utilize only covered Medicare Part A days when collecting data and calculating hospital percentiles. Using only covered Medicare Part A days would have meant in determining the Medicare SSI days for each inpatient stay, we would have to limit the Medicare SSI days to no more than the covered Medicare Part A days for that stay. The statutory language set forth in law by section 203 of the CAA specifically describes the Medicare SSI days as relating to patients who were entitled to benefits under part A of title XVIII and were entitled to SSI benefits under title XVI. As such, we believe the calculations must include all Medicare Part A inpatient days, whether covered or non-covered, in the associated calculations. As discussed previously, the use of covered and non-covered days is also consistent with Medicare's DSH adjustment calculation for IPPS hospitals.
We considered not including the distinct part unit days reported on each hospital's Medicare cost report where the hospital has rehabilitation distinct part units and psychiatric distinct part units, in addition to the hospital's acute inpatient days. However, for Medicaid purposes, the DSH uncompensated care costs of the hospital would be inclusive of the costs of these rehabilitation and psychiatric distinct part units that provide inpatient hospital services; therefore, the hospital's Medicare SSI days and total inpatient days should be inclusive of these distinct part unit days in our calculations of hospitals that meet the 97th percentile threshold.
In determining when we can begin to collect and assemble the necessary data prior to the beginning of each upcoming SPRY that begins on or after October 1 each year, we are proposing to use HCRIS, MEDPAR, and SSI eligibility data as they exist as of March 31, in advance of October 1 of that same calendar year. We considered using a date closer to October 1, such as June 30, as the point in time to pull the “most recent” data available for application to the upcoming SPRYs. However, we selected March 31 to ensure there is sufficient time to gather the data, work through any potential data issues, perform the necessary calculations, and make the 97th percentile results available in advance of October 1. We also considered using a date in the preceding calendar year for the HCRIS snapshot while using a date in the current calendar year for the MEDPAR and SSI eligibility data snapshot. This alternative would allow greater assurance that for all the most recent cost reporting periods as of that HCRIS snapshot date, the claims data for services furnished in those identified cost reporting periods from a later MEDPAR and SSI eligibility snapshot date would include a longer claims run out period. However, we are not proposing this approach because we would no longer be utilizing “the most recent cost reporting period” for which there is a cost report available in HCRIS at the time we are performing this data extract and 97th percentile determination each year, as required by the amendments made by section 203 of the CAA.
Given the delay in developing a data set to implement section 203 of the CAA, we have proposed to determine the annual 97th percentile qualification using data available as it would have been available at the time it would have otherwise been collected and assembled prior to the SPRY to which it would apply, for SPRYs beginning during FFY 2022 and FFY 2023. We considered utilizing the most recently available cost report data available following the finalization of this rule in order to produce the source of data to qualify 97th percentile hospitals for both the current and past periods affected by section 203 of the CAA. However, we believe that the approach would result in some hospitals that would have otherwise qualified to meet the exception based on CMS' proposed data set timelines to not qualify if this more recent data are utilized. This could disqualify and penalize hospitals, that would have met the exception at that time, for a reason that was beyond their control. Conversely, some hospitals could qualify for the exception for SPRYs 2022 and 2023 based on the more recent data but would not have qualified using CMS' proposed data timelines. We believe it is more equitable to use the proposed data timeline consistently for all SPRYs beginning on or after October 1, 2021, regardless of the delay in the implementation. We have capability within the data source systems to retroactively extract such data as they existed at those particular points in time
We considered proposing a process in order include information for hospitals that do not have Medicare cost reports in the data set used to determine which hospitals meet the exception for 97th percentile hospitals. However, without a cost report CMS would not have the total inpatient day count readily available to compute the Medicare SSI day ratio. Even if we were to consider an alternative mechanism outside of the existing Medicare cost report data to collect total inpatient days data from those hospitals without Medicare cost reports in HCRIS, there would not be a way to define what the most recent cost reporting period would be for those hospitals that would be consistent with how we are defining it as proposed for hospitals that do have a cost report, which is based on what is the most recent cost reporting period available in HCRIS at a given point in time in advance of October 1 each year. Given that the plain language of section 203 of the CAA points to the days for “the most recent cost reporting period,” and we would not be able to associate these hospitals' nominal Medicare Part A days found in MEDPAR with a cost report, we believe it is reasonable to exclude hospitals with no cost report from the data set.
For hospitals with cost reports that are for periods less than 1 year, we considered annualizing the number of days for ranking purposes for qualification of the 97th percentile exception. However, hospitals with a short cost reporting period would still have an opportunity to qualify to meet the exception on the basis of the percentage of their Medicare SSI days to total inpatient days. Also, annualizing hospitals with a short cost reporting period could push a hospital with 12-month cost reporting period, that would have otherwise qualified, out of the ranking to qualify for the 97th percentile exception, based on what is in effect hypothetical data from another hospital's partial-year cost reporting period that would be extrapolated to a full year. Furthermore, for hospitals with cost reports that are for periods of greater than 1 year, we also considered annualizing the number of days to 12 months. However, doing that would again mean we are not using the number of days from the most recent cost reporting period as they are, and in this case potentially adversely affecting that hospital's own qualification for the 97th percentile exception by reducing its number of days hypothetically. Consistent with the treatment of hospitals with cost reports that are for periods less than 1 year, we are proposing to use the data as they are and not annualize for hospitals with cost reports that are for period greater than 1 year.
CMS considered various alternatives for making the determination regarding how far back the time period of a hospital's cost report could relate to in order to be included in the data set for the calculation of hospitals that meet the 97th percentile threshold exception. While we proposed not including any cost report ending earlier than September 30, 3 years prior to the March 31 snapshot date for compiling the data set, we considered a shorter cutoff, such as excluding any cost report ending earlier than September 30, 2 years prior to the March 31 snapshot date. However, we were concerned that establishing too short of a cutoff could exclude a material number of hospitals due to either delays in hospitals filing cost reports or delays in the transmitting and processing of cost report files into HCRIS. Conversely, we considered a longer cutoff than 3 years, but we were concerned this could create too much variability in the cost reporting periods and would also capture in the data set hospitals that are currently inactive or terminated. To control the uniformity in the cost reporting periods we are using, we also considered using only cost reports that begins or ends within a set FFY, but we would have to have selected a sufficiently old FFY in order to have a reasonably complete universe of hospitals due to time lags in cost reports showing up in HCRIS; in that case, for some hospitals those cost reports would no longer be for the most recent cost reporting period for which the hospital has a cost report in HCRIS. We believe our proposed cutoff is equitable in ensuring there is general consistency in the cost reporting periods used, conforms with the use of “most recent cost reporting period,” and is practical for implementation purposes.
We considered proposing to require auditors to clarify the impact of audit findings and caveats within the existing data element report by incorporating finding amounts into existing data elements (for example, Total Medicaid Uncompensated Care). However, this option may not enable auditors to effectively capture financial impacts of specific issues and such findings might not be readily transparent to States, CMS, and hospitals, as the quantified impacts of potential errors would be folded into figures that utilize verified data. Therefore, we opted to include this as an additional, discrete data element on the DSH report to ensure our ability to assess a quantified impact or the extent to which there is an issue that cannot be quantified.
We considered proposing to use the date that the auditor submits the independent certified audit to the State as the date of discovery for DSH overpayments identified through the independent certified audit, but ultimately decided to consider the date that a State submits the independent certified audit to CMS as the discovery date. The earlier date would start the clock for State repayment of FFP without regard to possible work that may need to occur between States and auditors to finalize the audit and associated reporting prior to submission to CMS.
We considered continuing the requirement and option to publish the DSH and CHIP allotments, respectively, in the
As required by OMB Circular A-4 (available at
The RFA requires agencies to analyze options for regulatory relief of small entities, if a rule has a significant impact on a substantial number of small entities. The great majority of hospitals and most other health care providers and suppliers are small entities, either by being nonprofit organizations or by meeting the SBA definition of a small business (having revenues of less than $8.0 million to $41.5 million in any 1 year). Individuals and States are not included in the definition of a small entity. As its measure of significant economic impact on a substantial number of small entities, HHS uses a change in revenue of more than 3 to 5 percent. We do not believe that this threshold will be reached by the provisions in this proposed rule.
This rule establishes requirements that are solely the responsibility of State Medicaid agencies, which are not small entities. Therefore, the Secretary certifies this proposed rule would not, if promulgated, have a significant economic impact on a substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 603 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a metropolitan statistical area and has fewer than 100 beds. This rule will not have a significant impact on the operations of a substantial number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2022, that threshold is approximately $165 million. This rule does not contain mandates that will impose spending costs on State, local, or tribal governments in the aggregate, or by the private sector, in excess of the threshold.
Executive Order 13132 establishes certain requirements that an agency must meet when it issues a proposed rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has federalism implications. This rule does not impose substantial direct costs on State or local governments, preempt State law, or otherwise have federalism implications.
If the policies in this proposed rule are finalized, it will enable CMS to implement statutory changes, strengthen financial oversight, clarify existing financial management policies, and reduce unnecessary administrative burden.
The analysis in this section V., together with the rest of this preamble, provides a regulatory impact analysis. In accordance with the provisions of Executive Order 12866, this proposed rule was reviewed by the Office of Management and Budget.
Chiquita Brooks-LaSure, Administrator of the Centers for Medicare & Medicaid Services, approved this document on February 7, 2023.
Administrative practice and procedure, Child support, Claims, Grant programs—health, Medicaid, Reporting and recordkeeping requirements.
Accounting, Administrative practice and procedure, Drugs, Grant programs—health, Health facilities, Health professions, Medicaid, Reporting and recordkeeping requirements, Rural areas.
Fraud, Grant programs—health, Health facilities, Health professions, Investigations, Medicaid, Reporting and recordkeeping requirements.
Administrative practice and procedure, Grant programs—health, Health insurance, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services proposes to amend 42 CFR chapter IV as set forth below:
42 U.S.C. 1302.
The addition reads as follows:
(f)
(1) The date that the State submits the independent certified audit report required under § 455.304(b) of this chapter to CMS.
(2) Any of the dates specified in paragraph (c)(1), (2), or (3) of this section.
42 U.S.C. 1302 and 1396r-8.
(e) * * *
(12)
(i) For States in which the State's DSH allotment was included in the budget neutrality calculation for a coverage expansion that was approved under section 1115 as of July 31, 2009, determining the amount of the State's DSH allotment included in the budget neutrality calculation for coverage expansion. This amount is not subject to reductions under the HMF and HUF calculations. DSH allotment amounts included in the budget neutrality calculation for purposes other than coverage expansion for a demonstration project under section 1115 that was approved as of July 31, 2009 are subject to reduction as specified in paragraphs (e)(12)(ii) through (iv) of this section. For States whose DSH allotment was included in the budget neutrality calculation for a demonstration project that was approved under section 1115 after July 31, 2009, whether for coverage expansion or otherwise, the entire DSH allotment amount that was included in the budget neutrality calculation is subject to reduction as specified in paragraphs (e)(12)(ii) through (iv) of this section.
(ii) Determining the amount of the State's DSH allotment included in the budget neutrality calculation subject to reduction. The amount to be assigned reductions under paragraphs (e)(12)(iii) and (iv) of this section is the total of each State's DSH allotment diverted under an approved 1115 demonstration during the period that aligns with the associated State plan rate year DSH audit utilized in the DSH allotment reductions.
(b) * * *
(i) CMS will identify the 97th percentile hospitals, for each Medicaid State plan rate year beginning on or after October 1, 2021, using Medicare cost reporting and claims data sources, as well as supplemental security income eligibility data provided by the Social Security Administration.
(ii) CMS will publish lists identifying each 97th percentile hospital annually in advance of October 1 of each year. CMS will revise a published list only to correct a mathematical or other similar technical error that is identified to CMS during the one-year period beginning on the date the list is published.
(d)
(2) For each State's first Medicaid State plan rate year beginning on or after October 1, 2021, and thereafter, subject to paragraph (d)(3) of this section, only costs incurred in providing inpatient hospital and outpatient hospital services to Medicaid individuals when Medicaid is the primary payer for such services, and revenues received with respect to those services, and costs incurred in providing inpatient hospital and outpatient hospital services, and revenues received with respect to those services, for which a determination has been made in accordance with paragraph (c) of this section that the services were furnished to individuals who have no source of third-party coverage for the specific inpatient hospital or outpatient hospital service are included when calculating the costs and revenues for Medicaid individuals and individuals who have no health insurance or other source of third-party coverage for purposes of section 1923(g)(1) of the Act.
(3) Effective for each State's first Medicaid State plan rate year beginning on or after October 1, 2021, and thereafter, the hospital-specific DSH limit for a 97th percentile hospital defined in paragraph (b) of this section is the higher of the values from the calculations described in paragraphs (d)(1) and (2) of this section.
The revisions and additions read as follows:
(c) * * *
(6)
(7)
(10)
(ii) Must capture the total burden on the hospital of treating Medicaid patients as determined pursuant to § 447.295(d), not including payment by Medicaid. Thus, costs must be determined in the aggregate and not by estimating the cost of individual patients. For example, if a hospital treats two Medicaid patients at a cost of $2,000 and receives a $500 payment from a third party for each individual, the total cost to the hospital for purposes of this section is $1,000, regardless of whether the third-party payment received for one patient exceeds the cost of providing the service to that individual.
(16)
(21)
(f) DSH payments found in the independent certified audit process under part 455, subpart D, of this chapter to exceed hospital-specific cost limits are provider overpayments which must be returned to the Federal Government in accordance with the requirements in part 433, subpart F, of this chapter or redistributed by the State to other qualifying hospitals, if redistribution is provided for under the approved State plan. Overpayment amounts returned to the Federal Government must be separately reported on the Form CMS-64 as a decreasing adjustment which corresponds to the fiscal year DSH allotment and Medicaid State plan rate year of the original DSH expenditure claimed by the State.
(g) As applicable, States must report any overpayment redistribution amounts on the Form CMS-64 within 2 years from the date of discovery that a hospital-specific limit has been exceeded, as determined under § 433.316(f) of this chapter in accordance with a redistribution methodology in the approved Medicaid State plan. The State must report redistribution of DSH overpayments on the Form CMS-64 as separately identifiable decreasing adjustments reflecting the return of the overpayment as specified in paragraph (f) of this section and increasing adjustments representing the redistribution by the State. Both adjustments must correspond to the fiscal year DSH allotment and Medicaid State plan rate year of the related original DSH expenditure claimed by the State.
42 U.S.C. 1302.
(d) * * *
(1)
(3)
(4)
(6)
42 U.S.C. 1302.
(h)
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with the regulations for the interstate movement of regulated articles to prevent the spread of
We will consider all comments that we receive on or before April 25, 2023.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket may be viewed at
For information on the interstate movement of regulated articles to prevent the spread of
In accordance with the regulations in “Subpart X-Phytophthora Ramorum” (§§ 301.92 through 301.92-12), the Animal and Plant Health Inspection Service of the U.S. Department of Agriculture restricts the interstate movement of certain articles to prevent the spread of
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate 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) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Forest Service, USDA.
Notice of meeting.
The Virginia Resource Advisory Committee (RAC) will hold a public meeting according to the details shown below. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act (FACA). The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with title II of the Act, as well as make recommendations on recreation fee proposals for sites on the George Washington & Jefferson National Forests, consistent with the Federal Lands Recreation Enhancement Act. General information and meeting details can be found at the following website:
The meeting will be held on March 14, 2023, 1 p.m.-2:30 p.m., Eastern Standard Time. All RAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under
This meeting is open to the public and will be held at the George Washington and Jefferson National Forests Supervisor's Office, located at 5162 Valletpointe Parkway, Roanoke, Virginia 24019. The public may also join virtually via telephone and/or video conference. Virtual meeting participation details can be found on the website listed under
Written comments may be submitted as described under
Gwendolyn Mason, Designated Federal Officer (DFO), by phone at 540-265-5102 or email at
Individuals who use telecommunication devices for the deaf and hard of hearing (TDD) may call the Federal Relay Service (FRS) at 800-877-8339, 24 hours a day, every day of the year, including holidays.
The purpose of the meeting is to:
1. Elect a Chairperson;
2. Review ongoing projects;
3. Discuss project solicitation process.
The meeting is open to the public. The agenda will include time for individuals to make oral statements of three minutes or less. Individuals wishing to make an oral statement should make a request in writing at least three days prior to the meeting date to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Gwendolyn Mason, 5162 Valleypointe Parkway, Roanoke, Virginia 24019; or by email to
USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, 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). Remedies and complaint filing deadlines vary by program or incident.
Equal opportunity practices in accordance with USDA's policies will be followed in all appointments to the Committee. To ensure that the recommendations of the Committee have taken in account the needs of the diverse groups served by USDA, membership shall include to the extent possible, individuals with demonstrated ability to represent minorities, women, and person with disabilities. USDA is an equal opportunity provider, employer, and lender.
U.S. Commission on Civil Rights.
Announcement of virtual briefing.
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 Wyoming Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual briefing via Zoom at 2 p.m. MT on Friday, March 24, 2023. The purpose of the meeting is to hear testimony regarding housing discrimination in the state.
The briefing will take place on Friday, March 24, 2023, from 2 p.m.-4:30 p.m. MT.
Kayla Fajota, DFO, at
Committee meetings are available to the public through the videoconference link 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. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. 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. Closed captions will be provided for individuals who are deaf, deafblind, or hard of hearing. To request additional accommodations, please email
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of virtual business 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 Florida Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual business meeting via Zoom at 1:30 p.m. ET on Wednesday, March 22, 2023. The purpose of the meeting is to continue discussing the draft report on voting rights in the state.
The meeting will take place on Wednesday, March 22, 2023, from 1:30 p.m.-3:30 p.m. ET.
Melissa Wojnaroski, DFO, at
Committee meetings are available to the public through the videoconference link 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. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. 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. Closed captions will be provided for individuals who are deaf, deafblind, or hard of hearing. To request additional accommodations, please email
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Liliana Schiller at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of meetings.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Colorado Advisory Committee (Committee) to the U.S. Commission on Civil Rights will convene briefings and business meetings on Wednesday, March 15, 2023 and Wednesday, April 19, from 3-4 p.m. Mountain Time. The purpose of the meetings is to hear from speakers and continue to plan for additional briefings on public school attendance zones.
March 15, 2023, Wednesday; from 3 p.m.-5 p.m. (MT) and Wednesday, April 19, 2023; from 3 p.m.-5 p.m. (MT)
Meetings will be held via Zoom.
Evelyn Bohor, at
Members of the public can listen to these discussions. Committee meetings are available to the public through the above call-in number. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement as time allows. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. 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 call number and conference ID number.
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following
Records generated from the meetings may be inspected and reproduced at the Regional Programs Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Notice of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act, that the Virgin Islands Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a web meeting. The purpose of the meeting is to nominate potential speakers and discuss logistics for a potential briefing on Voting Rights in the Virgin Islands.
Thursday, March 2, 2023, at 11 a.m. AT (10 a.m. ET).
The meeting will be held via Zoom.
Barbara Delaviez, DFO, at
Committee meetings are available to the public through the meeting link 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 in the regional office within 30 days following the meeting. Written comments may be emailed to Sarah Villanueva at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit Office, as they become available, both before and after the meeting. Records of the meeting will be available via
U.S. Commission on Civil Rights.
Announcement of virtual business 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 North Carolina Advisory Committee (Committee) to the U.S. Commission on Civil Rights will hold a virtual business meeting via Zoom at 12:00 p.m. ET on Tuesday, March 14, 2023. The purpose of the meeting is to continue discussing revisions to their report on Legal Financial Obligations in the state.
The meeting will take place on Tuesday, March 14, 2023, from 12:00 p.m.-1:30 p.m. ET.
Victoria Moreno, DFO, at
Committee meetings are available to the public through the videoconference link 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. Per the Federal Advisory Committee Act, public minutes of the meeting will include a list of persons who are present at the meeting. 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. Closed captions will be provided for individuals who are deaf, deafblind, or hard of hearing. To request additional accommodations, please email
Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be emailed to Liliana Schiller at
Records generated from this meeting may be inspected and reproduced at the Regional Programs Coordination Unit, as they become available, both before and after the meeting. Records of the meeting will be available via
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On November 23, 2022, the U.S. Court of International Trade (CIT) issued its final judgment in
Applicable December 3, 2022.
Alice Maldonado, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4682.
On July 10, 2020, Commerce published its
HiSteel and Kukje appealed Commerce's
In its remand redetermination, issued in December 2021, Commerce, under protest, determined that there is no PMS that distorts the COP of HWR and recalculated the weighted-average dumping margins for HiSteel and Kukje without the PMS adjustment to the COP for the sales-below-cost test.
In its decision in
Because there is now a final court judgment, Commerce is amending its
Because HiSteel and Kukje have a superseding cash deposit rate,
At this time, Commerce remains enjoined by CIT order from liquidating entries that were produced and/or exported by HiSteel Co., Ltd. or Kukje Steel Co., Ltd. and were entered, or withdrawn from warehouse, for consumption during the period September 1, 2017, through August 31, 2018. These entries will remain enjoined pursuant to the terms of the injunction during the pendency of any appeals process.
In the event that the CIT's ruling is not appealed or, if appealed, upheld by a final and conclusive court decision, Commerce intends to instruct CBP to assess antidumping duties on unliquidated entries of subject merchandise produced and/or exported by HiSteel or Kukje, in accordance with 19 CFR 351.212(b). We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review when the importer-specific
This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) continues to find that Zhangzhou Hongwei Foods Co., Ltd. (Zhangzhou Hongwei) and Zhanjiang Regal Integrated Marine Resources Co., Ltd. (Zhanjiang Regal), exporters of certain frozen warmwater shrimp (shrimp) from the People's Republic of China (China) under review, had no shipments of subject merchandise during the period of review (POR), February 1, 2021, through January 31, 2022. Commerce also continues to find that the 134 remaining companies subject to this review are part of the China-wide entity because they did not demonstrate their eligibility for separate rates.
Applicable February 24, 2023
Eric Hawkins, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1988.
On October 25, 2022, Commerce published the
The product covered by this
Commerce preliminarily found that Zhangzhou Hongwei and Zhanjiang Regal had no shipments during the POR. As noted in the
We received no comments from interested parties with respect to the
With the exception of Zhangzhou Hongwei and Zhanjiang Regal, Commerce considers all other companies for which a review was requested to be part of the China-wide entity because they did not demonstrate their separate rate eligibility.
Because no party requested a review of the China-wide entity and Commerce no longer considers the China-wide entity as an exporter conditionally subject to administrative reviews, we did not conduct a review of the China-wide entity.
Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review in accordance with section 751(a)(2)(C) of the Act. Based on record evidence, we have determined that Zhangzhou Hongwei and Zhanjiang Regal had no shipments of subject merchandise, and, therefore, pursuant to Commerce's assessment practice, any suspended entries entered under their case numbers will be liquidated at the China-wide entity rate.
For all remaining companies subject to this review, which are part of the China-wide entity, we will instruct CBP to liquidate their entries at the current rate for the China-wide entity (
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for shipments of the subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) the cash deposit rates for the two companies that had no shipments during the POR will remain unchanged from the rates assigned to them in the most recently completed segment for each company; (2) for previously investigated or reviewed Chinese and non-Chinese exporters that have separate rates and for which a review was not requested, the cash deposit rate will continue to be
This notice also serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These final results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(l) of the Act, and 19 CFR 351.221(b)(5).
International Trade Administration, Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration (ITA), is organizing an Executive-led Business Development Mission to Kenya on March 28-30, 2023. Executive-led Business Development Mission to Kenya—This notice is to update the prior
The International Trade Administration has determined that to allow for optimal execution of recruitment and event scheduling for the mission, the proposed timetable for the trade mission is revised to eliminate the optional stop in Tanzania on Monday, March 27, and Friday, March 31. The trade mission is now scheduled to take place entirely in Kenya (per the proposed timetable below).
After extensive public outreach, the application deadline was also changed from January 27, 2023, to February 10, 2023. In accordance with 88 FR 1186 (January 9, 2023), applications received after the deadline will be considered if space and scheduling constraints permit. The U.S. Department of Commerce will review applications and make selection decisions on a rolling basis in accordance with the 88 FR 1186 (January 9, 2023). The applicants selected will be notified as soon as possible. The proposed schedule is updated as follows:
International Trade Administration, Department of Commerce.
The United States Department of Commerce, International Trade Administration (ITA), is announcing one upcoming trade mission that will be recruited, organized, and implemented by ITA. This mission is: Healthcare Trade Mission to Saudi Arabia (Riyadh, Dhahran, Jeddah) September 9-14, 2023.
A summary of the mission is found below. Application information and
For each mission, recruitment will be conducted in an open and public manner, including publication in the
Jeffrey Odum, Events Management Task Force, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-6397 or email
Applicants must submit a completed and signed mission application and supplemental application materials, including adequate information on their products and/or services, primary market objectives, and goals for participation that is adequate to allow the Department of Commerce to evaluate their application. If the Department of Commerce receives an incomplete application, the Department of Commerce may either: reject the application, request additional information/clarification, or take the lack of information into account when evaluating the application. If the requisite minimum number of participants is not selected for a particular mission by the recruitment deadline, the mission may be cancelled.
Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, are marketed under the name of a U.S. firm and have at least fifty-one percent U.S. content by value. In the case of a trade association or organization, the applicant must certify that, for each firm or service provider to be represented by the association/organization, the products and/or services the represented firm or service provider seeks to export are either produced in the United States or, if not, marketed under the name of a U.S. firm and have at least 51% U.S. content.
A trade association/organization applicant must certify to the above for every company it seeks to represent on the mission. In addition, each applicant must:
• Certify that the products and services that it wishes to market through the mission would be in compliance with U.S. export controls and regulations;
• Certify that it has identified any matter pending before any bureau or office in the Department of Commerce;
• Certify that it has identified any pending litigation (including any administrative proceedings) to which it is a party that involves the Department of Commerce; and
• Sign and submit an agreement that it and its affiliates (1) have not and will not engage in the bribery of foreign officials in connection with a company's/participant's involvement in this mission, and (2) maintain and enforce a policy that prohibits the bribery of foreign officials.
In the case of a trade association/organization, the applicant must certify that each firm or service provider to be represented by the association/organization can make the above certifications.
Targeted mission participants are U.S. firms, services providers and trade associations/organizations providing or promoting U.S. products and services that have an interest in entering or expanding their business in the mission's destination country. The following criteria will be evaluated in selecting participants:
• Suitability of the applicant's (or in the case of a trade association/organization, represented firm's or service provider's) products or services to these markets;
• The applicant's (or in the case of a trade association/organization, represented firm's or service provider's) potential for business in the markets, including likelihood of exports resulting from the mission; and
Consistency of the applicant's (or in the case of a trade association/organization, represented firm's or service provider's) goals and objectives with the stated scope of the mission. Balance of company size and location may also be considered during the review process.
Referrals from a political party or partisan political group or any information, including on the application, containing references to political contributions or other partisan political activities will be excluded from the application and will not be considered during the selection process. The sender will be notified of these exclusions. The Department of Commerce will evaluate applications and inform applicants of selection decisions on a rolling basis until the maximum number of participants has been selected.
If and when an applicant is selected to participate on a particular mission, a payment to the Department of Commerce in the amount of the designated participation fee below is required. Upon notification of acceptance to participate, those selected have 5 business days to submit payment or the acceptance may be revoked.
Participants selected for a trade mission will be expected to pay for the cost of personal expenses, including, but not limited to, international travel, lodging, meals, transportation, communication, and incidentals, unless otherwise noted. Participants will, however, be able to take advantage of U.S. Government rates for hotel rooms. In the event that a mission is cancelled, no personal expenses paid in anticipation of a mission will be reimbursed. However, participation fees for a cancelled mission will be reimbursed to the extent they have not already been expended in anticipation of the mission.
If a visa is required to travel on a particular mission, applying for and obtaining such a visa will be the responsibility of the mission participant. Government fees and processing expenses to obtain such a visa are not included in the participation fee. However, the Department of Commerce will provide instructions to each participant on the procedures required to obtain business visas.
Trade mission members participate in trade missions and undertake mission-related travel at their own risk. The nature of the security situation in a given foreign market at a given time cannot be guaranteed. The U.S. Government does not make any representations or guarantees as to the safety or security of participants. The U.S. Department of State issues U.S. Government international travel alerts and warnings for U.S. citizens available at
For purposes of assessing participation fees, an applicant is a small or medium-sized enterprise (SME) if it qualifies as a “small business” under the Small Business Administration's (SBA) size standards (
Travel and in-person activities are contingent upon the safety and health conditions in the United States and the mission countries. Should safety or health conditions not be appropriate for travel and/or in-person activities, the Department will consider postponing the event or offering a virtual program in lieu of an in-person agenda. In the event of a postponement, the Department will notify the public and applicants previously selected to participate in this mission will need to confirm their availability but need not reapply. Should the decision be made to organize a virtual program, the Department will adjust fees, accordingly, prepare an agenda for virtual activities, and notify the previously selected applicants with the option to opt-in to the new virtual program.
The International Trade Administration (ITA), the trade promotion arm of the United States Department of Commerce, is organizing a Healthcare Trade Mission to Saudi Arabia September 9-14, 2023. The purpose of the mission is to assist U.S. companies in pursuing healthcare opportunities in this rapidly expanding market. The mission will target approximately twenty U.S. companies or trade associations (minimum 15) that provide products and services related to a broad range of best prospect healthcare subsectors in Saudi Arabia.
Recruitment and consideration will be extended to all export-ready companies that meet the established criteria for participation in the mission.
Through this mission, participating U.S. firms will gain market insights, make industry and government contacts, solidify business strategies and advance specific projects with the goal of increasing U.S. healthcare product and service exports. This Saudi Arabia-focused trade mission will start in Riyadh, with stops in Dhahran and Jeddah. Participants will receive market briefings from U.S. Commercial Service and industry experts, have one-on-one business meetings with Saudi public and private sector representatives, have access to targeted site visits, and participate in networking events.
All parties interested in participating in the trade mission must submit an application package for consideration by the Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. A minimum of fifteen and maximum of twenty companies or trade associations will be selected to participate in the mission from the applicant pool.
After a firm or trade association has been selected to participate on the mission, a payment to the Department of Commerce in the form of a participation fee is required. The participation fee for this trade mission will be $3,100 for small or medium-sized enterprises (SME); and $4,100 for large firms or trade associations.
If an applicant is selected to participate on a particular mission, a payment to the Department of Commerce in the amount of the designated participation fee is required. Upon notification of acceptance to participate, those selected have 5 business days to submit payment or the acceptance may be revoked.
Participants selected for a trade mission will be expected to pay for the cost of personal expenses, including, but not limited to, international travel, lodging, meals, transportation, communication, and incidentals, unless otherwise noted. Participants will, however, be able to take advantage of U.S. Government rates for hotel rooms. In the event that a mission is cancelled, no personal expenses paid in anticipation of a mission will be reimbursed. However, participation fees for a cancelled mission will be reimbursed to the extent they have not already been expended in anticipation of the mission.
If a visa is required to travel on a particular mission, applying for and obtaining such a visa will be the responsibility of the mission participant. Government fees and processing expenses to obtain such a visa are not included in the participation fee. However, the Department of Commerce will provide instructions to each participant on the procedures required to obtain business visas.
Trade mission members participate in trade missions and undertake mission-related travel at their own risk. The nature of the security situation in a given foreign market at a given time cannot be guaranteed. The U.S. Government does not make any representations or guarantees as to the safety or security of participants. The U.S. Department of State issues U.S. Government international travel alerts and warnings for U.S. citizens available at
Mission recruitment will be conducted in an open and public manner, including publication in the
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) determines that there were no shipments of merchandise subject to the antidumping duty (AD) order on stainless steel butt-weld pipe fittings (SSBWF) from the Philippines during the period of review (POR) February 1, 2021, through January 31, 2022, from any of the companies under review.
Applicable February 24, 2023.
Mark Flessner, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6312.
On November 7, 2022, Commerce published its
For purposes of this
This
The butt-weld fittings subject to this
Based on information obtained from U.S. Customs and Border Protection (CBP), Commerce preliminarily determined that there were no shipments of merchandise subject to the
As we received no comments on the
Upon issuance of these final results, Commerce will determine, and CBP shall assess, AD duties on all appropriate entries in accordance with 19 CFR 351.212(b)(1). For any entries found to be associated with the three companies under review, we will instruct CBP to liquidate such entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction, consistent with Commerce's reseller policy.
Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of this notice in the
The following cash deposit requirements will be effective for all entries of SSBWF from the Philippines entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
These final results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(h)(1).
Enforcement and Compliance, International Trade Administration Department of Commerce.
Applicable February 24, 2023.
John Hoffner, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Ave. NW, Washington, DC 20230, telephone: (202) 482-3315.
On October 7, 2022, the U.S. Department of Commerce (Commerce), pursuant to section 702(h) of the Trade Agreements Act of 1979 (as amended) (the Act), published the quarterly update to the annual listing of foreign government subsidies on articles of cheese subject to an in-quota rate of duty covering the period April 1, 2022, through June 30, 2022.
Pursuant to section 702(h) of the Act, we hereby provide Commerce's update of subsidies on articles of cheese that were imported during the period July 1, 2022, through September 30, 2022. The appendix to this notice lists the country, the subsidy program or programs, and
Commerce will incorporate additional programs which are found to constitute subsidies, and additional information on the subsidy programs listed, as the information is developed. Commerce encourages any person having information on foreign government subsidy programs which benefit articles of cheese subject to an in-quota rate of duty to submit such information in writing through the Federal eRulemaking Portal at
This determination and notice are in accordance with section 702(a) of the Act.
Office of Coast Survey, National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of request for comments.
The National Ocean Mapping, Exploration, and Characterization (NOMEC) Council and the Interagency Working Group on Ocean and Coastal Mapping (IWG-OCM) request public comment from all interested parties on the IWG-OCM's draft Standard Ocean Mapping Protocol (SOMP). The draft SOMP was developed in accordance with Objective 2.1 of the National Strategy for Ocean Mapping, Exploring, and Characterizing the United States Exclusive Economic Zone (National Strategy). Objective 2.1 directs the IWG-OCM to establish a SOMP to encourage consistency in data acquisition, stewardship and data management across a subset of ocean sensing capabilities for seafloor mapping, including bathymetry (acoustic and airborne), seabed backscatter, water column backscatter, side scan sonar imagery, sub-bottom profiling, and magnetometer data readings.
Comments must be received via email by 5 p.m. Eastern Time (ET) on June 2, 2023.
A copy of the draft SOMP may be downloaded or viewed at:
Comments can be submitted by email to
Requests for additional information should be directed to Paul Turner, NOAA Integrated Ocean and Coastal Mapping, at
Pursuant to Objective 2.1 of the National Strategy, this SOMP was drafted to encourage consistency in data acquisition, stewardship and data management for seafloor mapping. The SOMP is organized into the following seven chapters:
1. Data Management—The data management chapter covers methods for effective data management, metadata, and archive techniques, which allow data to be accessed by and shared freely with the public.
2. Bathymetry—The bathymetric data chapter focuses on procedures for collecting, processing, and delivering bathymetry acquired by multibeam, single beam, and phase-discriminating sonar, and light detection and ranging (LIDAR) systems. This chapter summarizes best practices for:
3. Seabed and Lakebed Backscatter—The backscatter data chapter focuses on establishing common backscatter acquisition and processing methods, acoustic signal corrections and image processing steps leveraging existing guidelines and recommendations from the Marine Geological and Biological Habitat Mapping Backscatter Working Group, as well as expert input from government, industry, academic institutions and other relevant bodies.
4. Water Column Sonar—The water column sonar chapter focuses on collecting, processing, and delivering raw and interpreted backscatter from single beam and multibeam echosounders. This chapter summarizes best practices for system configurations, operating frequencies and depth ranges, system calibration, QA/QC techniques, and analysis, and interpretation of backscatter.
5. Side Scan Sonar—The Side Scan Sonar chapter focuses on collecting, processing, and delivering side scan sonar data. This chapter summarizes best practices for acquisition standards and system set-up, range scales, frequencies and ping rates, coverage requirements, positioning, system calibration, QA/QC techniques, and derivation of products.
6. Sub-bottom—The sub-bottom profiling chapter focuses on common system types, practical survey design, conventional acquisition procedures, processing protocols, data formats, and publication of subsurface imaging data. The chapter describes the standard operating procedure for the use of single-channel acoustic systems that commonly operate in the 0.2 to 24 kilohertz frequency range to remotely image the surface morphology and near-surface stratigraphy.
7. Magnetometer—The magnetometer chapter focuses on general magnetic theory as it relates to anomaly detectability, factors that influence data quality, instrument configuration and selection, platforms, coverage specifications, testing and calibration, and resolution/line spacing based on survey objectives.
The SOMP encourages use of national standards and best practices to guide all ocean mapping actions in order to ensure the widest access to, use of, and integration of data while minimizing duplication of effort and archiving of ocean and coastal mapping data in publicly accessible repositories and databases. Collecting, processing, and archiving data to established standards expands its utility for multiple uses. Ocean mapping data are required to meet many Federal government missions. To make the most of every survey mile collected, the IWG-OCM works with and encourages participation from partnering federal, state, local, academic, private industry, and non-profit organizations on mapping activities, data collection, and data sharing.
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting.
This notice announces a public meeting of the Commerce Spectrum Management Advisory Committee (Committee). The Committee provides advice to the Assistant Secretary of Commerce for Communications and Information and the National Telecommunications and Information Administration (NTIA) on spectrum management policy matters.
The meeting will be held March 10, 2023, from 10:00 a.m. to 12:00 p.m., Eastern Standard Time (EST).
This meeting will be conducted in an electronic format and open to the public via audio teleconference (866-880-0098 participant code 48261650). Public comments may be emailed to
Antonio Richardson, Designated Federal Officer, at (202) 482-4156 or
This Committee is subject to the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2, and is consistent with the National Telecommunications and Information Administration Act, 47 U.S.C. 904(b). The Committee functions solely as an advisory body in compliance with the FACA. For more information about the Committee visit:
United States Patent and Trademark Office, Department of Commerce.
Notice of closed meeting.
The National Medal of Technology and Innovation (NMTI or Medal) is the nation's highest honor for technological achievement, bestowed by the president of the United States on America's leading innovators. The Medal is awarded to individuals, teams (up to four individuals), companies or divisions of companies for their outstanding contributions to America's economic, environmental and social well-being. The NMTI Nomination Evaluation Committee will meet in a closed session on March 13, 2023. The primary purpose of the meeting is to discuss the relative merits of the people, teams, and companies nominated for the NMTI.
The meeting will convene on March 13, 2023, at approximately 9 a.m. and adjourn at approximately 4 p.m.
The meeting will take place at the United States Patent and Trademark Office (USPTO), 600 Dulany St., Alexandria, VA 22314.
Linda Hosler, Program Manager, National Medal of Technology and Innovation Program, USPTO, at 600 Dulany St., Alexandria, VA 22314; 571-272-8514; or
Pursuant to the Federal Advisory Committee Act (FACA), 5 U.S.C. 1001
The Secretary of Commerce is responsible for recommending to the President prospective NMTI recipients. The NMTI Nomination Evaluation Committee evaluates the nominations received via public solicitation and makes its recommendations for the Medal to the Secretary. Committee members are distinguished experts in the fields of science, technology, business, and patent law. They come from both the public and private sectors and are appointed by the Secretary for three-year terms.
The NMTI Nomination Evaluation Committee was established in accordance with the FACA. The Committee meeting will be closed to the public, in accordance with the FACA and 5 U.S.C. 552b(c)(6) and (9)(B), because the discussion of the relative merits of the Medal nominations is likely to disclose information of a personal nature that, if shared widely, would constitute an unwarranted invasion of the personal privacy of the nominees. Premature disclosure of the Committee's recommendations would also likely significantly frustrate the implementation of the Medal program.
The Acting Chief Financial Officer and Assistant Secretary of Commerce for Administration, United States Department of Commerce, formally determined on February 17, 2023, pursuant to section 1009(d) of the FACA, that the meeting may be closed because Committee members are concerned with matters that are within the purview of 5 U.S.C. 552b(c)(6) and (9)(B). Due to the closure of this meeting, copies of any meeting minutes will not be available. A copy of the Notice of Determination for Closure of Meeting is available for public inspection at the USPTO.
United States Patent and Trademark Office, Department of Commerce.
Request for comments; extension of written comment period.
The United States Patent and Trademark Office (USPTO), Department of Commerce, in collaboration with the United States Food and Drug Administration (FDA), Department of Health and Human Services, is extending the written comment period for the notice titled “Joint USPTO-FDA Collaboration Initiatives; Notice of Public Listening Session and Request for Comments” that was published in the
The comment period for the notice published at 87 FR 67019 is extended. Comments are due by March 10, 2023.
For reasons of Government efficiency, comments must be submitted through the Federal eRulemaking Portal at
Visit the Federal eRulemaking Portal for additional instructions on providing comments via the portal. If electronic submission of comments is not feasible due to a lack of access to a computer and/or the internet, please contact the USPTO using the contact information below (at
Linda Horner, Administrative Patent Judge, at 571-272-9797 or
On November 7, 2022, the USPTO, in collaboration with the FDA, published a notice titled “Joint USPTO-FDA Collaboration Initiatives; Notice of Public Listening Session and Request for Comments” to seek public comments on proposed initiatives for collaboration between the agencies to advance President Biden's Executive Order on “Promoting Competition in the American Economy” and to support the provision of greater access to medicines for American families.
Comments previously submitted to the docket through the Federal eRulemaking Portal do not need to be resubmitted. Any comments sent directly to the USPTO after the close of the previous deadline of February 6, 2023, must be submitted through the Federal eRulemaking Portal before the newly extended deadline to be given full consideration. All other information and instructions to commenters provided in the November 7, 2022, notice remain unchanged.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the procurement list.
This action adds a service to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 355 E Street SW, Suite 325, Washington, DC 20024.
Michael R. Jurkowski, Telephone: (703) 785-6404, or email
On 2/23/2022, the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed additions to the Procurement List. This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3.
After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the service(s) and impact of the additions on the current or most recent contractors, the Committee has determined that the service(s) listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the product(s) and service(s) to the Government.
2. The action will result in authorizing small entities to furnish the product(s) and service(s) to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service(s) proposed for addition to the Procurement List.
Accordingly, the following service(s) are added to the Procurement List:
Bureau of Consumer Financial Protection.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (Bureau or CFPB) requests the extension of the Office of Management and Budget's (OMB's) approval of an existing information collection titled “Evaluation of Financial Empowerment Training Program” approved under OMB Number 3170-0067.
Written comments are encouraged and must be received on or before March 27, 2023 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Documentation prepared in support of this information collection request is available at
Institute of Education Science (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing an extension without change of a currently approved information collection request (ICR).
Interested persons are invited to submit comments on or before April 25, 2023.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Elizabeth Wilde, (202) 245-6122.
The Department, in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. The Department is soliciting comments on the proposed information collection request (ICR) that is described below. The Department is especially interested in public comment addressing the following issues: (1) is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Bonneville Power Administration (BPA), Department of Energy (DOE).
Notice of intent to terminate the preparation of an Environmental Impact Statement (EIS) and intent to prepare an Environmental Assessment (EA).
This notice advises the public that BPA is terminating the preparation of the Klickitat Hatchery Upgrades EIS and instead will prepare an EA. This EIS would have considered BPA's decision whether to fund the Confederated Tribes and Bands of the Yakama Nation's (Yakama Nation) proposal to upgrade facilities at the Klickitat Hatchery to facilitate a possible increase in production of spring Chinook salmon in the Klickitat River Basin. The change in National Environmental Policy Act (NEPA) analysis is due to a refinement of project scope and design that would minimize resource effects and extensive agency coordination that has shown existing permits are sufficient to address the proposed changes.
Carolyn Sharp, Environmental Protection Specialist, Bonneville Power Administration—ECF-4, P.O. Box 3621, Portland, Oregon 97208-3621; toll-free telephone 1-800-622-4519; direct telephone 503-230-5206; or email
A Notice of Intent (NOI) was published in the
At the time of issuance, the 2017 NOI identified the National Marine Fisheries Service (NMFS) as a cooperating agency for the project. Since then, NMFS has determined their Mitchell Act Record of Decision (ROD) and Biological Opinion (BO) adequately cover their NEPA and Endangered Species Act (ESA) obligations for increased operations and maintenance funding for the increase in spring Chinook production and integrated programming at the Klickitat Hatchery. The U.S. Environmental Protection Agency (USEPA) had also elected to be a cooperating agency based on an assumption that the proposed project would be determined to be a new source under 40 CFR 122.2 and 122.29. After reviewing more fully developed project designs, USEPA was able to determine that the proposed action would no longer meet the definition of a new source under 40 CFR 122.29, and USEPA thereby rescinded their status as cooperating agency on June 2, 2022. The U.S. Army Corps of Engineers also issued a determination on August 5, 2022, that no permit would be required under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act.
These efforts to minimize resource effects and coordination with permitting agencies to confirm that existing permits would address the proposed changes have allowed BPA to determine that an EA and FONSI are more appropriate for this project. BPA will complete an EA, consistent with NEPA and the Council on Environmental Quality's and the Department of Energy's NEPA implementing regulations to decide whether to fund the proposed action. The document will be used by BPA as the funding entity, Yakama Nation as operator of the facility that is located on the Yakama Nation Reservation, and Washington Department of Fish and Wildlife as current landowner and co-manager of the fishery resources in the Klickitat River basin for their respective environmental compliance needs.
The proposal would include funding capital improvements at the Klickitat Hatchery that would enable the Yakama Nation to implement a multi-year transition from a segregated production program of 600,000 spring Chinook smolts to an integrated spring Chinook production program totaling 800,000 smolts. All fish production (spring and fall Chinook and coho salmon) operations and facility maintenance at the hatchery has been funded through NMFS under the Mitchell Act since the hatchery was built in 1954. BPA is not proposing to fund fish production or to assume responsibility for any Mitchell Act funding for the Klickitat Hatchery. BPA funds would be limited to the proposed capital improvements to support spring Chinook production.
To facilitate this transition, capital improvements to the existing Klickitat Hatchery facility would include:
Optional, cost-dependent upgrades include:
For the reasons previously explained in this notice, the EIS is being terminated in accordance with 40 CFR 1506.6 and 40 CFR 1506.10.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file motions to intervene and protests, comments, recommendations, terms and conditions, and prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted for filing and is now ready for environmental analysis.
l.
m. A copy of the application can be viewed on the Commission's website at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must: (1) bear in all capital letters the title “PROTEST,” “MOTION TO INTERVENE,” “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions, or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
You may also register online at
o. The applicant must file no later than 60 days following the date of issuance of this notice: (1) a copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification. Please note that the certification request must comply with 40 CFR 121.5(b), including documentation that a pre-filing meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request. Please also note that the certification request must be sent to the certifying authority and to the Commission concurrently.
p.
q. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of this notice.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following PURPA 210(m)(3) 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
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The staff of the Federal Energy Regulatory Commission (FERC or Commission) has prepared a final environmental impact statement (EIS) for the Venice Extension Project, proposed by Texas Eastern Transmission, LP (Texas Eastern) in the above-referenced docket. Texas Eastern requests authorization to provide firm natural gas transportation service for up to 1,260,000 dekatherms per day on its existing Line 40 to an interconnection with a pipeline lateral to be constructed, owned, and operated by Venture Global Gator Express, LLC, with ultimate delivery to Venture Global Plaquemines LNG, LLC Liquified Natural Gas (LNG) Terminal, which is currently under development in Plaquemines Parish, Louisiana.
The final EIS assesses the potential environmental effects of the construction and operation of the Venice Extension Project in accordance with the requirements of the National Environmental Policy Act. With the exception of climate change impacts, FERC staff concludes that approval of the proposed project, with the mitigation measures recommended in the EIS, would not result in significant environmental impacts. Climate change impacts are not characterized in the EIS as significant or less than significant because the Commission is conducting a generic proceeding to determine whether and how the Commission will conduct climate change significance determinations going forward.
The final EIS addresses the potential environmental effects of: the (i) construction and operation of an approximately 3.0-mile-long, 36-inch-diameter pipeline segment on Texas Eastern's Line 40 in Pointe Coupee Parish; (ii) abandonment in place of a 2.2-mile-long, 36-inch-diameter existing pipeline segment on Line 40 in Pointe Coupee Parish; (iii) construction of a new proposed 31,900 horsepower (hp) compressor station (New Roads Compressor Station) and metering and regulating (M&R) facilities in Pointe Coupee Parish; (iv) abandonment in place of an existing, inactive 19,800 hp compressor unit at Texas Eastern's existing White Castle Compressor Station in Iberville Parish, Louisiana, and an existing, inactive 19,800 hp compressor unit at its existing Larose Compressor Station in Lafourche Parish, Louisiana; (v) installation of one new 31,900 hp compressor unit and related appurtenances at both White Castle and Larose Compressor Stations; and (vi) upgrades at its Gator Express M&R facility on an open water platform in Plaquemines Parish.
The Commission mailed a copy of the
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website (
In addition, the Commission offers a free service called eSubscription that allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Take notice that on February 10, 2023, Texas Eastern Transmission, LP (Texas Eastern), 915 N. Eldridge Parkway, Suite 1100, Houston, Texas 77079, filed an application under sections 7(b) of the Natural Gas Act (NGA), and part 157 of the Commission's regulations requesting authorization to abandon one compressor unit and related appurtenances located in Cameron Parish, Louisiana. Specifically, Texas Eastern proposes to (i) abandon by removal the 27,500-horsepower compressor unit at the Grand Chenier Compressor Station, the related aboveground appurtenances with the exception of mainline valve 5, and underground facilities located at or above a depth of 2 feet below grade, and (ii) abandon in place all piping and buried structures located below a depth of 2 feet below grade, all related to the Grand Chenier Compressor Station (Project). Texas Eastern states that the Project will allow Texas Eastern to eliminate the need for future operating and maintenance expenditures on facilities that are not needed to meet firm service obligations or for interruptible transportation service.
In addition to publishing the full text of this document in the
Any questions regarding this proposed project should be directed to Arthur Diestel, Director, Regulatory Affairs, Texas Eastern Transmission, LP, P.O. Box 1642, Houston, Texas 77251-1642, at (713) 627-5116, or by email
Pursuant to Section 157.9 of the Commission's Rules of Practice and Procedure,
There are three ways to become involved in the Commission's review of this project: you can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5:00 p.m. Eastern Time on March 10, 2023. How to file protests, motions to intervene, and comments is explained below.
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's regulations,
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before March 10, 2023. The filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP23-57-000 in your submission:
(1) You may file your protest, motion to intervene, and comments by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your submission by mailing it to the address below. Your submission must reference the Project docket number CP23-57-000.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail at: Arthur Diestel, Director, Regulatory Affairs, Texas Eastern Transmission, LP, P.O. Box 1642, Houston, Texas 77251-1642, or email (with a link to the document) at:
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
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.
Any person desiring to protest in any the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
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).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), Tips and Complaints Regarding Environmental Violations (Renewal) (EPA ICR Number 2219.07, OMB Control Number 2020-0032), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through February 28, 2023. Public comments were previously requested via the
Comments may be submitted on or before March 27, 2023.
Submit your comments to EPA, referencing Docket ID Number EPA-HQ-OECA-2009-0494, online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Michael Le Desma; Legal Counsel Division; Office of Criminal Enforcement, Forensics, and Training;
This is a proposed extension of the ICR, which is currently approved through February 28, 2023. 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.
Public comments were previously requested via the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Certification of Pesticide Applicators (EPA ICR Number 0155.14, OMB Control Number 2070-0029), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed revision of the ICR, which is currently approved through February 28, 2023, to include the activities and burdens contained in related ICR (EPA ICR Number 2499.03, OMB Control Number 2070-0196), which is currently approved through July 31, 2025. Public comments were previously requested via the
Comments may be submitted on or before March 27, 2023.
Submit your comments, referencing Docket ID No. EPA-HQ-OPP-2021-0288, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Carolyn Siu, Mission Support Division, Office of Program Support, Office of Chemical Safety and Pollution Prevention, (Mailcode: 7101M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: (202) 566-1205; email address:
This is a proposed extension of the ICR, which is currently approved through February 28, 2023. An agency may not conduct or sponsor and a person is not required to respond ot a collection of information unless it displays a currently valid OMB control number.
Public comments were previously requested via the
Currently all 50 states, the District of Columbia, 6 territories, 4 tribes and 5 federal agencies are authorized to run their own certification programs within their jurisdictions, but each agency's certification plan must be approved by EPA before it can be implemented. Agencies authorized by EPA to administer a certification program are collectively referred to as “authorized agencies.”
In areas where no authorized agency has jurisdiction, EPA may administer a certification program directly, (
This ICR also addresses how registrants of certain pesticide products are expected to perform specific, special paperwork activities, to comply with the terms and conditions of the pesticide registration (
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency has submitted an information collection request (ICR), “Environmental Impact Assessment of Nongovernmental Activities in Antarctica (Renewal)” (EPA ICR No. 1808.10, OMB Control No. 2020-0007) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through April 30, 2023. Public comments were previously requested via the
Additional comments may be submitted on or before March 27, 2023.
Submit your comments to EPA, referencing Docket ID Number EPA-HQ-OA-2019-0370, online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Julie Roemele, NEPA Compliance Division, Office of Federal Activities, Mail Code 2203A, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-5632; email address:
Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at
The Protocol and the Rule also require an operator to employ procedures to assess and provide a regular and verifiable record of the actual impacts of an activity which proceeds based on an IEE or CEE. The record developed through these measures needs to be designed to: (a) enable assessments to be made of the extent to which environmental impacts of nongovernmental expeditions are consistent with the Protocol; and (b) provide information useful for minimizing and mitigating those impacts and, where appropriate, on the need for suspension, cancellation, or modification of the activity. Moreover, an operator needs to monitor key environmental indicators for an activity proceeding based on a CEE. An operator may also need to carry out monitoring to assess and verify the impact of an activity for which an IEE would be prepared. For activities that require an IEE, an operator should be able to use procedures currently being voluntarily utilized by operators to provide the required information. Should an activity require a CEE, the operator should consult with the EPA to: (a) identify the monitoring regime appropriate to that activity, and (b) determine whether and how the operator might utilize relevant monitoring data collected by the U.S. Antarctic Program. OFA would consult with the National Science Foundation (NSF) and other interested Federal agencies regarding the monitoring regime.
Environmental documents (
The types of nongovernmental activities currently being carried out (
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NESHAP for Portland Cement Manufacturing Industry (EPA ICR Number 1801.14, OMB Control Number 2060-0416) to the Office of Management and Budget (OMB) for review and approval in accordance with the
Comments may be submitted on or before March 27, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2022-0016, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0833; email address:
This is a proposed extension of the ICR, which is currently approved through January 31, 2023. 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.
Public comments were previously requested via the
In general, all NESHAP standards require initial notifications, performance tests, and periodic reports by the owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NESHAP.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Air Stationary Source Compliance and Enforcement Information Reporting (EPA ICR Number 0107.14, OMB Control Number 2060-0096) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through February 28, 2023. Public comments were previously requested via the
Comments may be submitted on or before March 27, 2023.
Submit your comments, referencing Docket ID Number EPA-
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
David A. Meredith, Enforcement Targeting and Data Division, Office of Compliance, (2222A), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-4152; email address:
This is a proposed extension of the ICR, which is currently approved through February 28, 2023. 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.
Public comments were previously requested via the
Pursuant to 23 U.S.C. 139(n)(2), FHWA has issued a single FEIS and ROD. Therefore, the 30-day wait/review period under NEPA does not apply to this action.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), NSPS for Sewage Sludge Treatment Plants (EPA ICR Number 1063.15, OMB Control Number 2060-0035), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through March 31, 2023. Public comments were previously requested via the
Comments may be submitted on or before March 27, 2023.
Submit your comments, referencing Docket ID Number EPA-HQ-OAR-2022-0058, to EPA online using
Submit written comments and recommendations to OMB for the proposed information collection within 30 days of publication of this notice to
Muntasir Ali, Sector Policies and Program Division (D243-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-0833; email address:
This is a proposed extension of the ICR, which is currently approved through March 31, 2023. 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.
Public comments were previously requested via the
In general, all NESHAP standards require initial notifications, performance tests, and periodic reports by owners/operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notification, reports, and records are essential in determining compliance, and are required of all affected facilities subject to NSPS.
Federal Trade Commission.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (“PRA”), the Federal Trade Commission (“FTC” or “Commission”) is seeking public comment on its proposal to extend for an additional three years the Office of Management and Budget clearance for information collection requirements in its Fair Credit Reporting Risk-Based Pricing Regulations (“Risk-Based Pricing Rule” or “Rule”), which applies to certain motor vehicle dealers, and its shared enforcement with the Consumer Financial Protection Bureau (“CFPB”) of the risk-based pricing provisions (Subpart H) of the CFPB's Regulation V regarding other entities. That clearance expires on September 30, 2023.
Comments must be filed by April 25, 2023.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Genevieve Bonan, Attorney, Division of Privacy and Identity Protection, Bureau of Consumer Protection, 400 7th Street SW, Drop 5422, Washington, DC 20024,
The Risk-Based Pricing Rule and the CFPB's Regulation V require that a creditor provide a risk-based pricing notice to a consumer when the creditor uses a consumer report to grant or extend credit to the consumer on material terms that are materially less favorable than the most favorable terms available to a substantial proportion of consumers from or through that creditor.
As required by section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), the FTC is providing this opportunity for public comment before requesting that OMB extend the existing clearance for the information collection requirements contained in the Risk-Based Pricing Rule.
The Commission estimates that approximately 238,346 entities are covered by the FTC and CFPB Rules,
This yields a total of 149,191 respondents for whom the FTC accounts for burden (60,036 motor vehicle dealers plus one-half (
Labor costs are derived by applying estimated hourly cost figures to the burden hours described above. The FTC assumes that respondents will use correspondence clerks, at a mean hourly wage of $20.06,
The FTC believes that the FTC and CFPB rules impose negligible capital or other non-labor costs, as the affected entities are likely to have the necessary supplies and/or equipment already (
Pursuant to section 3506(c)(2)(A) of the PRA, the FTC invites comments on: (1) whether the disclosure and recordkeeping requirements are necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information.
For the FTC to consider a comment, we must receive it on or before April 25, 2023. Your comment, including your name and your state, will be placed on the public record of this proceeding,
You can file a comment online or on paper. Due to the public health emergency in response to the COVID-19 outbreak and the agency's heightened security screening, postal mail addressed to the Commission will be subject to delay. We encourage you to submit your comments online through the
If you file your comment on paper, write “Risk-Based Pricing Rule, PRA Comment, P145403,” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW, 5th Floor, Suite 5610 (Annex J), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.
Because your comment will become publicly available at
Comments containing material for which confidential treatment is requested must (1) be filed in paper form, (2) be clearly labeled “Confidential,” and (3) comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record.
The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before April 25, 2023. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
HRSA is publishing this notice of petitions received under the National Vaccine Injury Compensation Program (the Program), as required by the Public Health Service (PHS) Act, as amended. While the Secretary of HHS is named as the respondent in all proceedings brought by the filing of petitions for compensation under the Program, the United States Court of Federal Claims is charged by statute with responsibility for considering and acting upon the petitions.
For information about requirements for filing petitions, and the Program in general, contact Lisa L. Reyes, Clerk of Court, United States Court of Federal Claims, 717 Madison Place NW, Washington, DC 20005, (202) 357-6400. For information on HRSA's role in the Program, contact the Director, National Vaccine Injury Compensation Program, 5600 Fishers Lane, Room 08N146B, Rockville, Maryland 20857; (301) 443-6593, or visit our website at:
The Program provides a system of no-fault compensation for certain individuals who have been injured by specified childhood vaccines. Subtitle 2 of Title XXI of the PHS Act, 42 U.S.C. 300aa-10
A petition may be filed with respect to injuries, disabilities, illnesses, conditions, and deaths resulting from vaccines described in the Vaccine Injury Table (the Table) set forth at 42 CFR 100.3. This Table lists for each covered childhood vaccine the conditions that may lead to compensation and, for each condition, the time period for occurrence of the first symptom or manifestation of onset or of significant aggravation after vaccine administration. Compensation may also be awarded for conditions not listed in the Table and for conditions that are manifested outside the time periods specified in the Table, but only if the petitioner shows that the condition was caused by one of the listed vaccines.
Section 2112(b)(2) of the PHS Act, 42 U.S.C. 300aa-12(b)(2), requires that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 2111 the Secretary shall publish notice of such petition in the
Section 2112(b)(2) also provides that the special master “shall afford all interested persons an opportunity to
1. The existence of evidence “that there is not a preponderance of the evidence that the illness, disability, injury, condition, or death described in the petition is due to factors unrelated to the administration of the vaccine described in the petition,” and
2. Any allegation in a petition that the petitioner either:
a. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition not set forth in the Vaccine Injury Table but which was caused by” one of the vaccines referred to in the Table, or
b. “[S]ustained, or had significantly aggravated, any illness, disability, injury, or condition set forth in the Vaccine Injury Table the first symptom or manifestation of the onset or significant aggravation of which did not occur within the time period set forth in the Table but which was caused by a vaccine” referred to in the Table.
In accordance with Section 2112(b)(2), all interested persons may submit written information relevant to the issues described above in the case of the petitions listed below. Any person choosing to do so should file an original and three (3) copies of the information with the Clerk of the United States Court of Federal Claims at the address listed above (under the heading
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Meeting notice; correction.
HRSA published a document in the
Diane Fabiyi-King, Designated Federal Official, Division of National Health Service Corps, HRSA, 5600 Fishers Lane, Room 14N23, Rockville, Maryland 20857; phone (301) 443-3609; or
In the
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects of the Paperwork Reduction Act of 1995, HRSA announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR should be received no later than March 27, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To request a copy of the clearance requests submitted to OMB for review, email Samantha Miller, the HRSA Information Collection Clearance Officer, at
When submitting comments or requesting information, please include the ICR title for reference.
The THCGME program awards payment for both direct and indirect expenses to support training for primary care residents in community-based ambulatory patient care settings. Direct expense payments are designed to compensate eligible teaching health centers for those expenses directly associated with sponsoring resident training programs, while indirect expense payments are intended to compensate for the additional costs relating to teaching residents in such programs.
HRSA collects information from THCGME program award recipients using an OMB-approved reconciliation tool. HRSA seeks to extend its approved information collection and is increasing the total estimated annual burden hours associated with the collection, due to an increase in the number of program award recipients from 58 to 83. A 60-day notice published in the
HRSA specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Office of Disease Prevention and Health Promotion, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The Department of Health and Human Services (HHS) announces the availability of the draft Physical Activity Guidelines Midcourse Report on Older Adults (Midcourse Report); and solicits written public comment on the draft report.
Written comments on the Midcourse Report will be accepted through 11:59 p.m. E.T. on [INSERT DATE 2 WEEKS FROM POSTING].
The draft Midcourse Report is available on the internet at:
Katrina L. Piercy, Ph.D., R.D., Office of Disease Prevention and Health Promotion (ODPHP), Office of the Assistant Secretary for Health (OASH), U.S. Department of Health and Human Services (HHS); 1101 Wootton Parkway, Suite 420; Rockville, MD 20852; Telephone: 240-453-8271. Email:
The
This Midcourse Report aligns with pillar 4 of the National Strategy on Hunger, Nutrition and Health: Support Physical Activity for All and was specifically noted as an action item, “HHS will release evidence-based strategies to increase physical activity among older adults.” The Office of Disease Prevention and Health Promotion (ODPHP) led the development of this midcourse report, focused on how to increase physical activity levels among older adults, in collaboration with the Centers for Disease Control and Prevention (CDC), the National Institutes of Health (NIH), and the President's Council on Sports, Fitness & Nutrition (President's Council). Members of the public are invited to review the draft Midcourse Report on Older Adults (Midcourse Report) and provide written comments.
You may submit more than one comment in your email. For each comment, please include the section (
Please use the example format below to submit your comment(s):
All comments must be received by 11:59 p.m. E.T. on [INSERT DATE 2 WEEKS FROM POSTING], after which the time period for submitting written comments to the federal government expires. After submission, comments will be reviewed and processed. A final version of the Midcourse Report will be released later this year.
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.
Notice is hereby given of a change in the meeting of the National Library of Medicine Special Emphasis Panel, March 24, 2023, 11 a.m. to 3 p.m. This notice was published in the
This notice is being amended to change the Scientific Review Officer from Dr. Jan Li to Dr. Ramesh Vemuri.
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.
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.
Notice is hereby given of a change in the meeting of the National Institute of Neurological Disorders and Stroke Special Emphasis Panel, March 2-6, 2023, National Institutes of Health, Neuroscience Center, 6001 Executive Boulevard, Rockville, MD 20852 which was published in the
This notice is being amended to change the dates of this two-day meeting to March 6, 2023, and March 20, 2023. The meeting time remains the same. 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 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.
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.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following 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.
Information is also available on the Institute's/Center's home page:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and/or 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 grant applications and/or contract proposals the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
The National Institutes of Health (NIH) announces the updated minimum performance standards for experienced firms funded through the Department of Health and Human Services (HHS) Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) Programs.
The relevant funding opportunity announcements have been updated to incorporate these changes. The updated performance standards will be required of any firms submitting SBIR or STTR grant or cooperative agreement applications on or after April 5, 2023.
Please visit our website to view the updated Minimum Performance Standards for Experienced Firms at
Stephanie Fertig, HHS Small Business Program Lead, Small business Education & Entrepreneurial Development (SEED) Office, Office of Extramural Research, NIH, Rockledge I, Suite 800, Bethesda, MD 20817. Email:
The new minimum standards are aligned with Section 9 of the Small Business Act (15 U.S.C. 638), as amended by the SBIR and STTR Extension Act of 2022 (Pub. L. 117-183).
HHS is announcing the following changes:
This update is applicable to all HHS SBIR and STTR grants and cooperative agreements with application receipt dates on or after April 5, 2023. This update supersedes, in its entirety, previous Phase I to Phase II transition benchmarks established in May 2013 (78 FR 30951) and previous Commercialization Benchmarks established in September 2013 (78 FR 59410). Additional information can be found at:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as
The meeting will be open to the public as indicated below. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations should notify the Contact Person listed below in advance of the 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 materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Any member of the public may submit written comments no later than 15 days in advance of the meeting. Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
Information is also available on the Institute's/Center's home page:
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, have received applications for permits to conduct activities intended to enhance the propagation or survival of endangered species under the Endangered Species Act. We invite the public and local, State, Tribal, and Federal agencies to comment on these applications. Before issuing any of the requested permits, we will take into consideration any information that we receive during the public comment period.
We must receive written data or comments on the applications by March 27, 2023.
•
•
Karen Marlowe, Permit Coordinator, 404-679-7097 (telephone) or
We, the U.S. Fish and Wildlife Service, invite review and comment from the public and local, State, Tribal, and Federal agencies on applications we have received for permits to conduct certain activities with endangered and threatened species under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
With some exceptions, the ESA prohibits take of listed species unless a Federal permit is issued that authorizes such take. The ESA's definition of “take” includes hunting, shooting, harming, wounding, or killing, and also such activities as pursuing, harassing, trapping, capturing, or collecting.
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to take endangered or threatened species while engaging in activities that are conducted for scientific purposes that promote recovery of species or for enhancement of propagation or survival of species. These activities often include the capture and collection of species, which would result in prohibited take if a permit were not issued. Our regulations implementing section 10(a)(1)(A) for these permits are found at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
The ESA requires that we invite public comment before issuing these permits. Accordingly, we invite local, State, Tribal, and Federal agencies, and the public to submit written data, views, or arguments with respect to these applications. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies. Proposed activities in the following permit requests are for the recovery and enhancement of propagation or survival of the species in the wild.
Written comments we receive become part of the administrative record associated with this action. 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. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
If we decide to issue a permit to an applicant listed in this notice, we will publish a notice in the
We publish this notice under section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of intent; request for comments.
The U.S. Fish and Wildlife Service (Service) intends to gather information necessary to prepare a
To ensure consideration, written comments must be received or postmarked on or before March 27, 2023.
Media, newspapers, Refuge offices, and the websites for Refuges contained within the Bear Lake Watershed Conservation Area (Bear River Migratory Bird Refuge, Arapaho National Wildlife Refuge, Cokeville Meadows National Wildlife Refuge, Seedskadee National Wildlife Refuge, and Bear Lake National Wildlife Refuge) will be used to inform the public and State and local government agencies of the opportunities for written input throughout the CCP planning process. Open-house style meeting(s) will be held throughout the scoping phase of the comprehensive conservation plan development process.
Please submit comments and questions by one of the following methods:
•
•
For more information, please see Public Availability of Comments in the
Erin Holmes, 435-723-5887 (phone). Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
With this notice, the Service initiates the process for developing a comprehensive conservation plan (CCP) for the Bear River Migratory Bird Refuge, Brigham City, Utah, and the Bear River Watershed Conservation Area in the states of Utah, Idaho, and Wyoming. This notice complies with the CCP policy to: (1) advise other Federal and State agencies, Native American Tribes, and the public of the intention to conduct detailed planning on the Bear River Migratory Bird Refuge and the Bear River Watershed Conservation Area; and (2) obtain suggestions and information on the scope of issues to consider in the environmental document and during development of the CCP.
The National Wildlife Refuge System Administration Act of 1966 (16 U.S.C. 668dd-668ee; Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires the Service to develop a CCP for each national wildlife refuge. The purpose in developing a CCP is to provide refuge managers with a 15-year strategy for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System, consistent with sound principles of fish and wildlife management, conservation, legal mandates, and Service policies. In addition to outlining broad management direction on conserving wildlife and their habitats, plans identify compatible wildlife-dependent recreational opportunities available to the public, including, where appropriate, opportunities for hunting, fishing, wildlife observation, wildlife photography, and environmental education and interpretation. Each plan must be updated every 15 years in accordance with the Administration Act.
Each unit of the National Wildlife Refuge System was established for specific purposes. These purposes are used as the foundation for developing and prioritizing the management goals and objectives for each refuge within the National Wildlife Refuge System mission, and to determine how the public can use each refuge. The planning process is a way for the Service and the public to evaluate management goals and objectives for the best possible conservation approach to this important wildlife habitat, while providing for wildlife-dependent recreation opportunities that are compatible with the refuge's establishing purposes and the mission of the National Wildlife Refuge System.
The CCP process provides participation opportunities for Tribal, State, and local governments; agencies; organizations; and the public. The Service encourages input in the form of issues, concerns, ideas, and suggestions for the future management of Bear River Migratory Bird Refuge and the Bear River Watershed Conservation Area.
An environmental review of this project will be conducted in accordance with the requirements of the National Environmental Policy Act of 1969, as amended (NEPA; 42 U.S.C. 4321
The Service has unique responsibilities to Tribes, including under the National Historic Preservation Act (16 U.S.C.
The Service will separately consult with Tribes on the proposals set forth in this notice of intent. We will also ensure that those Tribes wishing to engage directly in the NEPA process will have the opportunity to do so. As part of this process, we will protect the confidential nature of any consultations and other communications we have with Tribes, to the extent permitted by the Freedom of Information Act and other laws.
Bear River Migratory Bird Refuge was established by Presidential Proclamation in 1928 and Public Law 304 of the 70th Congress as “suitable refuge and feeding, and breeding grounds for migratory wild fowl.” Currently, the Refuge encompasses 77,102 acres and is comprised of deltaic wetlands that make up numerous wetland impoundments, wet meadows, and uplands. Located at the terminus of the Bear River, and part of the Great Salt
Bear River Watershed Conservation Area, which encompasses Bear River Migratory Bird Refuge, Cokeville Meadows National Wildlife Refuge, and Bear Lake National Wildlife Refuge, was established in 2016. This conservation easement program has the potential to protect up to 920,000 acres of wetland, grassland, and agricultural land in the Bear River Watershed by purchasing easements on private land from willing landowners within the roughly 4.8-million-acre project area. As of September 2021, 3,283.44 acres within the Bear River Watershed Conservation Area have been protected by conservation easements. Conservation easements are a legal agreement between a willing landowner and the Service. The Service purchases the conservation easements in the Bear River Watershed Conservation Area with money generated by the Land and Water Conservation Fund Act of 1965. These funds are derived from oil and gas leases on the Outer Continental Shelf, motorboat fuel tax revenues, and sale of surplus Federal property.
All information provided voluntarily by mail, by phone, or at public meetings (
This notice is published under the authority of the National Wildlife Refuge System Improvement Act of 1997, Public Law 105-57.
National Park Service, Interior.
Notice; amendment.
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 amended a Notice of Inventory Completion published in the
Repatriation of the human remains and associated funerary objects in this notice may occur on or after March 27, 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
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 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). The National Park Service is not responsible for the determinations in this notice. Additional information on the amendments and determinations in this notice, including the results of consultation, can be found in the inventory or related records held by the University Museum.
This notice amends the determinations published in a Notice of Inventory Completion in the
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 has determined that:
• The human remains represent the physical remains of 288 individuals of Native American ancestry.
• The 1,079 objects 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 and the Comanche Nation, Oklahoma; Hopi Tribe of Arizona; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico, & Utah; Ohkay Owingeh, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico;
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 March 27, 2023. If competing requests for repatriation are received, the 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.
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the University of Minnesota Twin Cities (UMN); Minnesota Indian Affairs Council; Science Museum of Minnesota; University of Colorado Museum (Boulder); Milwaukee Public Museum; Denver Art Museum; Yale Peabody Museum; and Cleveland Museum of Art, hereafter the Collaborating Museums, 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 Grant and Catron Counties, NM.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after March 27, 2023.
Alejandra Peña Gutiérrez, Weisman Art Museum, University of Minnesota, 333 East River Road, Minneapolis, MN 55455, telephone (612) 624-5934, 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 Collaborating Museums. 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 Collaborating Museums.
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, geographical, historical, linguistic, 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 Collaborating Museums have determined that:
• The human remains described in this notice represent the physical remains of 198 individuals of Native American ancestry.
• The 4,210 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 Hopi Tribe of Arizona; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Okhay Owingeh, New Mexico; Pueblo of Acoma, New Mexico; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Santo Domingo Pueblo; Ysleta del Sur Pueblo; and the Zuni Tribe of the Zuni Reservation, New Mexico.
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 March 27, 2023. If competing requests for repatriation are received, the Collaborating Museums 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 Collaborating Museums are 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 Museum of Science, Boston 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 Los Angeles or Santa Barbara County, CA.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after March 27, 2023.
Rebecca Melius, Sr. Curator of Collections. Museum of Science, Boston, 1 Science Park, Boston, MA 02114, telephone (617) 589-0175, 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 Museum of Science, Boston. 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 Museum of Science, Boston.
Human remains representing, at minimum, one individual were removed from Los Angeles or Santa Barbara County, CA. Incomplete provenance information indicates the human remains are those of a 35-year-old Native American female. Her incomplete skeleton and funerary objects were removed from an unidentified island off the coast of California and most likely were donated to the education department of the Museum of Science in 1975 by a member of the public. The donor is listed as a Mr. John Smith, of Huntington Beach, CA. The five associated funerary objects are two pieces of unmodified shell and three pieces of probable unmodified fish bone.
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: geographical, ethnographic, and archeological.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the Museum of Science, Boston has determined that:
• The human remains described in this notice represent the physical remains of one individual of Native American ancestry.
• The five 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 Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California.
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 March 27, 2023. If competing requests for repatriation are received, the Museum of Science, Boston 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 Museum of Science, Boston is responsible for sending a copy of this notice to the Indian Tribe identified in this notice.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before February 11, 2023, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by March 13, 2023.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before February 11, 2023. Pursuant to Section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
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.
Additional documentation has been received for the following resources:
National Park Service, Interior.
Notice.
In accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), the California Department of Parks and Recreation 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
Repatriation of the human remains and associated funerary objects in this notice may occur on or after March 27, 2023.
Dr. Leslie L. Hartzell, NAGPRA Coordinator, California Department of Parks and Recreation, P.O. Box 942896, Sacramento, CA 94296-0001, telephone (916) 425-8016, 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 California Department of Parks and Recreation. 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 California Department of Parks and Recreation.
In 1954, human remains representing, at minimum, one individual were removed from CA-LAN-192, the Lovejoy Springs site, in Los Angeles County, CA, by the Archaeological Survey Association of Southern California, a local avocational society. Under the direction of archeologist Charles Rozaire, cultural materials were collected from the surface and from four shallow, 5-by-5-foot units excavated on the southern side of the site. The collection was obtained by the Antelope Valley Indian Museum (AVIM) sometime prior to its incorporation into the California State Park system in 1979. From that year onward, the collection has been in the possession of the AVIM. No known individual was identified.
In 1989, human remains representing, at minimum, one individual were removed from CA-LAN-192, the Lovejoy Springs site, in Los Angeles County, CA by an archeological field class from the Cerro Coso College campus at Edwards Air Force Base. The field class excavated seven 1-by-1-meter units under the direction of archeologist Bruce Love. In 2017, Love donated the collection from this site to the AVIM. Later that year, while investigating the faunal assemblage from this collection, Love identified human remains consisting of one burned phalange and one highly burned human bone fragment. No known individual was identified. The 258 associated funerary objects identified in the collection are one bone bead, one botanical sample, one groundstone fragment, one lot of charcoal, one manuport, one possible granitic biface, one quartz projectile point fragment, one schist mortar bowl fragment, two lots of fire-altered rock, two ceramic fragments, two mano fragments, two schist metate fragments, four flaked stone biface, four flake tools, six lithic cores, nine lots of groundstone fragments, 10 lots of shell fragments, 11 edge-modified flakes, 41 lots of faunal bone, 18 Olivella beads, and 139 lots of flaked stone.
According to Serrano-speaking elder Santos Manuel of the San Manuel Band of Mission Indians, and Spanish explorers, including Father Francisco Garces, who passed through the Antelope Valley in the 1770s, the communities on the southeast side of the Antelope Valley were Serrano-speaking and at the time of Spanish contact, were tied into the Serrano social system. The Morongo Band of Mission Indians, California, and the Yuhaaviatam of San Manuel Nation (
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, geographical, historical, oral traditional, expert opinion, and other relevant information.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the California Department of Parks and Recreation has determined that:
• The human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• The 258 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 Morongo Band of Mission Indians, California, and the Yuhaaviatam of San Manuel 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 March 27, 2023. If competing requests for repatriation are received, the California Department of Parks and Recreation 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 California Department of Parks and Recreation 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 Broome County Historical Society 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 Broome County, NY.
Repatriation of the human remains and associated funerary objects in this notice may occur on or after March 27, 2023.
Shannon Lindridge, Broome County Historical Society, 30 Front Street, Binghamton, NY 13905, telephone (607) 772-0660, 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 Broome County Historical Society. 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 Broome County Historical Society. (Roberson Museum and Science Center is the acting collections manager for the Broome County Historical Society).
In 1939-1940, partial human remains representing, at minimum, seven individuals (NA-2, NA-3, NA-4, NA-9, NA-10, CC475, CC479) were removed from the Castle Creek site (SUBi-253) in Broome County, NY, during a field expedition led by John A. Stewart and sponsored by the Broome County Historical Society. No known individuals were identified. The human remains of two of these individuals (NA-9, NA-10) are absent or were never recorded in the collection. In total, there are 23 associated funerary objects, of which 10 objects are currently missing from the collection. The 13 associated funerary objects currently accounted for are one whole clay pot, eight deer incisors, one heron's bill, one bone tube/bead, one chopper, and one pot fragment. The Broome County Historical Society and the Roberson Museum continue to look for the missing 10 associated funerary objects, which are one pipe bowl, one pipe, one worked turtle shell, six bone beads, and one projectile point.
At an unknown date, human remains representing, at minimum, two individuals (NA-5) were removed from the Broome County, NY vicinity, possibly from the Castle Creek Site (SUBi-253). No known individuals were identified. No associated funerary objects are present.
At an unknown date, human remains representing, at minimum, one individual (NA-1) were removed from the town of Union in Broome County, NY. The human remains are possibly early 20th century. No record of the donation to the Broome County Historical Society exists. No known individual was identified. No associated funerary objects are present.
At an unknown date, human remains representing, at minimum one individual (NA-6) were removed from the Chenango Bridge in the Broome County, NY vicinity. Foster Disinger donated the human remains to the Broome County Historical Society. No known individual was identified. No associated funerary objects are present.
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: biological, archeological, and geographical.
Pursuant to NAGPRA and its implementing regulations, and after consultation with the appropriate Indian Tribes and Native Hawaiian organizations, the Broome County Historical Society has determined that:
• The human remains described in this notice represent the physical remains of 11 individuals of Native American ancestry.
• The 23 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 Oneida Indian Nation; Oneida Nation; and the Onondaga 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 March 27, 2023. If competing requests for repatriation are received, the Broome County Historical Society 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 Broome County Historical Society 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 University of Oregon, Museum of Natural and Cultural History 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
Repatriation of the human remains and associated funerary objects in this notice may occur on or after March 27, 2023.
Dr. Pamela Endzweig, Director of Anthropological Collections, University of Oregon, Museum of Natural and Cultural History, 1224 University of Oregon, Eugene, OR 97403-1224, telephone 541-346-5120, 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 Oregon, Museum of Natural and Cultural History. 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 Oregon, Museum of Natural and Cultural History.
In 1936 and 1937, human remains representing, at minimum, 33 individuals, were removed from Nateneten or NaLtene'ten, also known as Lone Ranch Creek Shell Mound (35CU37), an Athabaskan village, burial ground, and midden, in Curry County, OR. It is unknown when the site was first used, but radiocarbon dates of 280±60 RYBP and 1010±80 RYBP are consistent with a late occupation, and excavations from the 1930s report no Euroamerican items from the site. No Euroamerican materials were found with the burials. The human remains were removed by J. Berreman of Stanford University and later transferred to the University of Oregon Museum of Natural and Cultural History. Skeletal analyses indicate that the often fragmentary and partial human remains belong to six juveniles, 19 young adult and adult females, seven young adult and adult males, and one adult of indeterminate sex. No known individuals were identified. The 1,061 associated objects include 20 shell ornaments, 987 olivella shell beads, three stone and clay pipes, 14 bone pendants also known as “head scratchers,” one net sinker, one wedge, one possible gaming piece, 21 clam shells, three fish vertebrae, one pigment specimen, four stone projectile points, and five other bone and shell artifacts.
In 1936 and 1937, human remains representing, at minimum, two individuals, were removed from the Rainbow Rock locality (35CU37a), about a mile south of Nateneten or NaLtene'ten, in Curry County, OR. There is no further provenience information, which is described as “two small shell deposits on the sloping hillside above Rainbow Rock . . . about 100 yards from the beach.” The human remains were removed by J. Berreman of Stanford University and later transferred to the University of Oregon Museum of Natural and Cultural History. Skeletal analyses indicate that the human remains belong to two adult males. No known individuals were identified. No associated funerary objects are present.
In 1952, human remains representing, at minimum, two individuals, were removed by a private party from the surface of the south bank of the Chetco River, in Curry County, OR. There is no further provenience information. Skeletal analyses indicate that the fragmentary human remains represent two adults of indeterminate sex. No known individuals were identified. No associated funerary objects are present.
Historical Documents, ethnographic sources, and oral history indicate that Chetco people have occupied this area of the southern Oregon coast since pre-contact times. Based on archeological context and/or skeletal evidence, the individuals described above were determined to be Native American, of possible Chetco cultural affiliation.
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, historical, ethnographic, 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 Oregon, Museum of Natural and Cultural History has determined that:
• The human remains described in this notice represent the physical remains of 37 individuals of Native American ancestry.
• The 1,061 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 Confederated Tribes of Siletz Indians of Oregon; Elk Valley Rancheria, California; and the Tolowa Dee-ni' 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 March 27, 2023. If competing requests for repatriation are received, the University of Oregon, Museum of Natural and Cultural History 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 Oregon, Museum of Natural and Cultural History is responsible for sending a copy of this notice to the Indian Tribes identified in this notice.
Bureau of Ocean Energy Management, Interior.
Proposed sale notice; request for comments.
The Bureau of Ocean Energy Management (BOEM) proposes to offer one or more lease areas (Lease Areas) for commercial wind power development on the U.S. Outer Continental Shelf (OCS) in the Gulf of Mexico (GOM). The Lease Areas are located in the previously identified wind energy areas (WEA) offshore Lake Charles, LA, and Galveston, TX. This proposed sales notice (PSN) contains information pertaining to the areas available for leasing, certain lease provisions and conditions, auction details, criteria for evaluating competing bids, and procedures for lease award, appeals, and lease execution. BOEM proposes simultaneous auctions for the Lease Areas within each WEA using a multiple-factor bidding format. Any lease resulting from this sale does not constitute approval of any offshore wind energy facilities. Lessees must submit project-specific plans to BOEM for approval before starting construction of an OCS wind energy facility. BOEM will subject such plans to environmental, technical, and public reviews prior to deciding whether the proposed development should be authorized.
BOEM must receive your comments no later than April 25, 2023.
For prospective bidders who want to participate in this lease sale: unless you have received confirmation from BOEM that you are qualified to participate in the GOMW-1 auction, BOEM must receive your qualification materials no later than April 25, 2023.
You may send comments by any of the following ways:
For prospective bidders who want to participate in this lease sale: Submit your qualification materials in an envelope labeled “Qualification Materials for GOM Wind Energy Lease Sale” to Bureau of Ocean Energy Management, Office of Emerging Programs, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123.
For more information about submitting comments, see Sections XX, “Public Participation,” and XXI, “Protection of Privileged and Confidential Information,” under the
Tershara Matthews, Bureau of Ocean Energy Management, Office of Emerging Programs, 1201 Elmwood Park Boulevard, New Orleans, Louisiana 70123 or
a.
b.
For purposes of recommending the preliminary WEAs, BOEM considered the following non-exclusive list of information sources: comments and nominations received on the RFI and Call; information from the GOM Intergovernmental Renewable Energy Task Force; input from Alabama, Mississippi, Louisiana, and Texas State agencies; input from Federal agencies, particularly the Department of Defense (DoD) and U.S. Coast Guard (USCG); comments from stakeholders and ocean users, including the maritime community, offshore wind developers, and the commercial fishing industry; State and local renewable energy goals; and information on domestic and global offshore wind markets and technological trends.
BOEM received ocean users' feedback requesting that BOEM consider leveraging an ocean planning model previously used in the GOM for purposes of the National Oceanic and Atmospheric Administration's (NOAA) Aquaculture Opportunity Areas. In response, BOEM used the ocean planning model to help support the identification of preliminary WEAs.
BOEM's process to identify preliminary WEAs in the GOM relied on rigorous science to drive an informed,
Identifying WEAs entails thorough synthesis and spatial analyses of critical environmental data and ocean space use conflicts. BOEM used geographic information systems (GIS) to integrate pertinent spatial data, perform analyses, and generate map-based products to inform where potential wind energy area(s) may be located within the Call area. BOEM seeks to identify wind energy areas in a manner that avoids or minimizes impacts on environmental resources. The use of this model is one approach to meet that objective.
BOEM has engaged in similar ocean planning efforts in other OCS Regions. Ocean planning processes often follow a standard workflow by (1) identification of the planning objective,(2) inventory of data, (3) geospatial analysis of data, (4) interpretation of results, and (5) delivery of map products and reports to decisionmakers and other ocean users. Spatial data are used to represent known or potential environmental and ocean space use conflicts that could constrain, or conditionally constrain, the siting of offshore wind facilities on the U.S. OCS. Using a multi-criteria decision approach allows for evaluation of numerous spatial data types for an area and provides a relative comparison of how suitable the areas are for potential offshore wind development. Additionally, natural and cultural resources, industry and operations, various fishing activities, logistics, economics, and national security are described and identified in the WEA model suitability analysis, which is discussed in detail in the WEA Modeling Report found at:
Additionally, WEA siting informed by ocean planning is helpful in avoiding and minimizing adverse environmental, social, and existing user interactions. Throughout the Area ID process, BOEM used existing datasets to facilitate discussions with ocean users to receive early feedback. BOEM incorporated the feedback from ocean users in the spatial and temporal planning strategies to allow initial compatibility to be assessed while also increasing the efficiency of meaningful communications within and among stakeholders and potentially with industry. The preliminary WEAs resulting from this analysis were then considered by the decisionmaker.
After the close of the preliminary WEA comment period on September 2, 2022, BOEM finalized the Area ID process by reviewing the input received from all stakeholders mentioned above.
BOEM announced the Final WEAs on October 31, 2022, by designating the following WEAs within the Call area: Louisiana Coast Region (Lake Charles WEA) and the Texas Coast Region (Galveston WEA). The Area ID decision memorandum, the
c.
BOEM has identified three areas to propose for leasing. The Louisiana Coast Region (within the Lake Charles WEA) Lease Area, Lake Charles OCS-G 37334, consists of 102,480 acres; the Texas Coast Region (within the Galveston WEA) Lease Area, Galveston I OCS-G 37335 consists of 102,480 acres, and Lease Area, Galveston II OCS-G 37336, consists of 96,786 acres.
In the final sales notice (FSN), BOEM will only offer one Lease Area within the Lake Charles WEA proposed in this PSN for auction. BOEM is seeking comments and recommendations on how many Lease Areas from the Texas Coast Region should be offered in the FSN and which Lease Area, OCS-G 37335 (Galveston I) or OCS-G 37336 (Galveston II), would be preferred if only one is offered.
d. The proposed Lease Area of Lake Charles comprises approximately 54 percent of the Louisiana Coast Region WEA M, while the Galveston I and Galveston II Lease Areas together comprise approximately 36 percent of the Texas Coast Region WEA I. BOEM subdivided the WEAs Options I and M so that each proposed Lease Area could be generated using a precision siting model, similar to the WEA model suitability analysis already applied.
BOEM is aware of potential conflicts with USCG lightering operations in portions of the Texas Coast Region Leases. Due to USCG's concerns about lightering areas in the southern portion of the Galveston WEA (Option I), BOEM will continue to work with USCG to identify, quantify, and mitigate potential impacts and risks to lightering operations within the traditional lightering use areas within Galveston leases when considering any plans submitted for BOEM's consideration and approval after lease issuance.
Descriptions of the proposed Lease Areas can be found in Addendum A of the proposed leases, which BOEM has made available with this notice on its website at:
a.
b.
i.
ii.
c.
i.
(1) Lessee will notify NORAD when the project is within 30-60 days of completion and, again, when the project is complete and operational for RAM scheduling;
(2) Lessee will contribute funds to DoD in the amount of no less than $80,000 toward the cost of DoD's execution of the RAM procedures for each radar system affected; and
(3) Lessee will curtail wind turbine operations for national security or defense purposes as described in the lease.
BOEM will require the lessee to enter into an agreement with the DoD to implement these conditions and mitigate any identified impacts. Sixth Generation Over the Horizon Radar is currently in development. Offshore wind turbines in the Gulf of Mexico may create adverse impacts to that system. BOEM will further coordinate with DoD and the lessee to deconflict potential impacts throughout the project review stage, which may result in adding mitigation measures or terms and conditions as part of any plan approval.
a.
All other entities wishing to participate in this proposed GOMW-1 auction must submit the required qualification materials to BOEM by the end of the 60-day comment period for this PSN.
b.
i. They own or have common ownership of more than 50 percent of the voting securities, or instruments of ownership or other forms of ownership, of another bidding entity. Ownership of less than 10 percent of a bidding entity constitutes a presumption of non-control that BOEM may rebut.
ii. They own or have common ownership of 10 through 50 percent of the voting securities or instruments of ownership, or other forms of ownership, of another bidding entity, and BOEM determines that there is control upon consideration of factors including the following:
a. The extent to which there are common officers or directors.
b. With respect to the voting securities, or instruments of ownership or other forms of ownership: The percentage of ownership or common ownership, the relative percentage of ownership or common ownership compared to the percentage(s) of ownership by other bidding entities, if a bidding entity is the greatest single owner, or if there is an opposing voting bloc of greater ownership.
c. Shared ownership, operation, or day-to-day management of a lease, grant, or facility as those terms are defined in BOEM's regulations at 30 CFR 585.112.
iii. They are both direct, or indirect, subsidiaries of the same parent company.
iv. If, with respect to any lease(s) offered in this auction, they have entered into an agreement prior to the auction regarding the shared ownership,
v. Other evidence indicates the existence of power to exercise control, such as evidence that one bidding entity has power to exercise control over the other, or that multiple bidders collectively have the power to exercise control over another bidding entity or entities.
Affiliated entities are not permitted to compete against each other in the auction. Where two or more affiliated entities have qualified to bid in the auction, the affiliated entities must decide prior to the auction which one (if any) will participate in the auction. If two or more affiliated entities attempt to participate in the auction, BOEM will disqualify those bidders from the auction.
BOEM solicits comments from stakeholders on this definition and will consider this feedback to potentially update its definition of affiliated entities in the FSN.
Stakeholders are encouraged to comment on any matters related to this proposed lease sale that are of interest or concern. In addition, BOEM has identified the following issues as particularly important in developing this lease sale, and we encourage commenters to address these issues specifically:
a.
b.
c.
d.
e.
Consistent with its statutory and regulatory authorities, BOEM is considering lease stipulations to ensure that communities, particularly underserved communities, are considered and engaged with early and often throughout the offshore wind energy development process, that potential impacts and benefits from lessees' projects are documented, and lessees' project proposals are informed by or altered to address those impacts and benefits.
BOEM invites comments on the appropriate mechanisms and metrics for these stipulations. Commenters are encouraged to describe how these measures would further the development of the proposed Lease Areas and the purposes of the Outer Continental Shelf Lands Act (OCSLA). BOEM requests that commenters provide references to any studies that support their recommendations.
f.
BOEM is proposing to grant bidding credits to bidders that commit to one or both of the following:
(1) supporting workforce training programs for the offshore wind industry or developing a domestic supply chain for the offshore wind industry, or a combination of both, as described in section IV(f)(i) below; or
(2) establishing and contributing to a fisheries compensatory mitigation fund or contributing to an existing fund to mitigate potential negative impacts to commercial and for-hire recreational fisheries caused by OCS offshore wind development in the GOM, as described in sections IV(f)(iii) and IV(f)(iv) below.
These bidding credits are intended to:
(1) enhance, through training, the offshore wind workforce and enhance the establishment of a domestic supply chain for offshore wind manufacturing, assembly, or services, both of which will contribute to the expeditious and orderly development of offshore wind resources on the OCS;
(2) support the expeditious and orderly development of OCS resources by mitigating potential direct impacts from proposed projects and encouraging the investment in infrastructure germane to the offshore wind industry; and
(3) minimize potential economic effects on commercial fisheries impacted by potential offshore wind development, as cooperation with commercial fisheries impacted by OCS operations will enable development of the Lease Area to advance.
In a multiple-factor auction, BOEM appoints a panel to review the non-monetary factors before the auction, but after BOEM has received the BFFs, BFF Addenda, and conceptual strategies as described in the BFF Addenda. This panel will later verify the results of the lease sale. Following the panel's review of the conceptual strategy submitted by each bidder attempting to qualify for a bidding credit, BOEM would notify the bidder if it qualifies for a credit(s) prior to the mock auction. The bid made by a particular bidder in each round would be comprised of the sum of a monetary factor (cash bid) and the value of any non-monetary factors (bidding credit(s)). The structure of the proposed bidding credits is explained in the subsection below.
A bidder may seek to qualify for one or both of the bidding credits. The work force training and/or domestic supply chain development bidding credits would be worth 20 percent of the cash bid. A bidder could commit to both workforce training and supply chain development, but the bidding credit for these commitments combined would still be worth 20 percent of the cash bid. The proposed fisheries compensatory mitigation fund bidding credit would be
As proposed, all bidding credits would require an explicit financial commitment. The fully executed lease will include an Addendum C that will specify the exact amount of the financial commitment. BOEM provides the following example. For a 30 percent of cash bid bidding credit with a $50 million Asking Price, the bidding credit would be calculated (subject to rounding) as follows:
The table below demonstrates the financial commitment calculations if a $50 million Asking Price is paid for in part with various bidding credits. The cash bid is calculated using the full value of credits received, and the commitment for each credit is calculated as either 20 or 10 percent of that value for the workforce training/supply chain development credit, and the fisheries mitigation credit, respectively.
i.
1. As proposed, the Contribution to workforce training must result in a better trained and/or larger domestic offshore wind workforce that would provide for more efficient operations via increasing the supply of fully trained personnel. Training of existing Lessee employees, Lessee contractors, or employees of affiliated entities would not qualify.
2. The Contribution to domestic supply chain development must result in (i) overall benefits to the U.S. offshore wind supply chain available to all potential purchasers of offshore wind services, components, or subassemblies, not solely the Lessee's project; (ii) either the demonstrable development of new domestic capacity (including vessels) or the demonstrable buildout of existing capacity; (iii) an improved offshore wind domestic supply chain by reducing the upfront capital or certification cost for manufacturing offshore wind components, including the building of facilities, the purchasing of capital equipment, and the certifying of existing manufacturing facilities; or (iv) the development of a supply chain supporting the manufacture of offshore wind facility components that could be used to generate hydrogen. In this PSN, BOEM refers to hydrogen that is produced using offshore renewable energy as green hydrogen.
3. No portion of the Contribution may be used to meet the requirements of any other bidding credits.
4. Bidders interested in obtaining a bidding credit could choose to commit to workforce training programs, domestic supply chain initiatives, or a combination of both. The conceptual strategy must describe verifiable actions that the Lessee will take that would allow BOEM to confirm compliance when the documentation for satisfying the bidding credit is submitted. The Contribution must be tendered in full, and the lessee must provide documentation evidencing it has made the Contribution and complied with applicable requirements, no later than the date the lessee submits its first Facility Design Report (FDR).
5. As proposed, Contributions to workforce training would need to promote and support one or more of the following purposes: (i) Union apprenticeships, labor management training partnerships, stipends for workforce training, or other technical training programs or institutions focused on providing skills necessary for the planning, design, construction, operation, maintenance, or decommissioning of offshore wind energy projects in the United States; (ii) Maritime training necessary for the crewing of vessels to be used for the construction, servicing, and/or decommissioning of wind energy projects in the United States; (iii) Training workers in skills or techniques necessary to manufacture or assemble offshore wind components, subcomponents or subassemblies. Examples of these skills and techniques include welding; wind energy technology; hydraulic maintenance; braking systems; mechanical systems, including blade inspection and maintenance; or computers and programmable logic control systems; (iv) Tribal offshore wind workforce development programs or training for employees of wholly owned Tribal corporations in skills necessary in the offshore wind industry; that lead to the expeditious and orderly development of offshore wind; or (v) Training in any other job skills that the Lessee can demonstrate are necessary for the planning, design, construction, operation, maintenance, or decommissioning of offshore wind energy projects in the United States.
6. As proposed, Contributions to domestic supply chain development must promote and support one or more of the following: (i) Development of a domestic supply chain for the offshore wind industry, including manufacturing of components and sub-assemblies and the expansion of related services; (ii) Domestic Tier 2 and Tier 3 offshore wind component suppliers and domestic Tier-1 supply chain efforts, including quay-side fabrication; (iii) Technical assistance grants to help U.S. manufacturers re-tool or certify (
7.
8. At a minimum, the documentation would need to include: all written agreements between the lessee and beneficiary(ies) of the Contribution, which must detail the amount of the Contribution(s) and how it will be used by the beneficiaries of the Contribution(s) to satisfy the goals of the bidding credit for which the Contribution was made; all receipts documenting the amount, date, financial institution, and the account and owner of the account to which the Contribution was made; and sworn statements by the entity that made the Contribution and attesting that all information provided in the above documentation is true and accurate. The documentation would need to describe how the funded initiative or program has advanced, or is expected to advance, U.S. offshore wind workforce training or supply chain development. The documentation must also provide qualitative and/or quantitative information that includes the estimated number of trainees or jobs supported, or the estimated leveraged supply chain investment resulting or expected to result from the Contribution. The documentation would need to contain any information called for in the conceptual strategy that the lessee submitted with its BFF and allow BOEM to objectively verify (i) the amount of the Contribution and the beneficiary(ies) of the Contribution; and (ii) compliance with the bidding credit criteria provided in Addendum C of the Lease. If the lessee's implementation of its conceptual strategy changes due to market needs or other factors, the lessee would need to explain the changed approach. BOEM would reserve all rights to determine that the bidding credit has not been satisfied if changes from the lessee's conceptual strategy result in the lessee not meeting the criteria for the bidding credit described in Addendum C of the Lease.
9.
ii.
1. What other activities should qualify for this bidding credit to best develop a sustained and robust U.S. offshore wind energy supply chain, as described in section IV(f)(i) above?
2. Are there activities related to manufacturing, sourcing of raw materials and components, or other offshore wind-related industries that BOEM should consider as possibly qualifying for this credit? Please explain how the proposed qualifying activity supports the development of a domestic supply chain and how that support can best be documented.
3. Should the sale offer a bidding credit for a bidder who proposes to make a financial commitment by entering into a long-term contract for components needed to build or maintain its project that will also benefit the offshore wind industry as a whole, such as the construction of new manufacturing capacity or investment in expanding or re-tooling existing capacity? Are other effects of such contracts conducive to the development of renewable energy on the OCS? How might the bidder document that its contract facilitated such development? Should BOEM require the manufacturer or bidder to demonstrate that the new or expanded capacity also will be used to fulfill contracts with other developers? How much of the value of such a contract should count toward any potential credit, and why?
iii.
• Gear loss or damage; or
• Lost fishing income in GOM wind energy Lease Areas.
iv. The fisheries compensatory mitigation fund would assist commercial fisheries directly impacted by income or gear losses due to offshore wind activities on offshore wind leases or easements and is intended to address the impacts identified in BOEM's environmental and project reviews. The compensatory mitigation must cover impacts that result directly from the preconstruction, construction, operations and decommissioning of an offshore wind project being developed on GOM wind energy leases or easements. The fund must be established and the Contribution made before the lessee submits the lease's first FDR. To qualify for this credit, the bidder must commit to the bidding credit requirements on the BFF and submit a strategy as described in the BFF Addendum.
1. Bidders committing to use the fisheries compensatory mitigation fund bidding credit must submit their conceptual strategy along with their BFF, further described below and in the BFF Addendum. The conceptual strategy would describe the verifiable actions that the lessee intends to take that would allow BOEM to confirm compliance when the lessee submits its documentation showing how it is satisfying the requirements for the bidding credit. The lessee would be required to provide documentation showing that the lessee has met the commitment and complied with the applicable bidding credit requirements before the Lessee submits the lease's first FDR.
2. As proposed, gear loss and damage, and fishing income loss claims should be prioritized at each phase of offshore wind project development including impacts from surveys conducted before the establishment of the fund. BOEM encourages lessees to coordinate with other lessees to establish or contribute to a regional fund. A regional fund should be flexible enough to incorporate future contributions from future lease auctions and actuarially sound to recognize the multi-decade life of offshore wind projects in the GOM. While the fund's first priority is to compensate for gear loss or damage and income loss, funds that have been determined to be excess based on an actuarial accounting may be used to:
a. Promote participation of fishers and fishing communities in the project development process;
b. Promote research into the coexistence of multiple ocean industries; and
c. Offset the cost of gear upgrades and transitions for operating within a wind farm.
Any fund established or selected by the lessee to meet this sale's bidding credit requirement must include a process for evaluating the actuarial status of funds every 5 years and publicly reporting information on fund disbursement.
3. The fisheries compensatory mitigation fund must be independently managed by a third party and designed with fiduciary governance and strong internal controls while minimizing administrative expenses.
4.
• the mechanism established to compensate for gear loss or damage resulting from all phases of the project development on the Lease Area (pre-construction, construction, operation, and decommissioning);
• the fisheries compensatory mitigation fund charter, including the governance structure, audit and public reporting procedures, and standards for paying compensatory mitigation for impacts to fishers from development on wind energy Lease Areas in the GOM;
• all receipts documenting the amount, date, financial institution, and the account and owner of the account to which the Contribution was made; and
• sworn statements by the entity that made the Contribution, attesting to:
○ the amount and date(s) of the Contribution;
○ that the Contribution is being (or will be) used in accordance with the bidding credit requirements in the lease; and
○ that all information provided is true and accurate.
The documentation must contain any information specified in the conceptual strategy that was submitted with the BFF including the mechanism established to compensate for lost income or for gear loss or damage during pre-construction, construction, operation, and decommissioning activities. If the lessee's conceptual strategy has changed due to market needs or other factors, the lessee would need to explain this change.
5.
v.
1. Should BOEM restrict or expand the eligible compensation criteria?
2. What types of fiduciary governance structures or requirements should be in place for a fund to qualify?
3. What types of fund management provisions should BOEM require to ensure the fund's continued actuarial solvency?
4. What information should the fisheries compensatory mitigation fund be required to publish for the public to evaluate whether the fund is meeting its objective and whether the funds are being appropriately used?
5. Should qualifying mitigation funds be segregated to cover specific leases or should funds be pooled as proposed to cover fisheries impacts derived from future offshore wind leasing and projects in the Gulf of Mexico?
6. Should BOEM require investment limitations or other internal controls for the fund?
7. Should BOEM prescribe limits or caps on the fund's administrative expenses?
g.
h.
i.
j.
k.
This section describes the major deadlines and milestones in the auction process from publication of this PSN to execution of a lease issued pursuant to this sale.
a. The PSN Comment Period:
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ii.
iii.
b. End of PSN Comment Period to FSN Publication:
i.
ii.
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iv.
c.
i.
Once BOEM has processed a bidder's BFF, the bidder would be allowed to log into
1. Your BFF submission should be accompanied with a transmittal letter on company letterhead.
2. The BFF would be required to be executed by an authorized representative listed on the bidder's legal qualifications in the BFF, in accordance with 18 U.S.C. 1001 (fraud and false statements).
3. Additional information regarding the BFF may be found below in section IX entitled, “Bidder's Financial Form.”
ii.
d.
e.
f.
g.
i.
ii.
iii.
iv.
v.
BOEM reserves the right to withdraw all or portions of the Lease Areas prior to executing the leases with the winning bidders.
BOEM has made available the proposed terms, conditions, and stipulations for the commercial leases that would be offered through this proposed sale. BOEM reserves the right to require compliance with additional terms and conditions associated with the approval of a site assessment plan (SAP) and COP. The proposed lease is on BOEM's website at:
1. Addendum A (“Description of Leased Area and Lease Activities”);
2. Addendum B (“Lease Term and Financial Schedule”);
3. Addendum C (“Lease-Specific Terms, Conditions, and Stipulations”);
4. Addendum D (“Project Easement”); and
5. Addendum E (“Rent Schedule”).
Addenda A, B, and C provide detailed descriptions of proposed lease terms and conditions. Addendum D will be completed at the time of COP approval or approval with modifications. Addendum E will be completed after COP approval or approval with modifications. After considering comments on the PSN and proposed lease, BOEM will publish final lease terms and conditions in the FSN.
a.
i.
ii.
iii.
iv.
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vi.
vii.
viii.
1. The first stipulation would require Lessees to make every reasonable effort to enter a Project Labor Agreement (PLA) covering the construction stage of any project proposed for the Lease Areas. The PLA provisions for the construction of an offshore wind project would apply to all contractors.
2. The second stipulation would require the Lessee to establish a statement of goals in which the Lessee would describe its plans for contributing to the creation of a robust and resilient U.S.-based offshore wind industry supply chain. The Lessee would be required to provide regular progress updates on the achievement of those goals to BOEM, and BOEM would make those updates publicly available.
ix.
x.
xi.
This section provides an overview of the required annual payments and financial assurances under the lease. Please see the proposed lease for more information.
a.
If the lessee submits an application for relinquishment of a portion of its leased area within the first 45 calendar days after receiving the lease copies from BOEM and BOEM approves that application, no rent payment would be due on the relinquished portion of the Lease Area. Later relinquishments of any portion of the Lease Area would reduce the lessee's rent payments starting in the year following BOEM's approval of the relinquishment.
The lessee also must pay rent for any project easement associated with the lease. Rent commences on the date that BOEM approves the COP (or modification thereof) that describes the project easement as outlined in 30 CFR 585.508. Annual rent for a project easement that is 200 feet wide, centered on the transmission cable, would be $70 per statute mile. For any additional acreage, the lessee must pay the greater of $5 per acre per year or $450 per year.
b.
The subsequent annual operating fee payments will be calculated by multiplying the operating fee rate by the imputed wholesale market value of the projected annual electric power production. For the purposes of this calculation, the imputed market value will be the product of the project's annual nameplate capacity, the total number of hours in the year (8,760), the capacity factor, and the annual average price of electricity derived from a regional wholesale power price index. For example, the annual operating fee for a 976-megawatt (MW) wind facility operating at a 40 percent capacity (
i.
ii.
iii.
BOEM proposes to set the capacity factor at 0.4 (
iv.
c.
BOEM would base the amount of all SAP, COP, and decommissioning financial assurance on cost estimates for meeting all accrued lease obligations at the respective stages of development. The required amount of supplemental and decommissioning financial assurance will be determined on a case-by-case basis.
The financial terms described above can be found in Addendum “B” of the lease, which is available at:
Each bidder would be required to provide the information required in the BFF referenced in this PSN. A copy of the proposed form is available at:
Each qualified bidder must submit a bid deposit no later than the date listed in the FSN. Typically, this deadline is approximately 30 calendar days after the publication of the FSN. BOEM may consider extensions to this deadline only if BOEM determines that the failure to timely submit the bid deposit was caused by events beyond the bidder's control.
Following the auction, bid deposits will be applied against the winning bid and other obligations owed to BOEM. If a bid deposit exceeds that bidder's total financial obligation, BOEM will refund the balance of the bid deposit to the bidder. BOEM will refund bid deposits to the other bidders once BOEM has announced the provisional winner.
If BOEM offers a lease to a provisional winner and that bidder fails to timely return the signed lease, establish financial assurance, or pay the balance of its bid, BOEM would retain the bidder's $2,000,000 bid deposit for one Lease Area or $4,000,000 bid deposit for two Lease Areas (one per region). In such a circumstance, BOEM would reserve the right to offer a lease to the next highest bidder as determined by BOEM.
The minimum bid is the lowest dollar amount per acre that BOEM will accept as a winning bid and is the amount at which BOEM will start the bidding in the auction. BOEM proposes a minimum bid of $50.00 per acre for this lease sale.
a.
b.
The precise auction process will depend on limitations, to be established in the FSN, on how many Lease Areas each bidder can bid for and win. BOEM is proposing a `one-per-customer' rule for each Region. While BOEM is proposing to offer one lease per region, if an applicable alternative is ultimately selected, then BOEM's proposal would be that each bidder would be eligible to bid for at most one of the two Lease Areas in the offered Texas Coast Region at a time and, ultimately, to acquire at most one of the two Texas Coast Region Lease Areas. Each bidder would also be eligible to bid for the one Lease Area in the offered Louisiana Coast Region and, ultimately, to acquire the Louisiana Coast Region Lease Area. During the comment period, BOEM is also seeking comments on alternative options for the auction format in which the limitations on bidding are varied, as described in Section XII.c below.
Depending on the ultimate selection of the number of lease areas, BOEM may conduct the auction in one of two ways. First, the two regions (Louisiana Coast and Texas Coast) would be offered in two separate auctions that would be conducted simultaneously, each with a `one-per-customer' rule. BOEM would require a bidder to indicate in its BFF the regions on which it planned to bid and to submit a deposit for each region. Bidders eligible to bid in each auction would be required to check both web pages of the auction website: the Louisiana Coast auction page and the Texas Coast auction page. Bidders eligible to bid in each auction must select the correct region's page from the auction homepage before placing a bid. A bidder's eligibility is region-specific. BOEM would not permit bidders to “switch” between regions during the auction,
Each auction would be conducted in a series of rounds. At the start of each round, BOEM would state an asking price for each Lease Area. If a bidder is willing to meet that asking price for one of the Lease Areas, it would indicate its intent by submitting a bid equal to the asking price for the selected Lease Area. A bid at the asking price is referred to as a “live bid.” If the bidder has qualified for a non-monetary credit, it will meet the asking price by submitting a multiple-factor bid—that is, a live bid that consists of a monetary (cash bid) amount and a non-monetary credit (depending on the bidder's qualification for bidding credits), the sum of which equals the asking price. Bidders without a non-monetary credit would submit a cash bid amount equal to the asking price. To participate in the next round of a given auction, a bidder would be required to have submitted a live bid for one of the Lease Areas (or have a carried-forward bid) in each previous round.
As long as there are two or more live bids (including carried-forward bids) for at least one of the Lease Areas in the given auction, the auction would move to the next round. BOEM would raise the asking price for each Lease Area that received two or more live bids in the previous round. Asking price increments would be determined based on several factors, including, but not necessarily limited to, the expected time needed to conduct the auction and the number of rounds that have already occurred. BOEM would reserve the right to increase or decrease bidding increments as it deems appropriate. If there was only one live bid (including carried-forward bids) or no live bids for a Lease Area in the previous round, the asking price would not be increased.
A live bid would automatically be carried forward if it was uncontested in the previous round (
If a bidder decides to stop bidding before the final round of a given auction, there could be circumstances in which the bidder could nonetheless win a lease. For example, that bidder could be ultimately selected in stage two of the winner determination that is described in detail below, or the winning bidder might be disqualified at the award stage of the auction. In these circumstances, the bidder would be bound by its bid and thus obligated to pay the full bid amount. Bidders, therefore, are bound by any of their bids up until the auction results are finalized.
Between rounds, BOEM would disclose to all bidders that submitted bids: (1) the number of live bids (including carried-forward bids) for each Lease Area in the previous round of the auction (
In any round after the first round, a bidder would be allowed to submit an “exit bid” (also known as an “intra-round bid”), but only for the same Lease Area that received the bidder's contested live bid in the previous round. An exit bid is a bid that is greater than the previous round's asking price, but less than the current round's asking price. An exit bid is not a live bid, and it represents the final bid that a bidder may submit in the given auction. A bidder would not be allowed to submit both an exit bid on one of the Lease Areas and a live bid on a different Lease Area in the given auction. During the auction, the exit bid would be seen only by BOEM and not by other bidders.
A given auction would end when a round occurs in which each of the Lease Areas in the auction receives one or zero live bids (including carried-forward bids), regardless of the number of exit bids on any Lease Area. Because the Texas Coast Region and Louisiana Coast Region Lease Areas would be offered in two separate auctions, one of these separate auctions may end before the other. After the bidding ends, BOEM would determine the provisionally winning bid for each Lease Area in the given auction by the following two-stage procedure, applying the procedure separately to each of the two separate auctions.
In stage one, the highest bid (live bid or exit bid) received for each Lease Area in the final round would be designated the provisionally winning bid, if there is a single highest bid. In the event of a tie (
In stage two, BOEM would consider bids from all bidding rounds for Lease Areas that were not assigned in stage one and were placed by bidders who were not assigned one of the Lease Areas in stage one. BOEM would select the combination of such bids that maximizes the sum of the bid amounts of the selected bids, subject to the following constraints: (1) Each Lease Area that received multiple highest exit bids in the final round (but no live bid) must be assigned to one of the bidders that submitted the highest exit bid; (2) at most one bid from each bidder can be selected; and (3) at most one bid for each Lease Area can be selected. If there is a unique combination of bids that solves this maximization problem, then these bids would be deemed to be the remaining provisionally winning bids. If two or more combinations of bids tie by producing the same maximized sum of bid amounts, the auction system would select one of the combinations by use of pseudorandom numbers. The provisional winners would pay the amounts of their provisionally winning bids, or risk forfeiting their bid deposits.
A provisional winner will be disqualified if it is subsequently found to have violated auction rules or BOEM regulations, or otherwise engaged in conduct detrimental to the integrity of the competitive auction. If a bidder submits a bid that BOEM determines to be a provisionally winning bid, the bidder must sign the applicable lease documents, post financial assurance, and submit the outstanding balance (if any) of its winning bid (
BOEM would publish the provisional winners and the provisionally winning bid amounts shortly after the conclusion of the sale. Full bid results, including round-by-round results of the entire sale, including exit bids, would be published on BOEM's website after a review of the results and announcement of the provisional winner.
c.
In the second alternative option, the two Lease Areas would be offered in a single auction, but bidders could be eligible to bid for both Lease Areas. As in the first alternative, all of the Lease Areas would be offered in a single auction, and there would be no distinctions made between the Louisiana Coast and Texas Coast Regions within the auction process. A bidder would not be required to select in its BFF the region in which it is bidding and would supply as many deposits as the number of Lease Areas on which it wishes to be eligible to bid for and win. In this case, the auction would proceed similarly as described in the Carolina Long Bay FSN (“The Auction” section, 87 FR 17332-17334).
d.
i.
The auction system would require software tokens for two-factor authentication. To set up the tokens, authorized individuals would download an app onto their smartphone or tablet with a recent operating system. One of the emails sent to authorized individuals would contain instructions for installing the app and the credentials needed to activate the software token. A short telephone conversation with the auction contractor could also be required to use the credentials. The login information, along with the tokens, would be tested during the mock auction. If an eligible bidder failed to submit a bid deposit or did not participate in the auction, BOEM would de-activate that bidder's tokens and login information.
ii.
iii.
Bidders could place bids at any time during the round. At the top of the bidding page, a countdown clock shows how much time remains in each round. Bidders would have until the scheduled time to place bids. Bidders should do so according to the procedures described in the FSN and any ASTS issued. Information about the round results would be made available only after the round has closed, so there is no strategic advantage to placing bids early or late in the round.
Any ASTS would elaborate on the auction procedures described in this PSN. In the event of any inconsistency between the Bidder Manual, any ASTS
iv.
BOEM reserves the right and authority to reject any and all bids that do not satisfy the requirements and rules of the auction, the FSN, or applicable regulations and statutes.
Bidding behavior in this sale is subject to Federal antitrust laws. Following the auction, but before the acceptance of bids and the issuance of the lease, BOEM must “allow the Attorney General, in consultation with the Federal Trade Commission, thirty days to review the results of [the] lease sale.” 43 U.S.C. 1337(c)(1). If a provisional winner is found to have engaged in anti-competitive behavior in connection with this lease sale, BOEM may reject its provisionally winning bid. Compliance with BOEM's auction procedures and regulations is not an absolute defense against violations of antitrust laws.
Anti-competitive behavior determinations are fact specific. However, such behavior may manifest itself in several different ways, including, but not limited to:
1. An express or tacit agreement among bidders not to bid in an auction, or to bid a particular price;
2. An agreement among bidders not to bid against each other; or
3. Other agreements among bidders that have the potential to affect the final auction price.
Pursuant to 43 U.S.C. 1337(c)(3), BOEM may decline to award a lease if the Attorney General, in consultation with the Federal Trade Commission, determines that awarding the lease may be inconsistent with antitrust laws.
For more information on whether specific communications or agreements could constitute a violation of Federal antitrust law, please see
Once all post-auction reviews have been completed to BOEM's satisfaction, BOEM will issue three unsigned copies of the lease to the provisional winner. Within 10 business days after receiving the lease copies, the provisional winner must:
1. Execute and return the lease copies on the bidder's behalf;
2. File financial assurance, as required under 30 CFR 585.515-537; and
3. Pay by electronic funds transfer (EFT) the balance (if any) of the winning bid (winning monetary bid minus the applicable bid deposit and bidding credit, as applicable). BOEM would require bidders to use EFT procedures (not
BOEM will not execute the lease until the three requirements above have been satisfied. BOEM may extend the 10-business-day deadline if BOEM determines the delay was caused by events beyond the provisional winner's control.
If the provisional winner does not meet these requirements or otherwise fails to comply with applicable regulations or the terms of the FSN, BOEM reserves the right not to issue the lease to that bidder. In such a case, the provisional winner would forfeit its bid deposit. Also, in such a case, BOEM reserves the right to offer the lease to the next highest bidder as determined by BOEM.
Within 45 calendar days after receiving the lease copies, the provisional winner must pay the first year's rent using the “ONRR Renewable Energy Initial Rental Payments” form available at:
Subsequent annual rent payments must be made following the detailed instructions contained in the “Instructions for Making Electronic Payments,” available on BOEM's website at:
Pursuant to 43 CFR part 42, subpart C, an OCS renewable energy lessee must comply with the Department of the Interior's non-procurement debarment and suspension regulations at 2 CFR parts 180 and 1400. The lessee must also communicate this requirement to persons with whom the lessee does business relating to this lease by including this term as a condition in their contracts and other transactions.
The development of the FSN will be informed through the EA, related consultations, and comments received during the PSN comment period. The FSN will provide the final details concerning the offering and issuance of an OCS commercial wind energy lease for the Lease Areas in the GOM. The FSN will be published in the
The regional director of BOEM's New Orleans, Louisiana Office has the discretion to change any auction detail specified in the FSN, including the date and time, if the regional director deems events outside BOEM's control may interfere with a fair and proper lease sale. Such events may include, but are not limited to, natural disasters (
The appeals and reconsideration procedures are provided in BOEM's regulations at 30 CFR 585.225 and 585.118(c). BOEM's decision on a bid is the final action of the Department, except that an unsuccessful bidder may
(a) If BOEM rejects your bid, BOEM will provide a written statement of the reasons and will refund any money deposited with your bid, without interest.
(b) You may ask the BOEM Director for reconsideration, in writing, within 15 business days of bid rejection. The Director will send you a written response either affirming or reversing the rejection.
BOEM will make all comments publicly available on
In order for BOEM to consider withholding from disclosure your PII, you must identify, in a cover letter, any information contained in the submittal of your comments that, if released, would constitute a clearly unwarranted invasion of your personal privacy. You must also briefly describe any possible harmful consequences of the disclosure of information, such as embarrassment, injury, or other harm.
Note that BOEM will make available for public inspection, in their entirety, all comments submitted by organizations and businesses, or by individuals identifying themselves as representatives of organizations or businesses.
BOEM will protect privileged or confidential information that you submit consistent with FOIA and 30 CFR 585.113. Exemption 4 of FOIA applies to “trade secrets and commercial or financial information obtained from a person” that is privileged or confidential. 5 U.S.C. 552(b)(4). If you wish to protect the confidentiality of such information, clearly mark it “Contains Privileged or Confidential Information” and consider submitting such information as a separate attachment. BOEM will not disclose such information, except as required by FOIA. Information that is not labeled as privileged or confidential may be regarded by BOEM as suitable for public release. Further, BOEM will not treat as confidential aggregate summaries of otherwise non-confidential information.
a.
Bureau of Ocean Energy Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Bureau of Ocean Energy Management (BOEM) proposes a new information collection request (ICR).
Comments must be received by BOEM no later than April 25, 2023.
Send your comments on this ICR by mail to the BOEM Information Collection Clearance Officer, Anna Atkinson, Bureau of Ocean Energy Management, 45600 Woodland Road, Sterling, Virginia 20166; or by email to
Anna Atkinson by email at
In accordance with the Paperwork Reduction Act of 1995, BOEM provides the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps BOEM assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand BOEM's information collection requirements and provide the requested data in the desired format.
BOEM is soliciting comments on the proposed ICR described below. BOEM is especially interested in public comments addressing the following issues: (1) is the collection necessary to the proper functions of BOEM; (2) what can BOEM do to ensure that this information is processed and used in a timely manner; (3) is the burden estimate accurate; (4) how might BOEM enhance the quality, utility, and clarity of the information to be collected; and (5) how might BOEM minimize the burden of this collection on the respondents, including minimizing the burden through the use of information technology?
Comments submitted in response to this notice are a matter of public record. BOEM will include or summarize each comment in its ICR to OMB for approval of this information collection. You should be aware that your entire comment—including your address, phone number, email address, or other personally identifiable information included in your comment—may be made publicly available at any time.
You may request that BOEM withhold your personally identifiable information
Note that BOEM will make available for public inspection all comments in their entirety submitted by organizations and businesses, or by individuals identifying themselves as representatives of organizations or businesses.
BOEM protects proprietary information in accordance with FOIA, the Department's implementing regulations.
An important component of this project is the development of the NARW synthesis report. This report will include a summary of: (1) existing sources of information related specifically to understanding presence, distribution, and density of NARWs in and around wind energy areas offshore the U.S. Atlantic coast; (2) current approaches for avoiding or limiting impacts to NARWs during offshore wind construction and operation; (3) a listing of mitigation measures recommended by others but not yet adopted; (4) current monitoring requirements and their implementation; and (5) an accounting of emerging technologies that may allow monitoring at project and regional scales.
In order to develop the synthesis report, BOEM seeks OMB approval for a set of standardized questions to NARW stakeholders regarding their activities to understand impacts from offshore wind energy projects on the whales and to ensure effective mitigation monitoring. The questions are designed to learn of recent and ongoing research and management strategies employed by relevant State and Federal governments, academic institutions, and NGOs, including outcomes of prior workshops and planning bodies. BOEM has partnered with the Blue World Research Institute to implement the questionnaire. The questionnaire comprises approximately 20 questions that ask respondents about: (1) their organization; (2) information on current monitoring and research activities, such as objective, location, scope, methods, timelines, outcomes and challenges, and contributions to NARW conservation or impact reduction; (3) related ancillary information, such as type of study, next steps, and focus of future funding sources; and (4) additional comments and discussion. The questionnaire avoids sensitive topics or matters that are commonly considered private. The results will be summarized as part of the NARW synthesis report.
Additionally, BOEM plans to hold two to three webinars or one virtual workshop to present results of the synthesis report and solicit feedback on future research priorities and management needs from the offshore energy industry and NARW stakeholders. This feedback will be compiled in a final report.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of expedited reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty orders on stainless steel butt-weld pipe fittings from Italy, Malaysia, and the Philippines would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
February 6, 2023.
(Caitlyn Hendricks-Costello (202) 205-2058), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
By order of the Commission.
Drug Enforcement Administration, Justice.
Notice of application.
Stepan Company has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 27, 2023. Such persons may also file a written request for a hearing on the application on or before March 27, 2023.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on January 30, 2023, Stepan Company, 100 West Hunter Avenue, Maywood, New Jersey 07607-1021 applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substance to bulk manufacture other controlled substances for distribution to its customers. No other activities for this drug code is authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
S&B Pharma LLC has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before April 25, 2023. Such persons may also file a written request for a hearing on the application on or before April 25, 2023.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on January 10, 2023, S&B Pharma LLC, 405 South Motor Avenue, Azusa, California 91702, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances for the internal use intermediates for formulation and analytical development purposes or for sale to its customers. In reference to drug codes 7360 (Marihuana), and 7370 (Tetrahydrocannabinols), the company plans to bulk manufacture these drugs as synthetic. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Siemens Healthcare Diagnostics, Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before April 25, 2023. Such persons may also file a written request for a hearing on the application on or before April 25, 2023.
The Drug Enforcement Administration (DEA) requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on January 11, 2023, Siemens Healthcare Diagnostics Inc., 100 GBC Drive, Mailstop 514, Newark, Delaware 19702-2461, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to produce the listed controlled substance in bulk to be used in the manufacture of the DEA exempt products. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Sterling Wisconsin, LLC has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before April 25, 2023. Such persons may also file a written request for a hearing on the application on or before April 25, 2023.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on January 6, 2023,
The company plans to bulk manufacture the listed controlled substances to be commercially sold to registered manufacturers/suppliers. In reference to drug codes 7350 (Marihuana Extract), 7360 (Marihuana), and 7370 (Tetrahydrocannabinols), the company plans to bulk manufacture these drugs as synthetic. No other activities for these drug codes are authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
S&B Pharma LLC has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 27, 2023. Such persons may also file a written request for a hearing on the application on or before March 27, 2023.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on January 10, 2023, S&B Pharma LLC, 405 South Motor Avenue, Azusa, California 91702, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import intermediate forms of Tapentadol (9780) for further manufacturing prior to distribution to its customers. The company plans to import ANPP (8333) to bulk manufacture other controlled substances for distribution to its customers. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Scottsdale Research Institute, has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before April 25, 2023. Such persons may also file a written request for a hearing on the application on or before April 25, 2023.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on January 10, 2023, Scottsdale Research Institute, 12815 North Cave Creek Road, Phoenix, Arizona 85022, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances to support clinical trials and distribution to their customers for research purposes. No other activities for these drug codes are authorized for this registration.
The Search Committee for LSC Inspector General (Search Committee) of the Legal Services Corporation Board of Directors will meet virtually on Tuesday, February 28, 2023. The meeting will commence at 11:00 a.m. EST and will continue until the conclusion of the Committee's agenda.
Public notice of virtual meetings.
LSC will conduct the February 28, 2023 meeting via Zoom.
Closed.
1. Approval of Agenda.
2. Discuss the interviews of candidates for the position of Legal Services Corporation Inspector General.
3. Decide which candidates, if any, to consider further.
4. Determine whether to conduct further interviews of selected candidates, discuss the questions the Search Committee would like to ask, and determine the dates of such further interviews.
5. Adjourn.
Cheryl DuHart, Administrative Coordinator, Office of Legal Affairs, at (202) 295-1621. Questions may also be sent by electronic mail to
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
1.
This Notice will be published in the
U.S. Small Business Administration.
Amendment 3.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of California (FEMA-4683-DR), dated 01/26/2023.
Issued on 02/16/2023.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Recovery & Relience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of California, dated 01/26/2023, is hereby amended to include the following areas as adversely affected by the disaster.
All other information in the original declaration remains unchanged.
All information reported to the Office of the Chief of Protocol, including gift appraisal and donor information, is the responsibility of the employing agency, in accordance with applicable law and GSA regulations.
The Office of the Chief of Protocol, Department of State, submits the following comprehensive listing of the statements which, as required by law, federal employees filed with their employing agencies during calendar year 2021 concerning gifts received from foreign government sources. The compilation includes reports of both tangible gifts and gifts of travel or travel expenses of more than minimal value, as defined in 5 U.S.C. 7432 and GSA regulations. For calendar years 2020-2022 (January 1, 2020 through December 31, 2022), minimal value is $415.00.
Pursuant to Title 22 of the Code of Federal Regulations Section 3.4, the report includes all gifts given on a single occasion when the aggregate value of those gifts exceeds minimal value. Also included are gifts received in previous years including two from 2001, one from 2005, one from 2011, one from 2016, two from 2017, four from 2019, thirteen from 2020, and six with unknown dates. These latter gifts are being reported in this year's report for calendar year 2021 because the Office of the Chief of Protocol, Department of State, did not receive the relevant information at the time of reporting to include them in earlier reports. Agencies not listed in this report either did not receive relevant gifts during the calendar year, did not transmit a listing to the Secretary of State of all statements filed during the preceding year by the employees of that agency pursuant to 5 U.S.C. 7432(f)(1), or did not respond to the State Department's Office of the Chief of Protocol's request for data. The U.S. Senate maintains an internal minimal value of $100; therefore, all gifts over the $100 limit are furnished in the U.S. Senate report.
Publication of this listing in the
The Surface Transportation Board has received a request from Ron Yang (Stanford) and Pedro Degiovanni (Harvard) (WB23-12—2/21/23) for permission to use data from the Board's annual 1996-2022 unmasked Carload Waybill Samples. A copy of this request may be obtained from the Board's website under docket no. WB23-12.
The waybill sample contains confidential railroad and shipper data; therefore, if any parties object to these requests, they should file their objections with the Director of the Board's Office of Economics within 14 calendar days of the date of this notice. The rules for release of waybill data are codified at 49 CFR 1244.9.
Federal Aviation Administration (FAA), DOT.
Notice of Aviation Rulemaking Advisory Committee (ARAC) meeting.
This notice announces a meeting of the ARAC.
The meeting will be held on Thursday, March 16, 2023 from 1 p.m. to 4 p.m. Eastern Time.
Requests to attend the meeting must be received by Monday, February 27, 2023.
Requests for accommodations to a disability must be received by Monday, February 27, 2023.
Requests to submit written materials to be reviewed during the meeting must be received no later than Monday, February 27, 2023.
The meeting will be held at the Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591, and virtually on Zoom. However, if the FAA is unable to hold the meeting in person due to circumstances outside of its control, the FAA will hold a virtual meeting and notify registrants with the meeting details and post any updates on the FAA Committee website. Members of the public who wish to observe the meeting must RSVP by emailing
Lakisha Pearson, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591, telephone (202) 267-4191; email
The ARAC was created under the Federal Advisory Committee Act (FACA), in accordance with Title 5 of the United States Code (5 U.S.C. App. 2) to provide advice and recommendations to the FAA concerning rulemaking activities, such as aircraft operations, airman and air agency certification, airworthiness standards and certification, airports, maintenance, noise, and training.
At the meeting, the agenda will cover the following topics:
Detailed agenda information will be posted on the FAA Committee website address listed in the
The meeting will be open to the public for virtual or in person attendance on a first-come, first served basis, as space is limited. Please confirm your attendance with the person listed in the
The U.S. Department of Transportation is committed to providing equal access to this meeting for all participants. If you need alternative formats or services because of a disability, such as sign language, interpretation, or other ancillary aids, please contact the person listed in the
The FAA is not accepting oral presentations at this meeting due to time constraints. Any member of the public may present a written statement to the committee at any time. The public may present written statements to ARAC by providing a copy to the Designated Federal Officer via the email listed in the
Office of the Comptroller of the Currency (OCC), Treasury.
Notice and request for comment.
The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites comment on a continuing information collection as required by the Paperwork Reduction Act of 1995 (PRA). In accordance with the requirements of the PRA, the OCC may not conduct or sponsor, and respondents are not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning the renewal of its information collection titled “Reporting, Recordkeeping, and Disclosure Requirements Associated with Proprietary Trading and Certain Interests in and Relationships with Covered Funds.” The OCC also is giving notice that it has sent the collection to OMB for review.
Comments must be received on or before March 27, 2023.
Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods:
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•
•
•
Written comments and recommendations for the proposed information collection should also be sent within 30 days of publication of this notice to
On August 23, 2022, the OCC published a 60-day notice for this information collection, (87 FR 51729). You may review comments and other related materials that pertain to this information collection following the close of the 30-day comment period for this notice by the method set forth in the next bullet.
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• For assistance in navigating
Shaquita Merritt, Clearance Officer, (202) 649-5490, Chief Counsel's Office, Office of the Comptroller of the Currency, 400 7th Street SW, Suite 3E-218, Washington, DC 20219. If you are deaf, hard of hearing, or have a speech disability, please dial 7-1-1 to access telecommunications relay services.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the OMB for each collection of information that they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) to include agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. The OCC asks that OMB extend its approval of the collection in this notice.
This collection of information was established pursuant to a rule
Section 619 of the Dodd-Frank Act added a new section 13 to the Bank Holding Company Act (BHC Act (codified at 12 U.S.C. 1851) that generally prohibits any banking entity from engaging in proprietary trading or from acquiring or retaining an ownership interest in, sponsoring, or having certain relationships with a hedge fund or private equity fund, subject to certain exemptions. The exemptions allow certain types of permissible trading and covered fund activities. The OCC's version of the rule is codified at 12 CFR part 44. Section 44.20(d) and Appendix A require certain of the largest banking entities to report to the appropriate agency certain quantitative measurements.
The reporting, recordkeeping, and disclosure requirements associated with the rule will permit banking entities to comply and the Agencies to enforce compliance with section 13 of the BHC Act and the final rule and to identify, monitor and limit risks of activities permitted under section 13, particularly involving banking entities posing the greatest risk to financial stability.
Section 44.3(d)(3), regarding excluded liquidity management activities, includes recordkeeping requirements regarding a liquidity management plan for certain security, foreign exchange forward, foreign exchange swap, or cross-currency swap transactions. Section 44.4(b)(3)(i)(A), regarding permitted market making activities, provides that a trading desk or other organizational unit of another banking entity is not a client, customer, or counterparty of a trading desk relying on the market-making exemption if that other entity has trading assets and liabilities of $50 billion or more unless the trading desk documents how and why a particular trading desk or other organizational unit of the other entity should be treated as a client, customer, or counterparty of the trading desk.
Section 44.4(c)(3)(i) requires a banking entity that relies on the market making presumption of compliance to make available to the OCC upon request records regarding (1) any limit that is exceeded and (2) any temporary or permanent increase to any limit(s), in each case in the form and manner as directed by the OCC.
Section 44.5(c) includes documentation requirements for banking entities that have significant trading assets and liabilities and rely on the risk-mitigating hedging exemption.
Section 44.10(c)(18)(ii)(C)(1) requires a banking entity relying on the exclusion from the covered fund definition for customer facilitation vehicles to maintain documentation outlining how the banking entity intends to facilitate the customer's exposure to a transaction, investment strategy, or service.
Section 44.11(a)(2) requires a banking entity (or an affiliate thereof) that organizes and offers a covered fund in connection with the provision of
Section 44.11(a)(8)(i) requires a banking entity that organizes and offers covered funds to make certain disclosures to investors in such funds. This provision also applies to banking entities relying on exclusions for credit funds, venture capital funds, family wealth management vehicles, or customer facilitation vehicles.
Section 44.12(e) outlines the requirements for requesting an extension of time to divest an ownership interest in a covered fund.
Section 44.20(a) requires a compliance program from banking entities with significant trading assets and liabilities.
Section 44.20(b) specifies minimum requirements for the compliance program required by 44.20(a), including maintaining records sufficient to demonstrate compliance which banking entities must retain for at least five years or a longer period if required by the OCC.
Section 44.20(c) requires a CEO attestation from any banking entity that has significant trading assets and liabilities.
Section 44.20(d) requires a banking entity with significant trading assets and liabilities (or any other banking entity to which the OCC has provided written notification) to report metrics specified in Appendix A. Section 20(d) further specifies that a banking entity that is required to report these metrics must do so within 30 days of the end of each calendar quarter.
Section 44.20(e) requires a banking entity with significant trading assets and liabilities to maintain additional documentation for covered funds.
Section 44.20(f)(1) provides that a banking entity with no covered activities (other than trading activities permitted pursuant to § 44.6(a) of subpart B) can satisfy the requirements of § 44.20 by establishing the required compliance program prior to becoming engaged in such activities or making such investments.
Section 44.20(f)(2) provides that a banking entity with moderate trading assets and liabilities may satisfy the requirements of § 44.20 by including in its existing compliance policies and procedures appropriate references to the requirements of section 13 of the BHC Act and part 44 and adjustments as appropriate given its activities, size, scope, and complexity.
Section 44.20(i) covers notice and response procedures. The OCC will notify a banking entity in writing of any determination requiring notice under part 44 and will provide an explanation of the determination. The banking entity may respond to the notice and should include any matters that the banking entity would have the OCC consider in deciding whether to make the determination. The response must be in writing and delivered to the designated OCC official within 30 days after the date on which the banking entity received the notice.
On August 23, 2022, the OCC published a 60-day notice for this information collection, (87 FR 51729). No comments were received. Comments continue to be solicited on:
(a) Whether the information collections are necessary for the proper performance of the OCC's functions, including whether the information has practical utility;
(b) The accuracy of the OCC's estimates of the burden of the information collections, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected;
(d) Ways to minimize the burden of information collections on respondents, including through the use of automated collection techniques or other forms of information technology; and
(e) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Office of General Counsel, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Office of General Counsel, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Maribel Aponte, Office of Enterprise and Integration, Data Governance Analytics (008), 810 Vermont Ave. NW, Washington, DC 20006, (202) 266-4688 or email
Organizations requesting cancellation of a representative's accreditation based on misconduct, incompetence, or resignation to avoid cancellation of accreditation based upon misconduct or incompetence are required to inform VA of the specific reason for the cancellation request. VA will use the information collected to determine whether service organizations' representatives continue to meet regulatory eligibility requirements to ensure claimants have qualified representatives to assist in the preparation, presentation, and prosecution of their claims for benefits.
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The
By direction of the Secretary.
Employee Benefits Security Administration, Labor; Internal Revenue Service, Treasury; Pension Benefit Guaranty Corporation.
Final forms revisions.
This document contains final forms and instructions revisions for the Form 5500 Annual Return/Report of Employee Benefit Plan and Form 5500-SF Short Form Annual Return/Report of Small Employee Benefit Plan effective for plan years beginning on or after January 1, 2023. The forms and instructions revisions relate to statutory amendments to the Employee Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code) enacted as part of the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) for multiple-employer plans and groups of plans, as well as changes intended to improve reporting of certain plan financial information regarding audits and plan expenses and enhance the reporting of certain tax qualification and other compliance information by retirement plans. There are also some minor changes that further improve defined benefit plan reporting by building on changes made to the forms for plan years beginning on or after January 1, 2022. The remaining changes are technical changes that are part of the annual rollover of the Form 5500 and Form 5500-SF forms and instructions. The revisions being finalized in this document affect employee pension and welfare benefit plans, plan sponsors, administrators, and service providers to plans subject to annual reporting requirements under ERISA and the Code.
The final forms and instructions revisions in this document are effective for plan years beginning on or after January 1, 2023.
Janet Song, Florence Novellino, or Colleen Brisport Sequeda, Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor (DOL), (202) 693-8500 for questions related to reporting requirements under Title I of ERISA. For information related to the IRS reporting requirements under the Code, contact Cathy Greenwood, Employee Plans Program Management Office, Tax Exempt and Government Entities, (470) 639-2503. For information related to Pension Benefit Guaranty Corporation (PBGC) reporting and changes in this document, including proposed changes to the actuarial schedules, contact Karen Levin, Regulatory Affairs Division, Office of the General Counsel, PBGC, (202) 229-3559.
Titles I and IV of the Employer Retirement Income Security Act of 1974 (ERISA) and the Internal Revenue Code (Code) generally require pension and other employee benefit plans to file annual returns/reports concerning, among other things, the financial condition and operations of the plan. Filing a Form 5500 Annual Return/Report of Employee Benefit Plan (Form 5500) or, if eligible, a Form 5500-SF Short Form Annual Return/Report of Small Employee Benefit Plan (Form 5500-SF), together with any required schedules and attachments (together “Form 5500 Annual Return/Report”), in accordance with related instructions, generally satisfies these annual reporting requirements. ERISA sections 103 and 104 broadly set out annual financial reporting requirements for employee benefit plans under Title I of ERISA. The Form 5500 Annual Return/Report, and related instructions and regulations, are also promulgated under the DOL's general regulatory authority in ERISA sections 109 and 505.
In the United States, there are an estimated 2.5 million health plans,
On September 15, 2021, the Agencies published a notice of proposed forms revisions (NPFR) to amend the Form 5500 Annual Return/Report primarily to implement annual reporting changes related to legislative provisions in the Setting Every Community Up for Retirement Enhancement Act of 2019 (SECURE Act) focused on multiple-employer pension plans (MEPs) and defined contribution group reporting arrangements (DCGs or DCG reporting arrangements).
The Agencies received 114 comments on the September 2021 proposal. The comments, which were all posted on the DOL's website, generally focused on the proposed changes for the 2022 plan year forms and on future rulemakings.
In December 2021, the DOL published a final forms revisions rulemaking (2021 Final Forms Revisions) that set forth a narrow set of changes to the instructions for the Form 5500 and Form 5500-SF, effective for plan years beginning on or after January 1, 2021. 86 FR 73976 (Dec. 29, 2021). Those instruction changes generally implemented annual reporting changes for MEPs, including pooled employer plans (PEPs), that were described in the September 2021 proposal. The DOL noted in that publication that other changes to the Form 5500 Annual Return/Report would be the subject of one or more separate and later final notices to address other elements of the September 2021 proposal. That rule is also referred to herein as Final Rule Phase I.
In May 2022, the Agencies published a second final forms revisions rulemaking effective for plan years beginning on or after January 1, 2022. 87 FR 31133 (May 23, 2022). Those forms and instructions revisions generally implemented annual reporting changes for defined benefit plans on Schedules MB, SB and R, but also added certain plan characteristics codes for MEPs, including one to specifically identify PEPs, to the list of plan characteristics the plans must use to describe the plan on their annual report. That 2022 rule is referred to herein as Final Rule Phase II.
The Agencies stated in the 2022 Final Forms Revisions notice that the remaining proposed changes from the September 2021 proposal to the Form 5500 Annual Return/Report would be addressed either in a further final forms revisions notice or possibly re-proposed with modifications in a separate proposal as part of a broader range of improvements to the annual reporting requirements.
This third rulemaking document (herein referred to as Final Rule Phase III) addresses the remaining subjects included in the September 2021 proposal, including DCG reporting arrangements, Schedule DCG and related audit issues, Schedule MEP and related reporting requirements regarding MEPs, financial statement improvements to the Schedule H and Schedules of Assets, changes in participant counting methodology for determining eligibility for small plan reporting purposes, including the conditional waiver of the Independent Qualified Public Accountant (IQPA) audit requirements, and additional questions on pension plan compliance with certain Code requirements. Some changes in those areas are being adopted in final form and others that were included in the September 2021 proposal are being deferred for further development and public input as part of a more general Form 5500 improvement project listed on DOL's semi-annual regulatory agenda. The final forms and instructions changes adopted in this Final Rule Phase III generally apply beginning with the 2023 plan year Form 5500 Annual Return/Report.
The SECURE Act, which overall was designed to expand and preserve workers' retirement savings, is the most significant legislation impacting ERISA and Code provisions pertaining to retirement plans since the Pension Protection Act of 2006. Among other things, the SECURE Act directed the Secretaries of the Departments of Labor and Treasury (together the “Departments”) to develop a new aggregate annual reporting option for certain groups of retirement plans and included other statutory amendments that directly impact annual reporting requirements for MEPs. In relevant part, the SECURE Act's expansion of MEPs and direction for the Departments to
Section 101 of the SECURE Act amended ERISA section 3(2) and added ERISA sections 3(43) and 3(44) to allow for a new type of ERISA-covered MEP—a defined contribution pension plan called a “pooled employer plan” (PEP), operated by a “pooled plan provider” (PPP). PEPs allow multiple unrelated employers to participate without the need for any common interest among the participating employers (other than having adopted the plan).
ERISA section 3(43) further provides that PEPs do not include multiemployer plans as defined in ERISA section 3(37) or plans maintained by employers that have a common interest other than having adopted the plan.
Section 101 of the SECURE Act also amended ERISA section 103(g) for MEPs. Section 103(g) of ERISA requires that the Form 5500 Annual Return/Report of a MEP generally must include a list of participating employers and a good faith estimate of the percentage of total contributions made by each participating employer during the plan year. The SECURE Act amended section 103(g) to expand the participating employer information that must be reported on the Form 5500 Annual Return/Report
Section 101 of the SECURE Act also amended ERISA section 104(a)(2)(A) to permit the Secretary of Labor to prescribe by regulation simplified reporting for MEPs subject to ERISA section 210(a) with fewer than 1,000 participants in total, so long as each participating employer has fewer than 100 participants.
Section 202 of the SECURE Act provides that the Departments, shall, in cooperation, modify the Form 5500 Annual Return/Report so that all members of a group of defined contribution pension plans that are individual account plans described in section 202 may file a single consolidated annual return/report satisfying the requirements of both section 6058 of the Code and section 104 of ERISA, effective for plan years beginning on or after January 1, 2022.
Accordingly, the statutory authorization to develop a new type of consolidated reporting arrangements for groups of plans (
After consideration of the written comments received, the Agencies have determined to adopt various elements of the proposed forms and instructions changes with some modifications as set forth below. The forms and instructions changes fall into seven major categories: (1) adding a DCG consolidated reporting option; (2) adding Schedule MEP to collect MEP information; (3) adding certain new Code compliance questions; (4) changing the methodology for counting participants in defined contribution plans for purposes of determining eligibility for small plan reporting options; (5) additional defined benefit plan reporting improvements; (6) adding new breakout categories to the “Administrative Expenses” category of the Income and Expenses section of the Schedule H balance sheet; and (7) miscellaneous and conforming changes to forms and instructions. The DOL is also concurrently publishing a separate final rule that adds new regulations at 29 CFR 2520.103-14 and 2520.104-51, pursuant to section 110 of ERISA, and revises existing reporting regulations as needed to conform the Title I annual reporting regulations to the forms and instructions changes being adopted in this notice.
As noted above, section 202 of the SECURE Act directs the Departments to modify the Form 5500 to allow certain groups of defined contribution pension plans to file a single consolidated annual return/report. For a group of plans to be able to file a consolidated return/report, section 202(c) of the SECURE Act provides that all plans must be individual account plans or defined contribution plans that have the same trustee; the same one or more named fiduciaries; the same plan administrator under ERISA and the Code; the same plan year; and provide the same investments or investment options for participants and beneficiaries. The SECURE Act also provides that in developing the consolidated return/report for such arrangements, the Departments shall require such information as will enable a participant in a plan to identify any consolidated return or report filed with respect to the plan. The SECURE Act statutory provision further expressly provides the Departments with the authority to require such return/report to include any information regarding each plan in the group they determine is necessary or appropriate for the enforcement and administration of the provisions of ERISA and the Code.
The Departments explained in the proposal, and continue to believe, that the conditions in section 202 of the SECURE Act suggest that the section was primarily aimed at plans of unrelated small businesses that adopt a plan that has received approval from the IRS as to its form through the IRS Pre-Approved Program (pre-approved plan) offered by the same provider, and that section 202 was intended to provide this type of business structure with annual reporting cost efficiencies similar to those that MEPs and PEPs can offer to their participating employers. The Departments gave significant weight to that view of the purpose of the SECURE Act provision as they considered public comments and reached conclusions on final forms revisions in this area.
After considering the public comments on the proposal, the Departments continue to believe that an efficient and effective approach to establishing such a consolidated return/report option is to amend the Form 5500 Annual Return/Report and its related instructions to provide that the filing requirements for large pension plans and direct filing entities (DFEs) will generally apply to this new type of DFE—a defined contribution group (DCG) reporting arrangement—except that an additional schedule (Schedule DCG Individual Plan Information) to report individual plan-level information will have to be attached for each plan included in the DCG filing. As described in more detail below, the final rule is largely consistent with the September 2021 proposal, although several changes are being made in response to public comments, including eliminating the requirements that the DCG reporting arrangement and participating plans use a “single trust” and obtain an IQPA audit of that single trust, and that the investments of all participating plans be in investments that satisfy the qualifying assets condition that currently applies for small plans to be eligible to file a Form 5500-SF and for the small plan audit waiver. The separate Notice of Final Rulemaking being published with these final form revisions adds new DOL regulations at 29 CFR 2520.103-14 and 2520.104-51, pursuant to section 110 of ERISA, that set forth this DCG reporting arrangement option as an alternative method of compliance for eligible plans to satisfy the generally applicable requirement under Title I of ERISA to file their own separate Form 5500.
This final rule provides that a DCG reporting arrangement is treated as a new type of DFE that is required to: (1) file a Form 5500 under rules and conditions generally applicable to large defined contribution pension plans; (2) report specific plan-level information on the new Schedule DCG regarding each individual plan in the DCG, which shall include an IQPA audit report for each large plan and each small plan that does not meet the conditions in 29 CFR 2520.104-46 for a waiver of the IQPA audit and opinion requirements in ERISA section 103; and (3) ensure that each individual plan included in the DCG filing meets specified eligibility conditions that are consistent with SECURE Act Section 202 statutory criteria and designed to meet necessary and appropriate financial accountability and oversight protections.
The final rule sets forth the eligibility conditions for a defined contribution pension plan to file as part of a DCG reporting arrangement, and thus rely on this alternative method of compliance to satisfy the annual reporting obligation in section 104 of ERISA and in section 6058 of the Code. To satisfy such annual reporting obligations, all defined contribution pension plans filing as part
All plans are individual account plans or defined contribution plans that—
(1) Have the same trustee meeting the requirements set forth in ERISA section 403(a) (“common trustee”);
(2) Have the same one or more named fiduciaries designated in accordance with the requirements set forth in ERISA section 402(a) (“common named fiduciaries”), except that an individual employer may be a named fiduciary of each employer's own plan, provided that the other named fiduciaries are the same and common to all plans;
(3) Have a designated administrator under ERISA section 3(16)(A) that is the same plan administrator and common to all plans (“common plan administrator”);
(4) Have plan years beginning on the same date (“common plan year”);
(5) Provide the same investments or investment options to participants and beneficiaries in all the plans (“common investments or investment options”) (as discussed below, a single dedicated brokerage window provided by the same designated registered broker-dealer common to all plans that restricts participant and beneficiary investments solely to assets with a readily determinable fair market value as described in 29 CFR 2520.103-1(C)(2)(ii)(C) will be treated as a “common investment option” for purposes of this paragraph);
(6) Do not hold any employer securities at any time during the plan year, except that this condition does not prohibit investments in any employer's publicly traded securities within an otherwise “common investment or investment option” available to all participants and beneficiaries in the plans participating in the DCG;
(7) Either obtain an audit by an IQPA and file the IQPA report with the DCG consolidated Form 5500, or be eligible for the waiver of the annual examination and report of an IQPA under 29 CFR 2520.104-46;
(8) Are not a MEP (including a PEP) or a multiemployer plan.
The Form 5500 also includes a new checkbox on the Form 5500 (Part II, line 10a(4)) to indicate that at least one Schedule DCG is attached to the Form 5500, with a space for the filer to enter the number of Schedules DCG (one per participating plan) attached to the Form 5500 filing.
These conditions are designed to meet SECURE Act section 202 statutory criteria for plans participating in a group filing as well as related administrative requirements for DCG compliance and agency enforcement, including important information and transparency requirements that enable participants to find information in DCG filings regarding their particular plan. This approach also responds to public comments that asked the Departments to reconsider some of the proposed conditions for DCG reporting in an effort to reduce the costs and administrative burdens, particularly with respect to audit costs and for smaller plans, while continuing the benefits of having appropriate financial transparency and accountability for plans participating in, and persons managing and operating, DCG reporting arrangements.
The September 2021 Proposal included conditions that the investment assets of the plans participating in the DCG would have to be held in a single trust and the consolidated Form 5500 Annual Return/Report filed by the DCG would have to include an audit of the single trust's financial statements. The proposal also required that all investments of the participating plans be 100% invested in certain secure, easy to value assets that are treated as having a “readily determinable fair market value” under 29 CFR 2520.103-1(c)(2)(ii) and that participating plans satisfy the small plan audit waiver under 29 CFR 2520.104-46 by virtue of having 95% or more of their assets as “qualifying plan assets” and not by virtue of enhanced bonding. For the reasons discussed below, these conditions are revised in the final forms revisions and rule. The DCG reporting arrangement may, but is not required to, use a single trust to satisfy the SECURE Act condition that all plans in the DCG have the “same trustee.” Rather, the plans participating in the DCG must instead hold all plan assets in trust by one or more trustees in accordance with section 403(a) of ERISA,
With respect to requiring use of a single trust, several commenters argued that nothing in the SECURE Act limits DCGs to only those plans that utilize a single group trust arrangement, noting that the statute directive was to use the “same trustee.” Two commenters argued that there were no strong practical or policy reasons for treating sub-trusts of a single trust as qualitatively different from separate trusts with the same trustee for DCG eligibility purposes. Two commenters noted that some DCG structures may want to use a master trust, with sub-trusts for each individual plan in the DCG, while other DCGs may use pre-approved plan documents and identical trust documents that name the same entity as trustee. Another commenter pointed out that many trust agreements are negotiated in a custom way to fit a particular employer's requirements, so that requiring all employers in a particular DCG to be bound by the same trust terms is unnecessarily restrictive. One commenter expressed concern
With respect to the audit requirements, one commenter supported both the trust level audit and the separate audit requirement for any large plan that elects to participate in a DCG and rely on the DCG's consolidated Form 5500 to satisfy the plan's annual reporting obligation. One commenter opposed the concept of auditing different types of plans together on the basis that there are significant differences in the standards for and operation of plans so that they should not be treated the same and not audited together. Most commenters, however, raised various concerns regarding the cost and administrative burdens related to obtaining IQPA audits. Some commenters claimed that the cost of a plan-level audit would be in the range of an average of $15,000-$25,000 per plan and complained that this cost would negate cost savings that a DCG consolidated reporting option was supposed to provide. One commenter argued that the objectives of an audit to validate funds flowing in and out of the plan, identify late or missing contributions, obtain confirmation that the plan has sufficient controls to prevent and detect errors, and confirm compliance with DOL rules generally can be achieved through other less expensive means. A few commenters argued that they read the SECURE Act's provisions on a consolidated or aggregated annual report as envisioning some type of consolidated or aggregated audit as part of the DCG filing and, based on that premise, argued that requiring any individual plan audits would frustrate the SECURE Act's goal of easing administrative burdens associated with the Form 5500 filing requirement. Several other commenters suggested the DOL should allow for a “consolidated audit” of all the plans participating in a DCG reporting requirement, rather than requiring separate audits by each participating plan. One commenter argued that requiring plan-level audits puts DCGs at a commercial disadvantage relative to PEPs and MEPs because under Generally Accepted Auditing Standards (GAAS), PEPS and MEPS are subject to a single audit of the single plan. One commenter suggested that separate audits should be required only when the auditor discovers something in a consolidated audit requiring further investigation at the individual plan level. Some commenters supported a consolidated trust audit but only in lieu of individual plan audits if the single trust condition was retained. Another commenter suggested DOL consider an alternative where DCGs are treated similar to a master trust (or MTIA), which itself is not subject to audit and, if each plan within a master trust has fewer than 100 participants and otherwise meets the requirements to be exempt from audit, there would be no audit at the plan or master trust level. A commenter suggested that the new Schedule DCG for Form 5500 could require additional information from the plan administrator that would provide transparency and accountability at a lower cost than a plan-level audit.
With respect to the requirement that participating plans be 100% invested in “eligible plan assets,” some commenters argued that the DOL exceeded its statutory authority claiming that the SECURE Act limit is that investments or investment options be the same for each DCG participating plan. Another argued that the requirement hindered cost efficiencies for large plans that participate in a DCG, hampered an investment fiduciary's ability to prudently select investment alternatives for participants, and placed indirect restrictions on the range of plans that could join DCGs by prohibiting individual account plans that use “white label” funds from joining a DCG.
In the September 2021 proposal, the DOL explained that the single trust requirement was designed to allow for DCG reporting arrangements to have a single trust level audit, and also to reflect DOL's thoughts that a trust level audit would provide important financial accountability and oversight protections for arrangements that may be reporting on very large sums of plan assets in the aggregate. The DOL also explained that the “single trust” structure was based in part on the single trust structure used by plans of unrelated small businesses that adopt a plan offered by the same provider that has received approval from the IRS as to its form through the IRS Pre-Approved Program (pre-approved plan).
In the September 2021 proposal, the DOL also explained that an audit of a DCG trust would not be an adequate substitute for plan-level audits of the plans relying on the DCG consolidated Form 5500 filing. Although the line items on the trust's financial statement would be audited, the underlying participating plans themselves would not be audited, so that compliance with the provisions of the plans that are invested in and funded by the trust would not be audited. In a trust audit, the amount of contributions received by the trust might be tested against the contributions remitted by participating plans, but, whether those contribution amounts remitted are in accordance with the individual plan provisions would not be tested, as they would be tested in an audit of the plan. There could be undisclosed, material errors in the amount of contributions remitted to the trust versus what should have been remitted. Similarly, in a trust audit, the benefit payments to participants might be tested in terms of amounts paid and whether they were authorized, but whether such payments were in compliance with plan provisions, such as vesting provisions, would not be tested as they would be tested in a plan's audit. In a plan audit, participant data is tested. Participant data testing involves determining whether employees are properly included or excluded from participating and whether the census data upon which eligibility for certain contributions and distributions are made is accurate. The audit of a trust would not test this at all. Finally, the materiality threshold for a trust audit could be significantly higher than that which would apply in the case of an individual participating plan because the trust threshold would be based on total assets in the trust rather than assets in each individual plan.
Although the DOL continues to believe that the single trust proposal carried reporting and efficiency benefits, the DOL also agrees that adopting an alternative approach suggested by some commenters that permits use of either a single DCG-level trust or multiple plan-level trusts would provide more flexibility to DCG arrangements in attempting to realize the operational efficiencies and cost savings for participating plans that DCGs were intended to achieve.
Thus, the final rule addresses commenters' concerns by providing flexibility to utilize one or more separate trusts as part of a DCG reporting arrangement, including trusts that may be set up for particular employers. It similarly removes the restriction on types of sub-trusts that can be used, should a particular DCG choose to utilize a single trust. The above structure serves to treat plans that join a DCG, versus those that do not, on a level playing field with respect to audits, and will support plans freely entering and exiting DCG reporting arrangements according to plan needs and in the best interests of plan participants and beneficiaries. Although the “eligible plan asset” restriction on investments is not being adopted as part of the final forms revisions, the Departments expect that the SECURE Act requirement that all plans participating in the DCG reporting arrangement have the same investments or investment options, together with the requirement for a plan-level audit for small plans that do not meet the conditions for the DOL small pension plan audit waiver regulation, will likely result in DCG reporting arrangements requiring participating small plans to invest in “eligible plan assets” in any event. Thus, it is expected that plan assets covered by the DCG report would generally be held by regulated financial institutions.
However, consistent with the September 2021 proposal, this final rule retains the requirement that a large plan that elects to participate have a plan-level audit. Also, the final rule requires that small plans participating in the DCG either separately meet the audit waiver conditions or have a plan-level audit and attach the audit report to the DCG's consolidated Form 5500 filing.
As explained in the September 2021 proposal, the DOL views an IQPA audit at the plan level as an important financial transparency and accountability condition for DCG reporting arrangements. Generally, pension plans and funded welfare plans with 100 or more participants are required to have an audit of the plan's financial statements performed by an IQPA. The DOL explained that in an audit of the DCG trust, the line items on the trust's financial statement are audited, but, because the underlying participating plans themselves are not audited, compliance with the provisions of the plans that are invested in and funded by the trust are not audited. Therefore, in a trust audit, the amount of contributions received by the trust might be tested against the contributions remitted by participating plans, but, whether those contribution amounts remitted are in accordance with the individual plan provisions would not be tested, as they would be tested in an audit of the plan. There could be undisclosed, material errors in the amount of contributions remitted to the trust versus what should have been remitted. Similarly, in a trust audit, the benefit payments to participants might be tested in terms of amounts paid and whether they were authorized, but whether the payments were in compliance with plan provisions, such as vesting provisions, would not be tested as they would be tested in an audit at the plan level. In a plan audit, participant data is tested. Participant data testing involves determining whether employees are properly included or excluded from participating and whether the census data upon which eligibility for certain contributions and distributions are made is accurate. The audit of a trust would not test this at all. Finally, the materiality threshold for a trust audit could be significantly higher than the threshold that would apply in the case of an individual participating plan. This is because the trust threshold would be based on total assets in the trust rather than assets in each individual plan. In comparison, under Statement on Auditing Standards No. 136 (SAS 136),
Thus, after considering the public comments, the DOL continues to believe that a plan-level audit in accordance with the requirements of section 103 of ERISA, and accompanying regulations, is necessary and appropriate for plans participating in a DCG unless the plan individually meets the conditions for an audit waiver under the DOL's regulations.
With respect to the commenters who argued that the SECURE Act's provisions on a consolidated or aggregated annual report envision some type of consolidated or aggregated audit as part of the DCG filing, the DOL disagrees. The September 2021 proposal explained that it was not possible under GAAS to have a consolidated audit of all the participating plans in the DCG reporting arrangement. Rather, for a GAAS audit, the audit would have to be of the participating plans in the DCG reporting arrangement. Comments submitted by accounting industry stakeholders confirmed that conclusion. Nothing in the SECURE Act indicates that Congress intended to make wholesale changes to ERISA's GAAS and Generally Accepted Accounting Principles (GAAP) requirements applicable to plan audits and opinions of plan financial statements. The DOL also does not interpret the SECURE Act to provide for any new IQPA audit exceptions or exclusions for plans in a DCG. The statute directs the Departments to jointly modify requirements under Code Section 6058 and ERISA Section 104 to allow a group of plans to file a single aggregated return or report that meets the requirements of both sections. Section 202 of the SECURE Act makes no mention of audit relief for plans participating in a DCG. It also does not amend sections 103 or 104 of ERISA for DCG reporting arrangements, which set forth the generally applicable plan audit requirements and authorizes the DOL to provide conditional audit waivers through regulation.
As for commenters arguing for DCGs receiving analogous audit requirements to those applicable to MEPS, including PEPs, the DOL does not view DCGs as analogous to MEPs for audit purposes. Unlike MEPs, which are single plans subject to a single plan audit, DCGs are a collection of separate plans. Further, as described above, under GAAS, which is expressly incorporated into ERISA as the source of audit standards for plans, it is not possible to have a consolidated audit of all the individual plans in the DCG reporting arrangement. Commenters also provided no substantial evidence that a DCG consolidated report would provide better or different protections for plan participants with regard to risks a plan audit addresses, such as financial misstatements in plan books and records or plan-level failures to comply with applicable Code or ERISA Title I requirements.
Thus, the final forms revisions do not provide for a “consolidated audit” of all the plans in the DCG for purposes of complying with ERISA IQPA audit and reporting requirements.
The final forms notice also adopts content requirements for the consolidated Form 5500 return/report filed by the DCG reporting arrangement that, except for the single trust and audit provisions described above, are largely unchanged from the proposal. Under the final forms revisions, DCG reporting arrangements must file a Form 5500 Annual Return/Report that includes largely the same information that large pension plans and other DFEs are required to file, except that a DCG reporting arrangement would also be required to include in its annual report a Schedule DCG (described below) to report individual participating plan information for each plan that is a part of the DCG reporting arrangement. One commenter expressed support for a separate Schedule DCG for each plan saying it allows for participants to know where they stand in relation to their separate plans; but otherwise cautioned against too much streamlining in other DCG reporting areas. Another commenter urged individual plan disclosures on DCG be as streamlined as possible, saying most questions should be answered on a group basis and asserting that supplemental information should only be supplied with respect to plans with compliance issues, rather than requiring broader disclosures. Another commenter expressed concerns with reconciling plan-level information on Schedule DCG, suggesting development of a separate schedule or attachment, similar to Schedule MEP, for DCG participating employers. As discussed below, the final forms revisions attempt to strike a balance between important plan information required to be disclosed on Schedule DCG, and other information that is disclosed on an aggregate basis on Form 5500 and specified Schedules as applicable to particular DCG filings.
Specifically, the content of the DCG annual return/report would include a Form 5500 Annual Return/Report of Employee Benefit Plan and any statements or schedules required to be attached to the form for such entity, completed in accordance with the instructions for the form, including Schedule A (Insurance Information), Schedule C (Service Provider Information), Schedule D (DFE/Participating Plan Information), Schedule G (Financial Transaction Schedules), Schedule H (Financial Information), Schedule DCG (Individual
Information reported on the various schedules to the Form 5500, other than Schedule DCG, would be reported for all participating plans in the aggregate. Thus, a Schedule A would be required for all insurance contracts that constitute one of the common investments or investment alternatives available to the participants in all the participating plans, regardless of whether certificates were to be issued to individual plans or participants upon selection of that option by a participant. Similarly, service providers to the DCG arrangement and to each of the participating plans would all be reported on Schedule C, even if the service provider did not actually provide services or charge fees to a particular plan because, for example, the service provider provided investment management services with respect to a particular investment option that was not selected by any of the participants in a particular plan. The $5,000 threshold for a service provider to be reported on Schedule C would be based on the total amount received by the service provider from all sources, not broken down and measured on a per plan or other allocated method. For example, reporting on Schedule C would still be required if the total amount was $5,000 or more, even if the amount paid by or charged against the assets of each of the participating plans or otherwise allocated to each plan was less than $5,000 per plan. Reportable transactions on Schedule G would include all reportable transactions for all the participating plans. For reporting delinquent participant contributions on Schedule H, Line 4a, the DCG filing would be required to answer “yes” and report the aggregate of all delinquent participant contributions for all the plans covered by the DCG filing, but would not file a Schedule of Delinquent Participant Contributions. The individual plans would report delinquent participant contributions for the plan on the plan's Schedule DCG, and plans subject to the IQPA audit requirements would attach a Schedule of Delinquent Contributions to their Schedule DCG. For Schedule H, Line 4i, Schedule of Assets information is reported on a consolidated basis for all plans in the DCG reporting arrangement; some of that information would come from the Schedule of Assets attached to Schedule DCG for those plans required to have an audit. For plans not subject to an audit, the common plan administrator would maintain the necessary records to prepare the consolidated Schedule of Assets, showing all plans' assets, that is attached to Schedule H of the DCG reporting arrangement's Form 5500.
The Departments expect that this will help streamline the process of answering compliance questions by having the question answered on a group basis rather than by each plan and allowing the common administrator of all the participating plans to use a consolidated supplemental schedule to identify only the plans with compliance issues.
Section 202(b) of the SECURE Act specifically provides that the Departments may require the consolidated Form 5500 return/report filed by the DCG reporting arrangement to include any information regarding each plan in the group as IRS and DOL may determine necessary or appropriate for the enforcement and administration of the Code and ERISA. The IRS examines individual plans, not groups of plans, to ensure that plan sponsors and/or employers comply with the tax laws governing retirement plans, and to help protect the retirement benefits of participants and beneficiaries. Although various provisions of Title I of ERISA, including the fiduciary responsibility provisions, apply to investments and financial and administrative services providers, the DOL similarly focuses much of its enforcement and oversight on plan level compliance. The Departments concluded that it is necessary and appropriate for their enforcement and administration of the Code and ERISA to require information with respect to a plan's qualification, investments, financial condition, and operation on a separate basis for each plan relying on the DCG consolidated Form 5500. Thus, consistent with the proposal, the final forms revision provides that a separate Schedule DCG is required for each individual plan relying on the DCG consolidated Form 5500 to satisfy their annual return/report filing obligation. The Schedule DCG includes:
• Part I—DCG Information includes the DCG name, EIN, and plan number. Information in Part I must match the DCG information reported on Part II of the consolidated Form 5500.
• Part II—Individual Schedule DCG Information includes checkboxes to confirm that the plan for which the Schedule DCG is being filed is a single-employer plan (as noted above, MEPs and multiemployer plans may not participate in a DCG) or a collectively bargained plan; and checkboxes to indicate if the Schedule DCG is a first filing, an amended filing, or a final filing.
• Part III—Basic Individual Plan Information, including the plan name, plan number, plan effective date; plan sponsor's information (name and address, EIN, telephone number, and business code); plan administrator's information (name and address, EIN, and telephone number); total number of participants; total number of active participants; number of participants with account balances; and number of participants who terminated employment during the plan year with accrued benefits that were less than 100% vested.
• Part IV—Plan Financial Information, including total plan assets (including participant loans); total plan liabilities; net plan assets; contributions received or receivable in cash from the employer, participants, and others; noncash contributions and total contributions; benefit payments; corrective distributions, and certain deemed distributions of participant loans; direct expense information; net income; and assets transferred to (from) plans.
• Part V—Plan Characteristics, including two-digit boxes for entry of all applicable codes in the List of Plan Characteristics Codes in the instructions to the Form 5500.
• Part VI—Compliance Questions, including delinquent participant contributions, nonexempt transactions, plan assets/liabilities transferred from the plan, indication of whether the plan is a defined contribution plan subject to section 412 of the Code, plan coverage and nondiscrimination information, and whether a plan is a pre-approved plan that received a favorable IRS Opinion Letter.
• Part VII—Accountant Opinion Information for Participating Plans, including questions regarding the required individual IQPA report and financial statements that must be filed with the Schedule DCG filed for participating large plans (generally, plans that cover 100 or more participants with account balances as of the beginning of the plan year) and small plans that do not meet the audit waiver conditions.
One commenter expressed support for the DCG reporting proposal, saying a separate Schedule DCG allows participants to know where they stand in relation to their plan, adding that the Schedule DCG requires less information than a plan would provide on a single Form 5500. Another commenter said the DCG schedule will create more work for auditors because they must separately review each Schedule DCG and reconcile the form at the plan level. The commenters argued that this will require more audit work and more work by record keepers to provide the data. They suggested the DCG file a new consolidated attachment for all the participating plans using a schedule similar to Schedule MEP for employers participating in a multiple-employer plan.
The Departments view the Schedule DCG as consistent with and supported by the SECURE Act's express direction to provide a consolidated filing option in a way that enables participants to find information on their plan. The Departments agree with the commenter supporting the new Schedule DCG as providing participants with important and streamlined information regarding their plan. Further, as previously mentioned, the consolidated filing for DCG reporting arrangement is different from a MEP filing since it essentially aggregates the information of many separate plans, as opposed to the MEP which is one plan with multiple participating employers. Moreover, since there is a plan at the MEP level, MEP level information, with a supplementary schedule showing a list of participating employers and certain information on each employer's account balances and other specific data items is what the SECURE Act section 101 requires for MEPs.
Another commenter recommended that the agencies allow a DCG to file a single Form 8955-SSA,
The September 2021 proposal included the SECURE Act section 202 condition that plans in a DCG reporting arrangement must have the “same one or more named fiduciaries.” ERISA section 402 separately provides that every employee benefit plan shall be established and maintained pursuant to a written instrument and that the “named fiduciaries” must be identified in that instrument.
The SECURE Act requires that all the plans have the same administrator as defined in section 3(16)(A) of ERISA and plan administrator as defined in Code section 414(g). As explained in the September 2021 proposal, in general, under ERISA and the Code the “plan administrator” or “administrator” is the person specifically so designated by the terms of the instrument under which the plan is operated. If an administrator is not so designated, the administrator/plan administrator is the plan sponsor, as defined in ERISA section 3(16)(B). The Departments explained that they do not believe that the default “plan sponsor” provision is workable in the context of a statutorily mandated construct for a consolidated annual report covering multiple separate plans. No significant comments were received
The SECURE Act further requires that all the participating plans of the DCG provide the “same investments or investment options” to participants and beneficiaries to be able to rely on the DCG consolidated Form 5500 as satisfying their annual reporting obligation. In the Departments' view, the “same investments” requirement covers individual account plans in which some or all of the investments are not subject to participant direction, and the “same investment options” requirement applies to those aspects of the plan's investments that are subject to participant direction. This statutory requirement was, in part, intended to allow for appropriate transparency in the aggregated financial information that will be filed by the DCG consistent with the objective of the DCG to provide plans with a more efficient and less burdensome filing alternative. The Committee Report of the House Ways and Means Committee for the House version of the SECURE Act expressly states that the DCG provisions were intended to apply to identical plans: “The Committee believes that, in the case of identical plans (that is, plans with the same plan year, trustee, administrator and investments) maintained by unrelated employers, permitting a single Form 5500, containing information specific to each plan, rather than requiring a separate Form 5500 for each plan as under present law, can reduce aggregate administrative costs, making it easier for small employers to sponsor a retirement plan and thus improving retirement savings.”
Commenters did not raise objections or concerns with this “common investments” condition in general, but some commenters did raise questions regarding whether there would be further clarifications or examples provided regarding the criteria for the offering of the “same investments or investment options,” with one specifically asking about use of investment platforms that allow participating plans to choose investments to offer their participants from a menu of available investments. The commenters suggested that DOL should clarify that the “same investments or investment options” condition is met in the case of a common investment platform in which participating plans may select from available investments but each participating plan is not required to make all available investments available to their participants. A few commenters focused on the related provision in the proposal that prohibited the use of brokerage windows and investments in employer securities, saying that the proposal inappropriately limited these plan features from the DCG reporting arrangement and urged the Agencies to reconsider.
On the brokerage window prohibition in the proposal, one commenter opposed inclusion of brokerage windows in DCG reporting arrangements. That commenter believes the type of disclosures necessary are unworkable in group reporting arrangements and that plans with brokerage windows would not meet the “same investment option” requirement the commenter deems crucial to DCG reporting requirements because of the wider range of investments in brokerage windows. Most commenters, however, cited varying reasons for supporting inclusion of brokerage windows, also known as self-directed brokerage accounts (SDBAs), including arguments that: (1) a wider choice of investments improves participant engagement with the plan, (2) allowing a brokerage window allows plan sponsors to otherwise offer a smaller menu of plan investments, (3) almost half of defined contribution pension plans use SBDAs, and (4) SBDAs are considered an important retirement plan offering.
Commenters that supported allowing brokerage windows argued that the brokerage window itself, not each underlying investment available through the window, should be classified as the “investment or investment option.”
One commenter supporting inclusion of SBDAs did not support any changes to the Form 5500 requiring additional information regarding SDBAs, participants using SDBAs, or the individual assets held by plans as a result of investments made through SDBAs, assuming the DOL adopts the commenter's definition for “Qualifying SDBAs.” Under that definition, as described above, a “Qualifying SDBA” would not include tangible personal property, loans, partnerships or joint-venture interests, real property, employer securities, or investments that could result in a loss in excess of the account balance of the participant or beneficiary who directed the transaction. Those are the classes of assets that the Form 5500-SF currently requires to be reported separately even if held through a brokerage window. Other commenters argued that assets in brokerage window investments should be reported in the aggregate generally as one asset held for investment purposes and that brokerage window investments should not be broken down further. The commenter argued that further detail would be too costly due to the need to involve third parties and also asserted that more detailed information would not provide valuable information to the Agencies.
With respect to allowing employer securities as a DCG investment option, one commenter expressed support for the restriction on the holding of employer securities as an investment and three others supported allowing employer securities as an investment. The commenters stated that the proposal would exclude existing plans that offer employer securities to its participants from participating in DCGs. One of those commenters cited the example of the separate retirement plans of a parent company and its subsidiaries that would qualify to file a consolidated report except for the presence of one plan in the group that offers employer securities. That same commenter also was concerned that employers should not be forced to choose between making employer securities available as an investment option (which ERISA specifically contemplates and encourages) and participating in a DCG reporting arrangement. All of the commenters who addressed the employer security issue argued that indirect holding of employer securities in a bank collective investment fund or insurance company pooled separate account should not preclude a plan from joining a DCG reporting arrangement. The commenters asked the DOL to clarify that a plan with a diversified pooled investment fund, such as a collective investment trust, under which participants may indirectly invest in employer securities, would be eligible to participate in a DCG arrangement, as long as the diversified pooled investment fund option is offered to all plans in the DCG.
The DOL disagrees with commenters who argued that the SECURE Act precludes the exercise of regulatory discretion to place reasonable guardrails on the use of the DCG alternative reporting method, given the cited authorities under SECURE Act Section 202(b) and ERISA section 110. Rather, under existing ERISA authorities, the DOL must find that a simplified reporting option is “appropriate” under ERISA's protective provisions. Similarly, for the DOL to establish an alternative method of complying with the generally applicable annual reporting requirements under ERISA, the DOL would need to make findings that: (1) the alternative method provides adequate disclosure to participants and beneficiaries and adequate reporting to the Secretary; (2) the application of the requirement of part 1 of Title I of ERISA would (A) increase the costs to the plan, or (B) impose unreasonable administrative burdens with respect to the operation of the plan; and (3) the application of part 1 would be adverse to the interests of plan participants in the aggregate. The Departments do not view the SECURE Act as directing them to ignore the protective conditions of ERISA and look only to the specific enumerated criteria in section 202(b) of the SECURE Act in establishing a consolidated reporting option for DCGs. Rather, such a reading of the SECURE Act would compromise enforcement and administration of ERISA and the Code and impair the disclosure interests of plan participants and beneficiaries in plans that rely on a DCG consolidated return/report.
The DOL also is not persuaded by commenters arguments that Congress' direction of “sameness” for investments, and other indications that a DCG is intended for essentially “identical” plans, should be ignored in favor of allowing substantial variation in the menu of investment options available to participants in different plans covered by the DCG Form 5500, including employer securities. In the DOL's view, allowing substantial variation in the investments or investment options of participating plans is not an appropriate reading of the SECURE Act terminology requiring the “same” investments or investment options. That kind of investment structure also would require more detailed financial reporting at the plan level on the Schedule DCG to provide appropriate oversight and accountability and, therefore, would be inconsistent with the objective of reduced aggregate administrative costs of annual reporting for plans in DCG reporting arrangements. Accordingly, the final forms revisions and related final rule would not permit a DCG to satisfy the same investments or investment options requirement by offering a common investment platform with a broad array of available investments with each participating plan potentially having unique investment option menus selected from that broad platform. Further, the Departments note that a DCG is just one alternative reporting method that eligible plans may use. Separate annual reporting alternatives remain in place for plans that would prefer a broader range of investment choices or a more customized plan design. The fact that certain types of plans might not be able to file as part of a DCG based on types of investments they wish to offer as options does not outweigh the interest in following Congress' directive to develop a new filing option aimed at simplifying filing and reducing costs (while still meeting important transparency safeguards) for plans with key common characteristics, including plan investments, plan trustees, plan fiduciaries and plan administrators.
Nonetheless, the Departments agree that some modifications to the proposal regarding brokerage windows and employer securities could be adopted that would provide more flexibility to plans and DCGs while still providing for an adequate level of uniformity, financial transparency and accountability. Specifically, the DOL and IRS concluded that they could permissibly interpret the SECURE Act to classify a brokerage window as the “same investment option” provided that: (1) the brokerage window is available through a single designated brokerage window provider that is a registered broker-dealer, and (2) the only permitted investments in the brokerage window are assets with a readily determinable fair market value as described in 29 CFR 2520.103-1(c)(2)(ii)(C). Also, the Departments agree that publicly traded securities of a particular employer held in a DCG common investment option, such as a mutual fund or some type of collective trust or pooled account investment option, that is otherwise a prudent plan option and is an available option to all
Although, as described above, section 202 of the SECURE Act includes a requirement that eligible plans must have the same “trustee” as described in section 403(a) of ERISA, the DOL and IRS note that it is commonplace for ERISA-covered plans to use insurance (
A number of commenters responded to the request and said they support and encourage expanding DCG reporting to 403(b) plans, even though they technically do not have trustees but instead use annuities or custodial accounts. Notwithstanding the explicit trust requirement in the statutory provision, a number of commenters said there was no evidence of intent by Congress to exclude 403(b) plans and urged the DOL and IRS to allow 403(b) plans to participate in DCGs.
After considering the comments, the Departments continue to believe that the SECURE Act provision is limited to plans with trustees but agree that it may still be possible pursuant to their general regulatory authority to provide a DCG reporting option for 403(b) plans notwithstanding the fact that the plans' assets are held by an insurance company or a custodian rather than a trustee. However, the Departments anticipate that any rules that would permit 403(b) plans to participate in a DCG would require a DCG to consist of only 403(b) plans because it does not appear to be possible for a 403(b) plan to meet the commonality requirements of SECURE Act section 202 with 401(a) plans participating in a DCG. There may be other unique complications with properly structuring a DCG reporting option for 403(b) plans that need to be identified and addressed. Accordingly, before exercising any regulatory authority to permit 403(b) plans to participate in a DCG, the Departments request comments on how such an arrangement would be implemented. The Departments are particularly interested in comments (1) concerning whether a 403(b) plan DCG should include (a) only 403(b) plans consisting of only Code section 403(b)(1) annuity contracts offered by the same insurance company or of only Code section 403(b)(7) custodial accounts maintained by the same custodian, or (b) a group of 403(b) plans, each of which consist of both annuity contracts under Code section 403(b)(1) offered by the same insurance company and custodial accounts under Code section 403(b)(7) maintained by the same custodian, (2) concerning arrangements described in (1)(b) above, (a) views on how the SECURE Act's investment commonality requirement would be met given that, unlike trustees in 401(a) plans, the insurance companies and custodians that hold plan assets in 403(b) plans also are responsible for deciding the investments available under the plan, and (b) views on how the common plan administrator requirement will be satisfied if the insurance company and custodian are not related entities.
With respect to the condition in the proposal that prohibited multiemployer plans and MEPs from being part of DCG reporting arrangements, the September 2021 proposal solicited public comments on whether the final rule should include multiemployer plans and MEPs, and if so, what conditions should apply to DCG reporting arrangements that would include such plans. Two commenters supported the restrictions on the ability of multiemployer plans' and MEPs' to participate in a DCG. One representative of audit professionals cited complicating audit procedures as a reason for such exclusion. No comments raised substantial concerns or proposed alternatives. The DOL and IRS do not believe that section 202 of the SECURE Act was focused on allowing groups of multiemployer plans or MEPs, which already file a single Form 5500 that covers all of the employers that participate in the plan, to file a single consolidated Form 5500 covering the group of multiemployer plans or MEPs. Further, the DOL and IRS are concerned that allowing a single consolidated Form 5500 in the case of such plans, for example, in the case of a group of multiemployer section 401(k) plans, could result in an undesirable reduction in transparency and financial accountability. Accordingly, the DOL and IRS retain this restriction in the final forms revisions.
The September 2021 proposal did not expressly allow for plans participating in a DCG reporting arrangement to use a single filing of a Form 5558 to obtain an extension of the due date for their annual return report. The proposal did, however, request public comments on that issue. The current Form 5558,
The September 2021 proposal noted the Departments' expectation that savings for plans relying on a DCG filing compared to plans filing separately would generally only begin to emerge when the DCG collectively exceeds an aggregate participant count of 100 participants. In other words, it was not expected that a DCG filing would provide meaningful cost savings for plans, as compared to the plans filing their own annual report, in the case of DCG arrangements with an aggregate participant count of under 100 participants. Rather, it was expected in such cases involving participant counts of under 100 participants that the individual plans would likely qualify to file on Form 5500-SF and that they would likely find it more cost effective to file their own separate Form 5500-SF rather than relying on a DCG filing.
The final forms revisions do not include an option under which such a “small” DCG could file as a small plan filer. The final rule also does not adopt a separate DCG reporting arrangements for one-participant plan sponsors. Two commenters provided input regarding whether the IRS should establish a separate DCG reporting arrangement for one-participant plan sponsors that file the Form 5500-EZ. One commenter did not think any of their clients currently filing Form 5500-EZ would be interested in participating in a DCG reporting arrangement. This is because investments in the commenter's clients' one-participant plans are typically customized to meet the needs of the single participant and differ from investment alternatives under a plan with participant-directed investments. Another commenter encouraged the IRS to develop a DCG reporting arrangement for Form 5500-EZ filers—particularly a structure under which Form 5500-EZ filers would be permitted to file as part of a group consisting only of Form 5500-EZ filers. As discussed in the September 2021 proposal, the IRS views the current Form 5500-EZ as a simple and streamlined method for one-participant plan sponsors to satisfy the annual reporting requirement under Code section 6058. Consequently, creating a separate DCG reporting arrangement for one-participant plan sponsors would not effectively reduce filing burdens and would be unlikely to generate the administrative efficiencies and cost-savings that were the purpose behind the inclusion of a consolidated group filing structure in the SECURE Act. The information requested on the Schedule DCG that is required to be completed by each individual plan participating in a DCG reporting arrangement would be almost identical to the information requested on the current Form 5500-EZ. Additionally, the IRS would incur significant costs and use substantial resources to develop and process a separate DCG reporting arrangement for the Form 5500-EZ filers. The IRS will continue evaluating and communicating with stakeholders to determine if it is in their best interests to have a DCG reporting arrangement for one-participant plan sponsors in the future and will consider revisiting its decision not to have a DCG reporting arrangement for Form 5500-EZ filers, if stakeholders demonstrate a significant demand for this structure.
Consistent with the proposal, the final rule adds a new Schedule MEP (Multiple-Employer Pension Plan Information) to the Form 5500 Annual Return/Report, and also adds a limited number of additional data items elsewhere on the Form 5500 relevant to MEPs. The Schedule MEP will generally consolidate SECURE Act related reporting for a MEP filer in one easily identifiable schedule. The Schedule MEP will report information specific to MEPs, including the ERISA section 103(g) participating employer information and aggregate account information.
Schedule MEP, Part I, like the other schedules to the Form 5500, requires filers to enter identifying information (which must match the information entered on the Form 5500) and to indicate the plan type by checkbox. The instructions provide general definitions for purposes of annual reporting for the various categories of pension plans that must complete the Schedule MEP. The different types of MEP checkbox choices set forth in Part I of Schedule MEP are: (a) group or association retirement plans within the meaning of 29 CFR 2510.3-55(b) (
Schedule MEP, Part II includes a repeating line item on which all MEPs would report information under ERISA section 103(g) regarding participating employers, including employer/plan sponsor name, EIN, the percentage of total contributions to the plan or arrangement by each participating employer, and, for defined contribution plans only, the aggregate account balances information the SECURE Act added to ERISA section 103(g). That information is currently collected for MEPs as a non-standard attachment to the Form 5500 and Form 5500-SF, including, pursuant to the SECURE Act, the new data element added by the Final Rule Phase I to require reporting of the aggregate account balances for each participating employer in defined contribution MEPs only. Thus, the final forms revisions continue the provision in the September 2021 proposal and Final Rule Phase I confirming that defined benefit MEPs are not required to report the aggregate account balances. Also, consistent with the September 2021 proposal, Part II includes special instructions and questions 2(e) through 2(g) for “working owners” (see 29 CFR 2510.3-55(d)(2)) or other individuals who are participants or beneficiaries who are no longer associated with a participating employer or participating employer plan.
Schedule MEP, Part III is comprised of only the two questions that were added to the annual report by the Final Rule Phase I as information reported via non-structured attachment (
Two commenters expressed support for a separate Schedule MEP. One commenter pointed out that a new Schedule MEP makes it possible to systematically track and evaluate recently established plan types; significantly improves the disclosure and reporting regime for all plans (including MEPs), and eases access to, and use of, Form 5500 information. Another commenter agreed, noting that a new Schedule MEP is consistent with changes necessary under the SECURE Act. Some commenters opposed a Schedule MEP as singling out PEPs for special reporting requirements that are not imposed on other MEPs. Others did not object to the idea of a Schedule MEP in general but expressed concern about some elements of Part III of the proposed Schedule MEP.
In the Final Rule Phase I, the DOL stated it read certain commenter's questions as primarily directed at issues that may arise in the context of a standardized Schedule MEP structure for reporting this information. One commenter said that the instructions to Part II should be clarified. The amounts listed in line 2c and line 2f must equal 100% (with a permitted variance of less than 1% due to rounding). The amounts listed in line 2d and 2g must equal the amount listed on line 1l(b) of the Schedule H or on line 1c(b) of the Schedule I (with a permitted variance of less than 1% of the amount from Schedule H or Schedule I due to rounding). Another commenter requested clarification of the requirement to report the “Percentage of Total Contributions for the Plan Year” on line 2c (element 3 for the 2021 non-standard attachment). Specifically, the
Some commenters opposed new PEP specific questions arguing that their inclusion without specific guidance on PEP's administrative duties under section 3(44)(C) is beyond the scope of Congress' directive to the Agencies (specifically DOL) and also not supported by the text of the SECURE Act. For example, one commenter said that the question regarding whether the PPP operating the plan is in compliance with the PPP registration statement is ambiguous and unclear, including due to pending agency rulemakings (
The largest number of commenters expressed a concern with adding questions regarding prohibited transactions before guidance is issued, with one saying ERISA section 3(44)(D) specifically provides for a good faith reliance standard before ERISA section 3(44)(C) statutory guidance is issued. One commenter said that Schedule H already requires the disclosure of any nonexempt transactions with any party-in-interest and noted that adding required disclosures on the subject on the Schedule MEP would be burdensome on businesses, including small businesses entering the PEP service provider market. Four commenters said that adding Part III, Line 6, of the proposed Schedule MEP provides little benefit and that this line should not be added before issuing additional guidance. Five commenters said not to add questions before DOL addresses the issues raised in the RFI related to PEPs, which specifically requested information relating to conflicts and prohibited transaction exemptions (PTEs). One commenter argued that the prohibited transaction rules are complex. Requiring a disclosure that boils complex legal opinions down to a few sentences will likely result in many disclosures that are confusing and potentially misleading. One commenter had very specific concerns for PEO compliance with Part III of Schedule MEP, saying it introduces requirements that would apply only to a subset of multiple-employer retirement plans. That commenter said that the proposed rule would have the effect of establishing different sets of reporting requirements for PEOs, depending on whether the PEO is sponsoring a MEP or acting as a PPP for a PEP. For the latter, the proposed Schedule MEP would require completion of Part III of Schedule MEP. Among other requirements, the commenter noted that, as proposed, Part III would have obligated a PEP to indicate whether the PPP has complied with the registration requirements for PPPs and to indicate whether certain services were provided by an affiliate and, if relying on a PTE for the use of an affiliate, to identify the prohibited transaction exemption. Finally, two commenters pointed out that the instructions for the proposed Part III PPP questions included a reporting requirement related to “affiliates or other related parties” to the PPP that did not define “other related parties.” They noted that to the extent that “related party” is intended to encompass any entity in which the PPP may have an interest which may affect its best judgement as a fiduciary, this is a very intensive facts and circumstances inquiry for which even DOL itself will not issue advisory opinions.
After considering the public comments, the DOL decided to not include some questions originally proposed for Part III on the final Schedule MEP. Some questions regarding Form PR compliance were already added to the Schedule MEP, Part III, by the Final Rule Phase I on 2021 form changes. This final forms revision transfers those two PEP specific questions from Form 5500, Part I, Line A checkbox instructions to Schedule MEP, Part III, Line 3a and Line 3b, starting with the 2023 Form 5500 Annual Return/Report. The specific changes to accomplish this transfer can be found in Appendix A, which sets forth the new Schedule MEP and related instructions, and Appendix F, dealing with conforming and other miscellaneous changes to forms and instructions.
In the September 2021 proposal, the DOL solicited comments on enhancing fee transparency, specifically on whether more tailored questions should be added, in addition to those already on the Schedules C and H, to report fee and expense information on PEPs and other MEPs, including information on how fees and expenses are allocated among participating employers and among covered participants and beneficiaries. Two commenters expressed opposition to more questions on fees and expenses. One simply opined that currently required fee and expense reporting and disclosure is sufficient for MEPs. The second commenter provided a more detailed comment stating that in the case of a defined benefit MEP, generating and
Further, as finalized for the 2021 Forms and instructions, the Schedule MEP and related Form 5500 and Form 5500-SF instructions will provide that all PEPs, similar to the current rule for multiemployer plans (and for DCGs as provided elsewhere in this final rule), file the Form 5500 regardless of whether they would otherwise be eligible to file the Form 5500-SF. Making the filings across plan types more uniform provides more consistent and informed oversight of collective retirement arrangements. Small PEPs, like other small plans that file the Form 5500, could file the Schedule I instead of the Schedule H and its financial attachments, are not required to complete the Schedule C or Schedule G, and may file without having an IQPA audit and attaching an IQPA report if the PEP meets the conditions for the small plan audit waiver.
One commenter noted that while PEPs currently can only be offered as 401(a) plans, there are legislative proposals that, if enacted, would allow for 403(b) plan PEPs.
A limited number of new IRS tax compliance questions are being added to the forms, schedules, and instructions beginning with the 2023 plan year reports, including questions on the new Schedule DCG that are answered at the individual plan level (not the DCG level). The changes are largely unchanged from the September 2021 proposal and are in three major areas:
• Add a nondiscrimination and coverage test question to Form 5500-SF, Schedule R, and new Schedule DCG. The question asks if the employer aggregated plans in testing whether the plan satisfied the nondiscrimination and coverage tests of Code sections 401(a)(4) and 410(b).
• Add a question to Form 5500-SF, Schedule R, and new Schedule DCG, for section 401(k) plans, asking whether, if applicable, the plan sponsor used the design-based safe harbor rules or the “prior year” or “current year” ADP test.
• Add a question to Form 5500-SF, Form 5500-EZ, Schedule R, and new Schedule DCG asking whether the employer is an adopter of a pre-approved plan that received a favorable IRS Opinion Letter, the date of the favorable Opinion Letter, and the Opinion Letter serial number.
With respect to adding tax compliance questions, fifteen commenters submitted views on additional IRS tax compliance questions and other IRS-related changes that were included in the September 2021 proposal. Some of those commenters strongly supported the IRS including the tax compliance questions and recommended adding more questions. Other commenters recommended revising the IRS compliance questions to capture more accurately the information sought and to streamline data capture. One commenter recommended specifically that questions relating to coverage and nondiscrimination testing reflect that a plan may comply with nondiscrimination testing using multiple testing methods for different portions of the plan. The IRS revised the questions and instructions to gather information with respect to different testing methods used for different portions of the plan.
One commenter recommended exempting multiple-employer 401(k) plans from answering nondiscrimination questions because these plans may have many participating employers, each of which is required to pass nondiscrimination testing separately. The commenter further noted that participating employers in a MEP, including in a PEP, may use different methods to separately satisfy nondiscrimination requirements. The IRS revised the instructions to exempt MEPs and PEPs from answering certain nondiscrimination questions.
That same commenter also recommended simplifying the nondiscrimination questions by asking whether a plan uses ADP or ACP testing without regard to whether the testing is based on prior-year or current-year testing. The IRS is not adopting this recommendation. This nondiscrimination testing information enables the IRS to more precisely select issues and returns for audits and assists IRS agents in performing pre-audit
One commenter expressed concern that completing the Code section 410(b) coverage and ADP test results reported on a Form 5500 may not match the Form 5500 reporting period. The IRS believes that the plan's coverage and nondiscrimination tests (such as the ADP test) must be reported for the plan year for which those tests are completed. For each plan year, a 401(k) plan that is not a safe harbor plan is required to perform ADP testing. In calendar-year 401(k) plans, the current-year ADP test for a plan year is usually performed around the end of January of the following plan year. The due date for filing Form 5500 for the plan year is the last day of the 7th calendar month after the end of the plan year, so the IRS expects that testing data will be available for reporting on the Form 5500 for that plan year.
The final revisions include an additional nondiscrimination and coverage test question for the 2023 Form 5500 and Form 5500-SF. The question asks whether a plan maintained by an employer that has aggregated plans in its testing group satisfies the nondiscrimination and coverage tests of Code sections 401(a)(4) and 410(b). Adding this question allows the IRS to identify plans that have an increased risk of being non-compliant. The question is also helpful to the IRS in performing pre-audit analysis and allows the IRS to focus audit inquiries on information that is specifically relevant to the plan sponsor. This question also reflects an increased need to gather specific testing-group information in light of the elimination of optional coverage and nondiscrimination demonstrations under the IRS determination letter process.
The final revisions also include an additional question on the Form 5500 and Form 5500-SF, with respect to section 401(k) plans, that asks whether the plan sponsor used a design-based safe harbor approach or, if applicable, the “prior year” or “current year” ADP test. Adding this question will allow the IRS to distinguish between section 401(k) plans that use ADP testing and those that use designed-based safe harbor approaches. This question will also help the IRS perform pre-examination analysis and, for design-based safe harbor plans, verify whether safe harbor contributions comply with the terms of the plan and applicable safe harbor requirements.
One commenter recommended that the IRS eliminate or delay a new question included in the NPFR requiring disclosure by the adopter of a pre-approved plan document of the date and serial number of the pre-approved plan document's favorable opinion letter, on the grounds that this information is not currently maintained in the adopter's recordkeeping systems. Further, the commenter urged that, if this question is added, that it be significantly delayed. The IRS does not agree with either of these recommendations. The IRS believes that a pre-approved plan document provider should make pre-approved plan information, including a favorable IRS opinion letter date and serial number, available to each adopting employer. Accordingly, the favorable opinion letter should be readily available when an adopting employer prepares a Form 5500 series return. Pre-approved plan information provided in response to the new question will assist the IRS in determining if the plan document is up to date for all required law changes.
Accordingly, the final forms revisions include an additional question on the Form 5500, Form 5500-SF, and Form 5500-EZ, which asks whether the employer is an adopter of a pre-approved plan that received a favorable IRS opinion letter, and the date and serial number of the favorable IRS opinion letter. This question will help the IRS identify whether an employer has adopted a pre-approved plan and to determine whether the plan was timely adopted and amended.
In addition, one commenter requested clarification in the instructions regarding whether an employer that makes modifications to a pre-approved plan document loses reliance on the favorable IRS opinion letter and, accordingly, is no longer a pre-approved plan adopter. The IRS agrees with the recommendation and revises the instructions to clarify that, pursuant to Revenue Procedure 2017-41, 2017-29 IRB 92, an adopting employer is an employer that adopts a pre-approved plan offered by a provider, including a plan that is word-for-word identical to, or a minor modification of, a plan of a mass submitter. If a pre-approved plan is modified in such a way as to lose reliance on the favorable IRS opinion letter for that plan, then the plan is treated as an individually designed plan and, consequently, the adopting employer is no longer a pre-approved plan adopter.
As discussed in the NPFR, adding trust questions to the Form 5500 series would enable the Agencies to focus on compliance concerns more efficiently for retirement plan trusts, including those for PEPs and DCG reporting arrangements. The Agencies received several comments regarding the new trust questions. Some commenters agreed that information about trusts should be reported on the Form 5500 and recommended adding an additional trust question to increase transparency if plans utilize multiple trusts. Some commenters expressed concerns about administrative costs and burdens of answering the new trust questions, because trust EINs often are not used and distributions are typically reported under a service provider EIN, and requested that these questions either be eliminated or made optional. Additionally, commenters noted that certain plans that are required to file a Form 5500 do not have a trust, such as 403(b) plans subject to Title I of ERISA. For those plans, the plan sponsor cannot confirm the trust's EIN or whether the IRS has deactivated the trust's EIN. One commenter also expressed concern that the plan's trust EIN is not an item of information currently maintained in most recordkeeping systems. Another commenter requested elimination of the trust questions because Announcement 2007-63, 2007-30 IRB 236, eliminated the employee benefit trust reporting requirement that had been included in the now-discontinued Schedule P (Form 5500),
Under Announcement 2007-63, the IRS elected to treat a plan's Form 5500 series return as a filing for the plan's trust for purposes of starting the statute of limitations period under Code section
One commenter recommended adding two new questions to the Form 5500 and Form 5500-SF for 403(b) plans that would ask whether the 403(b) plan has notified all newly eligible participants of their eligibility to participate in the plan, and whether the 403(b) plan has communicated eligibility requirements annually to all eligible employees. This sort of additional annual reporting on 403(b) plans was not included in the September 2021 proposal, and would benefit from more public comment on the merits of asking such questions as part of an annual filing. Accordingly, although the Departments will continue to consider the relative costs and benefits of annual reporting on those subjects, such questions are not being added to the 2023 Form 5500 and Form 5500-SF.
Three commenters recommended adding qualified plan loan offset questions to Schedule H. Commenters expressed concerns that qualified plan loan offsets are a leading cause of premature distributions from 401(k) plans and other similar defined contribution retirement plans, but that these loan offsets are not separately reported on Form 5500. A plan loan offset occurs when, pursuant to loan terms, a participant's benefit is reduced to repay the loan. A plan loan offset is treated as a distribution for tax purposes. Form 1099-R and its instructions already provide information for plan distributions including qualified plan loan offsets (as qualified plan loan offsets are reported using Distribution Code M).
The Agencies note that in 2019 the Government Accountability Office recommended that DOL, in coordination with IRS, revise the Form 5500 to require plan sponsors to report qualified plan loan offsets as a separate line item distinct from other types of distributions to better identify the incidence and amount of loan offsets in 401(k) plans nationwide. In 2021, DOL advised GAO that a project to improve Form 5500 data reporting was being reopened and that the specifics of the project were still under development. As noted above, that Form 5500 general improvement project is on DOL's semi-annual agenda, and the DOL expects to focus on that project once final actions implementing the September 2021 proposal are completed.
The IRS considered the public comments submitted on this issue and concluded that it does not need this information on Form 5500 for compliance audit purposes. The September 2021 proposal did not include a proposed addition of a line item to report loan offsets for Form 5500 or Form 5500-SF filers. The DOL believes public comments on a proposal should be the next step and does not believe it is in a position to adopt such an annual reporting requirement as part of this final forms revisions notice. Accordingly, the Agencies are not adding such a question to the 2023 Form 5500, but DOL intends to consider GAO's recommendations and those of the public commenters noted above in connection with evaluating the specifics of its general Form 5500 improvement project.
Both Form 5500 and 5500-SF and their instructions are being revised to reflect a change in the reporting methodology related to the number of participants used in the current threshold (
The September 2021 proposal included a proposed change to the method of counting participants for determining when a defined contribution pension plan would be eligible for small plan reporting options, including the conditional waiver from the IQPA audit and report requirements. Currently, defined contribution pension plans determine whether they may file as small plans and whether they qualify for an audit waiver based on the number of participants with plan accounts as of the beginning of the plan year and on the number of participants who are eligible to elect to have contributions made under a section 401(k) qualified cash or deferred arrangement, even if they have not elected to participate and do not have an account balance in one of these plans. Specifically, the Form 5500 instructions currently instruct filers to “[u]se the number of participants required to be entered in line 5 of the Form 5500 to determine whether a plan is a “small plan” or “large plan.” Individual account plan filers are instructed to include on line 5 any individuals who are currently in employment covered by the plan and who are earning or retaining credited service under the plan. The instructions explain that “[t]his includes any individuals who are eligible to elect to have the employer make payments under a Code section 401(k) qualified cash or deferred arrangement.”
Under the September 2021 proposal, instead of using all those eligible to participate, filers would look to the number of participants/beneficiaries with account balances as of the beginning of the plan year (the first plan year would use an end- of- year measure). This change was proposed partly in light of section 112 of the SECURE Act, which provides that long-term, part-time workers that have reached specified minimum age requirements and worked at least 500 hours in each of three consecutive 12-month periods must be permitted to make elective contributions to a Code section 401(k) qualified cash or deferred arrangement for plan years beginning on or after January 1, 2024.
The DOL received nearly 100 comment letters that included the issue of counting participants for plan audits, a large majority of those comments commented solely, or mainly, on this issue. Approximately one-third of those commenters, primarily benefit plan auditors and associations of audit professionals, opposed the September 2021 proposal with some commenters asking the DOL to, at a minimum, delay its implementation. The auditors and related associations argued the risks associated with this proposal exceed any potential savings. Generally, the commenters opposing the proposal expressed two main concerns: (1) small plans are particularly vulnerable to control, compliance, and operations errors, and it would leave them without adequate protections; and (2) it would discourage employers from encouraging eligible employees to participate in their plans in order to avoid an audit requirement.
Several commenters suggested that the DOL reevaluate the small plan audit waiver to consider adding additional conditions for eligibility to address control, compliance, and operations errors that are not currently addressed by the exemption and, at the least, make auto-enrollment a condition for eligibility for the waiver should this proposal go forward. Commenters also suggested the development of a cost-effective alternative to the IQPA audit for small plans that would focus more on operational and compliance issues rather than financial statements, with several suggestions for different types of periodic compliance assessments. Some commenters expressed concern with the timing of the proposal, stating that the pandemic has left small plans at heightened risk because of plan disruptions and difficulty hiring staff.
Conversely, about two-thirds of all commenters on audit issues, made up primarily of small plan sponsors, third party administrators (TPAs), and associations representing employers supported the September 2021 proposed changes. A few commenters also mentioned that employers could increase their contributions rather than incur the expense of an audit. Commenters also stated that the current audit requirement deters plan formation and results in inconsistent treatment of plans and that the proposal provides a clear and logical way for participants to be counted which will prevent counting mistakes and does not require new data elements. TPA commenters also took issue with auditor comments regarding TPA knowledge of ERISA and their ability to help plans with compliance and expressed a belief the auditor comments are self-serving because of the potential for business loss under the proposal. One commenter stated TPAs often know ERISA, the Code, and DOL regulations better than auditors and provide better value than an audit. Additionally, many small plan sponsors disputed auditor assertions that employers would discourage participation in their plans to avoid the audit. Several commenters argued that the expense and continual rising costs of getting an audit outweighs the benefit of an audit for small plans and that eliminating the audit will encourage smaller employers to establish retirement plans.
Several commenters suggested delaying changes not related to the SECURE Act to lessen cost and administrative burden impacts on plans that already will be making changes associated with the SECURE Act and, in some cases, to make it part of a larger Form 5500 reform project. However, others recommended immediate implementation because of their belief that no additional data elements would be required for forms in order to implement the change.
After considering the public comments, the Agencies decided to adopt the proposed counting method change for defined contribution individual account plans by adding a new line item on both the Form 5500 and Form 5500-SF for defined contribution pension plans to report participants with account balances at the beginning of the plan year (there already is a line item for reporting the number of participants with account balances at the end of the plan year). Instead of using all those eligible to participate, defined contribution plan filers will look at the number of participants/beneficiaries with account balances as of the beginning of the plan year (the first plan year would use an end- of- year measure) when determining if they are eligible for small plan reporting options,
The DOL believes it is striking the right balance among the interest in providing secure retirement savings for participants and beneficiaries, the interest in minimizing costs and burdens on small pension plans and the sponsors of those plans, and the interest in promoting the establishment of retirement plans, especially by small businesses, to provide a workplace retirement savings option for their employees.
As described in greater detail in the regulatory impact analysis, making this revision to participant counting methods would be expected to reduce expenses for a significant number of plans. That analysis estimates that there would be a reduction of 19,442 large plan filings for defined contribution pension plans. Each plan would save an estimated $7500 (or more) on audit expenses. The reduction in expenses could encourage more employers to offer workplace-based retirement savings plans to their employees and might free up resources for more generous employer contributions.
With respect to concerns that small employers may seek to avoid enrolling otherwise eligible employees in order to avoid an audit, the DOL has seen no evidence, other than conjecture on the part of some commenters, indicating that employers would purposely discourage enrollment in their plans if this change is implemented. However, the DOL does take commenters' concerns regarding this issue seriously and notes that in addition to enforcement actions the DOL and individuals have available under Section 502 of ERISA in cases where participants are denied benefits, Section 510 of ERISA specifically provides protections to participants against employers interfering with their rights to attainment of benefits by making it unlawful.
Some commenters suggested an alternative to the proposal that would ensure that eligible participants are provided with opportunities to enroll in their retirement plans, such as making automatic enrollment a condition for eligibility for the small plan audit waiver, at least for defined contribution plans. The DOL declines to implement such a condition as part of this regulatory action. The proposal did not include any provision similar to what the commenter suggested. Current
As to commenter concerns about compliance errors that might go undetected without an audit, that concern applies broadly to all small plans that are eligible for the audit waiver, not just on the plans that will be newly eligible for the conditional small plan audit waiver based on the new counting methodology. The DOL does not believe that it would be appropriate to eliminate the audit waiver for all small plans. Rather, the DOL concluded many years ago that a conditional audit waiver struck an appropriate balance for small plans.
On August 29, 2022, PBGC published a Proposed Submission of Information Collection for OMB Review at 87 FR 52822 (Aug. 29, 2022). PBGC received one comment, in support of the collection of information. On November 4, 2022, PBGC published a Submission of Information Collection for OMB Review at 87 FR 66762 (Nov. 4, 2022).
In summary, and as described in more detail below, the changes to Schedule R, line 19 and its instructions, include the following: (1) modify Schedule R, line 19a, to require that all defined benefit pension plans (except DFEs) with 1,000 or more participants at the beginning of the plan year show the end-of-year distribution of assets, broken down in seven reconfigured categories of plan assets, and provide clarification concerning classification of atypical investments; (2) modify Schedule R, line 19b, to change the available categories for current average duration; and (3) eliminate Schedule R, line 19c.
Currently, line 19a of Schedule R requires that all defined benefit plans (except DFEs) that have 1,000 or more participants at the beginning of the plan year provide a breakdown of plan assets by reporting the percent of assets held in five categories of investments, with the percentages reported reflecting the asset allocation as of the beginning of the plan year. Currently, the five categories of investments are: Stock, Investment-Grade Debt, High-Yield Debt, Real Estate, and Other.
In the solicitation for public comment, PBGC proposed to reconfigure the categories to: Public Equity; Private Equity; Investment-Grade Debt and Interest Rate Hedging Assets; High-Yield Debt; Real Assets; Cash or Cash Equivalents; and Other. In addition, for certain investments, PBGC proposed to modify the instructions to clarify how certain atypical investments should be categorized for this purpose. For example, as currently drafted, it is not clear whether cash equivalents should be included in the “Investment-Grade Debt” category or in the “Other” category. Similarly, it is not clear whether infrastructure investments should be included in the “Real Estate” or the “Other” category. No comments were received. By expanding the list of categories and modifying the instructions, the more detailed information should be reported consistently, which will enable PBGC to better model important characteristics of plan portfolios. Accordingly, the Agencies are adopting these changes as proposed.
PBGC also proposed to modify the instructions for line 19a so that the percentages reported reflect the asset allocation as of the end of the plan year instead of the beginning of the plan year. No comments were received. Having more recent information will lead to better projections and more accurate analysis by PBGC, and because the Form 5500 isn't due until several months after the end of the plan year, this change should not create any timing issues for filers. Accordingly, the Agencies are adopting this change as proposed.
Currently, line 19b of Schedule R requires applicable filers to check the box that shows the average duration of the plan's combined Investment-Grade and High-Yield Debt portfolio. In the solicitation for public comments, PBGC proposed changes to line 19b (average duration) and its instructions. Under modified line 19b, applicable filers would be required to check a box to indicate the average duration of the plan's Investment-Grade Debt and Interest Rate Hedging Assets portfolio, thereby replacing the current requirement to check the box that shows the average duration of the plan's combined Investment-Grade and High-Yield Debt portfolio. The average duration ranges were also adjusted from multiple 3-year periods to multiple 5-year periods, with the last choice being a period of 15 or more years. No comments were received. Accordingly, the Agencies are adopting this change as proposed.
Line 19c currently asks for the duration measure used to calculate line 19b. PBGC has proposed to eliminate line 19c in the solicitation for public comment. Because the alternative duration measures do not provide meaningfully different results, PBGC has proposed to eliminate line 19c. No comments were received. Accordingly, the Agencies are adopting this change as proposed.
In summary, and as described in more detail below, the changes to Schedule SB include the following: (1) modify Schedule SB, line 6 (Target Normal Cost), and its instructions, to address a possible, albeit unlikely, situation in which the amount reported on line 6c would not be consistent with IRS regulations and the statute if the calculation was done in accordance with the instructions, (2) change the current instructions for line 26a to revise a line reference, and (3) change the current instructions for the Schedule SB, line 26b attachment (projected benefit payments), for situations where a plan assumes some, or all, benefits are paid in a lump sum, and uses the annuity substitution rule (26 CFR 1.430(d)-1(f)(4)(iii)(B)) to determine the funding target.
The Schedule SB for the 2022 plan year requires that two components of target normal cost be reported: (1) the present value of current plan year benefit accruals reduced by mandatory
The current instructions for Line 26a of Schedule SB provide that a plan reporting 1,000 or more active participants on line 3d, column (1), must also provide average compensation data. However, the correct line reference should be to line 3c, column (1). Accordingly, the Agencies are adopting this change with this final rule.
Line 26b of Schedule SB currently requires plans covered by Title IV of ERISA that have 1,000 or more participants as of the valuation date to provide a 50-year projection of expected benefit payments and that, for purposes of the projection, benefits are assumed to be paid in the form assumed for valuation purposes. In the solicitation for comments, PBGC noted that, in situations where a plan assumes some, or all, benefits are paid as a lump sum, but uses the annuity substitution rule (26 CFR 1.430(d)-1(f)(4)(iii)(B)) to determine the funding target, those instructions suggest projected benefits be shown in a different form of payment than what was used to determine the funding target. To clarify that this was not the intent, PBGC proposed changing the instructions to provide that, in such situations, the attachment may show projected benefits payable in the annuity form instead of in the form of payment assumed for valuation purposes. PBGC did not receive any comments. Accordingly, the Agencies are adopting this change as proposed.
The September 2021 proposal included revisions to the content requirements for the “Schedule of Assets Held for Investment” and the “Schedule of Assets Held and Disposed of within the Plan Year” to modernize the data elements required to be reported about a plan's investments and to require that the schedules be filed electronically in a structured format so that they are data-minable. The proposed changes were designed to improve the consistency, transparency, and usability of information reported regarding plan investments. For example, there is no efficient method for the DOL to identify all of the ERISA plans that invest in a specific investment such as a collective investment trust, mutual fund, or limited partnership. Better data about plan investments would assist the DOL, IRS, and the PBGC more effectively and efficiently provide oversight, assist with compliance, and enforce the provisions of ERISA and the Code. Standardizing an electronic format for the plan's investment schedules would allow data aggregation and review, which could be used both by the DOL and IRS for enforcement and oversight, but also by private sector organizations.
The Agencies received several comments in response to this proposed change. While many commenters supported establishing a standardized electronic format for the plan's investment schedules, some said that further consultation with stakeholder groups is needed, especially custodians who would likely be called upon to provide asset information needed to satisfy the proposed new data elements on the Schedules of Assets. Several commenters requested delaying the effective date to give sufficient lead time for filers and service providers to implement the changes and update the recordkeeping systems. Some commenters opposed the proposed change, expressing concerns about potential burdens and costs associated with creating a mandatory electronic filing requirement for the Schedules of Assets, especially for large plans where information is not currently provided in a data-capturable format. Two commenters provided extensive comments regarding reordering and regrouping the data elements of the proposed Schedules of Assets to minimize confusion and variability in the data entries. Some commenters raised concerns regarding the proposed new checkbox to identify if an asset is a hard-to-value asset. Three commenters requested clarification and made suggestions on proposed elements to add legal entity and other industry and regulatory identifiers for investment assets. The Agencies also received comments on other proposed elements, including the checkboxes to identify if an asset is a designated investment alternative or qualified default investment alternative in a defined contribution plan.
After considering the public comments, the Agencies decided that the improved transparency and financial accountability goals of the September 2021 proposal would best be furthered by using the public comments to refine the Schedule of Asset changes and include them in the proposal that is part of the more general Form 5500 improvement project currently on the DOL semi-annual regulatory agenda.
The final forms revisions update Schedule H to add new breakout categories to the “Administrative Expenses” category of the Income and Expenses section of the Schedule H balance sheet. As discussed in the NPFR, the Agencies have determined that to get a better picture of plan expenses, particularly those related to service providers, more detail in this category is warranted. The data element breakouts for Administrative Expenses will now be “Salaries and allowances,” “Contract administrator fees,” “Recordkeeping fees,” “IQPA audit fees,” “Investment advisory and investment management fees,” “Bank or trust company trustee/custodial fees,” “Actuarial fees,” “Legal fees,” “Valuation/appraisal fees,” “Other Trustee fees/expenses,” and “Other expenses.”
Commenters complained that the new breakout categories are unnecessary and burdensome, and add layers of expense and difficulty to Form 5500 filing without added useful information. The
Transparency and improved reporting of fees and expenses is an ongoing objective for the DOL and an important goal for continuing to improve the Form 5500 as a tool for financial transparency and accountability among employee benefit plans.
The new breakouts will also supplement and allow for some cross-testing of amounts that should be recorded as a payment of direct compensation to a service provider on line 2 of Schedule C, to the extent that the service provider receives more than $5,000 from the plan during the year. Since those amounts are already required to be reported on the Schedule C, it should be a relatively straightforward exercise in arithmetic to sum up the Schedule C entries for purposes of reporting them on the Schedule H expense statement. Also, the total currently reported on the Schedule H should include all of the items that would be reported in the new breakouts, so plans should already have collected and recorded those payments to satisfy current Schedule H requirements. To the extent filers believe that they may have challenges in classifying particular payments into one of the breakout categories, the instructions will provide that the administrator can use any reasonable method of classifying expenses into appropriate categories (although the categories are sufficiently distinct that the DOL does not expect plans to face significant difficulty in this area). Also, other than IQPA audit fees and bank or trust company trustee/custodial fees, the new breakouts are similar to breakouts of plan expenses that were reported for many years until the detail of expense reporting on the Schedule H was reduced as part of a paperwork reduction and reporting simplification project implemented with the 1999 Form 5500 in connection with the implementation of the first stage of the EFAST filing system.
Various other technical, formatting, and conforming changes to the forms, schedules, and instructions are being adopted as part of this final forms revisions notice. The changes primarily are needed to reflect the new DCG consolidated reporting option and the new Schedule MEP for multiple-employer pension plans, including PEPs, and Schedule MB to clarify special financial assistance reporting requirements for multiemployer plans. A conforming change was made to the Form 5500 instructions for the “Limited Pension Plan Reporting” option for IRA-based plans to require IRA-based MEPs relying on the option to complete the Schedule MEP, which replaced a participating employer and PEP reporting attachment requirement for Part I, Line A of the 2022 Form 5500 that applied to such IRA-based MEPs. Other technical and conforming changes include minor technical amendments applicable to plan years starting after December 31, 2022, to update several line instructions for Form 5500-SF and Schedules H and I for information reported by plans regarding plan benefits payments and unpaid required minimum distributions.
The instructions defining what constitutes a MEP for purposes of the Form 5500 include conforming changes in appropriate places throughout to include references to PEPs, DCGs, Schedule MEP, and Schedule DCG. The Form 5500 instructions for Part I, DFE box, are being updated to add a code for DCGs, which would include an instruction to check the DFE box and enter the DCG code. Entries for the Schedule MEP and Schedule DCG would be added to the checkbox list on the Form 5500 pension schedules. DCG filers would have to check that they are adding the Schedule DCG and enter the number of Schedule DCG attached. The Form 5500-SF instructions are being amended to add DCGs to those types of filers that are not permitted to file a Form 5500-SF, but must instead file the Form 5500, with all required schedules and attachments. The Form 5500 and Schedule D instructions are being revised to state that PEPs and DCGs cannot use master trust investment account (MTIA) reporting designed for master trust investments of affiliated plans. This is because the purpose of the MTIA provisions is to provide an annual reporting structure for groups of affiliated plans (
In the September 2021 proposal, the Agencies specifically requested comments on whether the final rule should require more detailed reporting regarding fee and expense information on the Form 5500, noting that useful comments would include, for example, suggestions on how to improve reporting of direct and indirect service provider compensation, generally and in particular with respect to PEPs, other MEPs, and DCG reporting arrangements (including information about how the fees and expenses are allocated among participating plans, employers, and plan participants and beneficiaries, as applicable). Another example of an area of interest on fee information is whether the Form 5500 would be an appropriate vehicle for collecting information on fees charged to participants or alternate payees by a retirement plan—including plan service provider fees the plan passes on to participants—for review and qualification of domestic relations orders.
This final forms revisions notice also amends the Form 5500 and Form 5500-SF instructions and makes conforming changes to the other parts of the forms, schedules, and instructions to implement the changes described above to the participant count methodology for individual account plans for determining whether such plans have to file as a large plan and whether they have to attach an IQPA report.
In accordance with the Paperwork Reduction Act of 1995 (PRA 95) (44 U.S.C. 3506(c)(2)(A)), the Agencies solicited comments concerning the information collection requests (ICRs) included in the revision of the Form 5500 Annual Return/Report.
The Agencies did not receive comments that specifically addressed the paperwork burden analysis of the information collection requirement contained in the proposed rule.
In connection with publication of the final regulations and final forms revision, the Agencies are submitting ICRs to OMB requesting a revision of the collections of information under OMB Control Numbers 1210-0110 (DOL), 1545-1610 (IRS), 1212-0057 (PBGC) and 1210-0040 (DOL for SAR) reflecting the final regulations and instruction changes being finalized in this document. The Agencies will notify the public when OMB approves the ICRs.
A copy of the ICRs may be obtained by contacting the PRA addressee shown below or at
The burden analysis is based on data from the 2020 Form 5500 filings (the latest year for which complete data are available). The burden analysis includes the burden of the current information collection and adjusts it for changes made by the final rule and final forms revisions. Burden estimates consider the change in plan counts due to the creation of PEPs and DCGs, with an increase in MEPs and a decrease in single-employer plans, reflecting some single-employer plans moving to PEPs or filing as a DCG. The burden also includes the additional burden from the changes to the 2023 Form 5500 and related schedules.
The Agencies' burden estimation methodology excludes certain activities from the calculation of “burden.” If the activity is performed for any reason other than compliance with the applicable Federal tax administration system or the Title I annual reporting requirements, it was not counted as part of the paperwork burden. For example, most businesses or financial entities maintain, in the ordinary course of business, detailed accounts of assets and liabilities, and income and expenses for the purposes of operating the business or entity. These recordkeeping activities were not included in the calculation of burden because prudent business or financial entities normally have that information available for reasons other than Federal tax or Title I annual reporting. Only time for gathering and processing information associated with the tax return/annual reporting systems, and learning about the law, was included. In addition, an activity is counted as a burden only once if performed for both tax and Title I purposes. The Agencies also have designed the instruction package for the Form 5500 Annual Return/Report so that filers generally will be able to complete the Form 5500 Annual Return/Report by reading the instructions without needing to refer to the statutes or regulations. The Agencies, therefore, have considered in their PRA calculations the burden of reading the instructions and find there is no recordkeeping burden attributable to the Form 5500 Annual Return/Report.
A summary of paperwork burden estimates follows. As noted above, these estimates include the burden of the overall Form 5500 information collection for all three agencies and makes adjustments for the final revisions to the instructions included in this document. It also reflects updates to the Summary Annual Report for DOL.
The DOL solicited comments regarding whether or not any recordkeeping beyond that which is usual and customary is necessary to complete the Form 5500 Annual Return/Report. No comments were received on this issue. Comments were also solicited on whether the Form 5500 Annual Return/Report instructions are generally sufficient to enable filers to complete the Form 5500 Annual Return/Report without needing to refer to the statutes or regulations. No comments were received on this issue.
The aggregate hour burden for the Form 5500 Annual Return/Report (including schedules and short form) is estimated to be 4.3 million hours annually shared between the DOL, IRS, and the PBGC. The hour burden reflects filing activities carried out directly by filers. Presented below is a chart showing the total hour burden of the revised Form 5500 Annual Return/Report separately allocated across the DOL, the IRS, and the PBGC.
The Agencies have included the following appendices to provide more detailed illustrations and explanations of the changes, which will be implemented for the 2023 Forms 5500, expected to be available for filing on January 1, 2024:
(1) Appendix A—a facsimile of Schedule MEP (Multiple-Employer Pension Plan) and its instructions;
(2) Appendix B—a facsimile of Schedule DCG (Individual Plan Information) and its instructions;
(3) Appendix C—a description of changes in participant count reporting and counting methodology;
(4) Appendix D—description of changes to Schedule R, Form 5500-SF Instructions to add new Code compliance questions;
(5) Appendix E—description of additional defined benefit plan reporting improvements;
(6) Appendix F—description of miscellaneous other changes to the Form 5500, Form 5500-SF, and schedules and instructions, including a description of changes to breakout categories for administrative expenses in Schedule H.
Consistent with the Agencies' annual updates to the forms, the final versions may include technical corrections, additions, and formatting adjustments that do not require further notice and comment under the PRA, the APA, or any relevant Executive Order.
Consistent with the proposal, to implement some of the proposed revisions to the forms, the DOL is publishing separately today in the
Pursuant to the authority in sections 101, 103, 104, 109, 110 and 4065 of ERISA and sections 6058 and 6059 of the Code, the Form 5500 Annual Return/Report and the instructions thereto are amended as set forth herein.
Signed at Washington, DC.
Bureau of Industry and Security, Commerce.
Final rule.
The Bureau of Industry and Security (BIS) maintains, as part of its Export Administration Regulations (EAR), the Commerce Control List (CCL), which identifies certain items subject to Department of Commerce jurisdiction. During the December 2021 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (WA) Plenary meeting, Participating States of the WA (Participating State) made certain decisions affecting the WA control lists, which BIS is now implementing via amendments to the CCL. On August 15, 2022, BIS published a final rule that implemented some of these decisions by adding to the CCL four technologies that met the criteria for emerging or foundational technologies under Section 1758 of the Export Control Reform Act of 2018 (ECRA). This final rule implements the remaining controls agreed to during the December 2021 WA Plenary meeting by revising the CCL, as well as certain EAR provisions, including License Exception Adjusted Peak Performance (APP). This final rule also makes corrections to align the scope of Significant Item (SI) license requirements throughout the EAR and makes a revision to License Exception Strategic Trade Authorization (STA).
This rule is effective February 24, 2023 except for the amendments to § 740.7(d)(3)(i) and (ii) (instruction 5) and to supplement no. 1 to part 774 ECCNs 4A003, 4D001, and 4D001 (instruction 13), which are effective March 14, 2023.
For general questions, contact Sharron Cook, Office of Exporter Services, Bureau of Industry and Security, U.S. Department of Commerce at 202-482-2440 or by email:
The WA (
BIS published an interim final rule on August 15, 2022 (87 FR 49979), implementing four new controls on items meeting the criteria of Section 1758 of ECRA, which were part of the revisions to the WA control lists decided by Participating States at the December 2021 WA Plenary meeting. The changes to the CCL and related EAR parts made by this rule reflect the remaining revisions to the WA control lists decided during the December 2021 WA Plenary meeting. The rule also makes related clarifying edits to CCL entries and revisions to reflect technical advancements. Unless explicitly discussed below, the revisions made by this rule will not impact the number of license applications submitted to BIS.
In a rule issued on January 2, 2014 (79 FR 264), effective July 1, 2014, BIS moved conventional steel helmets from ECCN 0A988 to newly added ECCN 1A613.y.1. ECCN 0A988 remained on the CCL but contained only a brief explanation that the control for these helmets had been moved to 1A613.y.1. Given the time that has elapsed since relocation of the control for these helmets, the explanation under paragraph 0A988, along with the entry itself, are no longer necessary. BIS is therefore removing ECCN 0A988 from the CCL.
This rule revises 1A613.c “military helmets” by removing the phrase “and “specially designed” helmet shells, liners, or comfort pads therefor.”, because it is duplicative of items that are already controlled under 1A613.x, specifically, any specially designed parts, components, or accessories would be controlled under 1A613.x, including the shells, liners, and pads currently specified in 1A613.c. In paragraph 1A613.c, this rule adds Note 3, which lists characteristics of items that are not controlled by 1A613.c,
This rule revises 1C006.b by removing paragraph b.2 (Fluorinated silicone fluids), because extensive market research submitted to the WA indicates that in the past two decades countries that are not Participating States have either developed or obtained the expertise to produce fluorinated silicone fluids. Due to the availability of this item in countries that are not Participating States, the Participating States decided to remove it from their control lists. BIS is accordingly removing the item from the CCL. Items previously controlled under 1C006.b.2 are now EAR99 and remain subject to the EAR.
This rule revises the Annex to Category 1 of the CCL by adding two
This rule removes 2E003.b.2 (Technical data consisting of process methods) from the CCL. The control on the parameters described in 2E003.b.2 has remained unchanged since the establishment of the WA Dual-Use List in 1996. Since that date, each of the four processes described in 2E003.b.2.a-d. have entered common commercial use,
This rule revises Note 1 to Category 3 by adding 3A001.b.12 to the list of 3A001 subparagraphs that are not within the scope of the note,
This rule amends paragraph 3A001.b.4.b.1 by correcting the specified power output in decibel-milliwatts (dBm) from 48.54 dBm to 48.45 dBm. It also makes two additional technical corrections by adding “a” in 3A002.c.2 before “Displayed Average Noise Level” and in 3A002.d.4 before “single sideband”.
This rule revises paragraphs 3A001.b.11.e (`frequency synthesizer' “electronic assemblies”), 3A002.d.3.e (signal generators with specified “frequency switching times”), and 3A002.d.5.c (signal generators with specified `RF modulation bandwidth' of digital baseband signals) by decreasing the upper limit of the specified frequency range from 90 gigahertz (GHz) to 75 GHz. The upper limit of 75 GHz now applies to 3A001.b.11.e, 3A002.d.3.e, and 3A002.d.5.c, which have a “frequency switching time” of “less than 100 μs for any frequency change exceeding 2.2 GHz.”
The Participating States decided to expand certain frequency ranges to account for higher signal generator Radio Frequency (RF) modulation bandwidth at millimeter-wave frequencies, specifically within the 60 to 90 GHz band (E-band), required for automotive anti-collision radar. Specifically, the 76 to 81 GHz frequency band has been allocated for automotive radar in the United States and Europe. Moreover, electronic assemblies and signal generator requirements for automotive radar millimeter-wave applications will require RF modulated outputs over a bandwidth larger than the former control limit of 2.2 GHz RF modulation bandwidth.
Accordingly, 3A001.b.11.f is added as a new paragraph to control `frequency synthesizer' “electronic assemblies” having a “frequency switching time” of “less than 100 µs for any frequency change exceeding 5.0 GHz within the synthesized frequency range exceeding 75 GHz but not exceeding 90 GHz.” This rule also adds paragraph 3A002.d.3.g to control signal generators having a “frequency switching time” of “Less than 100 µs for any frequency change exceeding 5.0 GHz within the frequency range exceeding 75 GHz but not exceeding 90 GHz;” and adds paragraph 3A002.d.5.d to control signal generators with a `RF modulation bandwidth' of digital baseband signals “Exceeding 5.0 GHz within the frequency range exceeding 75 GHz but not exceeding 90 GHz.”
Prior to the publication of this rule, 4A003.b specified an APP threshold of 29 Weighted TeraFLOPS (WT) for “digital computers”. However, for those Participating States that manufacture digital computer systems, including 32-socket servers that have approached this 29 WT threshold, such digital computer systems would likely exceed this APP threshold if built with the latest generation microprocessor in 2022 or in the near future. Additionally, there is an increased demand for database servers across a broad range of industries including business planning, banking/financial transactions, healthcare, genetic research, and fraud detection. To reflect these circumstances, the Participating States decided to raise the control threshold from 29 WT to 70 WT. The Participating States determined that this increase in control threshold would provide sufficient margin for a few years' growth before another adjustment would be necessary.
Accordingly, this rule raises the APP threshold for “digital computers” in 4A003.b from “exceeding 29 Weighted TeraFLOPS (WT)” to “exceeding 70 Weighted TeraFLOPS (WT).” Consistent with this change, the Antiterrorism (AT) license requirement paragraph in the License Requirements section of 4A003 and the Note that follows the license requirement table are also amended by changing the specified APP threshold from 29 to 70 WT. The Congressional notification requirement set forth in subsection 1211(d) of the National Defense Authorization Act for Fiscal Year 1998 (Pub. L. 105-85, November 18, 1997, 111 Stat. 1629, 1932-1933, as amended; 50 U.S.C. 4604 note) provides that the President must submit a report to Congress 60 days before adjusting the composite theoretical performance level above which exports of digital computers to Tier 3 countries require a license. The submission of this report has been delegated to the Secretary of Commerce. On January 13, 2023, the Secretary of Commerce submitted to Congress a report that establishes and provides justification for the 70 WT control level using the APP formula. Therefore, this revision will become effective on March 14, 2023. BIS estimates that this revision will result in no change to license application submissions, because this revision is keeping pace with advancements in HPC technology.
This rule makes a correction by removing 4A003.e from the national security license requirements, because there currently is no paragraph 4A003.e.
In light of the change made to the APP threshold in 4A003.b, this rule makes conforming changes to the APP threshold in the License Exception Technology and Software under Restriction (TSR) eligibility paragraph and to the Special Conditions for STA paragraph under ECCNs 4D001 and 4E001 that raise the specified APP threshold from 29 WT to 70 WT. These
This rule amends License Exception APP to raise the APP eligibility levels for deemed exports of “technology” and “software” source code destined to foreign nationals of Computer Tiers 1 and 3 Countries. These levels, which are recommended by industry groups in consultation with BIS, are raised to better enable the advancement of “development,” “production,” and “use” “technology” and “software” in the area of computer manufacturing, which in turn promotes advancements in military technology that bolster the national security of the United States.
This rule amends § 740.7(c)(3)(ii) by raising the APP from 40 WT to 175 WT for eligible deemed exports of “development” and “production” technology and source code to foreign nationals of Tier 1 countries. It also amends § 740.7(c)(3)(iii) by raising the APP from 200 WT to 500 WT for eligible deemed exports of “use” technology and source code to foreign nationals of Computer Tier 1 countries.
This rule amends § 740.7(d)(3)(i) by raising the APP from 16 WT to 50 WT for eligible deemed exports of “development” and “production” technology and source code to foreign nationals of Tier 3 countries. It also amends § 740.7(d)(3)(ii) by raising the APP from 32 WT to 140 WT for eligible deemed exports of “use” technology and source code to foreign nationals of Computer Tier 3 countries which becomes effective March 14, 2023.
This rule adds new paragraph (b)(2)(viii)(A) to § 740.20 License Exception Strategic Trade Authorization (STA) to harmonize this license exception with the STA special condition under ECCN 9B001 that states that STA may not be used for a Country Group A:6 destination. Consistent with this addition, this rule redesignates existing subparagraphs (A)-(F) as (B)-(G). This revision to STA aligns with BIS's goal to clarify restrictions on the availability of STA for the export, reexport, and transfer (in-country) of certain items controlled under the EAR as set forth in the preamble of a proposed rule published on October 22, 2021 (86 FR 58615). This revision is also generally responsive to a public comment received in response to that rule that is supportive of BIS's efforts to clarify restrictions on STA's availability. BIS is reviewing other public comments that it received in response to that rule and will address them in a separate final rule at a future date.
As set forth below, this rule also makes certain revisions to ECCN 9B001.
This rule revises 5A003.a to replace the word “using” with the words “to use,” to clarify that the scope of controls applies to communication cable systems that were designed or modified to employ either mechanical, electrical or electronic means to detect surreptitious intrusion, not communication cable systems that were designed or modified by utilizing mechanical, electrical or electronic means.
6A005.d.1.b.1 applies to individual `multiple-transverse mode' semiconductor “lasers” with an average or continuous wave (CW) output power exceeding 15 watts (W). This is a relatively low output power value. Multiple-transverse mode semiconductor lasers can achieve much higher powers and are now readily available outside of Participating States in an increasing number of commercial applications. For this reason, this rule revises 6A005.d.1.b.1 by increasing the average or CW output power from 15 W to 25 W for individual `multiple-transverse mode' semiconductor “lasers.”
This rule revises Technical Note 1, which appears after the Note to 6A008.l, by replacing the word “used” with the word “designed” to clarify that the scope of the note applies to marine radars that are designed for civil application rather than to marine radars used for civil application.
This rule revises 6D003.h.1, which refers to certain Air Traffic Control “software application programs”, by deleting the words “application programs,” which are superfluous in this context. The word “software” sufficiently describes the scope of controlled under 6D003.h.1.
This rule makes an editorial revision to 7D003.e by adding a hyphen between the words “circulation” and “controlled” that appears after the word helicopter; as revised, the reference is to “helicopter circulation-controlled anti-torque or circulation-controlled direction control systems,” which is a defined term in § 772.1 of the EAR.
This rule adds “sub-orbital craft” to the heading of ECCN 9A004 and to paragraph 9A004.g. Based on this addition, 9A004.g now controls “aircraft” “specially designed” or modified to be air-launch platforms for “sub-orbital craft.” This change is being made to reflect the fact that “aircraft” “specially designed” or modified to be air-launch platforms for sub-orbital craft may be indistinguishable from “aircraft” “specially designed” or modified to be air-launch platforms for space launch vehicles.
This rule revises 9B001.c by broadening the control in two respects. First, it replaces “specially designed” with “designed”, and second, it replaces the phrase “manufacturing gas turbine engine blades, vanes or “tip shrouds” ” with “superalloys”, a broader term referring to certain highly durable materials. As revised, the text mirrors the control in 9B001.a, which covers directional solidification or single crystal casting equipment designed for “superalloys.” In particular, the revised control focuses on additive-manufacturing equipment designed to work with a certain type of material (“superalloys”), rather than on the three manufactured items (“manufacturing gas turbine engine blades, vanes or “tip shrouds” ”). These changes are necessary to keep pace with technology advancements and modernize controls to address new methods to manufacture gas turbine engine components (
This rule revises the STA special conditions paragraph for ECCN 9E003 by removing paragraph a.8, and adding paragraphs .c and. i (other than technology for fan or power turbines) to match the STA limitation paragraph in § 740.20(b)(2)(viii)(D)(1) of the EAR. This revision is consistent with BIS's goal, as stated in the preamble of the October 22, 2021 rule (86 FR 58615), to
This rule also makes an editorial revision to 9E003.a.5 by removing a hyphen; as revised, the control applies to “tip shrouds.”
A hot section refers to the portion of a gas turbine engine that operates at a high temperature,
This rule amends § 772.1 by revising the definitions of the terms “compensation systems” and “diffusion bonding.” The definition of “compensation systems” is clarified by adding the word “the” in the phrase “that permit reduction of [the] rigid body rotation noise of the platform.” The definition of the term “diffusion bonding” is amended by removing the reference to Category 9 in the parenthetical that lists where this term is used in the CCL, because it is not used in Category 9.
Shipments of items removed from license exception eligibility or eligibility for export, reexport or transfer (in-country) without a license as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting carrier, or en route aboard a carrier to a port of export, on February 24, 2023, pursuant to actual orders for exports, reexports and transfers (in-country) to a foreign destination, may proceed to that destination under the previous license exception eligibility or without a license so long as they have been exported, reexported or transferred (in-country) before April 18, 2023. Any such items not actually exported, reexported or transferred (in-country) before midnight, on April 18, 2023, require a license in accordance with this final rule.
On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the ECRA, 50 U.S.C. 4801-4852. ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.
1. Executive Orders 13563 and 12866 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 and distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits and of reducing costs, harmonizing rules, and promoting flexibility.
This final rule has been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
• 0694-0088, “Simplified Network Application Processing System,” which carries a burden- hour estimate of 29.6 minutes for a manual or electronic submission;
• 0694-0137, “License Exceptions and Exclusions,” which carries a burden-hour estimate average of 1.5 hours per submission (Note: submissions for License Exceptions are rarely required);
• 0694-0096, “Five Year Records Retention Period,” which carries a burden-hour estimate of less than 1 minute; and
• 0607-0152, “Automated Export System (AES) Program,” which carries a burden-hour estimate of 3 minutes per electronic submission.
Additional information regarding these collections of information—including all background materials—can be found at
3. Pursuant to Section 1762 of ECRA (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (APA) (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation and delay in effective date.
Administrative practice and procedure, Exports, Inventions and patents, Research, Science and technology.
Administrative practice and procedure, Exports, Reporting and recordkeeping requirements.
Exports, Terrorism.
Exports.
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, parts 734, 740, 742, 772 and 774 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:
50 U.S.C. 4801-4852; 50 U.S.C. 4601
(a) * * *
(4) There is no
50 U.S.C. 4801-4852; 50 U.S.C. 4601
(c) * * *
(3) * * *
(ii) “Development” and “production” technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 175 Weighted TeraFLOPS (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
(iii) “Use” technology and source code described in paragraph (a)(2) of this section for computers with a APP less than or equal to 500 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 1 destinations, other than the destinations that are listed in paragraph (c)(3)(i) of this section, subject to the restrictions in paragraph (b) of this section.
(d) * * *
(3) * * *
(i) “Development” and “production” technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 50 Weighted TeraFLOPs (WT) are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) of this section.
(ii) “Use” technology and source code described in paragraph (a)(2) of this section for computers with an APP less than or equal to 140 WT are eligible for deemed exports under License Exception APP to foreign nationals of Tier 3 destinations as described in paragraph (d)(1) of this section, subject to the restrictions in paragraph (b) of this section.
(b) * * *
(2) * * *
(viii) * * *
(A) License Exception STA may not be used for 9B001 when destined to a country in Country Group A:6.
50 U.S.C. 4801-4852; 50 U.S.C. 4601
(a)
(b)
50 U.S.C. 4801-4852; 50 U.S.C. 4601
50 U.S.C. 4801-4852; 50 U.S.C. 4601
The revisions read as follows:
a. Metallic or non-metallic armored plate “specially designed” for military use and not controlled by the USML.
b. Shelters “specially designed” to:
b.1. Provide ballistic protection for military systems;
b.2. Protect against nuclear, biological, or chemical contamination.
c. Military helmets (other than helmets controlled under 1A613.y.1) providing less than NIJ Type IV or “equivalent standards” protection.
d. Body armor and protective garments, as follows:
d.1. Soft body armor and protective garments manufactured to military standards or specifications, or to their equivalents, that provide ballistic protection equal to or less than NIJ level III (NIJ 0101.06, July 2008) or “equivalent standards”;
d.2. Hard body armor plates that provide ballistic protection equal to NIJ level III (NIJ 0101.06, July 2008) or “equivalent standards”.
e. Atmospheric diving suits “specially designed” for rescue operations for submarines controlled by the USML or the CCL.
f. Other personal protective “equipment” “specially designed” for military applications not controlled by the USML, not elsewhere controlled on the CCL.
g. to w. [Reserved]
x. “Parts,” “components,” “accessories,” and “attachments” that are “specially designed” for a commodity controlled by ECCN 1A613 (except for 1A613.y) or an article enumerated in USML Category X, and not controlled elsewhere in the USML.
y. Other commodities as follows:
y.1 Conventional military steel helmets.
y.2 [Reserved]
a. [Reserved]
b. Lubricating materials containing, as their principal ingredients, phenylene or alkylphenylene ethers or thio-ethers, or their mixtures, containing more than two ether or thio-ether functions or mixtures thereof.
c. Damping or flotation fluids having all of the following:
c.1. Purity exceeding 99.8%;
c.2. Containing less than 25 particles of 200 μm or larger in size per 100 ml; and
c.3. Made from at least 85% of any of the following:
c.3.a. Dibromotetrafluoroethane (CAS 25497-30-7, 124-73-2, 27336-23-8);
c.3.b. Polychlorotrifluoroethylene (oily and waxy modifications only);
c.3.c. Polybromotrifluoroethylene;
d. Fluorocarbon fluids designed for electronic cooling and having all of the following:
d.1. Containing 85% by weight or more of any of the following, or mixtures thereof:
d.1.a. Monomeric forms of perfluoropolyalkylether-triazines or perfluoroaliphatic-ethers;
d.1.b. Perfluoroalkylamines;
d.1.c. Perfluorocycloalkanes;
d.1.d. Perfluoroalkanes;
d.2. Density at 298 K (25 °C) of 1.5 g/ml or more;
d.3. In a liquid state at 273 K (0 °C);
d.4. Containing 60% or more by weight of fluorine.
1. ADNBF (aminodinitrobenzofuroxan or 7 amino 4,6 dinitrobenzofurazane 1 oxide) (CAS 97096 78 1);
2. BNCP (cis bis (5 nitrotetrazolato) tetra amine cobalt (III) perchlorate) (CAS 117412 28 9);
3. CL 14 (diamino dinitrobenzofuroxan or 5,7 diamino 4,6 dinitrobenzofurazane 1 oxide) (CAS 117907 74 1);
4. CL 20 (HNIW or Hexanitrohexaazaisowurtzitane) (CAS 135285 90 4); chlathrates of CL 20;
5. CP (2 (5 cyanotetrazolato) penta amine cobalt (III) perchlorate) (CAS 70247 32 4);
6. DADE (1,1 diamino 2,2 dinitroethylene, FOX-7) (CAS 145250-81-3);
7. DATB (diaminotrinitrobenzene) (CAS 1630 08 6);
8. DDFP (1,4 dinitrodifurazanopiperazine);
9. DDPO (2,6 diamino 3,5 dinitropyrazine 1 oxide, PZO) (CAS 194486 77 6);
10. DIPAM (3,3′ diamino 2,2′,4,4′,6,6′ hexanitrobiphenyl or dipicramide) (CAS 17215 44 0);
11. DNGU (DINGU or dinitroglycoluril) (CAS 55510 04 8);
12. Furazans as follows:
a. DAAOF (diaminoazoxyfurazan);
b. DAAzF (diaminoazofurazan) (CAS 78644 90 3);
13. HMX and derivatives, as follows:
a. HMX (Cyclotetramethylenetetranitramine, octahydro 1,3,5,7 tetranitro 1,3,5,7 tetrazine, 1,3,5,7 tetranitro 1,3,5,7 tetraza cyclooctane, octogen or octogene) (CAS 2691 41 0);
b. Difluoroaminated analogs of HMX;
c. K 55 (2,4,6,8 tetranitro 2,4,6,8 tetraazabicyclo [3,3,0] octanone 3, tetranitrosemiglycouril or keto bicyclic HMX) (CAS 130256 72 3);
14. HNAD (hexanitroadamantane) (CAS 143850 71 9);
15. HNS (hexanitrostilbene) (CAS 20062 22 0);
16. Imidazoles as follows:
a. BNNII (Octahydro 2,5 bis(nitroimino)imidazo [4,5 d]imidazole);
b. DNI (2,4 dinitroimidazole) (CAS 5213 49 0);
c. FDIA (1 fluoro 2,4 dinitroimidazole);
d. NTDNIA (N (2 nitrotriazolo) 2,4 dinitroimidazole);
e. PTIA (1 picryl 2,4,5 trinitroimidazole);
17. NTNMH (1 (2 nitrotriazolo) 2 dinitromethylene hydrazine);
18. NTO (ONTA or 3 nitro 1,2,4 triazol 5 one) (CAS 932 64 9);
19. Polynitrocubanes with more than four nitro groups;
20. PYX (2,6 Bis(picrylamino) 3,5 dinitropyridine) (CAS 38082 89 2);
21. RDX and derivatives, as follows:
a. RDX (cyclotrimethylenetrinitramine, cyclonite, T4, hexahydro 1,3,5 trinitro 1,3,5 triazine, 1,3,5 trinitro 1,3,5 triaza cyclohexane, hexogen or hexogene) (CAS 121 82 4);
b. Keto RDX (K 6 or 2,4,6 trinitro 2,4,6 triazacyclohexanone) (CAS 115029 35 1);
22. TAGN (triaminoguanidinenitrate) (CAS 4000 16 2);
23. TATB (triaminotrinitrobenzene) (CAS 3058 38 6);
24. TEDDZ (3,3,7,7 tetrabis(difluoroamine) octahydro 1,5 dinitro 1,5 diazocine);
25. Tetrazoles as follows:
a. NTAT (nitrotriazol aminotetrazole);
b. NTNT (1 N (2 nitrotriazolo) 4 nitrotetrazole);
26. Tetryl (trinitrophenylmethylnitramine) (CAS 479 45 8);
27. TNAD (1,4,5,8 tetranitro 1,4,5,8 tetraazadecalin) (CAS 135877 16 6);
28. TNAZ (1,3,3 trinitroazetidine) (CAS 97645 24 4);
29. TNGU (SORGUYL or tetranitroglycoluril) (CAS 55510 03 7);
30. TNP (1,4,5,8 tetranitro pyridazino[4,5 d]pyridazine) (CAS 229176 04 9);
31. Triazines as follows:
a. DNAM (2 oxy 4,6 dinitroamino s triazine) (CAS 19899 80 0);
b. NNHT (2 nitroimino 5 nitro hexahydro 1,3,5 triazine) (CAS 130400 13 4);
32. Triazoles as follows:
a. 5 azido 2 nitrotriazole;
b. ADHTDN (4 amino 3,5 dihydrazino 1,2,4 triazole dinitramide) (CAS 1614 08 0);
c. ADNT (1 amino 3,5 dinitro 1,2,4 triazole);
d. BDNTA ((bis dinitrotriazole)amine);
e. DBT (3,3′ dinitro 5,5 bi 1,2,4 triazole) (CAS 30003 46 4);
f. DNBT (dinitrobistriazole) (CAS 70890 46 9);
g. [Reserved]
h. NTDNT (1 N (2 nitrotriazolo) 3,5 dinitrotriazole);
i. PDNT (1 picryl 3,5 dinitrotriazole);
j. TACOT (tetranitrobenzotriazolobenzotriazole) (CAS 25243 36 1);
33. “Explosives” not listed elsewhere in this list having a detonation velocity exceeding 8,700 m/s, at maximum density, or a detonation pressure exceeding 34 GPa (340 kbar);
34. [Reserved]
35. Nitrocellulose (containing more than 12.5% nitrogen) (CAS 9004-70-0);
36. Nitroglycol (CAS 628-96-6);
37. Pentaerythritol tetranitrate (PETN) (CAS 78-11-5);
38. Picryl chloride (CAS 88-88-0);
39. 2,4,6 Trinitrotoluene (TNT) (CAS 118-96-7);
40. Nitroglycerine (NG) (CAS 55-63-0);
41. Triacetone Triperoxide (TATP) (CAS 17088-37-8);
42. Guanidine nitrate (CAS 506-93-4);
43. Nitroguanidine (NQ) (CAS 556 88 7);
44. DNAN (2,4-dinitroanisole) (CAS 119-27-7);
45. TEX (4,10-Dinitro-2,6,8,12-tetraoxa-4,10-diazaisowurtzitane);
46. GUDN (Guanylurea dinitramide) FOX-12 (CAS 217464-38-5);
47. Tetrazines as follows:
a. BTAT (Bis(2,2,2-trinitroethyl)-3,6-diaminotetrazine);
b. LAX-112 (3,6-diamino-1,2,4,5-tetrazine-1,4-dioxide);
48. Energetic ionic materials melting between 343 K (70 °C) and 373 K (100 °C) and with detonation velocity exceeding 6,800 m/s or detonation pressure exceeding 18 GPa (180 kbar);
49. BTNEN (Bis(2,2,2-trinitroethyl)-nitramine) (CAS 19836-28-3);
50. FTDO (5,6-(3′,4′-furazano)- 1,2,3,4-tetrazine-1,3-dioxide);
51. EDNA (Ethylenedinitramine) (CAS 505-71-5);
52. TKX-50 (Dihydroxylammonium 5,5′-bistetrazole-1,1′-diolate).
a. [Reserved]
b. “Technology” for metal-working manufacturing processes, as follows:
b.1. “Technology” for the design of tools, dies or fixtures “specially designed” for any of the following processes:
b.1.a. “Superplastic forming”;
b.1.b. “Diffusion bonding”;
b.1.c. `Direct-acting hydraulic pressing';
b.2. [Reserved]
c. “Technology” for the “development” or “production” of hydraulic stretch-forming machines and dies therefor, for the manufacture of airframe structures;
d. [Reserved]
e. “Technology” for the “development” of integration “software” for incorporation of expert systems for advanced decision support of shop floor operations into “numerical control” units;
f. “Technology” for the application of inorganic overlay coatings or inorganic
a. General purpose integrated circuits, as follows:
a.1. Integrated circuits designed or rated as radiation hardened to withstand any of the following:
a.1.a. A total dose of 5 × 10
a.1.b. A dose rate upset of 5 × 10
a.1.c. A fluence (integrated flux) of neutrons (1 MeV equivalent) of 5 × 10
a.2. “Microprocessor microcircuits,” “microcomputer microcircuits,” microcontroller microcircuits, storage integrated circuits manufactured from a compound semiconductor, analog-to-digital converters, integrated circuits that contain analog-to-digital converters and store or
a.2.a. Rated for operation at an ambient temperature above 398 K (+125 °C);
a.2.b. Rated for operation at an ambient temperature below 218 K (−55 °C);
a.2.c. Rated for operation over the entire ambient temperature range from 218 K (−55 °C) to 398 K (+125 °C);
a.3. “Microprocessor microcircuits”, “microcomputer microcircuits” and microcontroller microcircuits, manufactured from a compound semiconductor and operating at a clock frequency exceeding 40 MHz;
a.4. [Reserved]
a.5. Analog-to-Digital Converter (ADC) and Digital-to-Analog Converter (DAC) integrated circuits, as follows:
a.5.a. ADCs having any of the following:
a.5.a.1. A resolution of 8 bit or more, but less than 10 bit, with a “sample rate” greater than 1.3 Giga Samples Per Second (GSPS);
a.5.a.2. A resolution of 10 bit or more, but less than 12 bit, with a “sample rate” greater than 600 Mega Samples Per Second (MSPS);
a.5.a.3. A resolution of 12 bit or more, but less than 14 bit, with a “sample rate” greater than 400 MSPS;
a.5.a.4. A resolution of 14 bit or more, but less than 16 bit, with a “sample rate” greater than 250 MSPS;
a.5.a.5. A resolution of 16 bit or more with a “sample rate” greater than 65 MSPS;
a.5.b. Digital-to-Analog Converters (DAC) having any of the following:
a.5.b.1. A resolution of 10-bit or more but less than 12-bit,with an `adjusted update rate' of exceeding 3,500 MSPS;
a.5.b.2. A resolution of 12-bit or more and having any of the following:
a.5.b.2.a. An `adjusted update rate' exceeding 1,250 MSPS but not exceeding 3,500 MSPS, and having any of the following:
a.5.b.2.a.1. A settling time less than 9 ns to arrive at or within 0.024% of full scale from a full scale step;
a.5.b.2.a.2. A `Spurious Free Dynamic Range' (SFDR) greater than 68 dBc (carrier) when synthesizing a full scale analog signal of 100 MHz or the highest full scale analog signal frequency specified below 100 MHz;
a.5.b.2.b. An `adjusted update rate' exceeding 3,500 MSPS;
a.6. Electro-optical and “optical integrated circuits”, designed for “signal processing” and having all of the following:
a.6.a. One or more than one internal “laser” diode;
a.6.b. One or more than one internal light detecting element;
a.6.c. Optical waveguides;
a.7. “Field programmable logic devices” having any of the following:
a.7.a. A maximum number of single-ended digital input/outputs of greater than 700;
a.7.b. An “aggregate one-way peak serial transceiver data rate” of 500 Gb/s or greater;
a.8. [Reserved]
a.9. Neural network integrated circuits;
a.10. Custom integrated circuits for which the function is unknown, or the control status of the equipment in which the integrated circuits will be used is unknown to the manufacturer, having any of the following:
a.10.a. More than 1,500 terminals;
a.10.b. A typical “basic gate propagation delay time” of less than 0.02 ns;
a.10.c. An operating frequency exceeding 3 GHz;
a.11. Digital integrated circuits, other than those described in 3A001.a.3 to 3A001.a.10 and 3A001.a.12, based upon any compound semiconductor and having any of the following:
a.11.a. An equivalent gate count of more than 3,000 (2 input gates);
a.11.b. A toggle frequency exceeding 1.2 GHz;
a.12. Fast Fourier Transform (FFT) processors having a rated execution time for an N-point complex FFT of less than (N log
a.13. Direct Digital Synthesizer (DDS) integrated circuits having any of the following:
a.13.a. A Digital-to-Analog Converter (DAC) clock frequency of 3.5 GHz or more and a DAC resolution of 10 bit or more, but less than 12 bit;
a.13.b. A DAC clock frequency of 1.25 GHz or more and a DAC resolution of 12 bit or more;
a.14. Integrated circuits that perform or are programmable to perform all of the following:
a.14.a. Analog-to-digital conversions meeting any of the following:
a.14.a.1. A resolution of 8 bit or more, but less than 10 bit, with a “sample rate” greater than 1.3 Giga Samples Per Second (GSPS);
a.14.a.2. A resolution of 10 bit or more, but less than 12 bit, with a “sample rate” greater than 1.0 GSPS;
a.14.a.3. A resolution of 12 bit or more, but less than 14 bit, with a “sample rate” greater than 1.0 GSPS;
a.14.a.4. A resolution of 14 bit or more, but less than 16 bit, with a “sample rate” greater than 400 Mega Samples Per Second (MSPS);
a.14.a.5. A resolution of 16 bit or more with a “sample rate” greater than 180 MSPS;
a.14.b. Any of the following:
a.14.b.1. Storage of digitized data;
a.14.b.2. Processing of digitized data;
b. Microwave or millimeter wave items, as follows:
b.1. “Vacuum electronic devices” and cathodes, as follows:
b.1.a. Traveling-wave “vacuum electronic devices,” pulsed or continuous wave, as follows:
b.1.a.1. Devices operating at frequencies exceeding 31.8 GHz;
b.1.a.2. Devices having a cathode heater with a turn on time to rated RF power of less than 3 seconds;
b.1.a.3. Coupled cavity devices, or derivatives thereof, with a “fractional bandwidth” of more than 7% or a peak power exceeding 2.5 kW;
b.1.a.4. Devices based on helix, folded waveguide, or serpentine waveguide circuits, or derivatives thereof, having any of the following:
b.1.a.4.a. An “instantaneous bandwidth” of more than one octave, and average power (expressed in kW) times frequency (expressed in GHz) of more than 0.5;
b.1.a.4.b. An “instantaneous bandwidth” of one octave or less, and average power (expressed in kW) times frequency (expressed in GHz) of more than 1;
b.1.a.4.c. Being “space-qualified”;
b.1.a.4.d. Having a gridded electron gun;
b.1.a.5. Devices with a “fractional bandwidth” greater than or equal to 10%, with any of the following:
b.1.a.5.a. An annular electron beam;
b.1.a.5.b. A non-axisymmetric electron beam;
b.1.a.5.c. Multiple electron beams;
b.1.b. Crossed-field amplifier “vacuum electronic devices” with a gain of more than 17 dB;
b.1.c. Thermionic cathodes, designed for “vacuum electronic devices,” producing an emission current density at rated operating conditions exceeding 5 A/cm
b.1.d. “Vacuum electronic devices” with the capability to operate in a “dual mode.”
b.2. “Monolithic Microwave Integrated Circuit” (“MMIC”) amplifiers that are any of the following:
b.2.a. Rated for operation at frequencies exceeding 2.7 GHz up to and including 6.8 GHz with a “fractional bandwidth” greater than 15%, and having any of the following:
b.2.a.1. A peak saturated power output greater than 75 W (48.75 dBm) at any frequency exceeding 2.7 GHz up to and including 2.9 GHz;
b.2.a.2. A peak saturated power output greater than 55 W (47.4 dBm) at any frequency exceeding 2.9 GHz up to and including 3.2 GHz;
b.2.a.3. A peak saturated power output greater than 40 W (46 dBm) at any frequency exceeding 3.2 GHz up to and including 3.7 GHz;
b.2.a.4. A peak saturated power output greater than 20 W (43 dBm) at any frequency exceeding 3.7 GHz up to and including 6.8 GHz;
b.2.b. Rated for operation at frequencies exceeding 6.8 GHz up to and including 16 GHz with a “fractional bandwidth” greater than 10%, and having any of the following:
b.2.b.1. A peak saturated power output greater than 10 W (40 dBm) at any frequency exceeding 6.8 GHz up to and including 8.5 GHz;
b.2.b.2. A peak saturated power output greater than 5 W (37 dBm) at any frequency exceeding 8.5 GHz up to and including 16 GHz;
b.2.c. Rated for operation with a peak saturated power output greater than 3 W (34.77 dBm) at any frequency exceeding 16 GHz up to and including 31.8 GHz, and with a “fractional bandwidth” of greater than 10%;
b.2.d. Rated for operation with a peak saturated power output greater than 0.1 nW (−70 dBm) at any frequency exceeding 31.8 GHz up to and including 37 GHz;
b.2.e. Rated for operation with a peak saturated power output greater than 1 W (30 dBm) at any frequency exceeding 37 GHz up to and including 43.5 GHz, and with a “fractional bandwidth” of greater than 10%;
b.2.f. Rated for operation with a peak saturated power output greater than 31.62 mW (15 dBm) at any frequency exceeding 43.5 GHz up to and including 75 GHz, and with a “fractional bandwidth” of greater than 10%;
b.2.g. Rated for operation with a peak saturated power output greater than 10 mW (10 dBm) at any frequency exceeding 75 GHz up to and including 90 GHz, and with a “fractional bandwidth” of greater than 5%;
b.2.h. Rated for operation with a peak saturated power output greater than 0.1 nW (−70 dBm) at any frequency exceeding 90 GHz;
b.3. Discrete microwave transistors that are any of the following:
b.3.a. Rated for operation at frequencies exceeding 2.7 GHz up to and including 6.8 GHz and having any of the following:
b.3.a.1. A peak saturated power output greater than 400 W (56 dBm) at any frequency exceeding 2.7 GHz up to and including 2.9 GHz;
b.3.a.2. A peak saturated power output greater than 205 W (53.12 dBm) at any frequency exceeding 2.9 GHz up to and including 3.2 GHz;
b.3.a.3. A peak saturated power output greater than 115 W (50.61 dBm) at any frequency exceeding 3.2 GHz up to and including 3.7 GHz;
b.3.a.4. A peak saturated power output greater than 60 W (47.78 dBm) at any frequency exceeding 3.7 GHz up to and including 6.8 GHz;
b.3.b. Rated for operation at frequencies exceeding 6.8 GHz up to and including 31.8 GHz and having any of the following:
b.3.b.1. A peak saturated power output greater than 50 W (47 dBm) at any frequency exceeding 6.8 GHz up to and including 8.5 GHz;
b.3.b.2. A peak saturated power output greater than 15 W (41.76 dBm) at any frequency exceeding 8.5 GHz up to and including 12 GHz;
b.3.b.3. A peak saturated power output greater than 40 W (46 dBm) at any frequency exceeding 12 GHz up to and including 16 GHz;
b.3.b.4. A peak saturated power output greater than 7 W (38.45 dBm) at any frequency exceeding 16 GHz up to and including 31.8 GHz;
b.3.c. Rated for operation with a peak saturated power output greater than 0.5 W (27 dBm) at any frequency exceeding 31.8 GHz up to and including 37 GHz;
b.3.d. Rated for operation with a peak saturated power output greater than 1 W (30 dBm) at any frequency exceeding 37 GHz up to and including 43.5 GHz;
b.3.e. Rated for operation with a peak saturated power output greater than 0.1 nW (−70 dBm) at any frequency exceeding 43.5 GHz;
b.3.f. Other than those specified by 3A001.b.3.a to 3A001.b.3.e and rated for operation with a peak saturated power output greater than 5 W (37.0 dBm) at all frequencies exceeding 8.5 GHz up to and including 31.8 GHz;
b.4. Microwave solid state amplifiers and microwave assemblies/modules containing microwave solid state amplifiers, that are any of the following:
b.4.a. Rated for operation at frequencies exceeding 2.7 GHz up to and including 6.8 GHz with a “fractional bandwidth” greater than 15%, and having any of the following:
b.4.a.1. A peak saturated power output greater than 500 W (57 dBm) at any frequency exceeding 2.7 GHz up to and including 2.9 GHz;
b.4.a.2. A peak saturated power output greater than 270 W (54.3 dBm) at any frequency exceeding 2.9 GHz up to and including 3.2 GHz;
b.4.a.3. A peak saturated power output greater than 200 W (53 dBm) at any frequency exceeding 3.2 GHz up to and including 3.7 GHz;
b.4.a.4. A peak saturated power output greater than 90 W (49.54 dBm) at any frequency exceeding 3.7 GHz up to and including 6.8 GHz;
b.4.b. Rated for operation at frequencies exceeding 6.8 GHz up to and including 31.8 GHz with a “fractional bandwidth” greater than 10%, and having any of the following:
b.4.b.1. A peak saturated power output greater than 70 W (48.45 dBm) at any frequency exceeding 6.8 GHz up to and including 8.5 GHz;
b.4.b.2. A peak saturated power output greater than 50 W (47 dBm) at any frequency exceeding 8.5 GHz up to and including 12 GHz;
b.4.b.3. A peak saturated power output greater than 30 W (44.77 dBm) at any frequency exceeding 12 GHz up to and including 16 GHz;
b.4.b.4. A peak saturated power output greater than 20 W (43 dBm) at any frequency exceeding 16 GHz up to and including 31.8 GHz;
b.4.c. Rated for operation with a peak saturated power output greater than 0.5 W (27 dBm) at any frequency exceeding 31.8 GHz up to and including 37 GHz;
b.4.d. Rated for operation with a peak saturated power output greater than 2 W (33 dBm) at any frequency exceeding 37 GHz up to and including 43.5 GHz, and with a “fractional bandwidth” of greater than 10%;
b.4.e. Rated for operation at frequencies exceeding 43.5 GHz and having any of the following:
b.4.e.1. A peak saturated power output greater than 0.2 W (23 dBm) at any frequency exceeding 43.5 GHz up to and including 75 GHz, and with a “fractional bandwidth” of greater than 10%;
b.4.e.2. A peak saturated power output greater than 20 mW (13 dBm) at any frequency exceeding 75 GHz up to and including 90 GHz, and with a “fractional bandwidth” of greater than 5%;
b.4.e.3. A peak saturated power output greater than 0.1 nW (−70 dBm) at any frequency exceeding 90 GHz;
b.4.f. [Reserved]
b.5. Electronically or magnetically tunable band-pass or band-stop filters, having more than 5 tunable resonators capable of tuning across a 1.5:1 frequency band (f
b.5.a. A band-pass bandwidth of more than 0.5% of center frequency;
b.5.b. A band-stop bandwidth of less than 0.5% of center frequency;
b.6. [Reserved]
b.7. Converters and harmonic mixers, that are any of the following:
b.7.a. Designed to extend the frequency range of “signal analyzers” beyond 90 GHz;
b.7.b. Designed to extend the operating range of signal generators as follows:
b.7.b.1. Beyond 90 GHz;
b.7.b.2. To an output power greater than 100 mW (20 dBm) anywhere within the frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
b.7.c. Designed to extend the operating range of network analyzers as follows:
b.7.c.1. Beyond 110 GHz;
b.7.c.2. To an output power greater than 31.62 mW (15 dBm) anywhere within the frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
b.7.c.3. To an output power greater than 1 mW (0 dBm) anywhere within the frequency range exceeding 90 GHz but not exceeding 110 GHz;
b.7.d. Designed to extend the frequency range of microwave test receivers beyond 110 GHz;
b.8. Microwave power amplifiers containing “vacuum electronic devices” controlled by 3A001.b.1 and having all of the following:
b.8.a. Operating frequencies above 3 GHz;
b.8.b. An average output power to mass ratio exceeding 80 W/kg;
b.8.c. A volume of less than 400 cm
b.9. Microwave Power Modules (MPM) consisting of, at least, a traveling-wave “vacuum electronic device,” a “Monolithic Microwave Integrated Circuit” (“MMIC”) and an integrated electronic power conditioner and having all of the following:
b.9.a. A ‘turn-on time’ from off to fully operational in less than 10 seconds;
b.9.b. A volume less than the maximum rated power in Watts multiplied by 10 cm
b.9.c. An “instantaneous bandwidth” greater than 1 octave (f
b.9.c.1. For frequencies equal to or less than 18 GHz, an RF output power greater than 100 W;
b.9.c.2. A frequency greater than 18 GHz;
b.10. Oscillators or oscillator assemblies, specified to operate with a single sideband (SSB) phase noise, in dBc/Hz, less (better) than −(126 + 20log
b.11. ‘Frequency synthesizer’ “electronic assemblies” having a “frequency switching time” as specified by any of the following:
b.11.a. Less than 143 ps;
b.11.b. Less than 100 μs for any frequency change exceeding 2.2 GHz within the synthesized frequency range exceeding 4.8 GHz but not exceeding 31.8 GHz;
b.11.c. [Reserved]
b.11.d. Less than 500 µs for any frequency change exceeding 550 MHz within the synthesized frequency range exceeding 31.8 GHz but not exceeding 37 GHz;
b.11.e. Less than 100 µs for any frequency change exceeding 2.2 GHz within the synthesized frequency range exceeding 37 GHz but not exceeding 75 GHz;
b.11.f. Less than 100 µs for any frequency change exceeding 5.0 GHz within the synthesized frequency range exceeding 75 GHz but not exceeding 90 GHz;
b.11.g. Less than 1 ms within the synthesized frequency range exceeding 90 GHz;
b.12. `Transmit/receive modules,' `transmit/receive MMICs,' `transmit modules,' and `transmit MMICs,' rated for operation at frequencies above 2.7 GHz and having all of the following:
b.12.a. A peak saturated power output (in watts), P
b.12.b. A “fractional bandwidth” of 5% or greater for any channel;
b.12.c. Any planar side with length d (in cm) equal to or less than 15 divided by the lowest operating frequency in GHz [d≤15cm*GHz*N/f
b.12.d. An electronically variable phase shifter per channel.
c. Acoustic wave devices as follows and “specially designed” “components” therefor:
c.1. Surface acoustic wave and surface skimming (shallow bulk) acoustic wave devices, having any of the following:
c.1.a. A carrier frequency exceeding 6 GHz;
c.1.b. A carrier frequency exceeding 1 GHz, but not exceeding 6 GHz and having any of the following:
c.1.b.1. A `frequency side-lobe rejection' exceeding 65 dB;
c.1.b.2. A product of the maximum delay time and the bandwidth (time in μs and bandwidth in MHz) of more than 100;
c.1.b.3. A bandwidth greater than 250 MHz;
c.1.b.4. A dispersive delay of more than 10 μs;
c.1.c. A carrier frequency of 1 GHz or less and having any of the following:
c.1.c.1. A product of the maximum delay time and the bandwidth (time in μs and bandwidth in MHz) of more than 100;
c.1.c.2. A dispersive delay of more than 10 μs;
c.1.c.3. A `frequency side-lobe rejection' exceeding 65 dB and a bandwidth greater than 100 MHz;
c.2. Bulk (volume) acoustic wave devices that permit the direct processing of signals at frequencies exceeding 6 GHz;
c.3. Acoustic-optic “signal processing” devices employing interaction between acoustic waves (bulk wave or surface wave) and light waves that permit the direct processing of signals or images, including spectral analysis, correlation or convolution;
d. Electronic devices and circuits containing “components,” manufactured from “superconductive” materials, “specially designed” for operation at temperatures below the “critical temperature” of at least one of the “superconductive” constituents and having any of the following:
d.1. Current switching for digital circuits using “superconductive” gates with a product of delay time per gate (in seconds) and power dissipation per gate (in watts) of less than 10
d.2. Frequency selection at all frequencies using resonant circuits with Q-values exceeding 10,000;
e. High energy devices as follows:
e.1. `Cells' as follows:
e.1.a. `Primary cells' having any of the following at 20 °C:
e.1.a.1. `Energy density' exceeding 550 Wh/kg and a `continuous power density' exceeding 50 W/kg;
e.1.a.2. `Energy density' exceeding 50 Wh/kg and a `continuous power density' exceeding 350 W/kg;
e.1.b. `Secondary cells' having an `energy density' exceeding 350 Wh/kg at 20 °C;
e.2. High energy storage capacitors as follows:
e.2.a. Capacitors with a repetition rate of less than 10 Hz (single shot capacitors) and having all of the following:
e.2.a.1. A voltage rating equal to or more than 5 kV;
e.2.a.2. An energy density equal to or more than 250 J/kg;
e.2.a.3. A total energy equal to or more than 25 kJ;
e.2.b. Capacitors with a repetition rate of 10 Hz or more (repetition rated capacitors) and having all of the following:
e.2.b.1. A voltage rating equal to or more than 5 kV;
e.2.b.2. An energy density equal to or more than 50 J/kg;
e.2.b.3. A total energy equal to or more than 100 J;
e.2.b.4. A charge/discharge cycle life equal to or more than 10,000;
e.3. “Superconductive” electromagnets and solenoids, “specially designed” to be fully charged or discharged in less than one second and having all of the following:
e.3.a. Energy delivered during the discharge exceeding 10 kJ in the first second;
e.3.b. Inner diameter of the current carrying windings of more than 250 mm;
e.3.c. Rated for a magnetic induction of more than 8 T or “overall current density” in the winding of more than 300 A/mm
e.4. Solar cells, cell-interconnect-coverglass (CIC) assemblies, solar panels, and solar arrays, which are “space-qualified,” having a minimum average efficiency exceeding 20% at an operating temperature of 301 K (28 °C) under simulated `AM0' illumination with an irradiance of 1,367 Watts per square meter (W/m
f. Rotary input type absolute position encoders having an “accuracy” equal to or less (better) than 1.0 second of arc and
g. Solid-state pulsed power switching thyristor devices and `thyristor modules', using either electrically, optically, or electron radiation controlled switch methods and having any of the following:
g.1. A maximum turn-on current rate of rise (di/dt) greater than 30,000 A/μs and off-state voltage greater than 1,100 V;
g.2. A maximum turn-on current rate of rise (di/dt) greater than 2,000 A/μs and having all of the following:
g.2.a. An off-state peak voltage equal to or greater than 3,000 V;
g.2.b. A peak (surge) current equal to or greater than 3,000 A;
h. Solid-state power semiconductor switches, diodes, or `modules', having all of the following:
h.1. Rated for a maximum operating junction temperature greater than 488 K (215 °C);
h.2. Repetitive peak off-state voltage (blocking voltage) exceeding 300 V;
h.3. Continuous current greater than 1 A.
i. Intensity, amplitude, or phase electro-optic modulators, designed for analog signals and having any of the following:
i.1. A maximum operating frequency of more than 10 GHz but less than 20 GHz, an optical insertion loss equal to or less than 3 dB and having any of the following:
i.1.a. A `half-wave voltage' (`Vπ') less than 2.7 V when measured at a frequency of 1 GHz or below;
i.1.b. A `Vπ' of less than 4 V when measured at a frequency of more than 1 GHz;
i.2. A maximum operating frequency equal to or greater than 20 GHz, an optical insertion loss equal to or less than 3 dB and having any of the following:
i.2.a. A `Vπ' less than 3.3 V when measured at a frequency of 1 GHz or below;
i.2.b. A `Vπ' less than 5 V when measured at a frequency of more than 1 GHz.
a. Recording equipment and oscilloscopes, as follows:
a.1. to a.5. [Reserved]
a.6. Digital data recorders having all of the following:
a.6.a. A sustained `continuous throughput' of more than 6.4 Gbit/s to disk or solid-state drive memory;
a.6.b. “Signal processing” of the radio frequency signal data while it is being recorded;
a.7. Real-time oscilloscopes having a vertical root-mean-square (rms) noise voltage of less than 2% of full-scale at the vertical scale setting that provides the lowest noise value for any input 3dB bandwidth of 60 GHz or greater per channel;
b. [Reserved]
c. “Signal analyzers” as follows:
c.1. “Signal analyzers” having a 3 dB resolution bandwidth (RBW) exceeding 40 MHz anywhere within the frequency range exceeding 31.8 GHz but not exceeding 37 GHz;
c.2. “Signal analyzers” having a Displayed Average Noise Level (DANL) less (better) than −150 dBm/Hz anywhere within the frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
c.3. “Signal analyzers” having a frequency exceeding 90 GHz;
c.4. “Signal analyzers” having all of the following:
c.4.a. `Real-time bandwidth' exceeding 170 MHz;
c.4.b. Having any of the following:
c.4.b.1. 100% probability of discovery, with less than a 3 dB reduction from full amplitude due to gaps or windowing effects, of signals having a duration of 15 μs or less;
c.4.b.2. A `frequency mask trigger' function, with 100% probability of trigger (capture) for signals having a duration of 15 μs or less;
c.5. [Reserved]
d. Signal generators having any of the following:
d.1. Specified to generate pulse-modulated signals having all of the following, anywhere within the frequency range exceeding 31.8 GHz but not exceeding 37 GHz:
d.1.a. `Pulse duration' of less than 25 ns;
d.1.b. On/off ratio equal to or exceeding 65 dB;
d.2. An output power exceeding 100 mW (20 dBm) anywhere within the frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
d.3. A “frequency switching time” as specified by any of the following:
d.3.a. [Reserved]
d.3.b. Less than 100 μs for any frequency change exceeding 2.2 GHz within the frequency range exceeding 4.8 GHz but not exceeding 31.8 GHz;
d.3.c. [Reserved]
d.3.d. Less than 500 μs for any frequency change exceeding 550 MHz within the frequency range exceeding 31.8 GHz but not exceeding 37 GHz;
d.3.e. Less than 100 μs for any frequency change exceeding 2.2 GHz within the frequency range exceeding 37 GHz but not exceeding 75 GHz;
d.3.f. [Reserved]
d.3.g. Less than 100 μs for any frequency change exceeding 5.0 GHz within the frequency range exceeding 75 GHz but not exceeding 90 GHz.
d.4. A single sideband (SSB) phase noise, in dBc/Hz, specified as being any of the following:
d.4.a. Less (better) than −(126 + 20 log
d.4.b. Less (better) than −(206−20log
d.5. An `RF modulation bandwidth' of digital baseband signals as specified by any of the following:
d.5.a. Exceeding 2.2 GHz within the frequency range exceeding 4.8 GHz but not exceeding 31.8 GHz;
d.5.b. Exceeding 550 MHz within the frequency range exceeding 31.8 GHz but not exceeding 37 GHz;
d.5.c. Exceeding 2.2 GHz within the frequency range exceeding 37 GHz but not exceeding 75 GHz;
d.5.d. Exceeding 5.0 GHz within the frequency range exceeding 75 GHz but not exceeding 90 GHz;
d.6. A maximum frequency exceeding 90 GHz;
e. Network analyzers having any of the following:
e.1. An output power exceeding 31.62 mW (15 dBm) anywhere within the operating frequency range exceeding 43.5 GHz but not exceeding 90 GHz;
e.2. An output power exceeding 1 mW (0 dBm) anywhere within the operating frequency range exceeding 90 GHz but not exceeding 110 GHz;
e.3. `Nonlinear vector measurement functionality' at frequencies exceeding 50 GHz but not exceeding 110 GHz;
e.4. A maximum operating frequency exceeding 110 GHz;
f. Microwave test receivers having all of the following:
f.1. Maximum operating frequency exceeding 110 GHz;
f.2. Being capable of measuring amplitude and phase simultaneously;
g. Atomic frequency standards being any of the following:
g.1. “Space-qualified”;
g.2. Non-rubidium and having a long-term stability less (better) than 1 × 10
g.3. Non-“space-qualified” and having all of the following:
g.3.a. Being a rubidium standard;
g.3.b. Long-term stability less (better) than 1 × 10
g.3.c. Total power consumption of less than 1 Watt.
h. “Electronic assemblies,” modules or equipment, specified to perform all of the following:
h.1. Analog-to-digital conversions meeting any of the following:
h.1.a. A resolution of 8 bit or more, but less than 10 bit, with a “sample rate” greater than 1.3 Giga Samples Per Second (GSPS);
h.1.b. A resolution of 10 bit or more, but less than 12 bit, with a “sample rate” greater than 1.0 GSPS;
h.1.c. A resolution of 12 bit or more, but less than 14 bit, with a “sample rate” greater than 1.0 GSPS;
h.1.d. A resolution of 14 bit or more but less than 16 bit, with a “sample rate” greater than 400 Mega Samples Per Second (MSPS);
h.1.e. A resolution of 16 bit or more with a “sample rate” greater than 180 MSPS;
h.2. Any of the following:
h.2.a. Output of digitized data;
h.2.b. Storage of digitized data;
h.2.c. Processing of digitized data;
a. Communications cable systems designed or modified to use mechanical, electrical or electronic means to detect surreptitious intrusion;
b. “Specially designed” or modified to reduce the compromising emanations of information-bearing signals beyond what is necessary for health, safety or electromagnetic interference standards.
a. Non-“tunable” continuous wave “(CW) lasers” having any of the following:
a.1. Output wavelength less than 150 nm and output power exceeding 1W;
a.2. Output wavelength of 150 nm or more but not exceeding 510 nm and output power exceeding 30 W;
a.3. Output wavelength exceeding 510 nm but not exceeding 540 nm and any of the following:
a.3.a. `Single transverse mode' output and output power exceeding 50 W;
a.3.b. `Multiple transverse mode' output and output power exceeding 150 W;
a.4. Output wavelength exceeding 540 nm but not exceeding 800 nm and output power exceeding 30 W;
a.5. Output wavelength exceeding 800 nm but not exceeding 975 nm and any of the following:
a.5.a. `Single transverse mode' output and output power exceeding 50 W;
a.5.b. `Multiple transverse mode' output and output power exceeding 80 W;
a.6. Output wavelength exceeding 975 nm but not exceeding 1,150 nm and any of the following;
a.6.a. `Single transverse mode' output and any of the following:
a.6.a.1. Output power exceeding 1,000 W;
a.6.a.2. Having all of the following:
a.6.a.2.a. Output power exceeding 500 W;
a.6.a.2.b. Spectral bandwidth less than 40 GHz;
a.6.b. `Multiple transverse mode' output and any of the following:
a.6.b.1. `Wall-plug efficiency' exceeding 18% and output power exceeding 1,000 W; or
a.6.b.2. Output power exceeding 2 kW;
a.7. Output wavelength exceeding 1,150 nm but not exceeding 1,555 nm and any of the following:
a.7.a. `Single transverse mode' and output power exceeding 50 W;
a.7.b. `Multiple transverse mode' and output power exceeding 80 W;
a.8. Output wavelength exceeding 1,555 nm but not exceeding 1,850 nm and output power exceeding 1 W;
a.9. Output wavelength exceeding 1,850 nm but not exceeding 2,100 nm, and any of the following:
a.9.a. `Single transverse mode' and output power exceeding 1 W;
a.9. b. `Multiple transverse mode' output and output power exceeding 120 W;
a.10. Output wavelength exceeding 2,100 nm and output power exceeding 1 W;
b. Non-“tunable” “pulsed lasers” having any of the following:
b.1. Output wavelength less than 150 nm and any of the following:
b.1.a. Output energy exceeding 50 mJ per pulse and “peak power” exceeding 1 W;
b.1.b. “Average output power” exceeding 1 W;
b.2. Output wavelength of 150 nm or more but not exceeding 510 nm and any of the following:
b.2.a. Output energy exceeding 1.5 J per pulse and “peak power” exceeding 30 W;
b.2.b. “Average output power” exceeding 30 W;
b.3. Output wavelength exceeding 510 nm, but not exceeding 540 nm and any of the following:
b.3.a. `Single transverse mode' output and any of the following:
b.3.a.1. Output energy exceeding 1.5 J per pulse and “peak power” exceeding 50 W;
b.3.a.2. “Average output power” exceeding 50 W;
b.3.b. `Multiple transverse mode' output and any of the following:
b.3.b.1. Output energy exceeding 1.5 J per pulse and “peak power” exceeding 150 W; or
b.3.b.2. “Average output power” exceeding 150 W;
b.4. Output wavelength exceeding 540 nm but not exceeding 800 nm and any of the following:
b.4.a. “Pulse duration” less than 1 ps and any of the following:
b.4.a.1. Output energy exceeding 0.005 J per pulse and “peak power” exceeding 5 GW;
b.4.a.2. “Average output power” exceeding 20 W;
b.4.b. “Pulse duration” equal to or exceeding 1 ps and any of the following:
b.4.b.1. Output energy exceeding 1.5 J per pulse and “peak power” exceeding 30 W;
b.4.b.2. “Average output power” exceeding 30 W;
b.5. Output wavelength exceeding 800 nm but not exceeding 975 nm and any of the following:
b.5.a. “Pulse duration” less than 1ps and any of the following:
b.5.a.1. Output energy exceeding 0.005 J per pulse and “peak power” exceeding 5 GW;
b.5.a.2. `Single transverse mode' output and “average output power” exceeding 20 W;
b.5.b. “Pulse duration” equal to or exceeding 1 ps and not exceeding 1 μs and any of the following:
b.5.b.1. Output energy exceeding 0.5 J per pulse and “peak power” exceeding 50 W;
b.5.b.2. `Single transverse mode' output and “average output power” exceeding 20 W;
b.5.b.3. `Multiple transverse mode' output and “average output power” exceeding 50 W;
b.5.c. “Pulse duration” exceeding 1 μs and any of the following:
b.5.c.1. Output energy exceeding 2 J per pulse and “peak power” exceeding 50 W;
b.5.c.2. `Single transverse mode' output and “average output power” exceeding 50 W;
b.5.c.3. `Multiple transverse mode' output and “average output power” exceeding 80 W.
b.6. Output wavelength exceeding 975 nm but not exceeding 1,150 nm and any of the following:
b.6.a. “Pulse duration” of less than 1 ps, and any of the following:
b.6.a.1. Output “peak power” exceeding 2 GW per pulse;
b.6.a.2. “Average output power” exceeding 30 W;
b.6.a.3. Output energy exceeding 0.002 J per pulse;
b.6.b. “Pulse duration” equal to or exceeding 1 ps and less than 1 ns, and any of the following:
b.6.b.1. Output “peak power” exceeding 5 GW per pulse;
b.6.b.2. “Average output power” exceeding 50 W;
b.6.b.3. Output energy exceeding 0.1 J per pulse;
b.6.c. “Pulse duration” equal to or exceeding 1 ns but not exceeding 1 μs and any of the following:
b.6.c.1. `Single transverse mode' output and any of the following:
b.6.c.1.a. “Peak power” exceeding 100 MW;
b.6.c.1.b. “Average output power” exceeding 20 W limited by design to a maximum pulse repetition frequency less than or equal to 1 kHz;
b.6.c.1.c. `Wall-plug efficiency' exceeding 12%, “average output power” exceeding 100 W and capable of operating at a pulse repetition frequency greater than 1 kHz;
b.6.c.1.d. “Average output power” exceeding 150 W and capable of operating at a pulse repetition frequency greater than 1 kHz;
b.6.c.1.e. Output energy exceeding 2 J per pulse;
b.6.c.2. `Multiple transverse mode' output and any of the following:
b.6.c.2.a. “Peak power” exceeding 400 MW;
b.6.c.2.b. `Wall-plug efficiency' exceeding 18% and “average output power” exceeding 500 W;
b.6.c.2.c. “Average output power” exceeding 2 kW; or
b.6.c.2.d. Output energy exceeding 4 J per pulse;
b.6.d. “Pulse duration” exceeding 1 μs and any of the following:
b.6.d.1. `Single transverse mode' output and any of the following:
b.6.d.1.a. “Peak power” exceeding 500 kW;
b.6.d.1.b. `Wall-plug efficiency' exceeding 12% and “average output power” exceeding 100 W;
b.6.d.1.c. “Average output power” exceeding 150 W;
b.6.d.2. `Multiple transverse mode' output and any of the following:
b.6.d.2.a. “Peak power” exceeding 1 MW;
b.6.d.2.b. `Wall-plug efficiency' exceeding 18% and “average output power” exceeding 500 W;
b.6.d.2.c. “Average output power” exceeding 2 kW;
b.7. Output wavelength exceeding 1,150 nm but not exceeding 1,555 nm and any of the following:
b.7.a. “Pulse duration” not exceeding 1 μs and any of the following:
b.7.a.1. Output energy exceeding 0.5 J per pulse and “peak power” exceeding 50 W;
b.7.a.2. `Single transverse mode' output and “average output power” exceeding 20 W;
b.7.a.3. `Multiple transverse mode' output and “average output power” exceeding 50 W;
b.7.b. “Pulse duration” exceeding 1 μs and any of the following:
b.7.b.1. Output energy exceeding 2 J per pulse and “peak power” exceeding 50 W;
b.7.b.2. `Single transverse mode' output and “average output power” exceeding 50 W;
b.7.b.3. `Multiple transverse mode' output and “average output power” exceeding 80 W;
b.8. Output wavelength exceeding 1,555 nm but not exceeding 1,850 nm, and any of the following:
b.8.a. Output energy exceeding 100 mJ per pulse and “peak power” exceeding 1 W;
b.8.b. “Average output power” exceeding 1 W;
b.9. Output wavelength exceeding 1,850 nm but not exceeding 2,100 nm, and any of the following:
b.9.a. `Single transverse mode' and any of the following:
b.9.a.1. Output energy exceeding 100 mJ per pulse and “peak power” exceeding 1 W;
b.9.a.2. “Average output power” exceeding 1 W;
b.9.b. `Multiple transverse mode' and any of the following:
b.9.b.1. Output energy exceeding 100 mJ per pulse and “peak power” exceeding 10 kW;
b.9.b.2. “Average output power” exceeding 120 W;
b.10. Output wavelength exceeding 2,100 nm and any of the following:
b.10.a. Output energy exceeding 100 mJ per pulse and “peak power” exceeding 1 W;
b.10.b. “Average output power” exceeding 1 W;
c. “Tunable” lasers having any of the following:
c.1. Output wavelength less than 600 nm and any of the following:
c.1.a. Output energy exceeding 50 mJ per pulse and “peak power” exceeding 1 W;
c.1.b. Average or CW output power exceeding 1W;
c.2. Output wavelength of 600 nm or more but not exceeding 1,400 nm, and any of the following:
c.2.a. Output energy exceeding 1 J per pulse and “peak power” exceeding 20 W;
c.2.b. Average or CW output power exceeding 20 W;
c.3. Output wavelength exceeding 1,400 nm and any of the following:
c.3.a. Output energy exceeding 50 mJ per pulse and “peak power” exceeding 1 W;
c.3.b. Average or CW output power exceeding 1 W;
d. Other “lasers”, not controlled by 6A005.a, 6A005.b, or 6A005.c as follows:
d.1. Semiconductor “lasers” as follows:
d.1.a. Individual single transverse mode semiconductor “lasers” having any of the following:
d.1.a.1. Wavelength equal to or less than 1,510 nm and average or CW output power, exceeding 1.5 W;
d.1.a.2. Wavelength greater than 1,510 nm and average or CW output power, exceeding 500 mW;
d.1.b. Individual `multiple-transverse mode' semiconductor “lasers” having any of the following:
d.1.b.1. Wavelength of less than 1,400 nm and average or CW output power, exceeding 25 W;
d.1.b.2. Wavelength equal to or greater than 1,400 nm and less than 1,900 nm and average or CW output power, exceeding 2.5 W;
d.1.b.3. Wavelength equal to or greater than 1,900 nm and average or CW output power, exceeding 1 W;
d.1.c. Individual semiconductor “laser” 'bars' having any of the following:
d.1.c.1. Wavelength of less than 1,400 nm and average or CW output power, exceeding 100 W;
d.1.c.2. Wavelength equal to or greater than 1,400 nm and less than 1,900 nm and average or CW output power, exceeding 25 W;
d.1.c.3. Wavelength equal to or greater than 1,900 nm and average or CW output power, exceeding 10 W;
d.1.d. Semiconductor “laser” `stacked arrays' (two dimensional arrays) having any of the following:
d.1.d.1. Wavelength less than 1,400 nm and having any of the following:
d.1.d.1.a. Average or CW total output power less than 3 kW and having average or CW output `power density' greater than 500 W/cm
d.1.d.1.b. Average or CW total output power equal to or exceeding 3 kW but less than or equal to 5 kW, and having average or CW output `power density' greater than 350W/cm
d.1.d.1.c. Average or CW total output power exceeding 5 kW;
d.1.d.1.d. Peak pulsed `power density' exceeding 2,500 W/cm
d.1.d.1.e. Spatially coherent average or CW total output power, greater than 150 W;
d.1.d.2. Wavelength greater than or equal to 1,400 nm but less than 1,900 nm, and having any of the following:
d.1.d.2.a. Average or CW total output power less than 250 W and average or CW output `power density' greater than 150 W/cm2;
d.1.d.2.b. Average or CW total output power equal to or exceeding 250 W but less than or equal to 500 W, and having average or CW output `power density' greater than 50W/cm
d.1.d.2.c. Average or CW total output power exceeding 500 W;
d.1.d.2.d. Peak pulsed `power density' exceeding 500 W/cm
d.1.d.2.e. Spatially coherent average or CW total output power, exceeding 15 W;
d.1.d.3. Wavelength greater than or equal to 1,900 nm and having any of the following:
d.1.d.3.a. Average or CW output `power density' greater than 50 W/cm
d.1.d.3.b. Average or CW output power greater than 10 W;
d.1.d.3.c. Spatially coherent average or CW total output power, exceeding 1.5 W;
d.1.d.4. At least one “laser” `bar' specified by 6A005.d.1.c;
d.1.e. Semiconductor “laser” `stacked arrays', other than those specified by 6A005.d.1.d, having all of the following:
d.1.e.1. “Specially designed” or modified to be combined with other `stacked arrays' to form a larger `stacked array';
d.1.e.2. Integrated connections, common for both electronics and cooling;
2.
d.2. Carbon monoxide (CO) “lasers” having any of the following:
d.2.a. Output energy exceeding 2 J per pulse and “peak power” exceeding 5 kW;
d.2.b. Average or CW output power, exceeding 5 kW;
d.3. Carbon dioxide (CO
d.3.a. CW output power exceeding 15 kW;
d.3.b. Pulsed output with “pulse duration” exceeding 10 μs and any of the following:
d.3.b.1. “Average output power” exceeding 10 kW;
d.3.b.2. “Peak power” exceeding 100 kW;
d.3.c. Pulsed output with a “pulse duration” equal to or less than 10 μs and any of the following:
d.3.c.1. Pulse energy exceeding 5 J per pulse;
d.3.c.2. “Average output power” exceeding 2.5 kW;
d.4. Excimer “lasers” having any of the following:
d.4.a. Output wavelength not exceeding 150 nm and any of the following:
d.4.a.1. Output energy exceeding 50 mJ per pulse;
d.4.a.2. “Average output power” exceeding 1 W;
d.4.b. Output wavelength exceeding 150 nm but not exceeding 190 nm and any of the following:
d.4.b.1. Output energy exceeding 1.5 J per pulse;
d.4.b.2. “Average output power” exceeding 120 W;
d.4.c. Output wavelength exceeding 190 nm but not exceeding 360 nm and any of the following:
d.4.c.1. Output energy exceeding 10 J per pulse;
d.4.c.2. “Average output power” exceeding 500 W;
d.4.d. Output wavelength exceeding 360 nm and any of the following:
d.4.d.1. Output energy exceeding 1.5 J per pulse;
d.4.d.2. “Average output power” exceeding 30 W;
d.5. “Chemical lasers” as follows:
d.5.a. Hydrogen Fluoride (HF) “lasers';
d.5.b. Deuterium Fluoride (DF) “lasers”;
d.5.c. `Transfer lasers' as follows:
d.5.c.1. Oxygen Iodine (O
d.5.c.2. Deuterium Fluoride-Carbon dioxide (DF-CO
d.6. `Non-repetitive pulsed' Neodymium (Nd) glass “lasers” having any of the following:
d.6.a. A “pulse duration” not exceeding 1 μs and output energy exceeding 50 J per pulse;
d.6.b. A “pulse duration” exceeding 1 μs and output energy exceeding 100 J per pulse;
e. “Components” as follows:
e.1. Mirrors cooled either by `active cooling' or by heat pipe cooling;
e.2. Optical mirrors or transmissive or partially transmissive optical or electro-optical-”components,” other than fused tapered fiber combiners and Multi-Layer Dielectric gratings (MLDs), “specially designed” for use with controlled “lasers”;
e.3. Fiber “laser” “components” as follows:
e.3.a. Multimode to multimode fused tapered fiber combiners having all of the following:
e.3.a.1. An insertion loss better (less) than or equal to 0.3 dB maintained at a rated total average or CW output power (excluding output power transmitted through the single mode core if present) exceeding 1,000 W;
e.3.a.2. Number of input fibers equal to or greater than 3;
e.3.b. Single mode to multimode fused tapered fiber combiners having all of the following:
e.3.b.1. An insertion loss better (less) than 0.5 dB maintained at a rated total average or CW output power exceeding 4,600 W;
e.3.b.2. Number of input fibers equal to or greater than 3;
e.3.b.3. Having any of the following:
e.3.b.3.a. A Beam Parameter Product (BPP) measured at the output not exceeding 1.5 mm mrad for a number of input fibers less than or equal to 5;
e.3.b.3.b. A BPP measured at the output not exceeding 2.5 mm mrad for a number of input fibers greater than 5;
e.3.c. MLDs having all of the following:
e.3.c.1. Designed for spectral or coherent beam combination of 5 or more fiber “lasers;”
e.3.c.2. CW “Laser” Induced Damage Threshold (LIDT) greater than or equal to 10 kW/cm
f. Optical equipment as follows:
f.1. [Reserved]
f.2. “Laser” diagnostic equipment “specially designed” for dynamic measurement of “SHPL” system angular beam steering errors and having an angular “accuracy” of 10 μrad (microradians) or less (better);
f.3. Optical equipment and “components”, “specially designed” for coherent beam combination in a phased-array “SHPL” system and having any of the following:
f.3.a. An “accuracy” of 0.1 µm or less, for wavelengths greater than 1 µm;
f.3.b. An “accuracy” of λ/10 or less (better) at the designed wavelength, for wavelengths equal to or less than 1 µm;
f.4. Projection telescopes “specially designed” for use with “SHPL” systems;
g. `Laser acoustic detection equipment' having all of the following:
g.1. CW “laser” output power greater than or equal to 20 mW;
g.2. “Laser” frequency stability equal to or better (less) than 10 MHz;
g.3. “Laser” wavelengths equal to or exceeding 1,000 nm but not exceeding 2,000 nm;
g.4. Optical system resolution better (less) than 1 nm;
g.5. Optical Signal to Noise ratio equal or exceeding to 10
a. Operating at frequencies from 40 GHz to 230 GHz and having any of the following:
a.1. An average output power exceeding 100 mW;
a.2. Locating “accuracy” of 1 m or less (better) in range and 0.2 degree or less (better) in azimuth;
b. A tunable bandwidth exceeding ±6.25% of the `center operating frequency';
c. Capable of operating simultaneously on more than two carrier frequencies;
d. Capable of operating in synthetic aperture (SAR), inverse synthetic aperture (ISAR) radar mode, or sidelooking airborne (SLAR) radar mode;
e. Incorporating electronically scanned array antennae;
f. Capable of heightfinding non-cooperative targets;
g. “Specially designed” for airborne (balloon or airframe mounted) operation and having Doppler “signal processing” for the detection of moving targets;
h. Employing processing of radar signals and using any of the following:
h.1. “Radar spread spectrum” techniques;
h.2. “Radar frequency agility” techniques;
i. Providing ground-based operation with a maximum `instrumented range' exceeding 185 km;
j. Being “laser” radar or Light Detection and Ranging (LIDAR) equipment and having any of the following:
j.1. “Space-qualified”;
j.2. Employing coherent heterodyne or homodyne detection techniques and having an angular resolution of less (better) than 20 μrad (microradians);
j.3. Designed for carrying out airborne bathymetric littoral surveys to International Hydrographic Organization (IHO) Order 1a Standard (5th Edition February 2008) for Hydrographic Surveys or better, and using one or more “lasers” with a wavelength exceeding 400 nm but not exceeding 600 nm;
k. Having “signal processing” sub-systems using “pulse compression” and having any of the following:
k.1. A “pulse compression” ratio exceeding 150;
k.2. A compressed pulse width of less than 200 ns;
l. Having data processing sub-systems and having any of the following:
l.1. `Automatic target tracking' providing, at any antenna rotation, the predicted target position beyond the time of the next antenna beam passage; or
l.2. [Reserved]
l.3. [Reserved]
l.4. Configured to provide superposition and correlation, or fusion, of target data within six seconds from two or more `geographically dispersed' radar sensors to improve the aggregate performance beyond that of any single sensor specified by 6A008.f, or 6A008.i.
a. “Software” as follows:
a.1. “Software” “specially designed” for acoustic beam forming for the “real-time processing” of acoustic data for passive reception using towed hydrophone arrays;
a.2. “Source code” for the “real-time processing” of acoustic data for passive reception using towed hydrophone arrays;
a.3. “Software” “specially designed” for acoustic beam forming for the “real-time processing” of acoustic data for passive reception using bottom or bay cable systems;
a.4. “Source code” for the “real-time processing” of acoustic data for passive reception using bottom or bay cable systems;
a.5. “Software” or “source code”, “specially designed” for all of the following:
a.5.a. “Real-time processing” of acoustic data from sonar systems controlled by 6A001.a.1.e;
a.5.b. Automatically detecting, classifying and determining the location of divers or swimmers;
b. Optical sensors. None.
c. “Software” designed or modified for cameras incorporating “focal plane arrays” specified by 6A002.a.3.f and designed or modified to remove a frame rate restriction and allow the camera to exceed the frame rate specified in 6A003.b.4 Note 3.a;
d. “Software” specially designed to maintain the alignment and phasing of segmented mirror systems consisting of mirror segments having a diameter or major axis length equal to or larger than 1 m;
e. Lasers. None.
f. “Software” as follows:
f.1. “Software” “specially designed” for magnetic and electric field “compensation systems” for magnetic sensors designed to operate on mobile platforms;
f.2. “Software” “specially designed” for magnetic and electric field anomaly detection on mobile platforms;
f.3. “Software” “specially designed” for “real-time processing” of electromagnetic data using underwater electromagnetic receivers specified by 6A006.e;
f.4. “Source code” for “real-time processing” of electromagnetic data using underwater electromagnetic receivers specified by 6A006.e;
g. “Software” “specially designed” to correct motional influences of gravity meters or gravity gradiometers;
h. “Software” as follows:
h.1. Air Traffic Control (ATC) “software” designed to be hosted on general purpose computers located at Air Traffic Control centers and capable of accepting radar target data from more than four primary radars;
h.2. “Software” for the design or “production” of radomes having all of the following:
h.2.a. “Specially designed” to protect the “electronically scanned array antennae” specified by 6A008.e;
h.2.b. Resulting in an antenna pattern having an `average side lobe level' more than 40 dB below the peak of the main beam level.
a. “Software” “specially designed” or modified to improve the operational performance or reduce the navigational error of systems to the levels controlled by 7A003, 7A004 or 7A008;
b. “Source code” for hybrid integrated systems which improves the operational performance or reduces the navigational error of systems to the level controlled by 7A003 or 7A008 by continuously combining heading data with any of the following:
b.1. Doppler radar or sonar velocity data;
b.2. “Satellite navigation system” reference data;
b.3. Data from `Data-Based Referenced Navigation' (`DBRN”) systems;
c. [Reserved]
d. [Reserved]
e. Computer-Aided-Design (CAD) “software” “specially designed” for the “development” of “active flight control systems”, helicopter multi-axis fly-by-wire or fly-by-light controllers or helicopter “circulation-controlled anti-torque or circulation-controlled direction control systems”, whose “technology” is controlled by 7E004.b.1, 7E004.b.3 to b.5, 7E004.b.7 to b.8, 7E004.c.1 or 7E004.c.2.
a. Space launch vehicles;
b. “Spacecraft”;
c. “Spacecraft buses”;
d. “Spacecraft payloads” incorporating items specified by 3A001.b.1.a.4, 3A002.g, 5A001.a.1, 5A001.b.3, 5A002.c, 5A002.e, 6A002.a.1, 6A002.a.2, 6A002.b, 6A002.d, 6A003.b, 6A004.c, 6A004.e, 6A008.d, 6A008.e, 6A008.k, 6A008.l or 9A010.c;
e. On-board systems or equipment, specially designed for “spacecraft” and having any of the following functions:
e.1. `Command and telemetry data handling';
e.2. `Payload data handling';
e.3. `Attitude and orbit control';
f. Terrestrial equipment specially designed for “spacecraft”, as follows:
f.1. Telemetry and telecommand equipment “specially designed” for any of the following data processing functions:
f.1.a. Telemetry data processing of frame synchronization and error corrections, for monitoring of operational status (also known as health and safe status) of the “spacecraft bus”;
f.1.b. Command data processing for formatting command data being sent to the “spacecraft” to control the “spacecraft bus”;
f.2. Simulators “specially designed” for `verification of operational procedures' of “spacecraft”.
g. “Aircraft” “specially designed” or modified to be air-launch platforms for space launch vehicles or “sub-orbital craft”.
h. “Sub-orbital craft”.
i. through t. [RESERVED]
u. The James Webb Space Telescope (JWST) being developed, launched, and operated under the supervision of the U.S. National Aeronautics and Space Administration (NASA).
v. “Parts,” “components,” “accessories” and “attachments” that are “specially designed” for the James Webb Space Telescope and that are
v.1. Enumerated or controlled in the USML;
v.2. Microelectronic circuits;
v.3. Described in ECCN 7A004 or 7A104;
v.4. Described in an ECCN containing “space-qualified” as a control criterion (
w. The International Space Station being developed, launched, and operated under the supervision of the U.S. National Aeronautics and Space Administration.
x. “Parts,” “components,” “accessories” and “attachments” that are “specially designed” for the International Space Station.
y. Items that would otherwise be within the scope of ECCN 9A004.v or .x but that have been identified in an interagency-cleared commodity classification (CCATS) pursuant to § 748.3(e) as warranting control in 9A004.y.
a. Directional solidification or single crystal casting equipment designed for “superalloys”;
b. Casting tooling, “specially designed” for manufacturing gas turbine engine blades, vanes or “tip shrouds”, manufactured from refractory metals or ceramics, as follows:
b.1. Cores;
b.2. Shells (moulds);
b.3. Combined core and shell (mould) units;
c. Directional-solidification or single-crystal additive-manufacturing equipment designed for “superalloys”.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions, and Validated End-User authorizations.
a. “Technology” “required” for the “development” or “production” of any of the following gas turbine engine “parts,” “components” or systems:
a.1. Gas turbine blades, vanes or “tip shrouds”, made from Directionally Solidified (DS) or Single Crystal (SC) alloys and having (in the 001 Miller Index Direction) a stress-rupture life exceeding 400 hours at 1,273 K (1,000°C) at a stress of 200 MPa, based on the average property values;
a.2. Combustors having any of the following:
a.2.a. `Thermally decoupled liners' designed to operate at `combustor exit temperature' exceeding 1,883 K (1,610 °C);
a.2.b. Non-metallic liners;
a.2.c. Non-metallic shells;
a.2.d. Liners designed to operate at `combustor exit temperature' exceeding 1,883 K (1,610 °C) and having holes that meet the parameters specified by 9E003.c;
a.3. “Parts” or “components,” that are any of the following:
a.3.a. Manufactured from organic “composite” materials designed to operate above 588 K (315 °C);
a.3.b. Manufactured from any of the following:
a.3.b.1. Metal “matrix” “composites” reinforced by any of the following:
a.3.b.1.a. Materials controlled by 1C007;
a.3.b.1.b. “Fibrous or filamentary materials” specified by 1C010;
a.3.b.1.c. Aluminides specified by 1C002.a;
a.3.b.2. Ceramic “matrix” “composites” specified by 1C007;
a.3.c. Stators, vanes, blades, tip seals (shrouds), rotating blings, rotating blisks or `splitter ducts', that are all of the following:
a.3.c.1. Not specified in 9E003.a.3.a;
a.3.c.2. Designed for compressors or fans;
a.3.c.3. Manufactured from material controlled by 1C010.e with resins controlled by 1C008;
a.4. Uncooled turbine blades, vanes or “tip shrouds” designed to operate at a “gas path temperature” of 1,373 K (1,100 °C) or more;
a.5. Cooled turbine blades, vanes or “tip shrouds”, other than those described in 9E003.a.1, designed to operate at a `gas path temperature' of 1,693 K (1,420 °C) or more;
a.6. Airfoil-to-disk blade combinations using solid state joining;
a.7. [Reserved]
a.8. `Damage tolerant' gas turbine engine rotor “parts” or “components” using powder metallurgy materials controlled by 1C002.b;
a.9. [Reserved]
a.10. [Reserved]
a.11. `Fan blades' having all of the following:
a.11.a. 20% or more of the total volume being one or more closed cavities containing vacuum or gas only;
a.11.b. One or more closed cavities having a volume of 5 cm
b. “Technology” “required” for the “development” or “production” of any of the following:
b.1. Wind tunnel aero-models equipped with non-intrusive sensors capable of transmitting data from the sensors to the data acquisition system;
b.2. “Composite” propeller blades or prop-fans, capable of absorbing more than 2,000 kW at flight speeds exceeding Mach 0.55;
c. “Technology” “required” for manufacturing cooling holes, in gas turbine engine “parts” or “components” incorporating any of the “technologies” specified by 9E003.a.1, 9E003.a.2, or 9E003.a.5, and having any of the following:
c.1. Having all of the following:
c.1.a. Minimum “cross-sectional area” less than 0.45 mm
c.1.b. “Hole shape ratio” greater than 4.52;
c.1.c. “Incidence angle” equal to or less than 25 °;
c.2. Having all of the following:
c.2.a. Minimum “cross-sectional area” less than 0.12 mm
c.2.b. “Hole shape ratio” greater than 5.65;
c.2.c. “Incidence angle” more than 25 °;
d. “Technology” “required” for the “development” or “production” of helicopter power transfer systems or tilt rotor or tilt wing “aircraft” power transfer systems;
e. “Technology” for the “development” or “production” of reciprocating diesel engine ground vehicle propulsion systems having all of the following:
e.1. `Box volume' of 1.2 m
e.2. An overall power output of more than 750 kW based on 80/1269/EEC, ISO 2534 or national equivalents;
e.3. Power density of more than 700 kW/m
f. “Technology” “required” for the “production” of “specially designed” “parts” or “components” for high output diesel engines, as follows:
f.1. “Technology” “required” for the “production” of engine systems having all of the following “parts” and “components” employing ceramics materials controlled by 1C007:
f.1.a. Cylinder liners;
f.1.b. Pistons;
f.1.c. Cylinder heads;
f.1.d. One or more other “part” or “component” (including exhaust ports, turbochargers, valve guides, valve assemblies or insulated fuel injectors);
f.2. “Technology” “required” for the “production” of turbocharger systems with single-stage compressors and having all of the following:
f.2.a. Operating at pressure ratios of 4:1 or higher;
f.2.b. Mass flow in the range from 30 to 130 kg per minute;
f.2.c. Variable flow area capability within the compressor or turbine sections;
f.3. “Technology” “required” for the “production” of fuel injection systems with a “specially designed” multifuel (
f.3.a. Injection amount in excess of 230 mm
f.3.b. Electronic control features “specially designed” for switching governor characteristics automatically depending on fuel property to provide the same torque characteristics by using the appropriate sensors;
g. “Technology” “required” for the “development” or “production” of `high output diesel engines' for solid, gas phase or liquid film (or combinations thereof) cylinder wall lubrication and permitting operation to temperatures exceeding 723 K (450 °C), measured on the cylinder wall at the top limit of travel of the top ring of the piston;
h. “Technology” for gas turbine engine “FADEC systems” as follows:
h.1. “Development” “technology” for deriving the functional requirements for the “parts” or “components” necessary for the “FADEC system” to regulate engine thrust or shaft power (
h.2. “Development” or “production” “technology” for control and diagnostic “parts” or “components” unique to the “FADEC system” and used to regulate engine thrust or shaft power;
h.3. “Development” “technology” for the control law algorithms, including “source code”, unique to the “FADEC system” and used to regulate engine thrust or shaft power;
i. “Technology” for adjustable flow path systems designed to maintain engine stability for gas generator turbines, fan or power turbines, or propelling nozzles, as follows:
i.1. “Development” “technology” for deriving the functional requirements for the “parts” or “components” that maintain engine stability;
i.2. “Development” or “production” “technology” for “parts” or “components” unique to the adjustable flow path system and that maintain engine stability;
i.3. “Development” “technology” for the control law algorithms, including “source code”, unique to the adjustable flow path system and that maintain engine stability;
j. “Technology” “required” for the “development” of wing-folding systems designed for fixed-wing “aircraft” powered by gas turbine engines.
k. “Technology” not otherwise controlled in 9E003.a.1 through a.8, a.10, and .h and used in the “development”, “production”, or overhaul of hot section “parts” or “components” of civil derivatives of military engines controlled on the U.S. Munitions List.
Special Post Shipment Verification reporting and recordkeeping requirements for exports of computers to destinations in Computer Tier 3 may be found in § 743.2 of the EAR.
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a. [Reserved]
b. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 70 Weighted TeraFLOPS (WT);
c. “Electronic assemblies” “specially designed” or modified to be capable of enhancing performance by aggregation of processors so that the “APP” of the aggregation exceeds the limit in 4A003.b.;
d. to f. [Reserved]
g. Equipment “specially designed” for aggregating the performance of “digital computers” by providing external interconnections which allow communications at unidirectional data rates exceeding 2.0 Gbyte/s per link.
a. “Software” “specially designed” or modified for the “development” or “production”, of equipment or “software” controlled by 4A001, 4A003, 4A004, or 4D (except 4D090, 4D980, 4D993 or 4D994).
b. “Software”, other than that controlled by 4D001.a, “specially designed” or modified for the “development” or “production” of equipment as follows:
b.1. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 15 Weighted TeraFLOPS (WT);
b.2. “Electronic assemblies” “specially designed” or modified for enhancing performance by aggregation of processors so that the “APP” of the aggregation exceeds the limit in 4D001.b.1.
See § 743.1 of the EAR for reporting requirements for exports under License Exceptions, and Validated End-User authorizations.
a. “Technology” according to the General Technology Note, for the “development” “production” or “use” of equipment or “software” controlled by 4A (except 4A980 or 4A994) or 4D (except 4D980, 4D993, 4D994).
b. “Technology” according to the General Technology Note, other than that controlled by 4E001.a, for the “development” or “production” of equipment as follows:
b.1. “Digital computers” having an “Adjusted Peak Performance” (“APP”) exceeding 15 Weighted TeraFLOPS (WT);
b.2. “Electronic assemblies” “specially designed” or modified for enhancing performance by aggregation of processors so that the “APP” of the aggregation exceeds the limit in 4E001.b.1.
c. “Technology” for the “development” of “intrusion software.”