Food and Nutrition Service
Food Safety and Inspection Service
Forest Service
Rural Housing Service
Census Bureau
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Western Area Power Administration
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Fish and Wildlife Service
Employee Benefits Security Administration
Federal Aviation Administration
Foreign Assets Control Office
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.
Rural Housing Service, USDA.
Notification of updates in the competitive lender submissions process.
The Rural Housing Service (RHS or Agency), an agency within Rural Development (RD), announces updates in the process for competitive lender submissions (responses) regarding proposed projects for the Section 538 Guaranteed Rural Rental Housing Program (GRRHP). The amount of program dollars available for the GRRHP will be determined by the Appropriations Act for each fiscal year.
The effective date of the process updates is April 28, 2023.
Responses and applications must be submitted electronically in accordance with the instructions in Section IV of this Notice. Section 538 GRRHP Response Form/Application Submission Information.
Jonathan Bell, Director, Processing and Report Review Branches, Production and Preservation Division, Multifamily Housing Programs, Rural Development, United States Department of Agriculture, via email:
The GRRHP is authorized under the Housing Act of 1949 as amended, Section 538, Public Law 106-569, 42 U.S.C. 1490p-2; implemented under 7 CFR part 3565.
The RHS is committed to helping improve the economy and quality of life in rural areas by offering a variety of programs. The Agency offers loans, grants, and loan guarantees to help create jobs, expand economic development, and provide critical infrastructure investments. RHS also provides technical assistance loans and grants by partnering with agricultural producers, cooperatives, Indian Tribes, non-profits, and other local, State, and Federal agencies.
The Section 538 GRRHP is a program administered by the RHS, under the authority of the Housing Act of 1949, as amended (42 U.S.C. 1490p-2). The purpose of the GRRHP is to increase the supply of affordable rural rental housing, using loan guarantees that encourage partnerships between the RHS, private lenders, and public agencies.
On October 15, 2019 (84 FR 55034), the Agency published a final rule in the
Since the publication of the final rule on October 15, 2019, there have been changes, including but not limited to, submission addresses, contact person, and fee structure. This Notice will consolidate all changes and replace the notice as published on December 21, 2017, as the reference for interested parties to follow when submitting GRRHP applications.
Expenses incurred in developing applications will be at the applicant's risk. The following paragraphs outline the eligibility requirements, lender responsibilities, and the overall response and application processes.
Any modifications to this document, including changes to the selection and/or scoring criteria or fees charged in subsequent years, will be published in the
The Agency announces the following updates to the GRRHP:
1. The NOSA Response Form will now be titled and referred to as the Section 538 GRRHP Response Form. The Section 538 GRRHP Response Form and the complete application must be submitted to the Agency at the same time. The obligation of available funds, via the issuance of Conditional Commitments for loan guarantees, will be made in the following order: (1) to outstanding approved applications from prior years for which Conditional Commitments have not been issued; then (2) to approved applications in the chronological order on which they were approved.
2. Applications will be accepted on a continual basis. Selected responses and applications that are deemed eligible for further processing will be funded to the extent an Appropriations Act provides sufficient funding in the fiscal year the response and application is selected. If funding is not sufficient in any given fiscal year, funding will be provided under the next funding Appropriations Act, subject to the availability of funds. Approved applications are subject to the fee structure in effect when the response and application were received by the Agency.
3. If the transaction includes a transfer of ownership and assumption of a Section 515 Rural Rental Housing (RRH) property, the complete 538 application and the complete Section 515 RRH transfer of ownership application must be submitted simultaneously on the same day to the Agency. If the complete 538 application is not submitted simultaneously with the Section 515 RRH transfer of ownership application, the 538 application will be rejected and returned to the lender. The lender may resubmit the application when both the complete 538 application and the 515 RRH transfer of ownership application can be submitted simultaneously.
4. A Conditional Commitment must be issued by the Agency before any construction begins on the project. Drawings (plans) and specifications for building construction must be submitted to the Agency and concurred by the Agency before any construction begins on the project. Applicants are reminded that in accordance with 7 CFR
5. The scores awarded for each priority criteria have been significantly decreased.
6. The Agency has modified the Energy priority criteria. Points may be awarded if applicants enroll in the US Environmental Protection Agency's (EPA) ENERGY STAR Portfolio Manager and track and report energy consumption to the Agency annually.
7. The Agency has reinstated the priority criteria that points will be awarded to projects located on Tribal lands.
8. The address for lenders to submit applications for lender approval has changed. Applications for lender approval can only be submitted electronically to the address listed in the Lender Eligibility section of this Notice.
The GRRHP program is administered subject to appropriations by the United States Department of Agriculture (USDA) as authorized under the Housing Act of 1949 as amended, section 538, Public Law 106-569, 42 U.S.C. 1490p-2, and as implemented under 7 CFR part 3565. Section 538 GRRH program will continue to follow procedures similar to other RD guaranteed loan programs and accept applications on a continuous basis.
The purpose of the GRRHP is to increase the supply of affordable rural rental housing using loan guarantees to encourage partnerships between the Agency, private lenders, and public agencies.
Prior years' responses that were selected by the Agency, with a complete application submitted by the lender within 90 days from the date of notification of response selection (unless an extension was granted by the Agency), will be eligible for review, approval, and available current fiscal year program dollars without having to submit a new response.
If approved, applications that accompanied a response submitted under a previous fiscal year notice (outstanding prior years approved applications) will be obligated in the order that the request for obligation was received, to the extent of available funding.
Once the outstanding prior years approved applications have been funded, the Agency will fund applications approved in the current fiscal year in the order by which the request for obligation was received. If funding is insufficient to serve applications approved in the current fiscal year, they will be funded according to the priority scoring set forth in Section V of this document.
The obligation of program funds is discussed further in Section VI of this document.
Anyone interested in submitting a response and application for funding under this program is encouraged to visit the RD website Multifamily Housing Loan Guarantees | Rural Development (
(1)
Also eligible is the revitalization, repair, and transfer (as specified in 7 CFR 3560.406) of existing Section 515 RRH and Section 514/516 Farm Labor Housing (FLH) (transfer costs are subject to Agency approval and must be an eligible use of loan proceeds as specified in 7 CFR 3565.205), and properties involved in the Agency's Multifamily Preservation and Revitalization (MPR) Demonstration program. Equity payment, as stipulated in 7 CFR 3560.406, in the transfer of existing direct Section 515 and Section 514/516 FLH, is an eligible use of guaranteed loan proceeds. In order to be considered, the transfer of Section 515 and Section 514/516 FLH and MPR projects must need repairs and undergo revitalization of a minimum of $6,500 per unit.
(2)
(3)
(4)
(5)
(a)
(b)
(c) As permitted under 7 CFR 3565.302(b)(5), there is a non-refundable service fee of $1,500 for the review of a lender's first request to extend the term of a guarantee commitment beyond its original expiration (the request must be received by the Agency prior to the commitment's expiration). For any subsequent extension request, the fee will be $2,500.
(d) As permitted under 7 CFR 3565.302(b)(5), there is a non-refundable service fee of $3,500 for the review of a lender's first request to reopen an application when a commitment has expired. For any subsequent extension request to reopen an application after
(e) As permitted under 7 CFR 3565.302(b)(4), there is a non-refundable service fee of $1,500 in connection with a lender's request to approve the transfer of property or a change in composition of the ownership entity.
(f) There is no application fee.
(g) There is no lender application fee for lender approval.
(h) There is no surcharge for the guarantee of construction advances.
The current initial and annual guarantee fees can be found in a notice published in the
Lenders who do not have GRRHP approved lender status and whose responses are selected will be notified by the Agency to submit a request for GRRHP lender approval within 30 days of notification. Alternately, lenders may submit a request for GRRHP approved lender status with the Section 538 GRRHP Response and application submission. Lenders must meet the standards in 7 CFR 3565.103 to obtain GRRHP approved-lender status.
Lenders that have received GRRHP lender approval, and that remain in good standing in accordance with 7 CFR 3565.105, do not need to reapply for GRRHP lender approval.
(1)
The Section 538 GRRHP Response Form and application Complete responses and complete applications must be submitted to the applicable mailbox based on the location of the project (as outlined below).
(1) The Section 538 GRRHP Response Form is available on the Multifamily Housing Loan Guarantees website
(CT, DE, IA, IL, IN, KS, MA, MD, ME, MI, MN, MO, ND, NE, NH, NJ, NY, OH, PA, RI, SD, VA, VT, WI, WV).
(AK, AL, AR, AZ, CA, CO, FL, GA, HI, ID, KY, LA, MS, MT, NC, NM, NV, OK, OR, PR, SC, TN, TX, UT, VI, WA, WY).
(2) The following instructions will be used to for electronic submission for the Section 538 GRRHP Response Form and the Application:
Once the Section 538 GRRHP Response Form and complete application are complete and ready for submission to the applicable Processing and Report Review (PRR) Branch, please take the following steps to submit the Section 538 GRRHP Response Form, application and supporting documentation:
(a) Email
i.
ii.
iii.
(b) Once the email request to create a shared CloudVault folder has been received, a shared folder will be created within 2 business days. When the shared CloudVault folder is created, an email will be sent to the applicant's submission email address with a link to the shared folder.
(c) The applicant will upload all required documents for the applicable Section 538 GRRHP Response Form and application to the shared CloudVault folder. The applicant must also upload a Table of Contents of all the documents that have been uploaded to the shared CloudVault folder.
(d) Once all required documents for the applicable Section 538 GRRHP Response Form and complete application have been uploaded to the CloudVault shared folder, the applicant will email
(e) The email must contain the following information:
i.
ii.
iii.
(3)
In compliance with Agency guidance to determine the lender's (participants) eligibility, the Agency is responsible for screening lenders and its principals for debarment and suspension. Screening will take place when the lender submits a complete application to the Agency and prior to obligation of the loan. As a part of the complete application package and in accordance with 2 CFR part 25, the lender must be registered in the System for Award Management (SAM) and include the Unique Entity Identifier (UEI). Lenders currently registered in SAM have automatically been assigned a UEI. New lenders will be assigned a UEI during registration. This is only required for the lender and
Also, as part of the complete application package, the lender must provide a list of all the lender's principals (in accordance with the definition below) in the organization. This information will be used to screen the lender's principals for debarment and suspension.
As specified at 2 CFR 180.995,
• An officer, director, owner, partner, principal investigator, or other person within a participant with management or supervisory responsibilities related to a covered transaction; or
• a consultant or other person, whether or not employed by the participant or paid with Federal funds, who—
○ Is in a position to handle Federal funds;
○ Is in a position to influence or control the use of those funds; or
○ Occupies a technical or professional position capable of substantially influencing the development or outcome of an activity required to perform the covered transaction.
(a)
(b)
(c)
i. Lender certification that the borrower and principals are not barred or suspended from participating in State or Federal loan programs and are not delinquent on any Federal debt.
ii. Borrower's unaudited or audited financial statements.
iii. Statement of borrower's housing development experience.
(d)
(e)
(4)
☐ The information contained in the application is consistent with the lender's underwriting and loan making standards.
☐ Current List of Lender's Officers and Principals.
☐ The lender has completed the lender's review and has identified any significant findings in a narrative attached to this certification.
☐ The lender agrees to make a loan to the borrower for the proposed project, subject to the Agency's issuance of an appropriate guarantee option.
☐ The lender must provide to the Agency a certification from the borrower that the borrower is not under any State or Federal order suspending or debarring participation in State or Federal loan programs and that the borrower is not delinquent on any non-tax obligation to the United States.
☐ The lender must certify that the proposed loan amount (for such part of the property attributable to dwelling use) and the applicable maximum per unit dollar amount limitations under section 207(c) of the National Housing Act (12 U.S.C. 1713(c)) have not been exceeded.
☐ The lender must certify that the owner and development team have the qualifications and experience sufficient to carry out development, management, and ownership responsibilities.
☐ The lender must certify that if it is applying for a continuous guarantee, the project has the appropriate low loan-to-cost ratio as determined by the Agency (
☐ The lender must certify that the property is located in an eligible rural area.
☐ The lender must certify that it has conducted due diligence and the results have been taken into consideration in the appraisal.
☐ The lender must certify that it has reviewed and approved the management plan and agreement and confirmed that they are consistent with Agency requirements.
☐ Prior to the issuance of the guarantee, the lender must certify that construction meets basic construction requirements.
☐ Form RD 3565-1, Application for Loan and Guarantee.
☐ Form RD 3565-3, Lender's Agreement.
☐ RD Instruction 1940-Q, Exhibit A-2, Statement for Loan Guarantees.
☐ Attachment 4-D, Housing Allowances for Utilities and Other Public Services.
☐ Form RD 1944-37, Previous Participation Certification.
☐ Form RD 3560-30, Certification of No Identity of Interest (IOI), if applicable.
☐ Form RD 3560-31, Identity of Interest Disclosure/Qualification Certification, if applicable.
☐ Form RD 1910-11, Applicant Certification, Federal Collection Policies for Consumer or Commercial Debts.
☐ Form HUD 9832, Management Entity Profile.
☐ Form HUD 935.2, Affirmative Fair Housing Marketing Plan.
☐ FEMA Form 086-0-32, Special Flood Hazard Determination (7 CFR 3565.254).
☐ Form RD 1924-13, Estimate and Certificate of Actual Cost.
☐ Form RD 400-4, Assurance Agreement.
☐ Form RD 1924-25, Plan Certification Form.
☐ Form RD 400-1, Equal Opportunity Agreement.
☐ Form RD 400-6, Compliance Statement.
☐ Form RD 400-3, Notice to Contractors and Applicants (prepared by the Agency).
☐ Financial statements with certification(s) (newly formed entities applying for a construction/permanent guarantee do not need to provide financial statements at the time of application).
☐ Credit report for the entity and any guarantor.
☐ Proposed limited partnership agreement and certificate of limited partnership (if applicable). Agency requirements should be contained in one section of the agreement and their location identified by the borrower or their attorney in a cover sheet.
☐ If a corporate entity, its Articles of Organization and its Operating Agreement.
☐ Tax-exempt ruling from the IRS designating them as a 501(c)(3) or 501(c)(4) organization. If the designation is pending, a copy of the designation request must be submitted.
☐ Evidence of organization under State law or copies of pending applications.
☐ A list of board members.
☐ The enabling statute or the State law of organization.
☐ An application fee, if applicable.
☐ An appraisal and market study.
☐ Project information including project name, location, number and type of units, the development team, property manager, lawyer, and syndicator. The development team includes the developer (including all principals), architect, and contractor.
☐ Capital Needs Assessment (for rehabilitation loans only). Does the Capital Needs Assessment and Capital Improvement Plan call for a replacement reserve escrow that meets or exceeds the $1,000/unit threshold by year three? If not, document underwriting explanation (7 CFR 3565.254(b)(4)). Include a Reserve for Replacement schedule.
☐ State Clearinghouse comments or recommendations.
☐ Site plan, including contour lines.
☐ Plot plan.
☐ Floor plan of each living unit type and other type spaces.
☐ Building exterior elevations.
☐ FEMA Form 086-0-33, Elevation Certificate.
☐ Typical building exterior wall section.
☐ Description and justification of any related facilities and schedule of separate charges for related facilities, if any.
☐ Design development/working plans/construction specifications. Plans, specifications, and estimates must fully describe all of the work to be completed, including all landscaping, construction, repairs, and site development work. The plans must be clear and accurate with adequate dimensions and sufficient scale for estimating purposes.
Technical data, tests, or engineering evaluations needed to support the design of the development must be included.
☐ Management plan as specified by 7 CFR 3656.351. A complete management plan will include: Details for managing a project with scattered sites (if applicable); completion of Form HUD 935.2; procedures for determining applicant eligibility; demonstrated capacity to manage the unique leasing occupancy restrictions of the guaranteed program; description of rent collection; lease provisions covering termination and eviction; provision of a copy of tenant protection and grievance procedures to tenants; description of security plan; plans for maintenance, repair, replacement, tenant work requests, management and maintenance staffing plans; detailed compliance with Federal and State environmental laws; description of energy conservation measures including recycling; detailed management and maintenance staffing plans; and information on staff training programs. The plan must include a statement confirming that it includes a provision for access to project's books and records by USDA staff, USDA-IG, GAO, and the Department of Justice; information on accounting, record keeping, data systems, and software. 7 CFR 3565.351(a)(7).
☐ Proposed management agreement
☐ Qualifications of the property manager.
☐ The lender must confirm and provide documentation that neither the property management entity nor the property management entity's principals are debarred or suspended from Federal work by accessing the GSA debarment list and CAIVRS (Credit Voice Response System) in the Do Not Pay portal at
☐ Demonstrated experience of the general contractor in building multifamily housing of the size design, scope, and complexity of the project proposed in the application.
☐ Lender's conditional commitment on the lender's letterhead with lender's signature specifying the GRRHP option under which the project loan is to be guaranteed.
☐ Sources and Uses, proforma statement or a comparable document.
☐ Lender's narrative.
☐ A copy of the proforma budget detailing the first year and a typical year's operation (Proformas with and without the interest credit award will serve as justification for the interest credit award.).
☐ Disclosure of any change in financing since response to the Notice submission.
☐ Type of utilities and utility allowances, if applicable.
☐ Confirm that Operating and Maintenance (O&M) Reserve is at least two percent (see 7 CFR 3565.3) of the total loan amount (not just guaranteed portion). Calculation of O&M reserve for congregate care facilities and larger projects should reflect absorption rates in the market study to cover shortfalls between estimated operating budget calculations and rent-up assumptions. Funds contributed as O&M reserves are contributed from the borrower's own resources or an irrevocable letter of credit and are not to be included as part of the total development cost calculation. 7 CFR 3565.52(e); 7 CFR 3565.402(a)(2).
☐ For Option Two and Option Three guarantees, confirm that the construction contingency equal to two percent of the construction contract, inclusive of the contractor's fee and hard and soft costs (see 7 CFR 3565.3). This is to be funded at or prior to closing by the contractor 7 CFR 3565.402(a)(2).
☐ Ensure the loan meets the regulatory requirements according to applicable classification under 7 CFR 3565.251-254. Provide evidence of adequate insurance for the project (7 CFR 3565.351(a)(5)).
☐ Interest Credit Request, if applicable.
☐ Most current version of the ASTM Standard E 1528-14, Phase I Environmental Site Assessment Process published by the American Society for Testing and Materials (ASTM).
☐ Environmental Information in accordance with 7 CFR part 1970—Environmental Policies and Procedures.
☐ Compliance with historic and architectural laws, if applicable.
☐ Comments regarding relevant off-site conditions.
☐ Land survey.
☐ Standard Regulatory Agreement approved by the Agency. (7 CFR 3565.303(d)(11).
☐ Non-Standard Regulatory Agreement(s) containing provisions for transferability between lenders, binding on the borrower and their successors (7 CFR 3565.351(a)), and requires that the borrower: make all principal and interest payments under the note, maintain the project as affordable housing in good physical condition; maintain complete project books and records; and comply with all Federal Fair Housing requirements under the terms of the note (7 CFR 3565.351(a)).
☐ Confirmation in writing that the borrower is in compliance with the Affirmative Fair Housing Marketing Plan (7 CFR 3565.353).
☐ Verify use of security instruments prepared, executed, recorded and/or delivered per program guidelines and that those instruments are in compliance with the terms of the conditional commitment.
☐ Verify use of the construction contract based on standard AIA Document A-101. If this document is used, it should be modified as described in Form RD 1924-25 or a similar form.
☐ Verify use of contract specifications, documents and forms. Use Form RD 1924-6 “Construction Contract” or similar document as required by Executive Order 11246, Non-Discrimination in Employment by Construction Contractors.
(1)
The priority scoring criteria for projects are listed below.
If there is insufficient funding available to fund all approved projects and projects have equal scores based on the priority criteria, the Agency will rank the tied projects based on the scores for Priority 7. If there is still a tie, the Agency will obligate funds in order from the smallest to largest amount of Agency funding needed.
(2)
(1)
In the event that the Agency suspends the ability to receive applications until sufficient funding becomes available, a notice will be made to the industry via GovDelivery and/or some other form of acceptable electronic notice.
(2)
(3)
(4)
Funding to Non-Federal Entities. Awardees that are Non-Federal Entities, defined pursuant to 2 CFR 200.1 as any State, local government, Indian Tribe, Institution of Higher Education, or nonprofit organization, shall be governed by the requirements of section 70914 of the Build America, Buy America Act (BABAA) within the IIJA. Any requests for waiver of these requirements must be submitted pursuant to USDA's guidance available online at
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, employees, and institutions participating in or administering 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, familial/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.
Persons with disabilities who require alternative means of communication for program information (
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at
USDA is an equal opportunity provider, employer, and lender.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary moving safety zone around the M/V ZHEN HUA 26 while it transits from the Port of Long Beach, CA, from Long Beach Container Terminal (LBCT), LB Berth E22, to inner anchorage, and then to Fenix Marine Services (FMS), LA Berth 302. This safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards associated with oversized cargo of ship-to-shore gantry cranes which extend more than 200 feet out from the transiting vessel. Entry of persons or vessels into this safety zone is prohibited unless specifically authorized by the Captain of the Port (COTP) Los Angeles—Long Beach, or their designated representative. The Coast Guard recently issued a safety zone for the transit of the M/V ZHEN HUA 26, but additional time is needed to complete the cargo delivery.
This rule is effective April 26, 2023, though May 2, 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 LCDR Maria Wiener, Waterways Management, U.S. Coast Guard Sector Los Angeles—Long Beach; telephone (310) 357-1603, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because The COTP was notified of the impending arrival of the M/V ZHEN HUA 26 less than 30 days in advance and immediate action is needed to respond to the potential safety hazards associated with the transfer of large gantry cranes within the Ports of Los Angeles and Long Beach. The vessel recently updated their timeline and timeframe for the crane delivery to FMS after we issued the first safety zone. This safety zone needs to be extended to protect personnel, vessels, and the marine environment from potential hazards associated with oversized cargo of ship-to-shore gantry cranes, which will extend more than
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 and 70011(b)(3). The COTP Los Angeles—Long Beach has determined that potential hazards associated with the movement of large-scale gantry crane transfer operations will be a safety concern for anyone within a 500-foot radius of the M/V ZHEN HUA 26 during its transit from LBCT, LB Berth E22, while at inner anchorage, and during the vessel's transit from inner anchorage to FMS, LA Berth 302. This hazard will exist while the vessel is within the Los Angeles—Long Beach port complex and the waters inside the Federal breakwaters bounding San Pedro Bay or on the waters within three nautical miles seaward of the Federal breakwaters, respectively.
This rule establishes a safety zone from April 26, 2023, through May 2, 2023, during the transit of the M/V ZHEN HUA 26 and while the vessel is at inner anchorage within the Los Angeles—Long Beach port complex. While the M/V ZHEN HUA 26 is within the waters inside the Federal breakwaters bounding San Pedro Bay or on the waters within three nautical miles seaward of the Federal breakwaters, respectively, the safety zone will encompass the navigable waters around and under the vessel, form surface to bottom, within a circle formed by connecting all points 500-feet out from the vessel. The safety zone is needed to protect personnel, mariners, and vessels from hazards associated with ship-to shore gantry crane arms which will extend more than 200 feet out from the transiting vessel.
No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. Sector Los Angeles—Long Beach may be contacted on VHF-FM Channel 16 or (310) 521-3801. The marine public will be notified of the safety zone via Broadcast Notice to Mariners.
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, duration, and time-of-year of the safety zone. This rule impacts an area of 500-feet surrounding a cargo vessel while at LBCT, LB Berth E22, and FMS, LA Berth 302, during the months of April and May 2023. This safety zone impacts a 500-foot-radius area of the Port of Los Angeles—Long Beach and the waters inside the Federal breakwaters bounding San Pedro Bay or on the waters within three nautical miles seaward of the Federal breakwaters, respectively for a limited duration. While the safety zone encompasses a seven-day period to account for uncertain transit delays of the M/V ZHEN HUA 26, the safety zone will only be enforced for the duration of the vessel's transit from LBCT, LB Berth E22, to inner anchorage, while at inner anchorage, and transit to FMS, LA Berth 302, and that period will be announced via Broadcast Notice to Mariners. Vessel traffic will be able to safely transit around this safety zone, which will impact a small, designated area of the San Pedro Bay, Long Beach and Los Angeles, CA.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments,
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 This rule involves a safety zone encompassing an area extending 500-feet out from a cargo vessel in vicinity of Long Beach Container Terminal and Fenix Marine Services and will last only while transfer operations are ongoing. It is categorically excluded from further review under paragraph L60 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. 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)
(2) To seek permission to enter, contact the COTP or the COTP's representative by hailing Coast Guard Sector Los Angeles—Long Beach on VHF-FM Channel 16 or calling at (310) 521-3801. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.
(d)
(e)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of the San Francisco Bay, off of Pier 15, in San Francisco, CA in support of a fireworks display on April 29, 2023. The safety zone is necessary to protect personnel, vessels, and the marine environment from potential hazards created by pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without the permission of the Captain of the Port San Francisco or a designated representative.
This rule is effective from 11 a.m. until 10:40 p.m. on April 29, 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 LT William K. Harris, U.S. Coast Guard Sector San Francisco, Waterways Management Division, at 415-399-7443,
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. The Coast Guard did not receive final details for this event until April 17, 2023. It is impracticable to go through the full notice and comment rulemaking process because the Coast Guard must establish this safety zone by April 29, 2023, and lacks sufficient time to provide a reasonable comment period and to consider those comments before issuing the rule.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector San Francisco (COTP) has determined that potential hazards associated with the scheduled Pier 15 Fireworks display on April 29, 2023, will be a safety concern for anyone within a 100-foot radius of the fireworks vessel during loading and staging, and anyone within a 300-foot radius of the fireworks vessel starting 30 minutes before the fireworks display is scheduled to commence and ending 30 minutes after the conclusion of the fireworks display. For this reason, this temporary safety zone is needed to protect personnel, vessels, and the marine environment on the navigable waters around the fireworks vessel and during the fireworks display.
This rule establishes a temporary safety zone from 11 a.m. until 10:40 p.m. on April 29, 2023, during the loading, staging, and transit of the fireworks vessel from Westar Marine Service Pier 50, San Francisco, CA, and until 30 minutes after completion of the fireworks display. During the loading, staging, and transit of the fireworks vessel scheduled to take place between 11 a.m. and 8:30 p.m. on April 29, 2023, until 30 minutes prior to the start of the fireworks display, the safety zone will encompass the navigable waters around and under the fireworks vessel, from surface to bottom, within a circle formed by connecting all points 100 feet out from the fireworks vessel. The fireworks display is scheduled to start at 10 p.m. and end at approximately 10:10 p.m. on April 29, 2023, off Pier 15 within the San Francisco Bay in San Francisco, CA.
At 9:30 p.m., 30 minutes prior to the commencement of the 10-minute fireworks display, the safety zone will increase in size and encompass the navigable waters around and under the fireworks vessel, from surface to bottom, within a circle formed by connecting all points 300 feet from the circle center at approximate position 37°48′7.33″ N, 122°23′43.42″ W (NAD 83). The safety zone will terminate at 10:40 p.m. on April 29, 2023, or as announced via Marine Information Broadcast.
This regulation is necessary to keep persons and vessels away from the immediate vicinity of the fireworks loading, staging, transit, and display site. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in a restricted area. A “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel, or a Federal, State, or local officer designated by or assisting the COTP in the enforcement of the Safety Zone. Tis regulation is necessary to ensure the safety of participants, spectators, and transiting vessels.
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 limited duration and narrowly tailored geographic area of the safety zone. Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterways users will be notified to ensure the safety zone will result in minimal impact. The vessels desiring to transit through or around the temporary safety zone may do so upon express permission from the COTP or the COTP's designated representative.
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
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 temporary safety zone in the navigable waters around the loading, staging, transit, and display of fireworks at Westar Marine Service Pier 50 and off of Pier 15 within San Francisco Bay. 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. A Record of Environmental Consideration supporting this determination is available in the docket. 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, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or the COTP's designated representative.
(3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or the COTP's designated representative to obtain permission to do so. Vessel operators given permission to enter in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative. Persons and vessels may request permission to enter the safety zone on VHF-23A or through the 24-hour Command Center at telephone (415) 399-3547.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of closure.
NMFS is opening directed fishing for sablefish by vessels using trawl gear in the Bering Sea subarea and the Aleutian Islands subarea of the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the 2023 total allowable catch (TAC) of trawl sablefish in the Bering Sea subarea and the Aleutian Islands subarea of the BSAI.
Effective 1200 hours, Alaska local time (A.l.t.), May 1, 2023, through 2400 hours, A.l.t., December 31, 2023. Comments must be received at the following address (see
You may submit comments on this document, identified by NOAA-NMFS-2022-0094, by any of the following methods:
Abby Jahn, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
Pursuant to the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023), NMFS closed directed fishing for trawl sablefish in the Bering Sea subarea and the Aleutian Islands subarea of the BSAI under § 679.20(d)(1)(iii).
As of April 20, 2023, NMFS has determined that approximately 3,364 metric tons (mt) and 1,794 mt of trawl sablefish initial TAC remains unharvested in the Bering Sea subarea and the Aleutian Islands subarea, respectively, of the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2023 TAC of trawl sablefish in the Bering Sea subarea and the Aleutian Islands subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for sablefish by vessels using trawl gear in the Bering Sea subarea and the Aleutian Islands subarea of the BSAI. This will enhance the socioeconomic well-being of harvesters in this area. The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) the current catch of trawl sablefish in the Bering Sea subarea and the Aleutian Islands subarea of the BSAI; and (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay the opening of directed fishing for trawl sablefish in the Bering Sea subarea and the Aleutian Islands subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of April 24, 2023.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
Without this inseason adjustment, NMFS could not allow the fishery for trawl sablefish in Bering Sea subarea and the Aleutian Islands subarea of the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until May 10, 2023.
16 U.S.C. 1801
Financial Stability Oversight Council.
Notification of proposed interpretive guidance; request for public comment.
This proposed interpretive guidance, which would replace the Financial Stability Oversight Council's existing interpretive guidance on nonbank financial company determinations, describes the process the Council intends to take in determining whether to subject a nonbank financial company to supervision and prudential standards by the Board of Governors of the Federal Reserve System.
You may submit comments by either of the following methods. All submissions must refer to the document title and RIN 4030-[XXXX].
All properly submitted comments will be available for inspection and downloading at
In general, comments received, including attachments and other supporting materials, are part of the public record and are available to the public. Do not submit any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Eric Froman, Office of the General Counsel, Treasury, at (202) 622-1942; Devin Mauney, Office of the General Counsel, Treasury, at (202) 622-2537; or Carol Rodrigues, Office of the General Counsel, Treasury, at (202) 622-6127.
Section 111 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5321) (the “Dodd-Frank Act”) established the Financial Stability Oversight Council. The purposes of the Council under section 112 of the Dodd-Frank Act (12 U.S.C. 5322) are “(A) to identify risks to the financial stability of the United States that could arise from the material financial distress or failure, or ongoing activities, of large, interconnected bank holding companies or nonbank financial companies, or that could arise outside the financial services marketplace; (B) to promote market discipline, by eliminating expectations on the part of shareholders, creditors, and counterparties of such companies that the Government will shield them from losses in the event of failure; and (C) to respond to emerging threats to the stability of the United States financial system.”
The Dodd-Frank Act gives the Council broad discretion to determine how to respond to potential threats to U.S. financial stability, and the Council uses each of its statutory authorities as appropriate. The Council's duties under section 112 of the Dodd-Frank Act reflect the range of approaches the Council may consider, including collecting information from regulators, requesting data and analyses from the Office of Financial Research, monitoring the financial services marketplace and financial regulatory developments, facilitating information sharing and coordination among regulators, recommending to the Council member agencies general supervisory priorities and principles, identifying regulatory gaps, making recommendations to the Board of Governors of the Federal Reserve System (“Federal Reserve”) or other primary financial regulatory agencies,
Section 113 of the Dodd-Frank Act authorizes the Council to determine that a nonbank financial company will be subject to supervision by the Federal Reserve and prudential standards. Under section 165 of the Dodd-Frank Act, the Federal Reserve is responsible for establishing the prudential standards that will be applicable to a nonbank financial company subject to a Council designation
The Council is proposing this interpretive guidance (the “Proposed Guidance”) to revise and update the 2019 Interpretive Guidance. If the Council issues final interpretive guidance based on this proposal, the final interpretive guidance will replace the 2019 Interpretive Guidance, found at Appendix A to 12 CFR part 1310, in its entirety but will not modify the rules at 12 CFR 1310.1-23.
The Council is concurrently issuing for public comment a separate document (the Proposed Analytic Framework) explaining the Council's broader approach to identifying, evaluating, and addressing potential risks to U.S. financial stability. The Proposed Analytic Framework describes the Council's analytic approach without regard to the origin of a particular risk, including whether the risk arises from widely conducted activities or from individual entities, and regardless of which of the Council's authorities may be used to address the risk.
The Proposed Guidance seeks to establish a durable process for the Council's use of its authority to designate nonbank financial companies. The 2012 Interpretive Guidance provided a crucial framework for the Council's analyses, but because it was adopted before the Council had designated any nonbank financial companies, it could not reflect the lessons learned from engaging in such designations. The 2019 Interpretive Guidance provided additional clarity regarding the Council's procedures but created inappropriate hurdles to the Council's ability to use this authority. Congress created the designation authority to fill a glaring regulatory gap that became apparent during the financial crisis in 2007-09, when financial distress at large, complex, highly interconnected, highly leveraged, and inadequately regulated nonbank financial companies devastated the financial system. The Council has used this authority sparingly, but to mitigate the risks of future financial crises, the Council must be able to use each of its statutory authorities as appropriate to address potential threats to U.S. financial stability. The Proposed Guidance is intended to make this authority available to the Council while maintaining rigorous procedural protections for nonbank financial companies that may be reviewed for potential designation.
The Proposed Guidance would make three key changes. First, the Proposed Guidance would eliminate the statement, found in the 2019 Interpretive Guidance, that the Council would first rely on federal and state regulators to address risks to financial stability before the Council would begin to consider a nonbank financial company for potential designation. The 2019 Interpretive Guidance refers to the Council's reliance on existing regulators as an “activities-based approach,” and provides that the Council will prioritize that approach before considering designations.
The second fundamental change under the Proposed Guidance is that it is limited to the Council's procedures—rather than substantive analyses—related to nonbank financial company designations. The Council is issuing, for public comment, a separate document explaining the Council's broader approach to identifying, evaluating, and addressing potential risks to U.S. financial stability. The Proposed Analytic Framework describes the Council's analytic approach without regard to the origin of a particular risk, including whether the risk arises from widely conducted activities or from individual entities. It provides new public transparency into how the Council expects to consider any type of risk to financial stability, regardless of which of the Council's authorities may be used to address those risks. Therefore, the Council proposes to rescind the description, set forth in section III of the 2019 Interpretive Guidance, of the Council's analytic approach to evaluating nonbank financial companies under consideration for designation.
The third primary change under the Proposed Guidance, related to its focus on the Council's procedures rather than substantive analyses, is that the Proposed Guidance does not include language, found in the 2019 Interpretive Guidance, stating that the Council would conduct a cost-benefit analysis and an assessment of the likelihood of a firm's material financial distress prior to making a determination under section 113. As explained in greater detail below, the Council believes that these steps are not required by the Dodd-Frank Act, are not useful or appropriate, and unduly hamper the Council's ability to use the statutory authority Congress provided to it.
With respect to the Council's procedures for nonbank financial company designations and annual reevaluations of designations, the Proposed Guidance would make only minor changes. The revisions made in the 2019 Interpretive Guidance related to the Council's procedures for nonbank financial company designations largely reflected the rules and guidance the Council had previously issued, including the 2015 Supplemental Procedures, as well as the Council's
Both the 2012 Interpretive Guidance and the 2019 Interpretive Guidance discussed substantive analytic factors the Council applies in its assessment of nonbank financial companies. The Proposed Guidance is instead limited to the Council's procedures related to nonbank financial company designations and does not include a discussion of the Council's substantive analyses of nonbank financial companies, like the description in section III of the 2019 Interpretive Guidance. The Proposed Guidance does not include that type of discussion because the Council is issuing a separate document—the Proposed Analytic Framework—apart from its guidance on nonbank financial company designations, regarding its approach for identifying and evaluating potential risks to U.S. financial stability. That framework describes the Council's planned analytic approach without regard to either the origin of a particular risk, including whether the risk arises from widely conducted activities or from individual entities, or any potential application of the Council's authorities to mitigate such risks.
In particular, the 2019 Interpretive Guidance describes channels deemed most likely to facilitate the transmission of the negative effects of a nonbank financial company's material financial distress, or of the nature, scope, size, scale, concentration, interconnectedness, or mix of the company's activities, to other financial firms and markets; how the complexity and resolvability and existing regulatory scrutiny of a company under consideration for designation may affect the Council's evaluation of the relevant statutory factors; and the Council's interpretation of several statutory terms. For the reasons discussed below, these descriptions do not appear in the Proposed Guidance and would not be included in Appendix A to part 1310.
History illustrates that many factors, such as leverage, liquidity risk, and operational risk, regularly recur in different forms and under different conditions to generate risks to financial stability, and the Proposed Analytic Framework describes vulnerabilities that commonly generate or exacerbate risks to financial stability and the mechanisms by which negative effects can be transmitted more broadly. The Council may consider those risk factors and transmission channels in activities-based reviews, entity-specific analyses, or other work.
The 2019 Interpretive Guidance also provides the Council's interpretation of several statutory terms not defined in the Dodd-Frank Act, including “company,” “nonbank financial company supervised by the Board of Governors,” and “material financial distress”—that the Council proposes to retain and has incorporated into the Proposed Guidance. However, the Council believes the 2019 Interpretive Guidance's interpretation of “threat to the financial stability of the United States” as meaning “the threat of an impairment of financial intermediation or of financial market functioning that would be sufficient to inflict severe damage on the broader economy”
1. Does the proposal described above not to include in the interpretive guidance a description of the Council's substantive analytic approach to evaluating nonbank financial companies in the context of a designation under section 113 of the Dodd-Frank Act, in favor of a separate framework that describes the Council's analytic approach without regard to the origin of a particular risk or the authority the Council may use to mitigate such risk, allow the Council to achieve its statutory purposes? Should the Council's proposed approach be modified for other considerations?
2. Are there additional statutory terms beyond “company,” “nonbank financial company supervised by the Board of Governors,” and “material financial distress” for which the Council should set forth its interpretation in the Proposed Guidance?
3. Would the Council's elimination of the 2019 Interpretive Guidance's
The 2019 Interpretive Guidance states that the Council will prioritize its efforts to identify, assess, and address potential risks and threats to U.S. financial stability through a process that begins with an “activities-based approach,” and that the Council will pursue entity-specific determinations under section 113 of the Dodd-Frank Act only if a potential risk or threat cannot be adequately addressed through an activities-based approach. As explained in the 2019 Interpretive Guidance, an activities-based approach means an approach in which the Council seeks to address potential risks to financial stability using an authority other than nonbank financial company designations.
The Proposed Guidance removes this prioritization among the Council's authorities, clarifying that the Council may use any of its statutory authorities, as appropriate, to address risks and threats to U.S. financial stability. As noted above, the Council will continue to monitor for activities that pose risks to financial stability and work with regulators to respond to those risks. Appropriate actions to respond to a particular risk depend on the nature of the risk. For example, vulnerabilities originating from activities that are widely conducted in a particular sector or market may be well-suited for activity-based or industry-wide regulation. In contrast, where distress at one entity could threaten financial stability, or where risks arising from a particular financial company could threaten financial stability, entity-based regulation may be appropriate. The Dodd-Frank Act gives the Council a range of authorities and broad discretion to determine how to respond to potential threats to U.S. financial stability. The Council stated in the 2019 Interpretive Guidance that it intended to use a prioritization scheme found nowhere in the Dodd-Frank Act, under which the Council would generally seek to use certain of its authorities before others. Consistent with the Council's statutory purpose to respond to emerging threats to U.S. financial stability, the Proposed Guidance would remove this prioritization, allowing the Council the flexibility to use the most appropriate tool for addressing potential risks. For example, the Proposed Guidance makes clear that the Council could consider using its section 113 designation authority when material financial distress at a nonbank financial company, or the nature, scope, size, scale, concentration, interconnectedness, or mix of the activities of a nonbank financial company, could pose a threat to U.S. financial stability, as appropriate, without first needing to consider other approaches.
The Council's history provides instructive examples of the Council's use of different authorities and approaches for different types of risks. For example, the Council has taken an activities-based approach in recommending actions to address risks relating to crypto-assets, climate-related financial risks, and other topics. In 2012, the Council used an activities-based approach in issuing for public comment proposed recommendations for money market mutual fund reforms. Further, all of the Council's annual reports have identified and recommended actions regarding various risks to U.S. financial stability,
Financial crises have illustrated the importance of ensuring that the Council can exercise its authorities as needed. For example, the 2007-09 financial crisis showed that material financial distress at a small number of large, interconnected, and highly leveraged nonbank financial companies could threaten the stability of the U.S. financial system. Based in part on that experience, Congress created the Council and gave it a mandate to address risks that arise in the future. Under the Proposed Guidance, the Council would retain flexibility to address risks and threats to U.S. financial stability using whichever authorities are appropriate for the circumstances.
Consistent with the modifications described above, the Proposed Guidance provides additional detail on how the Council would identify nonbank financial companies for preliminary evaluation to assess the risks they could pose to U.S. financial stability (referred to as “Stage 1”). The 2019 Interpretive Guidance, in accordance with the activities-based approach, provided that the Council could evaluate a company for designation if a company's primary financial regulatory agency did not adequately address a potential risk identified by the Council. The Proposed Guidance instead explains the process by which the Council's staff-level committees would preliminarily identify and assess potential risks to U.S. financial stability using the analytical methods described in the Council's separately issued Proposed Analytic Framework. This approach seeks to strengthen the Council's ability to monitor, assess, and mitigate risks to U.S. financial stability, regardless of whether those risks originate from individual companies or widely conducted activities, while providing flexibility for the Council to adapt to circumstances that may rapidly evolve.
4. Would removal of the prioritization of the “activities-based approach” from the interpretive guidance enable the Council to achieve its statutory purposes? Should the Council's proposed approach be modified for other considerations?
5. Are there additional steps the Council should take to ensure all of its authorities for addressing potential risks to U.S. financial stability are equally available and appropriately exercised?
6. Would the proposed staff-level process for identifying nonbank financial companies for preliminary evaluation enable the Council to achieve its statutory purposes? Does the Proposed Guidance identify the appropriate procedures the Council should follow as it considers a company for potential designation? Are there other means of identifying companies for preliminary review the Council should consider, such as the application of specific metrics for different sectors of the nonbank financial system?
7. If the Council were to establish a set of uniform quantitative metrics to identify nonbank financial companies for further evaluation, as it did through the Stage 1 thresholds in the 2012 Interpretive Guidance, what metrics should the Council consider?
The 2019 Interpretive Guidance states, “The Council will make a determination under section 113 only if
The costs and benefits of a designation are not listed considerations in the statute and are not similar to any of the listed considerations. The statute is clear that the only required considerations are related to the potential impact the company's material financial distress or activities could pose to U.S. financial stability. While Congress granted the Council discretion to consider other factors it “deems appropriate,” these too must be “risk-related.”
The text of section 113 indicates that Congress itself determined that the potential costs of designation are outweighed by the benefits—mitigating risks to financial stability—if the company meets the statutory standard, based on the considerations Congress identified. That is, Congress's legislative judgment was that if, based on the Council's consideration of the factors listed in section 113, a nonbank financial company “could pose a threat to the financial stability of the United States,” then the benefits of a designation outweigh the costs.
Further, even if the potential cost of designation were a “risk-related factor,” the Council does not believe that prescribing a cost-benefit analysis prior to a determination under section 113 is useful or appropriate. This is in part because it is not feasible to estimate with any certainty the likelihood, magnitude, or timing of a future financial crisis. The costs imposed by the potential failure of a nonbank financial company will depend on the state of the economy and financial system at the time. The benefits of designation are potentially enormous and, in many respects, incalculable, representing the tangible and intangible gains that come from averting a financial crisis and economic catastrophe. The costs of any particular future financial crisis, and thus the benefits of its prevention through designation or other measures, cannot be predicted. Even estimates of the costs of past crises, in terms of reductions in gross domestic product, greater government expenses, increases in unemployment, or other factors, vary widely but can be measured in the trillions of dollars. Moreover, the Dodd-Frank Act directs the Federal Reserve to adopt regulatory requirements applicable to a designated nonbank financial company. The cost to a company of designation will depend critically on the applicable regulatory regime. Generally, specific regulatory requirements for designated nonbank financial companies have been determined after the designation, in order to enable the requirements to be appropriately tailored to risks posed by the company. As such, evaluating the potential costs and benefits of a designation with reasonable specificity is not possible before a designation, and it is unlikely that performing a cost-benefit analysis for a nonbank financial company would yield a balanced picture.
The Dodd-Frank Act charges the Council with designating a company under section 113 if it “determines that material financial distress at the U.S. nonbank financial company . . . could pose a threat to the financial stability of the United States.”
Further, the designation authority in section 113 is preventative and is meant to “respond to emerging threats to the stability of the United States financial system,” consistent with the Council's purpose.
There are good reasons that Congress chose not to require the Council to determine the likelihood of a nonbank financial company's material financial distress. A financial company can go from seemingly healthy to in danger of imminent collapse in a matter of months, weeks, or even days. For example, at the end of August 2008, Lehman Brothers had reported shareholder equity—which is a measure of solvency—of $28 billion.
Finally, if designation requires an assessment of the likelihood of material financial distress at the company, public awareness of designation (or its mere possibility) could create a run on the company by its creditors and counterparties. This is an important reason why bank supervisory ratings are confidential, in acknowledgement of the risk that disclosure of material issues at a company could trigger a run on the company. Thus, a designation that includes an assessment of the likelihood of material financial distress at the company could accelerate the company's demise and thereby threaten financial stability and undermine the purpose of the designation.
8. Does the Council's proposal described above to remove from the interpretive guidance provisions the discussion of the Council conducting a cost-benefit analysis and assessing the likelihood of a company's material financial distress allow the Council to achieve its statutory purposes? Should the Council's proposed approach be modified for other considerations?
9. Are there additional points the Council should consider regarding the usefulness, practicality, or feasibility of conducting a cost-benefit analysis regarding the designation of a company under section 113?
10. What data or factors should the Council consider in evaluating the potential risk to U.S. financial stability that could be posed by the failure of a company, should that company experience material financial distress?
11. If the Council were to identify a nonbank financial company as likely to experience material financial distress, what, if any, effects would such identification have when it became public knowledge?
The Council has numerous authorities and tools under the Dodd-Frank Act to carry out its statutory purposes.
The Proposed Guidance is not expected to alter the collections of information previously reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1505-0244. Nonetheless, the Council provides the estimated burdens of the information collections associated with the Proposed Guidance and invites comments below. 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 control number assigned by the Office of Management and Budget.
The collection of information under the Proposed Guidance is found in 12 CFR 1310.20-23.
The hours and costs associated with preparing data, information, and reports for submission to the Council constitute reporting and cost burdens imposed by the collection of information. The estimated total annual reporting burden associated with the collection of information in the Proposed Guidance is 20 hours, based on an estimate of 1 respondent. We estimate the cost associated with this information collection to be $9,000.
In making this estimate, the Council estimates that due to the nature of the information likely to be requested, approximately 75 percent of the burden in hours will be carried by financial companies internally at an average cost of $400 per hour, and the remainder will be carried by outside professionals retained by financial companies at an average cost of $600 per hour. In addition, in determining these estimates, the Council considered its obligation under 12 CFR 1310.20(b) to, whenever possible, rely on information available from the Office of Financial Research or any Council member agency or primary financial regulatory agency that regulates a nonbank financial company before requiring the submission of reports from such nonbank financial company. The Council expects that its collection of information under the Proposed Guidance would be performed in a manner that attempts to minimize burdens for affected financial companies. The aggregate burden will be subject to the number of financial companies that are evaluated in the determination process, the extent of information regarding such companies that is available to the Council through existing public and regulatory sources, and the amount and types of information that financial companies provide to the Council.
Interested persons are invited to submit comments regarding the estimates provided in this section. Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Financial Stability Oversight Council, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to Samantha MacInnis, Department of the Treasury, Washington, DC 20220. Comments on the collection of information must be received by June 27, 2023.
Comments are specifically requested concerning:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Council, including whether the information will have practical utility;
(2) The accuracy of the estimated burden associated with the proposed collection of information;
(3) How the quality, utility, and clarity of the information to be collected may be enhanced;
(4) How the burden of complying with the proposed collection of information may be minimized, including through the application of automated collection techniques or other forms of information technology; and
(5) Estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
Executive Orders 12866, 13563 and 14094 direct certain agencies to assess 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). Pursuant to section 3(f) of Executive Order 12866, the Office of Information and Regulatory Affairs within the Office of Management and Budget has determined that the Proposed Guidance is a “significant regulatory action”. Accordingly, the Proposed Guidance has been reviewed by the Office of Management and Budget.
Brokers, Investments, Securities.
The Financial Stability Oversight Council proposes to amend 12 CFR part 1310 as follows:
12 U.S.C. 5321; 12 U.S.C. 5322; 12 U.S.C. 5323.
Section 113 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act)
Section II of this appendix outlines a two-stage process that the Council generally expects to follow when determining whether to subject a nonbank financial company to Federal Reserve Board supervision and prudential standards.
Under section 113 of the Dodd-Frank Act, the Council may evaluate a nonbank financial company
As described in detail below, the Council expects generally to follow a two-stage process of evaluation and analysis when evaluating a nonbank financial company under section 113 of the Dodd-Frank Act. During the first stage of the process (Stage 1), a nonbank financial company identified for review will be notified and subject to a preliminary analysis, based on quantitative and qualitative information available to the Council primarily through public and regulatory sources. During Stage 1, the Council will permit, but not require, the company to submit relevant information. The Council will also consult with the company's primary financial regulatory agency
Following Stage 1, any nonbank financial company that is selected for additional review will receive notice that it is being considered for a proposed determination that the company will be supervised by the Federal Reserve Board and be subject to prudential standards under Title I of the Dodd-Frank Act (a Proposed Determination) and that the company will be subject to in-depth evaluation during the second stage of review (Stage 2). Stage 2 will also involve the evaluation of additional information collected directly from the nonbank financial company. At the end of Stage 2, the Council may consider whether to make a Proposed Determination with respect to the nonbank financial company. If the Council makes a Proposed Determination, the nonbank financial company may request a hearing in accordance with section 113(e) of the Dodd-Frank Act and § 1310.21(c) of the Council's rule regarding nonbank financial company determinations.
Stage 1 involves a preliminary analysis of nonbank financial companies to assess the risks they could pose to U.S. financial stability. In light of the preliminary nature of a review in Stage 1, the Council expects that not all companies reviewed in Stage 1 will proceed to Stage 2 or a Final Determination.
The Council may evaluate one or more individual nonbank financial companies for an entity-specific determination under section 113 of the Dodd-Frank Act. The Council's staff-level committees are responsible for monitoring and analyzing financial markets, financial companies, the financial system, and issues related to financial stability. These committees monitor a broad range of asset classes, institutions, and activities, as described in the Council's Framework for Financial Stability Risk Identification, Assessment, and Response (the Analytic Framework), and as reflected in the Council's annual reports. In assessing potential risks, these committees consider the vulnerabilities and types of metrics described in the Analytic Framework. These committees, in the course of their duties, will monitor each sector of the financial system at least annually and will report to the Deputies Committee
When evaluating the potential risks associated with a nonbank financial company, the Council may consider the company and its subsidiaries separately or together. This approach enables the Council to consider potential risks arising across the entire organization, while retaining the ability to make a determination regarding either the parent or any individual nonbank financial company subsidiary (or neither), depending on which entity the Council determines could pose a threat to financial stability.
The Council will provide a notice to any nonbank financial company under review in Stage 1 no later than 60 days before the Council votes on whether to evaluate the company in Stage 2. In Stage 1, the Council will consider available public and regulatory information. In order to reduce the burdens of review on the company, the Council will not require the company to submit information during Stage 1; however, a company under review in Stage 1 may submit to the Council any information relevant to the Council's evaluation and may, upon request, meet with staff of Council members and member agencies who are leading the Council's analysis. The Council may request a page-limited summary of the company's submissions. In addition, staff representing the Council will, upon request, provide the company with a list of the primary public sources of information being considered during the Stage 1 analysis, so that the company has an opportunity to understand the information the Council may rely upon during Stage 1. In addition, during discussions in Stage 1 with the company, the Council intends for representatives of the Council to indicate to the company potential risks that have been identified in the analysis. However, any potential risks identified at this stage are preliminary and may continue to develop until the Council makes a Final Determination. Through this engagement, the Council seeks to provide the company under review an opportunity to understand the focus of the Council's analysis.
The Council will also consider in Stage 1 information available from relevant existing regulators of the company. Under the Dodd-Frank Act, the Council is required to consult with the primary financial regulatory agency, if any, for each nonbank financial company or subsidiary of a nonbank financial company that is being considered for a determination before the Council makes any Final Determination with respect to such company.
Based on the preliminary evaluation in Stage 1, the Council, on a nondelegable basis, may vote to commence a more detailed analysis of the company by advancing the company to Stage 2, or it may decide not to evaluate the company further. If the Council votes not to advance a company that has been reviewed in Stage 1 to Stage 2, the Council will notify the company in writing of the Council's decision. The notice will clarify that a decision not to advance the company from Stage 1 to Stage 2 at that time does not preclude the Council from reinitiating review of the company in Stage 1.
Stage 2 involves an in-depth evaluation of a nonbank financial company that the Council has determined merits additional review.
In Stage 2, the Council will review a nonbank financial company using information collected directly from the company, through the OFR, as well as public and regulatory information. The review will focus on whether material financial distress
A nonbank financial company to be evaluated in Stage 2 will receive a notice (a Notice of Consideration) that the company is under consideration for a Proposed Determination. The Council also will submit to the company a request that the company provide information that the Council deems relevant to the Council's evaluation, and the nonbank financial company will be provided an opportunity to submit written materials to the Council.
The Council will make staff representing Council members available to meet with the representatives of any company that enters Stage 2, to explain the evaluation process and the framework for the Council's analysis. In addition, the Council expects that its Deputies Committee will grant a request to meet with a company in Stage 2 to allow the company to present any information or arguments it deems relevant to the Council's evaluation. If the analysis in Stage 1 has identified specific aspects of the company's operations or activities as the primary focus for the evaluation, staff will notify the company of those specific aspects, although the areas of analytic focus may change based on the ongoing analysis.
During Stage 2 the Council will also seek to continue its consultation with the company's primary financial regulatory agency or home country supervisor in a timely manner before the Council makes a Proposed or Final Determination with respect to the company. The Council will continue to encourage the regulator during the determination process to address any risks to U.S. financial stability using the regulator's existing authorities; as noted above, if the Council believes regulators' or the company's actions adequately address the potential risks to U.S. financial stability the Council has identified, the Council may discontinue its consideration of the company for a potential determination under section 113 of the Dodd-Frank Act.
Before making a Proposed Determination regarding a nonbank financial company, the Council will notify the company when the Council believes that the evidentiary record regarding the company is complete. The Council will notify any nonbank financial company in Stage 2 if the company ceases to be considered for a determination. Any nonbank financial company that ceases to be considered at any time in the Council's determination process may be considered for a Proposed Determination in the future at the Council's discretion, consistent with the processes described above.
Based on the analysis performed in Stage 2, a nonbank financial company may be considered for a Proposed Determination. A Proposed Determination requires a vote, on a
A nonbank financial company that is subject to a Proposed Determination may request a nonpublic hearing to contest the Proposed Determination in accordance with section 113(e) of the Dodd-Frank Act. If the nonbank financial company requests a hearing in accordance with the procedures set forth in § 1310.21(c) of the Council's rule,
After making a Proposed Determination and holding any requested written or oral hearing, the Council, on a nondelegable basis, may, by a vote of not fewer than two-thirds of the voting members of the Council then serving (including an affirmative vote by the Chairperson of the Council), make a Final Determination that the company will be subject to supervision by the Federal Reserve Board and prudential standards. If the Council makes a Final Determination, it will provide the company with a written notice of the Council's Final Determination, including an explanation of the basis for the Council's decision.
The Council does not intend to publicly announce the name of any nonbank financial company that is under evaluation prior to a Final Determination with respect to such company. However, if a company that is under review in Stage 1 or Stage 2 publicly announces the status of its review by the Council, the Council intends, upon the request of a third party, to confirm the status of the company's review. In addition, the Council will publicly release the explanation of the Council's basis for any Final Determination or rescission of a determination, following such an action by the Council. The Council is subject to statutory and regulatory requirements to maintain the confidentiality of certain information submitted to it by a nonbank financial company or its regulators.
After the Council makes a Final Determination regarding a nonbank financial company, the Council intends to encourage the company or its regulators to take steps to mitigate the potential risks identified in the Council's written explanation of the basis for its Final Determination. Except in cases where new material risks arise over time, if the potential risks identified in writing by the Council at the time of the Final Determination and in subsequent reevaluations have been adequately addressed, generally the Council would expect to rescind its determination regarding the company.
For any nonbank financial company that is subject to a Final Determination, the Council is required to reevaluate the determination at least annually, and to rescind the determination if the Council determines that the company no longer meets the statutory standards for a determination. The Council may also consider a request from a company for a reevaluation before the next required annual reevaluation, in the case of an extraordinary change that materially affects the Council's analysis.
The Council will apply the same standards of review in its annual reevaluations as the standards for an initial determination regarding a nonbank financial company: either material financial distress at the company, or the nature, scope, size, scale, concentration, interconnectedness, or the mix of the company's activities, could pose a threat to U.S. financial stability. If the Council determines that the company does not meet either of those standards, the Council will rescind its determination.
The Council's annual reevaluations will generally assess whether any material changes since the previous reevaluation and since the Final Determination justify a rescission of the determination. The Council expects that its reevaluation process will focus on whether any material changes that have taken effect—including changes at the company, changes in its markets or its regulation, changes in the impact of relevant factors, or otherwise—result in the company no longer meeting the standards for a determination. In light of the frequent reevaluations, the Council's analyses will generally focus on material changes since the Council's previous review, but the ultimate question the Council will seek to assess is whether changes in the aggregate since the Council's Final Determination regarding the company have caused the company to cease meeting either of the statutory standards for a determination.
During the Council's annual reevaluation of a determination regarding a nonbank financial company, the Council will provide the company with an opportunity to meet with representatives of the Council to discuss the scope and process for the review and to present information regarding any change that may be relevant to the threat the company could pose to financial stability. In addition, during an annual reevaluation, the company may submit any written information to the Council the company considers relevant to the Council's analysis. During annual reevaluations, a company is encouraged to submit information regarding any changes related to the company's risk profile that mitigate the potential risks previously identified by the Council. Such changes could include updates regarding company restructurings, regulatory developments, market changes, or other factors. If the company or its regulators have taken steps to address the potential risks previously identified by the Council, the Council will assess whether the risks have been adequately mitigated to merit a rescission of the determination regarding the company. If the company explains in detail and in a timely manner potential changes it could make to its business to address the potential risks previously identified by the Council, representatives of the Council will endeavor to provide their feedback on the extent to which those changes may address the potential risks.
If a company contests the Council's determination during the Council's annual reevaluation, the Council will vote on
Finally, the Council will provide each nonbank financial company subject to a Council determination an opportunity for an oral hearing before the Council once every five years at which the company can contest the determination.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose new regulations pertaining to wetland easements to bring consistency, transparency, and clarity for both easement landowners and the Service in the administration of conservation easements, pursuant to the National Wildlife Refuge Administration Act of 1966, as amended by the National Wildlife Refuge System Improvement Act of 1997. The proposed regulations would codify the process by which the Service establishes drain tile setbacks in wetland easement contracts. Setback distances would be calculated based upon the best available science considering soil characteristics, tile diameter, the depth of the tile below the surface, and/or topography sufficient to the easement contract's standard of protection that ensures no drainage of adjacent protected wetland areas. The proposed regulations would apply only to setbacks provided by the Service beginning on the effective date of the final rule.
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We will not accept email or faxes. We will post all comments on
Debbie DeVore, (251) 604-1383. 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.
Wetland habitat in the Prairie Pothole Region (PPR) of Iowa, Minnesota, Montana, North Dakota, and South Dakota is critically important to waterfowl and other migratory bird populations. The unique topography of the PPR includes the numerous small wetlands and potholes typical of the PPR that were formed through glaciation thousands of years ago. Prairie potholes are freshwater depressions and marshes, often less than 2 feet deep and 1 acre in size, that are a permanent feature of these landscapes barring deliberate alteration of the topography or hydrology. What makes the PPR so biologically important to waterfowl is the seasonal fluctuation of surface water through these permanent wetlands basins. The PPR is responsible for producing approximately 50 to 75 percent of the primary species of ducks on the North American continent, providing habitat for more than 60 percent of the breeding population. Waterfowl fledged in the PPR are a significant natural resource that supports waterfowl hunting and an associated industry that creates an estimated 30,000 jobs and nearly $1 billion in economic benefit.
Congress, recognizing the impact that widespread drainage was having on wetlands and waterfowl populations in the PPR, officially created the Small Wetlands Acquisition Program on August 1, 1958, by amending the 1934 Migratory Bird Hunting Stamp Act (commonly referred to as the “Duck Stamp Act”). The amendment allowed proceeds from the sale of Federal Duck Stamps to be used to conserve and protect “small wetland and pothole areas” through the acquisition and establishment of areas designated as Waterfowl Production Areas (WPAs). The Service purchased the first fee-title WPA in South Dakota in 1959 and began to purchase wetland easements
This proposed rulemaking action would create new regulations pertaining to easement lands protected by a Service easement for waterfowl management rights (commonly referred to as a “wetland easement”) in the PPR. The easements are areas of land or water acquired and administered by the Service with a less than fee interest for the purpose of maintaining small wetland or pothole areas suitable for use as WPAs.
A wetland easement is a voluntary legal agreement with the Service that pays landowners to permanently protect wetlands. The easement contains restrictions on the use or development of the land to protect its conservation values. The Service's wetland easements are minimally restrictive conservation easements, meaning that they have a minimal impact on the property value and limit the landowner's use and enjoyment of the property to a minor degree. Landowners who sell a wetland easement to the Service agree that wetlands protected by an easement cannot be drained, filled, leveled, or burned. If these wetlands dry up naturally, they can be farmed, grazed, or hayed.
Traditionally, the purpose of subsurface agricultural drainage has been to lower the water table of poorly drained soils with the goal of improving soil aeration. Recently, advanced drainage systems have been promoted as a way to manipulate soil water content during the growing season. Subsurface drainage systems typically remove water through perforated pipe (commonly referred to as drain tile) placed below the soil surface.
Drain tile positioned adjacent to wetland areas can result in reduced hydroperiods (periods of inundation) depending on several factors, such as the depth of tile in relation to the wetland area. The amount and timing of precipitation intercepted by subsurface drainage systems will vary depending on soil properties, topography (low/high topographic relief), placement of tile relative to the wetland area (horizontal distance, elevation), and the relation between the wetland area and groundwater (
Drainage systems positioned adjacent to a wetland area in low-relief terrain have the potential to indirectly affect the wetland area through lateral drainage (lateral effect). The lateral effect is defined as the perpendicular distance on either side of a tile pipe where soil water can be drained by the tile. Drainage systems positioned to encircle a wetland area completely or partially in high-relief terrain can intercept groundwater and precipitation runoff to the wetland area depending on the previously mentioned factors.
The proposed regulations in this document clarify that drain tile may be installed on lands encumbered by a wetland easement provided that protected wetland areas are not drained, directly or indirectly. This proposed rule distinguishes Service wetland easements from the “Swampbuster” provisions of the Food Security Act of 1985 (also known as the “Farm Bill”; Pub. L. 99-198), which allow drain tile to have a “minimal effect” to wetlands. Service wetland easement agreements with landowners include provisions that allow for no effect; hence, the proposed regulations would clarify that tile may be installed on a wetland easement tract provided that the tile does not drain a protected wetland area.
Because the impact of a given drainage system on wetland areas varies greatly depending on site conditions, the Service will provide individual drain tile setback distances to landowners. The proposed regulations would require the Service to establish drain tile setback distances based upon the best available science, considering soil characteristics, tile diameter, the depth of the tile below the surface, and/or topography that ensure protected wetland areas are not drained. Furthermore, the Service will provide these setback distances to landowners upon request.
Additionally, we propose that landowners who adhere to the setback distances prescribed by the Service, including the tile diameters and tile depths below the surface that were used to calculate the Service-provided drain tile setback distances, will not be required to remove drain tile that is later found to have an adverse effect on protected wetland areas. These proposed regulations recognize that our understanding of the effects that drain tile may have on wetland hydrology is an evolving science. Service-provided drain tile setback distances may prove inadequate to fully protect easement wetland areas from drainage. However, landowners who coordinate their tiling plans with the Service and adhere to the Service-determined setback distances would not later be held criminally responsible or civilly liable for disturbing, injuring, or destroying a unit of the National Wildlife Refuge System (
This document proposes to codify in the Code of Federal Regulations the following provisions:
(1) Within a Service-provided timeframe, the Service will provide setback distances for the placement of drain tile on lands covered by wetland easements in Iowa, Minnesota, Montana, North Dakota, and South Dakota;
(2) the Service will provide guidance to landowners about what materials should be submitted as part of a request; and
(3) when a landowner coordinates tile planning with the Service in accordance with this guidance and adheres to the Service-provided drain tile setback distances, including the tile diameters and tile depths below the surface that were used to calculate the Service-provided drain tile setback distances, the Service will not seek legal redress if it is later determined that the Service-provided drain tile setback distances failed to protect the wetland areas from drainage, provided that the drain tile has not been modified, enhanced, or replaced.
The regulations would apply only to setbacks provided by the Service beginning on the effective date of the final rule.
The Administration Act, as amended by the National Wildlife Refuge System Improvement Act of 1997 (hereafter, “the Improvement Act”; Pub. L. 105-57), governs the administration and public use of refuges.
Amendments enacted by the Improvement Act were built upon the Administration Act in a manner that provides an “organic act” for the Refuge System, similar to organic acts that exist
You may submit comments and materials on this proposed rule by any one of the methods listed in
We will post your entire comment on
Executive Orders 12866 and 12988 and the Presidential Memorandum of June 1, 1998, require us to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has determined that this rulemaking is not significant.
Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. 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 consistent with these requirements.
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
Within the Prairie Pothole Region (comprising Iowa, Minnesota, North Dakota, South Dakota, and Montana), there are approximately 28,000 wetland easements, of which the majority are located on privately owned farmland. Thus, small businesses within the crop production industry (North American Industry Classification System 111) may be impacted by the proposed rule. One aspect of the proposed rule codifies the Service's existing drain tile setback practices; therefore, the effect of this regulatory provision on small businesses would be negligible. The proposed rule also provides legal certainty for landowners who adhere to the setback distances prescribed by the Service. The information collection form to request the setback distances is estimated to take 15 minutes, which would be negligible for small businesses. Currently, approximately 20 landowners annually (less than 0.01 percent) must remove drain tile systems because they do not adhere to the contract that granted the easement. As a result of the added benefit of legal certainty, the proposed rule may provide the incentive to these landowners to adhere to the contract and, thus, reduce the costs of removing drain tile systems. The average annual number of small businesses (20) potentially impacted by this rulemaking is not substantial.
Therefore, we certify that this rule, as proposed, would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
The proposed rule is not a major rule under 5 U.S.C. 804(2), the Congressional Review Act. We anticipate no significant employment or small business effects. This proposed rule:
a. Would not have an annual effect on the economy of $100 million or more. The minimal impact would be scattered across five States and would most likely not be significant in any local area.
b. Would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.
c. Would 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 proposed rule would not impose an unfunded mandate on State, local, or Tribal governments or the private sector
In accordance with E.O. 12630, this proposed rule would not have significant takings implications. A takings implication assessment is not required. The proposed rule does not have any takings implications because it would not impact protected property rights. The proposed rule provides clarity and standardization of the Service's existing process for providing drain tile setback distances to landowners and provides landowners with legal protection when they choose to follow the Service's setback distances. The proposed rule would not require landowners to consult the Service regarding setback distances, nor would it require landowners to follow the Service's setback distances if they are provided.
Under the criteria in section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.
In accordance with E.O. 12988, the Department of the Interior has determined that this proposed rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.
This proposed rule is not a significant energy action under the definition in Executive Order 13211. A statement of energy effects is not required.
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 proposed rule under Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian Tribes.
This proposed rule contains new information collections. All information collections require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Upon the request of a landowner (via submission of FWS Form 3-2554), the Service will provide setback distances for the placement of drain tile on lands covered by wetland easements. The setback distances will be based on best available science and must be adequate to ensure protected wetland areas are not drained. Information collected via FWS Form 3-2554 includes basic contact information for the landowner, along with the easement number(s) for the specific land covered by the wetland easement.
The Service will provide guidance to landowners about what materials should be submitted as part of a request and will provide setback distances to landowners within a Service-provided timeframe. When a landowner coordinates their tile planning with the Service in accordance with this guidance and adheres to the Service-provided drain tile setback distances, the Service will not seek legal redress if it is later determined that Service-provided drain tile setback distance failed to protect the wetland areas from drainage, provided that drain tile has not been modified, enhanced, or replaced.
As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public and other Federal agencies to comment on any aspect of this information collection, including:
(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
Send your written comments and suggestions on this information collection by the date indicated in
We are required under the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
Debbie DeVore, Division of Natural Resources and Conservation Planning, National Wildlife Refuge System, is the primary author of this rulemaking document.
Administrative practice and procedure, Concessions, Reporting and recordkeeping requirements, Safety, Wildlife refuges.
For the reasons set forth in the preamble, we propose to amend title 50, chapter I, subchapter C of the Code of Federal Regulations as set forth below:
5 U.S.C. 301; 16 U.S.C. 460k, 664, 668dd, and 715i, 3901
The Office of Management and Budget (OMB) has approved the information collection requirements contained in part 25 and assigned OMB Control Numbers 1018-0102, 1018-0140, 1018-0181, or 1018-#### (unless otherwise indicated). Federal agencies 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. Direct comments regarding the burden estimates or any other aspect of the information collection to the Service's Information Collection Clearance Officer at the address provided at 50 CFR 2.1(b).
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Food Safety and Inspection Service, USDA.
Proposed determination and request for comments.
The Food Safety and Inspection Service (FSIS) is proposing to declare that not-ready-to-eat (NRTE) breaded stuffed chicken products that contain
Comments on this proposed determination and the proposed verification procedures must be received on or before June 27, 2023. FSIS specifically requests comments on alternative bases for determining adulteration of breaded stuffed NRTE products.
FSIS invites interested persons to submit comments on this document. Comments may be submitted by one of the following methods:
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Rachel Edelstein, Assistant Administrator, Office of Policy and Program Development, FSIS, USDA; Telephone: (202) 937-4272.
Under the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601
Historically, most foodborne pathogens, including
When FSIS determined that certain STEC are adulterants in non-intact raw beef products, the Agency identified characteristics associated with both the pathogen and the product that distinguish them from other raw products contaminated with other pathogens. Specifically, in 1994, when FSIS initially notified the public that raw ground beef products contaminated with
In 1999, FSIS published a
In September 2011, FSIS determined that six additional STEC serogroups (O26, O45, O103, O111, O121, and O145) are also adulterants of raw non-intact beef products and product components used to manufacture these products (
As noted above, FSIS historically has not considered raw meat and poultry products to be adulterated when they contain
The CSPI 2014 petition was a refiling of the 2011 petition and asked that FSIS declare certain strains of ABR
FSIS also considered whether certain
In its response to the petition, FSIS explained that while the Agency agrees that it needs to rethink its existing
On January 25, 2021, CSPI and other consumer advocacy organizations and individuals petitioned FSIS to establish enforceable standards targeting
FSIS is currently reviewing the 2021 CSPI petition and supporting information. As noted above, FSIS is in the process of reevaluating its approach to controlling
As noted above, while certain STEC have been the only pathogens to date that are considered adulterants in a raw product, certain other pathogens may also exhibit characteristics that would meet the standard to be considered as adulterants in a specific raw product. Thus, if FSIS became aware of evidence to show that a specific pathogen and product pair presents a significant public health risk, the Agency would consider the factors it identified to distinguish certain STEC from other pathogens as adulterants in raw, non-intact beef products and intact cuts to be further processed into non-intact beef products to determine the pathogen's status as an adulterant. The parallel to STEC in beef is not intended to be a direct comparison between non-intact raw beef products and other raw
NRTE breaded stuffed chicken products contain raw, comminuted chicken breast meat, trim, or whole chicken breast meat, but the finished product is heat-treated only to set the batter or breading on the exterior of the product, which may impart an RTE appearance.
NRTE breaded stuffed chicken products contain raw poultry and thus may contain pathogens, such as
Before 2006, many NRTE breaded stuffed chicken products were marketed as a microwaveable product, and the labeling on the product packaging included instructions for cooking the products in both a microwave and conventional oven. However, as discussed below, information from documented
In the second outbreak in early 2005, four
In the third outbreak in August 2005 through July 2006, 27
While the 2005-2006
In addition to the letter, in March 2006, FSIS made publicly available guidance contained in a March 2006 report of the Subcommittee on Consumer Guidelines for the Safe Cooking of Poultry Products of the National Advisory Committee on Microbiological Criteria for Foods (NACMCF) regarding consumer guidelines for the safe cooking of NRTE breaded stuffed chicken products.
In November 2006, FSIS issued instructions to its inspection program personnel (IPP) on how to verify that establishments producing NRTE breaded stuffed chicken product have product labeling consistent with the April 2006 guidance.
In response to the 2005-2006 outbreaks and to FSIS guidance, companies that produced NRTE breaded stuffed chicken products modified the product labeling to emphasize that these products are raw and that they should not be microwaved. The companies also modified the product labeling to provide validated instructions for cooking the products in a conventional oven and instructions to cook the product to a minimum internal temperature of 165 °F as measured by a food thermometer. However, even with these labeling modifications,
In a separate investigation in October 2008, the MDH reported 14
After the investigation was initiated, FSIS issued a PHA due to concerns about illnesses that may be associated with NRTE breaded stuffed chicken products.
In an additional investigation in May 2009, FSIS received a report from the MDH that 2
In the final 2008-2009 investigation, FSIS received a report from the MDH of two
In response to the information obtained from the August 2013 outbreak investigation, FSIS issued an FSIS Notice in June 2014 instructing FSIS Inspection Program Personnel (IPP) to perform a Hazard Analysis Verification (HAV) Task
In a separate investigation in August 2014, six
2015-2016 outbreak investigations. In 2015 and 2016, FSIS and public health partners investigated three
In response to the outbreak, the establishment voluntarily recalled approximately 1,978,608 pounds of product in July 2015.
A separate 2015 outbreak associated with NRTE breaded stuffed chicken produced by a different establishment included 15 cases from 7 states (CT, IL, MN, NH, NY, OK, and WI) with illness onset dates from April 5, 2015, through July 27, 2015. Among 10 case patients with available information, 4 were hospitalized.
In 2016, 5
In February 2016, FSIS instructed FSIS IPP at establishments that produce raw and heat-treated but not fully cooked, not shelf-stable breaded stuffed chicken products to update the establishments' Public Health Information System (PHIS) profile to allow FSIS to determine which establishments produce NRTE breaded stuffed chicken products that appear RTE.
In 2015-2016, FSIS also held conference calls and worked directly with establishments that produced NRTE breaded stuffed chicken products to modify the product labeling to further emphasize that the product is raw and to ensure that the label included validated cooking instructions. Based on recommendations from FSIS, establishments re-validated the cooking instructions on the product label to ensure that, when prepared as instructed, a NRTE breaded stuffed chicken product would reach an internal temperature needed to destroy
To support the requested action, the petition submitted the results of a 2009 online study conducted by the NCC. The study included the results of 1,000 online interviews to assess consumers' understanding of the raw nature of NRTE breaded stuffed chicken products that appear RTE based on a 2008 “generic old copy” of a NRTE breaded stuffed chicken label that did not include the labeling features requested in the petition and a 2009 “generic new copy” of a NRTE breaded stuffed chicken product label that included the labeling requirements requested in the petition. The study found that when compared to the labeling features in the 2008 generic label, the mandatory labeling features in the 2009 generic label increased the study participants' awareness of the raw state of the product and increased the number of participants who noticed the mention of a food thermometer. As additional support, the petition referenced the labeling recommendations included in the 2006 NACMCF report discussed above as well as the 2016 NACMPI report recommendations that FSIS require NRTE products that appear RTE to bear mandatory labeling statements and include validated cooking instructions.
When FSIS received the 2016 NCC petition, most manufacturers of NRTE breaded stuffed chicken products had voluntarily incorporated the labeling features recommended by the 2016 NACMPI subcommittee and requested in the 2016 NCC petition in response to the outbreaks associated with these products. However, as discussed below, consumer behavior research results from 2020 found that even when NRTE breaded stuffed chicken product labels included features recommended by the NACMPI subcommittee and requested in the 2016 NCC petition, twenty-two
A short video, meant to simulate a real news segment on safely preparing frozen NRTE foods, was played for some of the study participants (referred to as “the intervention group”) as they sat in the waiting room at the start of their appointment. The segment was included as part of a looped video containing six separate news segments on current news topics. The food safety news segment communicated that although frozen NRTE foods may appear RTE, they are not fully cooked, and the endpoint temperature should be checked with a food thermometer to ensure safety. The segment showed a variety of frozen NRTE foods, including NRTE breaded stuffed chicken products and bagged frozen corn being prepared in the meal preparation study as well as products not being prepared in the study. The control group was exposed to a similar news segment video loop that did not include the segment on food safety. The study had the capacity to include up to 400 participants in each iteration of the meal preparation experiment. The study randomly assigned half of the participants (n=200) to the treatment group and the remaining 200 participants to the control group. Observations were conducted from April 29, 2019, to September 5, 2019. A final report was issued on September 23, 2020.
With respect to NRTE breaded stuffed chicken products, the study found that consumers may confuse NRTE frozen foods with RTE products. Nearly a quarter of all participants preparing frozen foods were not sure if the products were raw or fully cooked despite reading the preparation instructions on the product label. Twenty-two percent of participants were unaware that the NRTE frozen chicken product they prepared was raw. They believed it was either fully cooked, partially cooked, or were unsure. Eleven percent of the participants incorrectly believed the product was fully cooked. Nearly all study participants had prior experience preparing chicken nuggets. Thus, the pre-browned breaded appearance of the NRTE breaded stuffed chicken products may have also led participants to believe that these stuffed products can be handled the same as other breaded chicken products that are RTE. Seventy-six percent of participants said they would buy NRTE breaded stuffed chicken products for their children to prepare at home.
Ninety-nine percent of all participants self-reported that they had read the manufacturer's instructions for the NRTE breaded stuffed chicken products, which instructed consumers to use a food thermometer to check that the chicken reached a safe internal temperature of 165 °F. Seventy-seven percent of participants who were not shown the video used a food thermometer to check that at least one chicken breast reached a safe internal temperature of 165 °F, and 75 percent of those participants successfully cooked the chicken breast to 165 °F. Eight-eight percent of participants who were shown the video used a food thermometer to check the temperature of at least one chicken breast. Although the rate of thermometer use was higher among the intervention group compared with the control group, the difference was not significantly different. Participants who used other methods to determine doneness relied on time, visual cues, and touch. Although most participants reported owning a food thermometer at home, 38 percent reported not using their food thermometer at home to check that NRTE breaded stuffed chicken products were properly cooked. Thus, for some participants, their behavior in the test kitchen differed from their typical practice.
The researchers also observed participants throughout the meal preparation to determine whether they adhered to recommended handwashing practices. For purposes of the study, a handwashing attempt was considered successful based on CDC's criteria—wet hands with water; rub hands with soap for at least 20 seconds; rinse hands with water; and dry hands using a clean, one-use towel. The study found that approximately 72 percent of participants attempted to wash their hands before beginning meal preparation. Among handwashing attempts, 5 percent of attempts contained all steps of correct handwashing and were considered successful according to the CDC's criteria. However, during meal preparation, handwashing was attempted only 5 percent of the time that it was required (
The study noted that current measures to prevent
The labeling of the products associated with the outbreak stated: the product was raw on the front and back of the packaging; included statements and icons to signal that the product is raw and should not be cooked in a microwave oven; and provided validated cooking instructions that included a “do not microwave” icon as well as icons and instructions to cook the product in a conventional oven to an internal temperature of 165 °F as measured by a food thermometer. However, some of the case patients reported that they did not follow the manufacturer's cooking instructions on the label. Some case patients reported that they cooked the product in a microwave oven, air fryer, or for a shorter time than instructed for a conventional oven, and they did not use a food thermometer to check that the product reached an internal temperature of 165 °F, as instructed on the product label.
The MDA conducted retail product sampling of these products as part of the investigation and isolated the outbreak strain. Based on the strong link between epidemiologic information and product sampling results, FSIS issued a Public Health Alert (PHA) on June 2, 2021, to inform the public that some of the ill patients in the outbreak had reported eating NRTE breaded stuffed chicken prior to illness onset.
In a September 28, 2021, report, the subcommittee provided several recommendations that primarily focus on the labeling of NRTE breaded stuffed chicken products. The subcommittee recommended that FSIS re-verify that companies continue to voluntarily label NRTE breaded stuffed chicken products as raw in several places on the label and that labels of these products include validated cooking instructions. The subcommittee also recommended that FSIS update the 2006 labeling guidance to warn consumers not to use microwaves and air fryers if validated instructions are not provided for these methods and to cook the product to a minimum of 165 °F as measured using a food thermometer.
FSIS has carefully considered the 2021 NACMPI subcommittee recommendations on actions the Agency could take to prevent and reduce illnesses associated with NRTE breaded stuffed chicken products as well as the issues raised in the NCC petition and supplement. In light of the 2021
Although the labeling of NRTE breaded stuffed chicken products has undergone significant changes over time to better inform consumers that the products are raw and to provide instructions on how to prepare them safely, these products continue to be associated with
Information from outbreak investigations also found that some case patients reported following the cooking instructions on the label but still became ill. The characteristics and composition of NRTE breaded stuffed chicken products may have contributed to these illnesses. As noted above, NRTE breaded stuffed chicken products are typically cooked from a frozen state, which increases the risk that they will not reach an internal temperature needed to destroy
Thus, because measures that have primarily focused on product labeling and consumer handling practices have not been effective in addressing the public health risk associated with
As noted above, a meat or poultry product is adulterated if, among other circumstances, “it bears or contains any poisonous or deleterious substance which may render it injurious to health; but in case the substance is not an added substance, such article shall not be considered adulterated . . . if the quantity of such substance in or on such article does not ordinarily render it injurious to health” (21 U.S.C. 601(m)(1); 21 U.S.C. 453(g)(1)). As stated in its response to the 2020 petition submitted by Marler Clark, LLP, FSIS has traditionally viewed
Further processing presents various opportunities in which
As noted above, a poultry product that bears or contains any added poisonous or deleterious substance which may render it injurious to health or that bears or contains an inherent substance in sufficient quantity to ordinarily render it injurious to health is adulterated under the PPIA (21 U.S.C. 453(g)(1)). A poultry product can also be found to be adulterated if it is “unsound, unhealthful, unwholesome, or otherwise unfit for human food” (21 U.S.C. 453(g)(3)).
Consistent with its approach used to determine the status of certain STEC in raw non-intact beef products and intact cuts to be further processed into non-intact products, to assess the status of
Because FSIS has tentatively concluded that
Consistent with its approach used to determine the adulterant status of STEC, FSIS considered declaring the
FSIS seeks to better understand
Therefore, after considering the current state of the science and laboratory technology, to address the significant public health risk associated with NRTE breaded stuffed chicken products contaminated with
In assessing the status of certain STEC as adulterants in non-intact raw beef products and intact cuts to be further processed into non-intact products, FSIS considered data that indicates that the infectious dose for these specific serogroups is relatively low. Although
Taking into account: (1) the range of infectious doses referenced above (between 1-420 CFU), in particular that a
Furthermore, a study that allows for a comparison of case-fatality proportions of both
When FSIS declared certain STEC as adulterants in raw non-intact beef products and intact cuts to be further processed into non-intact products, there was a limited history of documented illnesses and outbreaks associated with these serogroups in raw beef. In fact, when FSIS declared the six non-O157:H7 STEC as adulterants, the Agency noted that the illnesses associated with these strains had not primarily been due to contamination in beef (76 FR 58158). However, because these pathogens had been associated with severe, debilitating illnesses, particularly in vulnerable populations, FSIS determined that, in order to protect public health, it was necessary to evaluate their status as adulterants in certain raw beef products under the FMIA.
In contrast, there has been a long history of documented
In addition, because NRTE breaded stuffed chicken products are typically stored in the freezer and consumed over time,
As noted earlier, NRTE breaded stuffed chicken products contain raw, comminuted chicken breast meat or whole chicken breast meat, but the finished product is heat-treated only to set the batter or breading on the exterior of the product, which is not sufficient to destroy
Also, as discussed above, FSIS consumer research on preparation of NRTE breaded stuffed chicken product found that despite reading the product label, 22 percent of participants were unaware that the NRTE breaded stuffed chicken product they prepared was raw, and 11 percent incorrectly believed that the product was fully cooked. The study also found that while 99 percent of the participants self-reported that they had read the manufacturer's instructions for the NRTE breaded stuffed chicken products, which instructed consumers to use a food thermometer to check that the product reached an internal temperature of 165 °F, only 77 percent of a control group used a thermometer. With respect to handwashing, the study found that during preparation of NRTE breaded stuffed chicken products, handwashing was attempted only 5 percent of the time it was required,
In addition, the 2022 study on appliances used to prepare NRTE breaded stuffed chicken products discussed above found that although the labeling of NRTE breaded stuffed chicken products typically includes instructions to cook the product in an oven, 54 percent of study respondents reported preparing these products using appliances other than or in addition to ovens.
Therefore, for the reasons discussed above, FSIS is proposing to declare that NRTE breaded stuffed chicken products contaminated with
The HACCP system regulations require that every establishment reassess the adequacy of its HACCP plan at least annually and whenever any changes occur that could affect the underlying hazard analysis or alter the HACCP plan (9 CFR 417.4(a)(3)). If finalized, FSIS' proposed determination that
As noted above, FSIS is proposing a routine sampling and verification testing program for
If FSIS finalizes this proposed sampling plan, data gathered from the sampling plan would enable the Agency to more precisely gauge the level of hazard posed by
The detection and isolation methodology for
FSIS estimates that negative results would routinely be available within 48 hours of shipment of the samples to the laboratory, assuming overnight sample transit coupled with a 24-hour sample enrichment and screening at the laboratory. For samples that screen positive, an additional 2 to 4 days may be necessary for a confirmed positive or negative result. Enumeration is run concurrently with confirmatory testing and would be reported with the confirmed positive result.
To help inform FSIS verification sampling plan resulting from this proposal, FSIS conducted a study with the Food Emergency Response Network (FERN) Cooperative Agreement Laboratories to gather data at retail to provide information about the positive rate of
The 27 percent-positive rate for
Thus, given the number of outbreak investigations associated with NRTE stuffed chicken products and the consumer handling practices identified in both outbreak investigations and consumer behavior research, the disposition of the chicken component of NRTE breaded stuffed chicken products prior to stuffing and breading is an important factor in mitigating the public health risk associated with these products. Therefore, FSIS is proposing a verification sampling program for
When FSIS tests a product sample for adulterants, the Agency withholds its determination as to whether product is not adulterated, and thus eligible to enter commerce, until all test results that bear on the determination have been received (77 FR 73401, Dec 10, 2012). Under this policy, establishments must maintain control of products tested for adulterants to ensure that the products do not enter commerce while waiting for receipt of the test results. Thus, if FSIS finalizes its proposed routine
Under any final verification sampling plan, FSIS IPP would give establishments that produce NRTE breaded stuffed chicken product advance notice before they collect a product sample from the chicken component for
Generally, FSIS recommends that establishments develop and implement in-plant sampling plans that define production lots or sub-lots that are microbiologically independent of other production lots or sub-lots. Production lots that are so identified may bear distinctive markings on the shipping cartons. FSIS has issued guidance to help establishments comply with the Agency's policy that does not allow product that FSIS has tested for adulterants to enter commerce until test results become available.
As discussed above, under this proposed verification sampling plan, establishments would be required to control the chicken component product sampled by FSIS and not incorporate it into NRTE breaded stuffed chicken products pending the test results. If test results detect
States that have their own poultry inspection programs for poultry products produced and transported solely within the State are required to have mandatory ante-mortem and post-mortem inspection, reinspection, and sanitation requirements that are at least equal to those in the Federal Meat Inspection Act (21 U.S.C. 661(a)(1)). Therefore, if FSIS finalizes this proposed determination, these States would need to adopt sampling procedures and testing methods to detect
FSIS has considered the economic effects of this proposed determination. The full analysis is published on the FSIS website as supporting documentation to this
If finalized, this proposed determination is expected to impact six domestic establishments and cost industry at least $4.33 million annually, assuming a 7 percent discount rate over a ten-year period.
The benefit from reduced outbreak-related recalls depends on the number of recalls this proposed determination would prevent annually. With a total estimated annual industry cost of $4.33 million, and the estimated quantified benefit of one prevented outbreak-related recall being $25.85 million, total benefits would exceed total costs if the proposed determination prevents at least 1 outbreak-related recall every 5.96 years ($25.85/$4.33).
In the CBA, FSIS defines high-volume establishments as establishments that produce at least 1 million pounds of NRTE stuffed chicken products annually and low-volume establishments as establishments that produce less than 1 million pounds annually. Using these categories, three of the six establishments that produce NRTE stuffed chicken products were classified as high-volume, and three establishments as low-volume. All three of the low-volume establishments are HACCP size small or very small.
In addition, if FSIS finalizes this proposed determination, FSIS intends to implement routine testing for
FSIS also assumes establishments needing monetary assistance to comply with any final determination resulting from this proposal would take advantage of the grants and financial options available to small establishments. More information on these loans and grants can be found on the FSIS website.
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering 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.
Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information (
To file a program discrimination complaint, a complainant should complete a Form AD-3027,
(1)
(2)
(3)
USDA is an equal opportunity provider, employer, and lender.
Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this
Food and Nutrition Service (FNS), USDA.
Notice.
In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is an extension, without change, of a currently approved collection for maintaining the National Disqualified List of institutions, day care home providers, and individuals that have been terminated or otherwise disqualified from Child and Adult Care Food Program (CACFP) participation. These federal requirements affect eligibility under the CACFP. The State Agencies are required to enter data as institutions and individuals become disqualified from participating in the CACFP.
Written comments must be received on or before June 27, 2023.
Comments may be sent to: Jessica Saracino, Director, Program Monitoring and Operational Support Branch, Child Nutrition Division, Food and Nutrition Service, U.S. Department of Agriculture, 1320 Braddock Place, Alexandria, VA, 22314. Comments will also be accepted through the Federal eRulemaking Portal. Go to
All responses to this notice will be summarized and included in the request for Office of Management and Budget (OMB) approval. All comments will become a matter of public record.
Requests for additional information or copies of this information collection should be directed to Suzanne Diggs at (703) 305-3223.
Forest Service, Agriculture (USDA).
Notice.
The Forest Service (Forest Service or Agency), United States Department of Agriculture, is giving notice of its intent to publish for public comment a proposed permanent order prohibiting recreational shooting on approximately 94,900 acres of National Forest System lands in the Canyon Lakes, Sulphur, and Clear Creek Ranger Districts of the Arapaho and Roosevelt National Forests and Pawnee National Grassland, and a proposed permanent order prohibiting recreational shooting on approximately 46,195 acres of National Forest System lands in the Clear Creek and Boulder Ranger Districts of the Arapaho and Roosevelt National Forests and Pawnee National Grassland. At the end of the advance notice period, the Forest Service will seek public comments, as specified in this notice, on the proposed permanent recreational shooting orders.
Advance notice of the opportunity to provide public comment on the proposed permanent recreational shooting orders is being provided until May 5, 2023. Beginning on May 5, 2023, the Forest Service will accept comments on the proposed permanent recreational shooting orders for 60 days. The notice of opportunity for public comment will be posted on the Arapaho and Roosevelt National Forests and Pawnee National Grassland web page at
The proposed permanent recreational shooting orders, maps, and justification for the proposed permanent orders are posted on the Forest Service's Regulations and Policies web page at
Doug Leyva, Recreation, Engineering, Lands, and Minerals Staff Officer, 970-295- 6650 or
Section 4103 of the John D. Dingell, Jr. Conservation, Management, and Recreation Act of 2019 (Pub. L. 116-9, Title IV (Sportsmen's Access and Related Matters)), hereinafter “the Dingell Act,” requires the Forest Service to provide advance notice and opportunity for public comment before temporarily or permanently closing any National Forest System (NFS) lands to hunting, fishing, or recreational shooting. Section 4103 of the Dingell Act applies to the proposed permanent order prohibiting recreational shooting in the northern Canyon Lakes, Sulphur, and southern Clear Creek Ranger Districts of the Arapaho and Roosevelt National Forests and Pawnee National Grassland, and to the proposed permanent order prohibiting recreational shooting in the northern Clear Creek and southern Boulder Ranger Districts of the Arapaho and Roosevelt National Forests and Pawnee National Grassland. The public notice and comment process in section 4103(b)(2) of the Dingell Act requires the Forest Service to publish a notice of intent in the
Following the notice of intent, section 4103(b)(2) of the Dingell Act requires an opportunity for public comment on proposed temporary or permanent hunting, fishing, or recreational shooting orders. Because the proposed orders would permanently prohibit recreational shooting in the southern Boulder, northern Canyon Lakes, Sulphur, and Clear Creek Ranger Districts of the Arapaho and Roosevelt National Forests and Pawnee National Grassland, the public comment period must be at least 60 days. Beginning on May 5, 2023, the Forest Service will accept public comments on the proposed permanent orders for 60 days. The notice of opportunity for public comment will be posted on the Arapaho and Roosevelt National Forests and Pawnee National Grassland's web page at
Section 4103(b)(2) of the Dingell Act requires the Forest Service to respond to public comments received on the proposed permanent orders before issuing final permanent orders, including an explanation of how any significant issues raised by the comments were resolved and, if applicable, how resolution of those issues affected the proposed permanent orders or the justification for the proposed permanent orders. The final permanent orders, maps, justification for the final permanent orders, and response to comments on the proposed permanent orders will be posted on the Arapaho and Roosevelt National Forests and Pawnee National Grassland's web page at
The proposed permanent orders would implement applicable land management plan direction in the Arapaho and Roosevelt National Forests and Pawnee National Grassland's 2019 Land and Resource Management Plan amendment (Plan Amendment). Shooting sports are long-standing and appropriate uses of NFS lands. The Plan Amendment direction includes a management goal of providing for recreational shooting opportunities across the Arapaho and Roosevelt National Forests in a manner that addresses public health and safety concerns. The Plan Amendment also identifies NFS lands unsuitable for recreational shooting. Consistent with the Plan Amendment, the proposed permanent orders would prohibit recreational shooting, defined as discharging a firearm, air rifle or gas gun, on 94,900 acres of NFS lands designated as unsuitable for recreational shooting in southern Clear Creek, Jefferson, Park, northern Larimer, and Grand Counties, Colorado, which include the northern Canyon Lakes, Sulphur, and southern Clear Creek Ranger Districts of the Arapaho and Roosevelt National Forests and Pawnee National Grassland, and on 46,195 acres of NFS lands designated as unsuitable for recreational shooting in northern Clear Creek and Gilpin Counties, Colorado, which include the southern Boulder and northern Clear Creek Ranger Districts of the Arapaho and Roosevelt National Forests and Pawnee National Grassland.
Implementation of the proposed permanent orders is consistent with the framework in the decision notice for the Plan Amendment for phasing out
The proposed permanent orders, maps, and justification for the proposed permanent orders are posted on the Forest Service's Regulations and Policies web page at
On February 14, 2023, the Department of Commerce received clearance from the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 to conduct Phase 3.8 of the Household Pulse Survey (OMB No. 0607-1013, Exp. 10/31/23). The Household Pulse Survey was designed to meet a need for timely information associated with household experiences during the Covid-19 pandemic. The Department is committed to ensuring that the data collected by the Household Pulse Survey continue to meet information needs as they may evolve over the course of the pandemic. This notice serves to inform of the Department's intent to request clearance from OMB to make some revisions to the Household Pulse Survey questionnaire. To ensure that the data collected by the Household Pulse Survey continue to meet information needs as they evolve over the course of the pandemic, the Census Bureau submits this Request for Revision to an Existing Collection for a revised Phase 3.9 questionnaire.
Phase 3.9 includes an experiment involving new detailed race and ethnicity questions, as well as new questions on the use of antivirals to treat COVID, how households obtain COVID tests, the use of infant formula with babies, children's mental health treatment, and pressure to move from current residence. There are also modifications to existing children's vaccine booster, COVID testing, infant formula, reasons not working, unemployment insurance, Medicaid, and inflation items. Several questions will be removed for Phase 3.9, including replacing the current race/ethnicity items, and questions about the receipt of updated COVID vaccines, intent to vaccinate children, childcare arrangements, children's mental health and behaviors, current rent amount, use of emergency rental assistance, and how children receive their education.
It is the Department's intention to commence data collection using the revised instrument on or about December 7, 2022. The Department invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Public comments were previously sought on the Household Pulse Survey via the
The Household Pulse Survey was initially launched in April, 2020 as an experimental project (see
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be submitted within 30 days of the publication of this notice on the following website
International Trade Administration, SelectUSA, Department of Commerce.
Notice of information collection, request for comment.
The Department of Commerce, in accordance with the Paperwork Reduction Act of 1995 (PRA), invites the general public and other Federal agencies to comment on proposed, and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. The purpose of this notice is to allow for 60 days of public comment preceding submission of the collection to OMB.
To ensure consideration, comments regarding this proposed information collection must be received on or before June 27, 2023.
Interested persons are invited to submit written comments via email to
Requests for additional information or specific questions related to collection activities should be directed to Leo Kim at (202) 989-5979 or
SelectUSA, within the International Trade Administration, provides programs and services that focus on facilitating job-creating business investment into the United States and raising awareness of the critical role that economic development plays in the U.S. economy. These programs include information products, services, and trade events to potential foreign investors into the United States and to U.S.-based economic development organizations. To accomplish its mission effectively, SelectUSA requires detailed information from clients in order to provide resources and services that meet each specific client's needs. This information collection item allows ITA to solicit clients' interest for the use of ITA products, services, and trade events. To promote optimal use and effective response to client needs through ITA services and programs, we are requesting approval for this clearance package. Upon approval by OMB, ITA will use the approved information collection to collect client input by the use of multiple data collection methods, including Comment Cards (
The International Trade Administration is seeking approval for the following data collection methods to provide flexibility in conducting customer intake surveys and to reduce the burden on respondents: (1) an email message delivering a hot link to a web enabled survey with an email reminder sent if the client does not respond to the survey within two weeks; (2) a telephone survey/interview; and (3) a web-enabled survey conducted in-person at trade shows/events via a laptop, tablet or mobile phone so participants can immediately respond without having to provide their email address.
We are soliciting public comments to permit the Department/Bureau to: (a) Evaluate whether the proposed information collection is necessary for the proper functions of the Department, including whether the information will have practical utility; (b) Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used; (c) Evaluate ways to enhance the quality, utility, and clarity of the information to be collected; and (d) Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may 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.
National Institute of Standards and Technology, Department of Commerce.
Notice of open meeting.
National Institute of Standards and Technology (NIST)'s Visiting Committee on Advanced Technology (VCAT or Committee) will meet on Tuesday, June 13, 2023, from 8:30 a.m. to 5:00 p.m. Eastern Time.
The VCAT will meet on Tuesday, June 13, 2023, from 8:30 a.m. to 5:00 p.m. Eastern Time.
The meeting will be held at the National Cybersecurity Center of Excellence, 9700 Great Seneca Highway, Rockville, Maryland, 20850 with an option to participate via webinar. Please note admittance instructions under the
Stephanie Shaw, VCAT, NIST, 100 Bureau Drive, Mail Stop 1060, Gaithersburg, Maryland 20899-1060, telephone number 240-446-6000. Ms. Shaw's email address is
Pursuant to the Federal Advisory Committee Act,
Individuals and representatives of organizations who would like to offer comments and suggestions related to the Committee's business are invited to request a place on the agenda by no later than 5:00 p.m. Eastern Time, Tuesday, June 6, 2023 by contacting Stephanie Shaw at
For participants attending via webinar, please contact Ms. Shaw at
Office of Response and Restoration (ORR), National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of indirect cost rates for the Damage Assessment, Remediation, and Restoration Program for Fiscal Year 2020.
NOAA's Damage Assessment, Remediation, and Restoration Program (DARRP) is announcing new indirect cost rates on the recovery of indirect costs for its component organizations involved in natural resource damage assessment and restoration activities for fiscal year (FY) 2020. The indirect cost rates for this fiscal year and date of implementation are provided in this notice. More information on these rates and the DARRP policy can be found at the DARRP website at
LaTonya Burgess, Deputy Director, NOAA Office of Response and Restoration, by phone at 206-491-1369 or by email at
The mission of the DARRP is to restore natural resource injuries caused by releases of hazardous substances or oil under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601
Consistent with Federal accounting requirements, the DARRP is required to account for and report the full costs of its programs and activities. Further, the DARRP is authorized by law to recover reasonable costs of damage assessment and restoration activities under CERCLA, OPA, and the NMSA. Within the constraints of these legal provisions and their regulatory applications, the DARRP has the discretion to develop indirect cost rates for its component organizations and formulate policies on the recovery of indirect cost rates subject to its requirements.
In December 1998, the DARRP hired the public accounting firm Rubino & McGeehin, Chartered (R&M) to: evaluate the DARRP cost accounting system and allocation practices; recommend the appropriate indirect cost allocation methodology; and determine the indirect cost rates for the three organizations that comprise the DARRP. A
R&M continued its assessment of DARRP's indirect cost rate system and structure for FYs 2000 and 2001. A second
In October 2002, DARRP hired the accounting firm of Cotton and Company LLP (Cotton) to review and certify DARRP costs incurred on cases for purposes of cost recovery and to develop indirect rates for FY 2002 and subsequent years. As in the prior years, Cotton concluded that the cost accounting system and allocation practices of the DARRP component organizations are consistent with
Empirical Concepts developed the DARRP indirect rates for FY 2016 through FY 2019. Empirical reaffirmed that the Direct Labor Cost Base is the most appropriate indirect allocation method for the development of the FY 2016, 2017, 2018, and 2019 indirect cost rates. The
Empirical Concepts developed the DARRP indirect rates for FY 2020 and reaffirmed the Direct Labor Cost Base as the most appropriate indirect allocation for the development of the FY 2020 indirect cost rates.
The DARRP will apply the indirect cost rates for FY 2020 as recommended by Empirical Concepts for each of the DARRP component organizations as provided in the following table:
The FY 2020 rates will be applied to all damage assessment and restoration case costs incurred between October 1, 2019 and September 30, 2020 effective May 1, 2023. DARRP will use the FY 2020 indirect cost rates for future fiscal years, beginning with FY 2021, until subsequent year-specific rates can be developed.
For cases that have settled and for cost claims paid prior to the effective date of the fiscal year in question, the DARRP will not re-open any resolved matters for the purpose of applying the revised rates in this policy for these fiscal years. For cases not settled and cost claims not paid prior to the effective date of the fiscal year in question, costs will be recalculated using the revised rates in this policy for these fiscal years. Where a responsible party has agreed to pay costs using previous year's indirect rates, but has not yet made the payment because the settlement documents are not finalized, the costs will not be recalculated.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Pacific Fishery Management Council's (Pacific Council) Ad Hoc Ecosystem Workgroup (EWG) is holding an online meeting, which is open to the public.
The online meeting will be held Monday, May 15, 2023, from 10 a.m. to 2:30 p.m. and Wednesday, May 17, 2023, from 9 a.m. to 12 p.m.
This meeting will be held online. Specific meeting information, including directions on how to join the meeting and system requirements will be provided in the meeting announcement on the Pacific Council's website (see
Kit Dahl, Staff Officer, Pacific Council; telephone: (503) 820-2422.
The EWG presented a proposed workplan for the Fishery Ecosystem Plan Ecosystem and Climate Information Initiative (Initiative 4), which the Council endorsed. Under this initiative, in the near term the EWG will develop risk tables and related methodologies to integrate ecosystem and climate information into Council decision-making on harvest specifications for petrale sole and possibly other species. In addition to petrale sole, the Council also asked the EWG to consider development of related methodologies for sablefish, Pacific sardine, and Chinook salmon. The EWG will present draft risk tables and related methodologies to the Council at its September meeting. Risk tables are a structured approach to integrate ecosystem and climate information into the decision-making process. At its meeting the EWG will begin developing risk tables and related methodologies for selected species in consultation with members of the Council's Groundfish Management Team. The EWG also may discuss and begin planning potential initiative-related activities following the September Council meeting.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this
Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting; virtual only.
The Gulf of Mexico Fishery Management Council will hold a half-day virtual only meeting of its Shrimp Advisory Panel (AP).
The meeting will convene Thursday, May 18, 2023, from 8:30 a.m. to 12 p.m., EDT. For agenda details, see
The meeting will convene via webinar only. Registration and log-on information will be available on the Council's website by visiting
Dr. Matt Freeman, Economist, Gulf of Mexico Fishery Management Council;
The following items are on the agenda, though agenda items may be addressed out of order (changes will be noted on the Council's website, when possible).
Meeting will begin with Adoption of Agenda and Scope of Work. The AP will hold a discussion on the National Marine Fishery Services' (NMFS) Draft Budget Proposal for Congressional Funds for
The AP will receive any public testimony.
The meeting will be held via webinar only. You may register by visiting
The Agenda is subject to change, and the latest version along with other meeting materials will be posted on
Although other non-emergency issues not on the agenda may come before the Advisory Panel for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take-action to address the emergency at least 5 working days prior to the meeting.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid or accommodations should be directed to Kathy Pereira,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of its Habitat Protection and Ecosystem-Based Management Advisory Panel (Habitat AP) in Charleston, SC.
The Habitat AP will meet on Tuesday, May 16, 2023, from 1 p.m. until 4 p.m.; Wednesday, May 17, 2023, from 9 a.m. to 4 p.m.; and Thursday, May 18, 2023, from 9 a.m. to 12 p.m.
The meeting is open to the public and will also be available via webinar. Registration is required. Webinar registration, an online public comment form, and briefing book materials will be available two weeks prior to the meeting at:
Kim Iverson, Public Information Officer, SAFMC; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The Habitat AP meeting agenda includes the following: NOAA Fisheries South Atlantic Climate Vulnerability Assessment; NOAA Fisheries Habitat Conservation Division's Essential Fish Habitat (EFH) 5-Year Review including EFH Designation History and the EFH User Guide; Research Needs for EFH Review and Council Research Plan Update; review and input on revisions to the Council's Beach Dredge and Fill and Large-Scale Coastal Engineering Policy Statement; and an overview of the East Coast Climate Change Scenario Planning Initiative.
The AP will also receive updates on the following: Renewable Energy (Offshore Wind) Development in the South Atlantic; Development of a
These meetings are physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Proposed deletions from the procurement list.
The Committee is proposing to delete product(s) from the procurement list that were furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.
Comments must be received on or before: May 28, 2023.
Committee for Purchase From People Who Are Blind or Severely Disabled, 355 E Street SW, Suite 325, Washington, DC 20024.
For further information or to submit comments contact: Michael R. Jurkowski, Telephone: (703) 785-6404, or email
This notice is published pursuant to 41 U.S.C. 8503 (a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
The following product(s) are proposed for deletion from the Procurement List:
Committee for Purchase From People Who Are Blind or Severely Disabled.
Additions to the procurement list.
This action adds product(s) 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 2/25/2022, 3/4/2022, 3/18/2022, 3/25/2022, 4/8/2022, 4/15/2022, 5/27/2022 and 6/10/2022, 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 product(s) and impact of the additions on the current or most recent contractors, the Committee has determined that the product(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) to the Government.
2. The action will result in authorizing small entities to furnish the product(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 product(s) proposed for addition to the Procurement List.
Accordingly, the following product(s) are added to the Procurement List:
Commodity Futures Trading Commission.
Notice.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is announcing an opportunity for public comment on the proposed renewal of a collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before June 27, 2023.
You may submit comments, identified by “Registration of Swap Dealers and Major Swap Participants,” Collection Number 3038-0072, by any of the following methods:
• The Agency's website, at
•
•
Please submit your comments using only one method. All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
Christopher W. Cummings, Market Participants Division, Commodity Futures Trading Commission, (202) 418-5445 or
Under the PRA, 44 U.S.C. 3501
With respect to the collection of information, the Commission invites comments on:
• Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have a practical use;
• The accuracy of the Commission's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Ways to enhance the quality, usefulness, and clarity of the information to be collected; and
• Ways to minimize the burden of collection of information on those who are to respond, including through the use of appropriate electronic, mechanical, or other technological collection techniques or other forms of information technology;
You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from
There are no capital costs or operating and maintenance costs associated with this collection.
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (PRA), this notice announces that the Information Collection Request (ICR) abstracted below has been forwarded to the Office of Information and Regulatory Affairs (OIRA), of the Office of Management and Budget (OMB), for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before May 30, 2023.
Written comments and recommendations for the proposed information collection should be submitted within 30 days of this notice's publication to OIRA, at
In addition to the submission of comments to
Or by either of the following methods:
•
•
All comments must be submitted in English, or if not, accompanied by an English translation. Comments submitted to the Commission should include only information that you wish to make available publicly. If you wish the Commission to consider information that you believe is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures established in § 145.9 of the Commission's regulations.
Lee McFarland, Attorney Advisor, Market Participants Division, Commodity Futures Trading Commission, (202) 418-5368; email:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
There are no capital costs or operating and maintenance costs associated with this collection.
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for fiscal year (FY) 2023 for the American History and Civics Education National Activities (AHC-NA) program, Assistance Listing Number 84.422B. This notice relates to the approved information collection under OMB 1894-0006.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Orman Feres, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202-5960. Telephone: 202-453-6921. Email:
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
This competition includes one absolute priority, two competitive preference priorities, and one invitational priority. Consistent with section 2233 of the ESEA, the absolute priority addresses innovative instruction or professional development in American history, civics and government, and geography, and Competitive Preference Priority 1 encourages applicants to propose projects that incorporate the use of hands-on civic engagement activities for teachers and students or programs that educate students about the history and principles of the U.S. Constitution, including the Bill of Rights. Competitive Preference Priority 2, drawn from Supplemental Priorities and Definitions for Discretionary Programs (Supplemental Priorities), published in the
The Department recognizes the negative impact that inadequate access to and the inequitable distribution of, resources have on the educational experience of students who represent traditionally underserved communities. Access to educational resources and opportunities such as rigorous coursework, and dual enrollment can have positive impacts on underserved students. A December 2020 brief from the National Center for Education Statistics at the Department's Institute of Education Sciences
Effective civics education is a key component in the preservation of the Nation's democracy. Providing students with a strong foundation in information literacy skills is especially important in an age of digital media consumption. A 2019 survey conducted by Common Sense Media and Survey Monkey
Therefore, the invitational priority encourages applicants to foster critical thinking and promote student engagement in civics education through professional development and/or student-facing projects using media literacy, digital citizenship, or other activities designed to and promote student engagement in civics. The inclusion of this invitational priority reflects the congressional intent outlined in the 2023 Appropriations Committee Report directing the Department to provide grants that emphasize student engagement, promote civic participation, and cultivate media literacy. Consistent with the use of invitational priorities across grant competitions, applicants are not required to respond to the invitational priority, and applications that meet the invitational priority do not receive a preference or competitive advantage over other applications.
The Department fully recognizes and respects that curriculum decisions are made at the State and local levels, not by the Federal Government, and does not mandate, direct, or control curricula through this competition. Rather, the Department, through this competition, seeks to encourage efforts to implement more effective, student-centered teaching practices and professional development activities while promoting learning practices among students that reflect the diversity of identities, histories, contributions, and experiences to support enriched educational opportunity, equity, and success for all students.
This priority is:
Under this priority, we provide funding to projects that are designed to develop, implement, expand, evaluate, and disseminate for voluntary use, innovative, evidence-based approaches or professional development programs in American history, civics and government, and geography. To meet this priority, a project must—
(a) Show potential to improve the quality of teaching of and student achievement in American history, civics and government, or geography, in elementary schools and secondary schools; and
(b) Demonstrate innovation, scalability, accountability, and a focus on underserved populations.
These priorities are:
Under this priority, we provide funding to promote new and existing evidence-based strategies to encourage innovative civics and government learning strategies and professional development activities and programs for teachers, principals, or other school leaders, particularly such instruction, strategies, activities, and programs that benefit low-income students and underserved populations. To meet this priority, a project must include one or both of the following—
(a) Hands-on civic engagement activities for teachers and students; or
(b) Programs that educate students about the history and principles of the Constitution of the United States, including the Bill of Rights.
Under this priority, an applicant must demonstrate that the applicant proposes a project designed to promote educational equity and adequacy in resources and opportunity for underserved students in one or more of the following educational settings:
(i) Early learning programs.
(ii) Elementary school
(iii) Middle school.
(iv) High school.
(v) Career and technical education programs.
(vi) Out-of-school-time settings.
(vii) Alternative schools and programs.
(viii) Juvenile justice system or correctional facilities.
The project also must examine the sources of inequity and inadequacy and implement responses, and may include one or both of the following:
(i) Rigorous, engaging, and well-rounded (
(ii) Establishing, expanding, or improving the engagement of underserved community members (including underserved students and families) in informing and making decisions that influence policy and practice at the school, district, or State level by elevating their voices, through their participation and their perspectives and providing them with access to opportunities for leadership (
This priority is:
Projects that describe how they will foster critical thinking and promote student engagement in civics education through professional development and/or student-facing projects using media literacy, digital citizenship, or other activities designed to support students in—
(a) Evaluating sources and evidence using standards of proof;
(b) Understanding their own biases when reviewing information, as well as uncovering and recognizing bias in primary and secondary sources;
(c) Synthesizing information into cogent communications; and
(d) Understanding how inaccurate information may be used to influence individuals and developing strategies to recognize accurate and inaccurate information.
(i) Demonstrates a statistically significant effect on improving student outcomes or other relevant outcomes based on—
(A) Strong evidence from at least 1 well-designed and well-implemented experimental study;
(B) Moderate evidence from at least 1 well-designed and well-implemented quasi-experimental study; or
(C) Promising evidence from at least 1 well-designed and well-implemented correlational study with statistical controls for selection bias; or
(ii)(A) Demonstrates a rationale based on high quality research findings or positive evaluation that such activity, strategy, or intervention is likely to improve student outcomes or other relevant outcomes; and
(B) Includes ongoing efforts to examine the effects of such activity, strategy, or intervention.
(i) A randomized controlled trial employs random assignment of, for example, students, teachers, classrooms, or schools to receive the project component being evaluated (the treatment group) or not to receive the project component (the control group).
(ii) A regression discontinuity design study assigns the project component being evaluated using a measured variable (
(iii) A single-case design study uses observations of a single case (
(i) A practice guide prepared by the WWC using version 2.1, 3.0, 4.0, or 4.1 of the WWC Handbooks reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC using version 2.1, 3.0, 4.0, or 4.1 of the WWC Handbooks reporting a “positive effect” or “potentially positive effect” on a relevant outcome based on a “medium to large” extent of evidence, with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single experimental study or quasi-experimental design study reviewed and reported by the WWC using version 2.1, 3.0, 4.0, or 4.1 of the WWC Handbooks, or otherwise assessed by the Department using version 4.1 of the WWC Handbooks, as appropriate, and that—
(A) Meets WWC standards with or without reservations;
(B) Includes at least one statistically significant and positive (
(C) Includes no overriding statistically significant and negative effects on relevant outcomes reported in the study or in a corresponding WWC
(D) Is based on a sample from more than one site (
(a) A child participating in an early learning program, a student enrolled in preschool through grade 12, or a student enrolled in career and technical education or postsecondary education who has a parent or guardian who is a member of the uniformed services (as defined by 37 U.S.C. 101), in the Army, Navy, Air Force, Marine Corps, Coast Guard, Space Force, National Guard, Reserves, National Oceanic and Atmospheric Administration, or Public Health Service or is a veteran of the uniformed services with an honorable discharge (as defined by 38 U.S.C. 3311).
(b) A student who is a member of the uniformed services, a veteran of the uniformed services, or the spouse of a service member or veteran.
(c) A child participating in an early learning program, a student enrolled in preschool through grade 12, or a student enrolled in career and technical education or postsecondary education who has a parent or guardian who is a veteran of the uniformed services (as defined by 37 U.S.C. 101).
(i) A practice guide prepared by WWC reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC reporting a “positive effect” or “potentially positive effect” on a relevant outcome with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single study assessed by the Department, as appropriate, that—
(A) Is an experimental study, a quasi-experimental design study, or a well-designed and well-implemented correlational study with statistical controls for selection bias (
(B) Includes at least one statistically significant and positive (
(i) A practice guide prepared by the WWC using version 2.1, 3.0, 4.0, or 4.1 of the WWC Handbooks reporting a “strong evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC using version 2.1, 3.0, 4.0, or 4.1 of the WWC Handbooks reporting a “positive effect” on a relevant outcome based on a “medium to large” extent of evidence, with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single experimental study reviewed and reported by the WWC using version 2.1, 3.0, 4.0, or 4.1 of the WWC Handbooks, or otherwise assessed by the Department using version 4.1 of the WWC Handbooks, as appropriate, and that—
(A) Meets WWC standards without reservations;
(B) Includes at least one statistically significant and positive (
(C) Includes no overriding statistically significant and negative effects on relevant outcomes reported in the study or in a corresponding WWC intervention report prepared under version 2.1, 3.0, 4.0, or 4.1 of the WWC Handbooks; and
(D) Is based on a sample from more than one site (
Underserved student means a student (which may include children in early learning environments, students in K-12 programs, students in postsecondary education or career and technical education, and adult learners, as appropriate) in one or more of the following subgroups:
(a) A student who is living in poverty or is served by schools with high concentrations of students living in poverty.
(b) A student of color.
(c) A student who is a member of a federally recognized Indian Tribe.
(d) An English learner.
(e) A child or student with a disability.
(f) A disconnected youth.
(g) A technologically unconnected youth.
(h) A migrant student.
(i) A student experiencing homelessness or housing insecurity.
(j) A lesbian, gay, bisexual, transgender, queer or questioning, or intersex (LGBTQI+) student.
(k) A student who is in foster care.
(l) A student without documentation of immigration status.
(m) A pregnant, parenting, or caregiving student.
(n) A student performing significantly below grade level.
(o) A military- or veteran- connected student.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
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2. a.
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Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
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• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
Furthermore, applicants are strongly encouraged to include a table of contents that specifies where each required part of the application is located.
6.
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(a)
(1) The Secretary considers the quality of the design of the proposed project.
In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(i) The extent to which the proposed project demonstrates a rationale. (10 points)
(ii) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition. (10 points)
(b)
(1) The Secretary considers the need for the proposed project.
(2) In determining the need for the proposed project, the Secretary considers the following factors:
(i) The magnitude or severity of the problem to be addressed by the proposed project. (8 points)
(ii) The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses. (7 points)
(iii) The extent to which the proposed project will focus on serving or otherwise addressing the needs of disadvantaged individuals. (10 points)
(c)
(1) The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks. (13 points)
(ii) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project. (12 points)
(d)
(1) The Secretary considers the adequacy of resources for the proposed project. In determining the quality of the adequacy of resources, the Secretary considers the following factors:
(i) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization. (6 points)
(ii) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project. (8 points)
(iii) The extent to which the applicant demonstrates that it has the resources to operate the project beyond the length of the grant, including a multiyear financial and operating model and accompanying plan; the demonstrated commitment of any partners; evidence of broad support from stakeholders (
(iv) The relevance and demonstrated commitment of each partner in the proposed project to the implementation and success of the project. (8 points)
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
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Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
5.
(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an
(b) Prohibiting the purchase of certain telecommunication and video surveillance services or equipment in alignment with section 889 of the National Defense Authorization Act of 2019 (Pub. L. 115-232) (2 CFR 200.216);
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
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If your application is not evaluated or not selected for funding, we notify you.
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We reference the regulations outlining the terms and conditions of an award in the
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(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
5.
For purposes of Department reporting under 34 CFR 75.110, we will track performance on this objective through the following measure: The average percentage gain on an American History, Civics and Government, Geography and/or other related assessment after participation in the grant activities.
We advise an applicant for a grant under this program to give careful consideration to this measure in conceptualizing the approach to, and evaluation of, its proposed project. Each grantee will be required to provide, in its annual and final performance reports, data about its performance with respect to this measure.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
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 June 27, 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 Stephanie Valentine, (202) 453-7061.
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.
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for new awards for fiscal year (FY) 2023 for the Presidential and Congressional Academies for American History and Civics (Academies) Program, Assistance Listing Number 84.422A. This notice relates to the approved information collection under OMB control number 1894-0006.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Orman Feres, U.S. Department of
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
This competition includes two absolute priorities, two competitive preference priorities, and one invitational priority. Consistent with section 2232 of the ESEA, the absolute priorities address professional development and instruction in American history and civics for teachers and students. Applicants are required to address both absolute priorities. Competitive Preference Priority 1, from section 2232(e)(4) of the ESEA, encourages applicants to develop programs using the resources from the National Park Service. Competitive Preference Priority 2, from the Final Priorities and Definitions—Supplemental Priorities and Definitions for Discretionary Programs (Supplemental Priorities), published in the
The Department recognizes the negative impact that inadequate access to, and the inequitable distribution of, resources have on the educational experience of underserved students. Access to educational resources and opportunities such as rigorous coursework and dual enrollment can have positive impacts on underserved students. For example, a December 2020 brief from the National Center for Education Statistics at the Department's Institute of Education Sciences
Effective civics education is a key component in the preservation of the Nation's democracy. Providing students with a strong foundation in information literacy skills is especially important in an age of digital media consumption. A 2019 survey conducted by Common Sense Media and Survey Monkey
Therefore, the invitational priority encourages applicants to foster critical thinking and promote student engagement in civics education through professional development and/or student-facing projects using media literacy, digital citizenship, or other activities designed to promote student engagement in civics education. Consistent with the use of invitational priorities across grant competitions, applicants are not required to respond to the invitational priority, and applications that meet the invitational priority do not receive a preference or competitive advantage over other applications.
The Department fully recognizes and respects that curriculum decisions are made at the State and local levels, not by the Federal Government, and does not mandate, direct, or control curricula through this competition. Rather, the Department, through this competition, seeks to encourage efforts to implement more effective, student-centered teaching practices and professional development activities while promoting learning practices among students that reflect the diversity of identities, histories, contributions, and experiences to support enriched educational opportunity, equity, and success for all students.
These priorities are:
Under this priority, an applicant must propose to establish a Presidential Academy that offers a seminar or institute for teachers of American history and civics, which—
(a) Provides intensive professional development opportunities for teachers of American history and civics to strengthen such teachers' knowledge of the subjects of American history and civics;
(b) Is led by a team of primary scholars and core teachers who are accomplished in the field of American history and civics;
(c) Is conducted during the summer or other appropriate time; and
(d) Is of not less than 2 weeks and not more than 6 weeks in duration.
Under this priority, an applicant must propose to establish a seminar or institute for outstanding students of American history and civics, which—
(a) Broadens and deepens such students' understanding of American history and civics;
(b) Is led by a team of primary scholars and core teachers who are accomplished in the field of American history and civics;
(c) Is conducted during the summer or other appropriate time; and
(d) Is of not less than 2 weeks and not more than 6 weeks in duration.
These priorities are:
Applicants that propose to develop innovative and comprehensive programs using the resources of the National Parks, including, to the extent practicable, through coordination or alignment of activities with the National Park Service National Centennial Parks initiative.
Under this priority, and applicant must demonstrate that the applicant proposes a project designed to promote educational equity and adequacy in resources and opportunity for underserved students—
(a) in one or more of the following educational settings:
(1) Early learning programs.
(2) Elementary school.
(3) Middle school.
(4) High school.
(5) Career and technical education programs.
(6) Out-of-schooltime settings.
(7) Alternative schools and programs.
(8) Juvenile justice system or correctional facilities.
(b) That examines the sources of inequity and inadequacy and implement responses, and that may include one or both of the following:
(1) Rigorous, engaging, and well-rounded (
(2) Establishing, expanding, or improving the engagement of underserved community members (including underserved students and families) in informing and making decisions that influence policy and practice at the school, district, or State level by elevating their voices, through their participation and their perspectives and providing them with access to opportunities for leadership (
This priority is:
Projects that describe how they will foster critical thinking and promote student engagement in civics education through professional development and/or student-facing projects involving media literacy, digital citizenship, or other activities designed to support students in—
(a) Evaluating sources and evidence using standards of proof;
(b) Understanding their own biases when reviewing information, as well as uncovering and recognizing bias in primary and secondary sources;
(c) Synthesizing information into cogent communications; and
(d) Understanding how inaccurate information may be used to influence individuals and developing strategies to recognize accurate and inaccurate information.
(a) A child participating in an early learning program, a student enrolled in preschool through grade 12, or a student enrolled in career and technical education or postsecondary education who has a parent or guardian who is a member of the uniformed services (as defined by 37 U.S.C. 101), in the Army, Navy, Air Force, Marine Corps, Coast Guard, Space Force, National Guard, Reserves, National Oceanic and Atmospheric Administration, or Public Health Service or is a veteran of the uniformed services with an honorable discharge (as defined by 38 U.S.C. 3311).
(b) A student who is a member of the uniformed services, a veteran of the uniformed services, or the spouse of a service member or veteran.
(c) A child participating in an early learning program, a student enrolled in preschool through grade 12, or a student enrolled in career and technical education or postsecondary education who has a parent or guardian who is a veteran of the uniformed services (as defined by 37 U.S.C. 101).
(a) A student who is living in poverty or is served by schools with high concentrations of students living in poverty.
(b) A student of color.
(c) A student who is a member of a federally recognized Indian Tribe.
(d) An English learner.
(e) A child or student with a disability.
(f) A disconnected youth.
(g) A technologically unconnected youth.
(h) A migrant student.
(i) A student experiencing homelessness or housing insecurity.
(j) A lesbian, gay, bisexual, transgender, queer or questioning, or intersex (LGBTQI+) student.
(k) A student who is in foster care.
(l) A student without documentation of immigration status.
(m) A pregnant, parenting, or caregiving student.
(n) A student performing significantly below grade level.
(o) A military- or veteran-connected student.
(a)
(b)
(c)
(d)
(i) Is recommended by the student's secondary school principal or other school leader to attend the seminar or institute; and
(ii) Will be a secondary school junior or senior in the academic year following attendance at the seminar or institute.
(e)
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
1.
In its application, an applicant must submit documentation of its organization's demonstrated expertise in historical methodology or the teaching of American history or civics.
2. a.
Under section 2232(g)(2) of the ESEA, the Secretary may waive the matching requirement for any fiscal year for a grantee if the Secretary determines that applying the matching requirement would result in serious hardship or an inability to carry out project activities. Applicants that wish to apply for a waiver for one or more fiscal years may include a request in their application that describes how the 100 percent matching requirement would cause serious hardship or an inability to carry out project activities.
b.
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Because, consistent with previous Academies competitions, we plan to post on our website the application narrative sections of all Academies grants, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information.
3.
4.
5.
• A “page” is 8.5″ × 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double-space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the
6.
1.
(a)
(1) The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(i) The extent to which the proposed project demonstrates a rationale. (10 points)
(ii) The extent to which the proposed project represents an exceptional approach to the priority or priorities established for the competition. (10 points)
(b)
(1) The Secretary considers the need for the proposed project. In determining the need for the proposed project, the Secretary considers the following factors:
(i) The magnitude or severity of the problem to be addressed by the proposed project. (8 points)
(ii) The extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses. (7 points)
(iii) The extent to which the services to be provided by the proposed project are focused on those with greatest needs. (10 points)
(c)
(1) The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks. (13 points)
(ii) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project. (12 points)
(d)
(1) The Secretary considers the adequacy of resources for the proposed project. In determining the quality of the adequacy of resources, the Secretary considers the following factors:
(i) The adequacy of support, including facilities, equipment, supplies, and other resources, from the applicant organization or the lead applicant organization. (6 points)
(ii) The extent to which the costs are reasonable in relation to the objectives, design, and potential significance of the proposed project. (8 points)
(iii) The extent to which the applicant demonstrates that it has the resources to operate the project beyond the length of the grant, including a multiyear financial and operating model and accompanying plan; the demonstrated commitment of any partners; evidence of broad support from stakeholders (
(iv) The relevance and demonstrated commitment of each partner in the proposed project to the implementation and success of the project. (8 points)
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
5.
(a) Selecting recipients most likely to be successful in delivering results based on the program objectives through an objective process of evaluating Federal award applications (2 CFR 200.205);
(b) Prohibiting the purchase of certain telecommunication and video
(c) Providing a preference, to the extent permitted by law, to maximize use of goods, products, and materials produced in the United States (2 CFR 200.322); and
(d) Terminating agreements in whole or in part to the greatest extent authorized by law if an award no longer effectuates the program goals or agency priorities (2 CFR 200.340).
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
5.
Participants will demonstrate through pre- and post-assessments an increased understanding of American history and civics that can be linked to their participation in the Presidential or Congressional Academy.
For purposes of Department reporting under 34 CFR 75.110, we will track performance on this objective through the following measures:
We advise applicants for grants under this program to give careful consideration to these measures in conceptualizing the approach and evaluation of a proposed project. Each grantee will be required to provide, in its annual and final performance reports, data about its performance with respect to these measures.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Office of Science, Department of Energy.
Notice of open meeting.
This notice announces an open virtual meeting of the President's Council of Advisors on Science and Technology (PCAST). The Federal
Information to participate virtually can be found on the PCAST website closer to the meeting at:
Dr. Reba Bandyopadhyay, Designated Federal Officer, PCAST, email:
PCAST is an advisory group of the nation's leading scientists and engineers, appointed by the President to augment the science and technology advice available to him from the White House, cabinet departments, and other Federal agencies. See the Executive Order at
The public comment period for this meeting will take place on May 18, 2023, at a time specified in the meeting agenda. This public comment period is designed only for substantive commentary on PCAST's work, not for business marketing purposes.
PCAST operates under the provisions of FACA, all public comments and/or presentations will be treated as public documents and will be made available for public inspection, including being posted on the PCAST website at:
Take notice that the Commission has received the following Natural Gas & Oil Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
Take notice that the Commission received the following public utility holding company filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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The Commission strongly encourages electronic filing. Please file motions to intervene and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all interveners 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 intervener 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, but is not ready for environmental analysis at this time.
l. The existing Beaver Falls Project consists of two developments: Silvis and Beaver Falls. The Silvis development consists of: (1) a 60-foot-high, 135-foot-long concrete-face, rock-filled Upper Silvis Lake dam; (2) an 800-foot-long excavated rock spillway channel leading from Upper Silvis Lake to Lower Silvis Lake; (3) a 300-acre reservoir (Upper Silvis Lake) with gross storage capacity of approximately 38,000 acre-feet; (4) a 980-foot-long underground power tunnel connecting to a 375-foot-long, 36-inch-diameter steel penstock that conveys water to the Silvis Powerhouse; (5) a 30-feet by 40-feet by 25-feet-high Silvis powerhouse containing a single Francis-type turbine with a rated capacity of 2.1 megawatts; (6) a 150-foot-long trapezoidal shaped channel tailrace discharging into Lower Silvis Lake; (7) a 2,900-foot-long, 5-kilovolt submarine cable beneath Lower Silvis Lake; (8) a 7,000-foot-long, 34.5- kilovolt aerial transmission line; and (9) appurtenant facilities.
The Beaver Falls development consists of: (1) a 32-foot-high, 140-foot-long concrete-face, rock-filled Lower Silvis dam; (2) a spillway with an ungated control weir and unlined rock discharge channel; (3) a 67.5-acre reservoir (Lower Silvis Lake) with gross storage capacity of approximately 8,052 acre-feet; (4) a 3-foot-high, 40-foot-long concrete diversion dam on Beaver Falls Creek; (5) a 3,800-foot-long underground power tunnel connecting to a 3,610-foot-long above ground steel penstock that conveys water from Lower Silvis Lake to the Beaver Falls powerhouse and supplies water to Units 3 and 4 in the powerhouse; (6) a 225-foot-long adit that taps the 3,800-foot-long underground power tunnel and discharges water into Beaver Falls Creek approximately 500-feet upstream of the Beaver Falls diversion dam; (7) a 4,170-foot-long above ground steel penstock that conveys water from the Beaver Falls Creek diversion dam to the Beaver Falls powerhouse and supplies Unit 1 in the powerhouse; (8) a 30-feet by 147-feet by 25-feet-high Beaver Falls powerhouse containing three horizontal Pelton generating units with a total installed capacity of 5 MW (Units 1, 3 and 4; Unit 2 is decommissioned); (9) a Beaver Falls substation; and (10) appurtenant facilities. The project generates an annual average of 54,711,280 megawatt-hours.
m. A copy of the application is available for review via the internet through the Commission's Home Page (
You may also register online at
n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, 385.211, and 385.214. In determining the appropriate action to take, the Commission will consider all protests 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 protests or motions to intervene must be received on or before the specified deadline date for the particular application.
When the application is ready for environmental analysis, the Commission will issue a public notice requesting comments, recommendations, terms and conditions, or prescriptions.
All filings must (1) bear in all capital letters the title “PROTEST” or “MOTION TO INTERVENE;” (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. 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
o.
On September 29, 2021, Alice Falls Hydro, LLC filed an application for a new major license for the 2.1-megawatt Alice Falls Hydroelectric Project (Alice Falls Project or project; FERC No. 5867). The Alice Falls Project is located on the Ausable River, in the Town of Chesterfield, Clinton and Essex counties, New York.
In accordance with the Commission's regulations, on February 16, 2023, Commission staff issued a notice that the project was ready for environmental analysis (REA notice). Based on the information in the record, including comments filed on the REA notice, staff does not anticipate that licensing the project would constitute a major federal action significantly affecting the quality of the human environment. Therefore, staff intends to prepare an Environmental Assessment (EA) on the application to license the Alice Falls Project.
The EA will be issued and circulated for review by all interested parties. All comments filed on the EA will be analyzed by staff and considered in the Commission's final licensing decision.
The application will be processed according to the following schedule. Revisions to the schedule may be made as appropriate.
Any questions regarding this notice may be directed to Nicholas Tackett at (202) 502-6783 or
On April 24, 2023, the Commission issued an order in Docket No. EL23-52-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e, instituting an investigation into whether MD Solar 2, LLC's Rate Schedule is unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful.
The refund effective date in Docket No. EL23-52-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the
Any interested person desiring to be heard in Docket No. EL23-52-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214 (2022), within 21 days of the date of issuance of the order.
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the “eFile” link at
Western Area Power Administration, DOE.
Notice of recommendation to pursue final negotiations regarding SPP RTO membership.
Western Area Power Administration (WAPA), a Power Marketing Administration of the Department of Energy (DOE), recommends the Rocky Mountain Region (WAPA-RM) with its Loveland Area Projects Transmission System and the Colorado River Storage Project Management Center (WAPA-CRSP) with its Colorado River Storage Project Transmission System pursue final negotiations regarding transmission
WAPA-RM, WAPA-CRSP, and WAPA-UGP will hold at least one virtual customer and stakeholder meeting to provide an overview of the recommendation to pursue final negotiations with SPP concerning membership and expansion of membership in SPP. Date(s) for the meetings will be posted on WAPA's website at:
To ensure consideration, all comments should be received by WAPA on or before 4:00 p.m.. Mountain Time June 12, 2023.
Send written comments via email to
1. Name and general description of the entity submitting the comment.
2. Name, telephone number, and email address of the entity's primary contact.
3. Identification of any specific recommendation the comment references.
Rebecca Johnson, Transmission and Power Markets Advisor at (720) 376-2400, email at
In October 2020, WAPA-RM and WAPA-UGP along with Tri-State Generation and Transmission Association, Basin Electric Power Cooperative, Municipal Energy Agency of Nebraska, and Deseret Power each executed non-binding Letters of Interest (LOI) to investigate membership or expanded participation in SPP. In April 2021, WAPA-CRSP executed a non-binding LOI. In May 2021, Colorado Springs Utilities executed a non-binding LOI. In August 2022, Platte River Power Authority executed a non-binding LOI.
The participating entities have completed transmission cost studies, adjusted production cost modeling, and various other analyses. After discussions among these entities, negotiations with SPP, and further analysis by WAPA subject matter experts, and pursuant to its authority under Section 1232(a)(l)(A) of the Energy Policy Act of 2005 (42 U.S.C. 16431), WAPA recommends WAPA-RM and WAPA-CRSP pursue final negotiations regarding membership in SPP, and WAPA-UGP expand its participation in SPP. WAPA will continue to work with our customers both inside and outside of the proposed RTO-West footprint to the greatest extent possible, and continuously monitor the evolution of markets and the operational changes as they develop. The background, basis for the recommendation, and explanatory material are posted on WAPA's website at:
WAPA-RM's membership would include SPP assuming the balancing authority responsibilities for the Western Area Colorado Missouri balancing authority area (BAA) that WAPA-RM operates today, as well as SPP operating a single SPP-West BAA.
In addition, WAPA-UGP, with its Pick-Sloan Missouri Basin Project—Eastern Division facilities in the Western Interconnection, would pursue final negotiations to expand its participation in the SPP RTO. WAPA-UGP's Western Interconnection transmission facilities are already under the SPP tariff and WAPA-UGP's Eastern Interconnection facilities are already in the SPP RTO and SPP's Integrated Marketplace. This recommendation includes SPP also assuming the balancing authority responsibilities for the Western Area Upper Great Plains West (WAUW) BAA that WAPA-UGP operates in the Western Interconnection today in a single SPP-West BAA, as well as SPP implementing its Integrated Marketplace across WAPA-UGP's facilities in the existing WAUW BAA footprint.
Through this process, WAPA is soliciting comments from its customers, Indian Tribes, and other stakeholders regarding its recommendation to pursue final negotiations. At the close of the comment period, WAPA will provide notification of its decision with a letter to stakeholders and by a posting to its website. Concurrent with this comment process, WAPA also will conduct a separate Tribal consultation.
If the decision is made by WAPA to move forward with final negotiations with SPP, and those negotiations are successful, WAPA-RM and WAPA-CRSP would then execute SPP membership agreements and WAPA-UGP would expand its participation in SPP.
Any decision by WAPA to move forward with final negotiations with SPP will be consistent with WAPA-RM, WAPA-CRSP, and WAPA-UGP statutory requirements and as outlined in the explanatory material posted on WAPA's website. Section 1232(b) of the Energy Policy Act of 2005 authorizes the appropriate Federal regulatory authority to enter into a contract, agreement, or other arrangement transferring control and use of all or part of the transmission system of a Federal utility to a Transmission Organization (42 U.S.C. 16431(b)). By Delegation Order No. S1-DEL-RATES-2016, effective November 19, 2016, the Secretary of Energy designated the Administrator of WAPA as the appropriate Federal regulatory authority with respect to all or part of WAPA's transmission system.
The Recommendation Report and explanatory material to be presented at the public meeting(s), as well as other supporting documents, are available for review and comment on the website at:
WAPA has determined this action fits within the following categorical exclusion listed in appendix B to subpart D of 10 CFR part 1021: B4.4 (Power Marketing Services and Activities). Categorically excluded projects and activities do not require preparation of either an environmental impact statement or an environmental assessment.
This document of the Department of Energy was signed on April 17, 2023, by Tracey A. LeBeau Administrator, Western Area Power Administration, pursuant to delegated authority from the Secretary of Energy. This document, with the original signature and date, is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice of proposed settlement; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), notice is hereby given that a proposed CERCLA Section 122(h)(1) Settlement Agreement (“Proposed Agreement”) associated with the ITC Tank Fire Superfund Site in Deer Park, Harris County, Texas (“Site”) was executed by the Environmental Protection Agency (“EPA”) and is now subject to public comment, after which EPA may modify or withdraw its consent if comments received disclose facts or considerations that indicate that the Proposed Agreement is inappropriate, improper, or inadequate. The Proposed Agreement would resolve potential EPA claims under Section 107(a) of CERCLA, against Intercontinental Terminals Company LLC (“Settling Party”) for EPA response costs at the Deer Park Superfund Site in Texas. The settlement is $5.25 million and was based on negotiations which concluded with the settling party agreeing to make partial payment for EPA response costs.
For thirty (30) days following the date of publication of this notice, EPA will receive electronic comments relating to the Proposed Agreement. EPA's response to any comments received will be available for public inspection by request. Please see the
Comments must be received on or before May 30, 2023.
As a result of impacts related to the COVID-19 pandemic, requests for documents and submission of comments must be via electronic mail except as provided below. The Proposed Agreement and additional background information relating to the Proposed Agreement are available for public inspection upon request by contacting EPA Assistant Regional Counsel Edwin Quinones at
Edwin Quinones at EPA by phone (214) 665-8035 or email at:
Environmental Protection Agency (EPA).
Notice of modified proposed settlement; request for public comment.
In accordance with the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), notice is hereby given that a modified proposed CERCLA Section 122(h)(1) Cashout Settlement Agreement for Ability to Pay Peripheral Parties (“Proposed Agreement”) associated with the “Delta Shipyard” Superfund Site in Houma, Terrebonne Parish, Louisiana (“Site”) was executed by the Environmental Protection Agency (“EPA”) and is now subject to public comment, after which EPA may modify or withdraw its consent if comments received disclose facts or considerations that indicate that the Proposed Agreement is inappropriate, improper, or inadequate. The modified Proposed Agreement would resolve potential EPA claims under Section 107(a) of CERCLA, against Dean Services West, LLC (“Settling Party”) for EPA response costs at the Delta Shipyard Superfund Site located in the Southeastern section of Houma, Louisiana. The modified settlement is $350,000.00 and was based
Comments must be received on or before May 30, 2023.
As a result of impacts related to the COVID-19 pandemic, requests for documents and submission of comments must be via electronic mail except as provided below. The Proposed Agreement and additional background information relating to the Proposed Agreement are available for public inspection upon request by contacting EPA Assistant Regional Counsel Amy Salinas at
Amy Salinas at EPA by phone (214) 665-8063 or email at:
9:00 a.m., Thursday, May 11, 2023.
You may observe this meeting in person at 1501 Farm Credit Drive, McLean, Virginia 22102-5090, or virtually. If you would like to observe, at least 24 hours in advance, visit
This meeting will be open to the public.
The following matters will be considered:
If you need more information or assistance for accessibility reasons, or have questions, contact Ashley Waldron, Secretary to the Board. Telephone: 703-883-4009. TTY: 703-883-4056.
Federal Deposit Insurance Corporation (FDIC).
Notice of a modified system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the FDIC proposes to modify a current FDIC system of records notice titled FDIC-010, Investigative Files of the Office of Inspector General (OIG), by updating the categories of records in the system to include video and audio recordings; updating the categories of records in the system to include violations or potential violations of administrative or civil law within the FDIC OIG's jurisdiction; updating the system location to include secure sites and secure servers maintained by third-party service providers; and adding new routine uses to authorize sharing of information with complainants, witnesses, and subjects, and to the public and news media, in certain limited circumstances. Additionally, this notice includes non-substantive changes to simplify the formatting and text of the previously published notice. We hereby publish this notice for comment on the proposed actions.
This action will become effective on April 28, 2023. The routine uses in this action will become effective on May 30, 2023, unless the FDIC makes changes based on comments received. Written comments should be submitted on or before May 30, 2023.
Interested parties are invited to submit written comments identified by Privacy Act Systems of Records (FDIC-010) by any of the following methods:
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Shannon Dahn, Chief, Privacy Program, 703-516-5500,
The Privacy Act, 5 U.S.C. 552a, at subsection (b)(3), requires each agency to publish, for public notice and comment, significant changes that the agency intends to make to a Privacy Act system of records. The “Investigative Files of the Office of Inspector General, FDIC-010” system of records is maintained for the purpose of documenting, tracking, reviewing and reporting on all phases of the FDIC Office of Inspector General's investigative and investigative-related litigation activities, and serves as a repository and source for information necessary to fulfill statutory reporting, access and disclosure requirements,
The FDIC proposes to update the categories of records in the system to include video and audio recordings, which will facilitate the FDIC OIG's compliance with Executive Order (E.O.) 14074,
The FDIC also proposes to update the categories of records in the system to include violations or potential violations of administrative or civil law within the FDIC OIG's jurisdiction. This modification is to clarify that the system of records may include information about individuals that may be obtained in the course of the FDIC OIG investigating administrative and civil cases.
Additionally, the FDIC proposes updating the system location of the system to include secure sites and secure servers maintained by third-party service providers. This modification is being made in conjunction with the implementation of a solution to support FDIC OIG's compliance with E.O. 14074, as well as to support other solutions or processes that may require the support of third-party service providers.
The FDIC also proposes to update a routine use (7) indicating that the FDIC OIG may share information during the course of an investigation with subjects and/or respondents of an investigation, their representatives, or other persons or entities to the extent necessary to provide such persons with information and explanations concerning the results of an investigation or other inquiry arising from matters about which they were a subject and/or respondent.
Additionally, the FDIC proposes to add two new routine uses (8 and 9) indicating that information may be shared with complainants, witnesses, and subjects to the extent necessary to provide such persons with information and explanations concerning the results of the investigation or other inquiry arising from the matters about which they complained and/or with respect to which they were a victim or witness; and (9) indicating that information may be shared with an individual who has been interviewed or contacted pursuant to an investigation or other inquiry, to the extent that the FDIC OIG may provide copies of that individual's statements, testimony, or records produced by such individual.
Finally, the FDIC proposes to add two new routine uses (27 and 28) indicating that information about individuals may be shared with the news media and/or the public when such information has been disclosed publicly in court proceedings, and in rare instances when the community needs to be reassured that the appropriate law enforcement agency is investigating a matter, or where release of information is necessary to protect the public safety.
This notice includes non-substantive changes to simplify the formatting and text of the previously published notice. This modified system will be included in the FDIC's inventory of record systems.
Investigative Files of the Office of Inspector General, FDIC-010.
Unclassified.
FDIC Office of Inspector General (OIG), 3501 Fairfax Drive, Arlington, VA 22226. In addition, records are maintained in FDIC OIG field offices. FDIC OIG field office locations can be obtained by contacting the Assistant Inspector General for Investigations at said address. Original and duplicate systems may exist, in whole or in part, at secure sites and on secure servers maintained by third-party service providers for the FDIC OIG.
Assistant Inspector General for Investigations, FDIC Office of Inspector General, 3501 Fairfax Drive, Arlington, VA 22226.
Section 9 of the Federal Deposit Insurance Act (12 U.S.C. 1819); the Inspector General Act of 1978, as amended (5 U.S.C. appendix).
Pursuant to the Inspector General Act, the system is maintained for the purpose of documenting, tracking, reviewing and reporting on all phases of the FDIC Office of Inspector General's investigative and investigative-related litigation activities and serves as a repository and source for information necessary to fulfill statutory reporting, access and disclosure requirements, including those pertaining to the Inspector General Act.
Current and former FDIC employees and individuals involved in or associated with FDIC programs and operations, including contractors, subcontractors, vendors and other individuals, including members of the public, associated with investigative inquiries and investigative cases, including, but not limited to, witnesses, complainants, subjects and those contacting the FDIC OIG Hotline.
Investigative files, including memoranda, computer-generated background information, correspondence, including payroll records, call records, email records, electronic case management, forensic, and tracking files, FDIC OIG Hotline- related records, reports of investigations with related exhibits, statements, affidavits, records or other pertinent documents, reports from or to other law enforcement organizations, pertaining to violations or potential violations of criminal, civil, or administrative laws, fraud, waste, and abuse with respect to administration of FDIC programs and operations, and violations of employee and contractor Standards of Conduct as set forth in section 12(f) of the Federal Deposit Insurance Act (12 U.S.C. 1822(f)), 12 CFR parts 336, 366, and 5 CFR parts 2634, 2635, and 3201. Records in this system may contain personally identifiable information such as names, social security numbers, dates of birth and addresses. This system may also contain such information as employment history, bank account numbers and information, driver's licenses, educational records, criminal history, photographs, video and audio recordings, and other information of a personal nature provided or obtained in connection with an investigation.
Official records of the FDIC; current and former employees of the FDIC, other government employees, private individuals, vendors, contractors, subcontractors, witnesses and informants. Records in this system may have originated in other FDIC systems of records and subsequently been transferred to this system.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, all or a portion of the records or information contained in this system may be
(1) To the appropriate Federal, State, local, foreign or international agency or authority which has responsibility for investigating or prosecuting a violation of or for enforcing or implementing a statute, rule, regulation, or order to assist such agency or authority in fulfilling these responsibilities when the record, either by itself or in combination with other information, indicates a violation or potential violation of law, or contract, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto;
(2) To a court, magistrate, alternative dispute resolution mediator or administrative tribunal (collectively referred to as the adjudicative bodies) in the course of presenting evidence, including disclosures to counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations or in connection with criminal proceedings (collectively, the litigated proceedings) when the FDIC or FDIC OIG is a party to the proceeding or has a significant interest in the proceeding and the information is determined to be relevant and necessary in order for the adjudicatory bodies, or any of them, to perform their official functions in connection with the presentation of evidence relative to the litigated proceedings;
(3) To the FDIC's or another Federal agency's legal representative, including the U.S. Department of Justice or other retained counsel, when the FDIC, FDIC OIG or any employee thereof is a party to litigation or administrative proceeding or has a significant interest in the litigation or proceeding to assist those representatives by providing them with information or evidence for use in connection with such litigation or proceedings;
(4) To appropriate agencies, entities, and persons when (a) the FDIC suspects or has confirmed that there has been a breach of the system of records; (b) the FDIC has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the FDIC (including its information systems, programs, and operations), the Federal Government, or national security; and (c) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the FDIC's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm;
(5) To another Federal agency or Federal entity, when the FDIC determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (a) responding to a suspected or confirmed breach or (b) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach;
(6) To a grand jury agent pursuant either to a Federal or State grand jury subpoena or to a prosecution request that such record be released for the purpose of its introduction to a grand jury;
(7) To the subjects and/or respondents of an investigation and their representatives during the course of an investigation and to any other person or entity that has or may have information relevant or pertinent to the investigation to the extent necessary to assist in the conduct of the investigation, or to the extent necessary to provide such persons with information and explanations concerning the results of an investigation or other inquiry arising from matters about which they were a subject and/or respondent;
(8) To complainants, victims, and/or witnesses to the extent necessary to provide such persons with information and explanations concerning the results of the investigation or other inquiry arising from the matters about which they complained and/or with respect to which they were a victim or witness;
(9) To an individual who has been interviewed or contacted pursuant to an investigation or other inquiry, to the extent that the FDIC OIG may provide copies of that individual's statements, testimony, or records produced by such individual;
(10) To third-party sources during the course of an investigation only such information as determined to be necessary and pertinent to the investigation in order to obtain information or assistance relating to an audit, trial, hearing, or any other authorized activity of the FDIC OIG;
(11) To a congressional office in response to a written inquiry made by the congressional office at the request of the individual to whom the records pertain;
(12) To a Federal, State, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary for the FDIC to obtain information concerning the hiring or retention of an employee, a security clearance determination or adjudication, the letting of a contract, or the issuance of a license, grant, or other benefit;
(13) To a Federal agency responsible for considering suspension or debarment action where such record is determined to be necessary and relevant to that agency's consideration of such action;
(14) To a consultant, person or entity who contracts or subcontracts with the FDIC or FDIC OIG, to the extent necessary for the performance of the contract or subcontract. The recipient of the records shall be required to comply with the requirements of the Privacy Act of 1974, as amended (5 U.S.C. 552a);
(15) To contractors, grantees, volunteers, and others performing or working on a contract, service, grant, cooperative agreement, or project for the FDIC OIG, the FDIC or the Federal Government in order to assist those entities or individuals in carrying out their obligation under the related contract, grant, agreement or project;
(16) To the U.S. Office of Personnel Management, Government Accountability Office, Office of Government Ethics, Merit Systems Protection Board, Office of Special Counsel, Equal Employment Opportunity Commission, Department of Justice, Office of Management and Budget or the Federal Labor Relations Authority of records or portions thereof determined to be relevant and necessary to carrying out their authorized functions, including but not limited to a request made in connection with hiring or retaining an employee, rendering advice requested by FDIC OIG, making a security clearance determination or adjudication, reporting an investigation of an employee, reporting an investigation of prohibited personnel practices, letting a contract or issuing a grant, license, or other benefit by the requesting agency, but only to the extent that the information disclosed is necessary and relevant to the requesting agency's decision on the matter;
(17) To appropriate Federal, State, and local authorities in connection with hiring or retaining an individual, conducting a background security or suitability investigation, adjudication of liability, or eligibility for a license, contract, grant, or other benefit;
(18) To appropriate Federal, State, and local authorities, agencies, arbitrators, and other parties responsible for processing any personnel actions or conducting administrative hearings or corrective actions or grievances or appeals, or if needed in the performance of other authorized duties;
(19) To officials of a labor organization when relevant and necessary to their duties of exclusive
(20) To a financial institution affected by enforcement activities or reported criminal activities authorities to ascertain the knowledge of or involvement in matters that have been developed during the course of the investigation;
(21) To the Internal Revenue Service and appropriate State and local taxing authorities for their use in enforcing the relevant revenue and taxation law and related official duties;
(22) To other Federal, State or foreign financial institutions, supervisory or regulatory authorities for their use in administering their official functions, to include examination, supervision, litigation, and resolution authorities with respect to financial institutions, receiverships, liquidations, conservatorships, bridge institutions, and similar functions;
(23) To appropriate Federal agencies and other public authorities for use in records management inspections;
(24) To a governmental, public or professional or self-regulatory licensing organization for use in licensing or related determinations when such record indicates, either by itself or in combination with other information, a violation or potential violation of professional standards, or reflects on the moral, educational, or professional qualifications of an individual who is licensed or who is seeking to become licensed;
(25) To the Department of the Treasury, federal debt collection centers, other appropriate federal agencies, and private collection contractors or other third parties authorized by law, for the purpose of collecting or assisting in the collection of delinquent debts owed to the FDIC or to obtain information in the course of an investigation (to the extent permitted by law). Disclosure of information contained in these records will be limited to the individual's name, Social Security number, and other information necessary to establish the identity of the individual, and the existence, validity, amount, status and history of the debt;
(26) To other Federal Offices of Inspector General or other entities for the purpose of conducting quality assessments or peer reviews of the FDIC OIG, or its investigative components, or for statistical purposes;
(27) To the news media and/or the public when such information has been publicly disclosed in court proceedings, subject to limitations imposed by law or court rule or order; and,
(28) To the news media and/or the public when the Inspector General determines that the community needs to be reassured that the appropriate law enforcement agency is investigating a matter, or where release of information is necessary to protect the public safety, and that disclosure would not constitute an unwarranted invasion of personal privacy.
Records are stored in electronic media and in paper format within individual file folders.
Records are indexed and may be retrieved by a variety of fields, including but not limited to, name of individual, unique investigation number assigned, referral number, social security number, or investigative subject matter.
Records are maintained as follows and then dispositioned in accordance with approved records retention schedules. Records regarding “significant” investigations (
FDIC and FDIC OIG have imposed strict controls to minimize the risk of compromising the information that is being stored. Access to the records in this system is limited to those individuals who have completed mandatory privacy and security training and have a need to know the information for the performance of their official duties. FDIC and FDIC OIG have also implemented policies and procedures to safeguard the records. This includes maintaining files in secured facilities and restricting access to records to individuals who have appropriate role based permissions.
Individuals wishing to request access to records about them in this system of records must submit their request in writing to the FDIC FOIA & Privacy Act Group, 550 17th Street NW, Washington, DC 20429, or email
Individuals wishing to contest or request an amendment to their records in this system of records must submit their request in writing to the FDIC FOIA & Privacy Act Group, 550 17th Street NW, Washington, DC 20429, or email
Individuals wishing to know whether this system contains information about them must submit their request in writing to the FDIC FOIA & Privacy Act Group, 550 17th Street NW, Washington, DC 20429, or email
This system of records, to the extent that it consists of information compiled for the purpose of criminal investigations, has been exempted from the requirements of subsections (c)(3) and (4); (d); (e)(1), (2) and (3); (e)(4)(G) and (H); (e)(5); (e)(8); (e)(12); (f); (g); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). In addition, this system of records, to the extent that it consists of investigatory material compiled: (A) for other law enforcement purposes (except where an individual has been denied any right, privilege, or benefit for which he or she would otherwise be entitled to or eligible for under Federal law, so long as the disclosure of such information would not reveal the identity of a source who furnished information to the FDIC under an express promise that his or her identity would be kept confidential); or
84 FR 35184 (July 22, 2019).
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington DC 20551-0001, not later than May 15, 2023.
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Additionally,
Board of Governors of the Federal Reserve System.
Financial Stability Oversight Council.
Proposed analytic framework; request for public comment.
The Financial Stability Oversight Council (Council) is proposing to adopt an analytic framework that describes the approach the Council expects to take in identifying, assessing, and responding to certain potential risks to U.S. financial stability.
You may submit comments by either of the following methods. All submissions must refer to the document title and RIN 4030-[XXXX].
All properly submitted comments will be available for inspection and downloading at
In general, comments received, including attachments and other supporting materials, are part of the public record and are available to the public. Do not submit any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.
Eric Froman, Office of the General Counsel, Treasury, at (202) 622-1942; Devin Mauney, Office of the General Counsel, Treasury, at (202) 622-2537; or Carol Rodrigues, Office of the General Counsel, Treasury, at (202) 622-6127.
Section 111 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) established the Financial Stability Oversight Council (Council), and section 112 sets forth its duties and purposes, which include identifying risks to U.S. financial stability and responding to emerging threats to the stability of the U.S. financial system.
The proposed Analytic Framework for Financial Stability Risk Identification, Assessment, and Response (Proposed Analytic Framework) describes the approach the Council expects to take in identifying, assessing, and responding to certain potential risks to U.S. financial stability. The Proposed Analytic Framework is not a binding rule,
The Council seeks public comment on any aspect of the Proposed Analytic Framework, including the following questions:
1. Will the Proposed Analytic Framework enable the Council to achieve its statutory purposes and perform its statutory duties? Should the Proposed Analytic Framework address additional topics? Are there topics the Proposed Analytic Framework addresses but should not?
2. The Proposed Analytic Framework states that financial stability can be defined as the financial system being resilient to events or conditions that could impair its ability to support economic activity, such as by intermediating financial transactions, facilitating payments, allocating resources, and managing risks. Are there other definitions of “financial stability” the Council should consider?
3. The Council's monitoring for potential risks to financial stability may cover an expansive range of asset classes, institutions, and activities, some of which are noted in the Proposed Analytic Framework. Are there asset classes, institutions, and activities not listed in the Proposed Analytic Framework the Council should monitor for potential risks to financial stability?
4. The Proposed Analytic Framework lists certain vulnerabilities that most commonly contribute to risk to financial stability: leverage; liquidity risk and maturity mismatch; interconnections; operational risks; complexity and opacity; inadequate risk management; concentration; and destabilizing activities. Are the Council's descriptions of these vulnerabilities appropriate? Should the Proposed Analytic Framework address additional vulnerabilities?
5. The Proposed Analytic Framework also provides sample metrics associated with the listed vulnerabilities. Are the proposed sample metrics appropriate for the purposes described in the Proposed Analytic Framework? Are there additional sample metrics that the Proposed Analytic Framework should incorporate?
6. The Council has identified four channels as most likely to facilitate the transmission of the negative effects of a risk to financial stability: exposures; asset liquidation; critical function or service; and contagion. Do the transmission channels listed in the Proposed Analytic Framework capture the most likely ways in which the negative effects of a risk to financial stability could be transmitted to other firms or markets? Should the Council consider additional transmission channels?
7. With respect to the vulnerabilities and transmission channels identified in the Proposed Analytic Framework, are there potential interactions between or among these vulnerabilities and transmission channels that the Proposed Analytic Framework should address?
The Council has numerous authorities and tools under the Dodd-Frank Act to carry out its statutory purposes.
Executive Orders 12866, 13563, and 14094 direct certain agencies to assess 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). Pursuant to section 3(f) of Executive Order 12866, the Office of Information and Regulatory Affairs within the Office of Management and Budget has determined that the Proposed Analytic Framework is not a “significant regulatory action.”
This document describes the approach the Financial Stability Oversight Council (Council) expects to take in identifying, assessing, and responding to certain potential risks to U.S. financial stability.
The Council's practices set forth in this document are among the methods the Council uses to satisfy its statutory purposes: (1) to identify risks to U.S. financial stability that could arise from the material financial distress or failure, or ongoing activities, of large, interconnected bank holding companies or nonbank financial companies, or that could arise outside the financial services marketplace; (2) to promote market discipline, by eliminating expectations on the part of shareholders, creditors, and counterparties of such companies that the government will shield them from losses in the event of failure; and (3) to respond to emerging threats to the stability of the U.S. financial system.
Financial stability can be defined as the financial system being resilient to events or conditions that could impair its ability to support economic activity, such as by intermediating financial transactions, facilitating payments, allocating resources, and managing risks. Adverse events, or shocks, can arise from within the financial system or from external sources. Vulnerabilities in the financial system can amplify the impact of a shock, potentially leading to substantial disruptions in the provision of financial services. The Council seeks
This document describes the Council's analytic framework for identifying, assessing, and responding to potential risks to financial stability. The Council seeks to reduce the risk of a shock arising from within the financial system, to improve resilience against shocks that could affect the financial system, and to mitigate financial vulnerabilities that may increase risks to financial stability. The actions the Council may take depend on the nature of the vulnerability; for example, vulnerabilities originating from activities that may be widely conducted in a particular sector or market over which a regulator has adequate existing authority may be addressed through an activity-based or industry-wide response; in contrast, in cases where the financial system relies on the ongoing financial activities of a small number of entities, such that the impairment of one of the entities could threaten financial stability, or where a particular financial company's material financial distress or activities could pose a threat to financial stability, an entity-based action may be appropriate. The Council's authorities, some of which are described in section II.c, are complementary, and the Council may select one or more of those authorities to address a particular risk.
Among the many lessons of financial crises are that risks to financial stability can be diverse and build up over time, dislocations in financial markets and failures of financial companies can be sudden and unpredictable, and regulatory gaps can breed risk. The Council was created in the aftermath of the 2007-2009 financial crisis and is statutorily responsible for identifying and pre-emptively acting to address potential risks to financial stability. Many of the same factors, such as leverage, liquidity risk, and operational risk, regularly recur in different forms and under different conditions to generate risks to financial stability. At the same time, the U.S. financial system is large, diverse, and continually evolving, so the Council's analytic methodologies adapt to address evolving developments and risks.
This document is not a binding rule, but is intended to help market participants, stakeholders, and other members of the public better understand how the Council expects to perform certain of its duties. The Council may consider factors relevant to the assessment of a potential risk or threat to U.S. financial stability on a case-by-case basis, subject to applicable statutory requirements. The Council's annual reports describe the Council's work in implementing its responsibilities.
To enable the Council to identify potential risks to U.S. financial stability, the Council, in consultation with relevant U.S. and foreign financial regulatory agencies, monitors financial markets, entities, and market developments to identify potential risks to U.S. financial stability.
In light of the Council's broad statutory mandate, the Council's monitoring for potential risks to financial stability may cover an expansive range of asset classes, institutions, and activities, such as:
• markets for debt, loans, short-term funds, equity securities, commodities, digital assets, derivatives, and other institutional and consumer financial products and services;
• central counterparties and payment, clearing, and settlement activities;
• financial entities, including banking organizations, broker-dealers, asset managers, investment companies, insurance companies, mortgage originators and servicers, and specialty finance companies;
• new or evolving financial products and practices; and
• developments affecting the resiliency of the financial system, such as cybersecurity and climate-related financial risks.
Sectors and activities that may impact U.S. financial stability are often described in the Council's annual reports. The Council reviews information such as historical data, research regarding the behavior of financial markets and financial market participants, and new developments that arise in evolving marketplaces. The Council relies on data, research, and analysis including information from Council member agencies, the Office of Financial Research, primary financial regulatory agencies, industry participants, and other sources.
The Council works with relevant financial regulatory agencies
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The vulnerabilities and metrics listed above identify risks that may arise from broadly conducted activities or from a small number of entities; they do not dictate the use of a specific authority by the Council. Risks to financial stability can arise from widely conducted activities or from a smaller number of entities, and the Council's evaluations and actions will depend on the nature of a vulnerability. While risks from individual entities may be assessed using these types of metrics, the Council also evaluates broader risks, such as by calculating these metrics on an aggregate basis within a particular financial sector. For example, in some cases, risks arising from widespread and substantial leverage in a particular market may be evaluated or addressed on a sector-wide basis, while in other cases risks from a single company whose leverage is outsized relative to other firms in its market may be considered for an entity-specific response.
In addition, in most cases the identification and assessment of a potential risk to financial stability involves consideration of multiple quantitative metrics and qualitative factors. Therefore, the Council uses metrics such as those cited above individually and in combination, as well as other factors, as appropriate, in its analyses.
The Council considers how the adverse effects of potential risks could be transmitted to financial markets or market participants and what impact the potential risk could have on the financial system. Such a transmission of risk can occur through various mechanisms, or channels. The Council has identified four transmission channels that are most likely to facilitate the transmission of the negative effects of a risk to financial stability. These transmission channels, which are non-exhaustive, are:
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The presence of any of the vulnerabilities listed above may increase the potential for risks to be transmitted to financial markets or market participants through these or other transmission channels. The Council may consider these vulnerabilities and transmission channels, as well as others that may be relevant, in identifying financial markets, activities, and nonbank financial companies that could pose risks to U.S. financial stability.
The Council may assess risks as they could arise in the context of a period of overall stress in the financial services industry and in a weak macroeconomic environment, with market developments such as increased counterparty defaults, decreased funding availability, and decreased asset prices, because in such a context, the risks may have a greater effect on U.S. financial stability.
The Council's work often includes efforts such as sharing data, research, and analysis among Council members and member agencies and their staffs; consulting with regulators and other experts regarding the scope of potential risks and factors that may mitigate those risks; and collaboratively developing analyses for consideration by the Council. As part of this work, the Council may also engage with market participants and other members of the public as it assesses potential risks. In its evaluations, the Council takes into account existing laws and regulations that have mitigated a potential risk to U.S. financial stability. The Council also takes into account the risk profiles and business models of market participants. Empirical data may not be available regarding all potential risks. The type and scope of the Council's analysis will be based on the potential risk under consideration. In many cases, the Council provides information regarding its work in its annual reports.
In light of the varying sources of risk described above (such as activities, entities, exogenous circumstances, and existing or emerging practices or conditions), the Council may take different approaches to respond to a risk, and may use multiple tools to mitigate a risk. These approaches may include acting to reduce the risk of a shock arising from within the financial system, to mitigate financial vulnerabilities that may increase risks to financial stability, or to improve the resilience of the financial system to shocks. The actions the Council takes may depend on the circumstances. When a potential risk to financial stability is identified, the Council's Deputies Committee will generally direct one or more of the Council's staff-level committees or working groups to consider potential policy approaches or actions the Council could take to assess and address the risk. Those committees and working groups may consider the utility of any of the Council's authorities to respond to risks to U.S. financial stability, including but not limited to those described below.
Office of Government-wide Policy, General Services Administration (GSA).
Meeting notice.
In accordance with the requirements of the Federal Advisory Committee Act, this notice provides the agenda for an in-person and Web-based (hybrid) meeting of the Green Building Advisory Committee (the Committee) and a series of Web-based meetings of the Committee's new Green Leasing Task Group (the Task Group). The in-person meeting is open to the public and the site is accessible to individuals with disabilities. All meetings are open for the public to observe; online attendees are required, and in-person attendees are encouraged to register in advance to attend as instructed below.
The Committee's hybrid meeting will be held Wednesday, May 10, 2023, online and in-person from 10:00 a.m.-12:30 p.m., Central Time (11:00 a.m.-1:30 p.m., Eastern Time) at the Minneapolis Marriott City Center, 30 South 7th Street Minneapolis, Minnesota, USA, 55402. In addition, the Committee's Green Leasing Task Group will hold a series of Web-based meetings on alternate Thursdays from May 18, 2023, through December 14, 2023, from 3:00 p.m. to 4:00 p.m., Eastern Time (ET).
Dr. Ken Sandler, Designated Federal Officer, Office of Federal High-Performance Green Buildings, Office of Government-wide Policy, GSA, 1800 F Street NW, (Mail-code: MG), Washington, DC 20405, at 202-219-1121, or at
To obtain information on observing any or all of these meetings, please follow the instructions on the Committee website at:
Requests to observe the full series of Task Group meetings must be received by 5:00 p.m. ET, on Monday, May 15, 2023. After that time, requests to observe ongoing Task Group meetings must be received by 5:00 p.m. ET on the Monday before the meeting in question. Since Task Group meetings are conducted as a series, it will be most useful to observe all or most of them from the start.
For all online meetings, Web meeting attendance information will be provided following registration. Time will be provided at all meetings for public comment wherever possible.
GSA will be unable to provide technical assistance to any listener experiencing technical difficulties. Testing access to the Web meeting site before the calls is recommended. To request an accommodation, such as closed captioning, or to ask about accessibility, please contact Dr. Sandler at
The Administrator of GSA established the Committee on June 20, 2011 (
The Green Leasing Task Group will explore and recommend approaches to help GSA meet federal requirements for net zero greenhouse gas emissions in its leasing of space in privately-owned commercial buildings for federal use.
The purpose of these Web-based meetings is for the Task Group to develop consensus recommendations for submission to the full Committee. The Committee will, in turn, deliberate on the Task Group recommendations and decide whether to proceed with formal advice to GSA based upon them.
Centers for Medicare & Medicaid Services, Health and Human Services (HHS).
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by May 30, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, please access the CMS PRA website by copying and pasting the following web address into your web browser:
William Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
Specifically, the MMA under Sec. 1860D-4 (Information to Facilitate Enrollment) requires CMS to conduct consumer satisfaction surveys regarding the PDP and MA contracts pursuant to section 1860D-4(d). Plan disenrollment is generally believed to be a broad indicator of beneficiary dissatisfaction with some aspect of plan services, such as access to care, customer service, cost of the plan, services, benefits provided, or quality of care.
The information generated from the disenrollment survey supports CMS' ongoing efforts to assess plan performance and provide oversight to the functioning of Medicare Advantage (Part C) and PDP (Part D) plans, which provide health care services to millions of Medicare beneficiaries (
Beneficiary experiences of care (as measured in the MCAHPS survey) and dissatisfaction (as measured in the disenrollment survey) with plan performance are both important sources of information for plan monitoring and oversight. The disenrollment survey assesses different aspects of dissatisfaction (
2.
CMS requires MA organization and Part D sponsors to submit marketing materials to CMS for review prior to the MA organization or sponsor distributing those materials to the public. In section 1851(h), paragraphs (1), (2), and (3) establish this requirement for MA organizations. Section 1860D-1(b)(1)(B)(vi) directs Part D sponsors to follow the same requirements in section 1851(h) that MA organizations must follow for this purpose.
3.
4.
FASI is based on a subset of the July 27, 2007 (72 FR 144) Continuity Assessment Record and Evaluation (CARE) items which are now included in post-acute setting Federal assessment forms for nursing facilities—Resident Assessment Instrument (RAI) Minimum Data Set (MDS), Inpatient Rehabilitation Facilities Patient Assessment Instrument (IRF-PAI), and Long Term Care Hospitals Continuity Assessment Record & Evaluation (CARE) Data Set (LCDS) to measure function in a standardized way. The FASI items include the standardized mobility and self-care items included in the MDS, IRF-PAI, and, LCDS as well as some additional mobility items appropriate to measuring independence in the community and personal preferences or goals items related to function. Also included are certain instrumental activities of daily living and some modified caregiver assistance items from the Home Health Outcome and Assessment Information Set (OASIS) tool. A few additional items to describe the populations' age, gender, and geographic area of residence are also included. Use of the same items to measure functional status in nursing facilities and community-based programs will help states report on their rebalancing efforts. Also, because these items will have electronic specifications developed by CMS, they can assist state efforts to develop exchangeable electronic data to follow the person across services and estimate total costs as well as measure functional status across time. The complete FASI set is included in this information collection request.
Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services.
Request for public comments.
The Office of Child Support Enforcement (OCSE), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS), is requesting a 3-year extension of the forms OCSE-21-U4: Transmittal and Notice of Approval of State Plan Material for: Title IV-D of the Social Security Act, and OCSE-100: State Plan (Office of Management and Budget (OMB) #0970-0017, expiration July 31, 2023). No changes are proposed.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Office of Child Support Enforcement, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comment.
The Office of Child Support Enforcement (OCSE), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS), is proposing to renew the collection of expenditure estimate forms for the tribal child support enforcement program through an optional financial reporting form, Tribal Budget and Narrative Justification Template (Office of Management and Budget (OMB) #: 0970-0548; expiration date June 30, 2023). No changes are proposed.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Office of Refugee Resettlement, Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Office of Refugee Resettlement (ORR), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS), is inviting public comments on the proposed information collection. This request is to extend approval of all forms currently approved under OMB #: 0970-0554. This includes two forms that were recently approved through emergency approval in October 2022. These forms expand specific
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
ORR added a new instrument titled Notice of Administrative Review (Form P-18) that serves as written notice of receipt of a Placement Review Panel request and provides the UC with information on next steps to take when requesting a review and reconsideration of the UC's placement in a restrictive setting. The notice also requests that the UC and/or their representative provide a written statement and decision on whether they are requesting a hearing. If a hearing is requested, the UC and/or their representative are also asked to provide:
• The name, email address, and telephone number for the UC's attorney or child advocate.
• The UC's preferred language.
• Whether the UC will need an interpreter (of if the UC's representative will provide an interpreter).
• The names and email addresses for the witnesses the UC or their representative plan to call at the hearing.
• Whether the UC has any special needs.
Additionally, ORR made the below-listed revisions to the Notice of Placement in a Restrictive Setting (Form P-4). Many of the new fields in this form are also contained in the 30-Day Restrictive Placement Case Review (Form S-16), which is approved under OMB #0970-0553. The below revisions effectively merge Forms P-4 and S-16 into one form. ORR plans to submit a nonsubstantive change request to discontinue Form S-16 soon.
• Reorganized the form into six main sections—UC Information, ORR's Determinations Related to Safety, Reasons for Restrictive Placement, Summary of Supporting Evidence for Restrictive Placement, Your Rights to Challenge Your Placement, and UC's Acknowledgement of Receipt.
• Added the following fields under the UC Information section:
○ Preferred Language.
○ Out-of-Network Facility Name.
○ If applicable, explain the reasons that the UC is placed in an out-of-network facility.
○ Date of Placement at Current Restrictive Facility.
○ Date of Initial Notice of Placement.
○ Date Next Notice of Placement is Due (within 30 days).
• Created the ORR's Determinations Related to Safety section and added the following checkboxes:
○ UC presents a danger to self or community.
○ UC poses a risk of escape.
• Revised the Reasons for Restrictive Placement section as follows:
○ Under Secure Facility:
Removed checkbox “Have committed, threatened to commit, or engaged in serious, self-harming behavior that poses a danger to self while in ORR custody.”
Revised the checkbox “Have a history of or display sexual predatory behavior, or have inappropriate sexual behavior.” to instead read “Have committed sexual abuse, where there is coercion by overt or implied threats of violence against another person and/or there is an immediate danger to others.”
Added checkbox “Are pending transfer of discharge/release to:”
○ Under Residential Treatment Center:
Added checkbox “Are pending transfer of discharge/release to:”
○ Under Staff Secure Facility:
Replaced checkbox “Could be stepped down from a secure facility” with “Are pending transfer of discharge/release to:”
• Under Summary of Supporting Evidence for Restrictive Placement:
○ Split text box into three separate text boxes, one each for the case manager, case coordinator, and federal field specialist.
○ Added fields for case manager, case coordinator, and federal field specialist names and their overall recommendations.
• Added additional information on how a UC may request to change their placement in a restrictive setting under the Your Rights to Challenge Your Placement section.
• Added a field for the name and title of the care provider/issuing official.
• Added fields for the language used to explain the form to the UC, the name of the person who explained the form, and their interpreter ID#, if applicable.
ORR is proposing the following additional revision to the Notice of Placement in a Restrictive Setting (Form P-4):
• Replace the abbreviation UC with “unaccompanied child” or “child” throughout the form.
• Under Section C, rephrase instructions to read “Check all reasons that apply for the current placement recommendation only” (instead of “For each type of placement, check all reasons that apply for that placement only”).
• Under Section D, remove phrase “specific incidents related to” from “Provide a detailed summary of specific incidents related to the reason(s) for restrictive placement you selected above” to avoid any accidental conflation with Significant Incident Report (SIR) forms.
• Under Section E, clarify that the right to consult an attorney is at no cost to the federal government, as stated in the
• Under Section F, clarify that there is no positive or negative inference from a child's decision not to sign the form.
ORR is proposing the following revisions to its Long-Term Foster Care Placement Memo (Form P-5):
• Change the title to “Community-Based Care Placement Memo” and update the term “long-term foster care” to “community-based care” throughout the memo. This term is more in line with terminology currently used in domestic child welfare programs and will be inclusive of ORR long-term foster care and transitional foster care programs.
• Increase the number of respondents and number of responses per
• Update instructions on which fields are completed for initial placements and which are completed for transfers within the community-based care program.
• Added citation to related policies in the instructions.
• Reword some fields and instructions for clarity.
• Add field to capture the facility name for children placed in an out-of-network community-based care program.
• Separate fields that capture contact information for the foster family or group home into separate subsections and expand the fields to capture additional contact information (
For information about all currently approved forms under this OMB number, see:
These burden estimates include burden related to the revisions described above and currently approved forms for which we are not proposing any changes.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by May 30, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
PRA Staff, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-7726,
In compliance with 44 U.S.C. 3507, FDA
Section 1701(a)(4) of the Public Health Service Act (42 U.S.C. 300u(a)(4)) authorizes FDA to conduct research relating to health information. Section 1003(d)(2)(C) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 393(d)(2)(C)) authorizes FDA to conduct research relating to drugs and other FDA-regulated products in carrying out the provisions of the FD&C Act.
The mission of the Office of Prescription Drug Promotion (OPDP) is to protect the public health by helping to ensure that prescription drug promotional material is truthful, balanced, and accurately communicated. OPDP's research program provides scientific evidence to help ensure that our policies related to prescription drug promotion will have the greatest benefit to public health. Toward that end, we have consistently conducted research to evaluate the aspects of prescription drug promotion that are most central to our mission, focusing in particular on three main topic areas: advertising features, including content and format; target populations; and research quality. Through the evaluation of advertising features, we assess how elements such as graphics, format, and the characteristics of the disease and product impact the communication and understanding of prescription drug risks and benefits. Focusing on target populations allows us to evaluate how understanding of prescription drug risks and benefits may vary as a function of audience, and our focus on research quality aims at maximizing the quality of research data through analytical methodology development and investigation of sampling and response issues. This study will inform the first topic area, advertising features.
Because we recognize that the strength of data and the confidence in the robust nature of the findings are improved through the results of multiple converging studies, we continue to develop evidence to inform our thinking. We evaluate the results from our studies within the broader context of research and findings from other sources, and this larger body of knowledge collectively informs our policies as well as our research program. Our research is documented on our home page at
The objective of the present research is to conduct experimental studies to examine issues related to endorsers in direct-to-consumer (DTC) prescription drug promotion. This study complements one that has recently been completed (FDA-2019-N-5900, OMB control number 0910-0894, Expiration Date: March 31, 2023). As that study examined a number of different endorser types in print or internet settings and focused on examining how various disclosures of the payment status of the endorser influenced audience reactions, this proposed research extends the prior research by examining actual-use disclosures and a different medium, television ads. Prior research has shown that endorsements by expert physicians and pharmacists were the most likely to lead to purchase intentions, followed by endorsements by consumers, and lastly, by celebrities (Refs. 1 and 2).
For healthcare providers (HCPs) endorsing a prescription drug product, guiding industry principles advise that advertisements should contain a disclosure that the HCP has been compensated for the endorsement (Ref. 3). Industry guiding principles further recommend that an advertisement disclose when an actor is being used as an HCP to promote DTC prescription drugs.
Pharmaceutical firms also often use everyday people, either actual patients or actors portraying patients, in DTC promotion, relying on qualities of identification with the individual endorsing the product and perceived credibility (Ref. 4). While industry guidelines recommend that companies choosing to feature actors in the roles of HCPs in a DTC television or print ad acknowledge in the ad that actors are being used, the guidelines do not mention disclosures that the “patient” in an ad is being portrayed by an actor (Ref. 3). Some advertisers endeavor to gain credibility among viewers by using actual patients to endorse the product, with a disclosure that states they are actual users of the product (“actual-use disclosure”) (Ref. 5).
The present research will specifically examine the influence of two independent variables—endorser type (patient, physician) and an actual-use disclosure (utilizer, actor, none)—in television advertisements. Dependent variables will include perceptions of the risks and benefits of the promoted prescription drug, attitudes toward and perceptions of the endorser, attention paid to the ad, and behavioral intentions. Because age and education level may affect perceptions of the ad, we plan to explore whether age and education level influence these effects.
This research will involve two studies. Studies 1 and 2 will use a 2 × 3 factorial design run concurrently and independently with a sample of consumers who have been diagnosed with diabetes (Study 1) or rheumatoid arthritis (Study 2), each watching a DTC television ad for a fictitious drug indicated to treat the corresponding medical conditions. The ad will be manipulated to assess the impact of two categories of commonly used industry spokespeople: a patient and a physician. We will test three actual-use disclosure conditions: (1) an actual-use disclosure that indicates that the endorser either uses or prescribes the prescription drug in real life (
In both studies, participants will be randomly assigned to one of six experimental conditions (see table 1), view their assigned stimulus, complete a survey, and provide feedback on one of the other ad versions. We will conduct pretests with 126 consumers who self-identify as having been diagnosed with diabetes and 126 consumers who self-identify as having been diagnosed with rheumatoid arthritis, recruited from a web-based research vendor. For the main study, we will then recruit 648 consumers who self-identify as having been diagnosed with diabetes and 648 consumers who self-identify as having been diagnosed with rheumatoid arthritis. Each participant will see one of six versions of a television ad for a fictitious prescription diabetes or rheumatoid arthritis treatment, as reflected in table 1. They will answer a questionnaire designed to take no more than 20 minutes.
In the
FDA estimates the burden of this collection of information as follows:
The following references marked with an asterisk (*) are on display at the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852 and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they also are available electronically at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by May 30, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports statutory and regulatory requirements governing reporting associated with certain animal drug products. With regard to adverse events and product/manufacturing defects associated with approved new animal drugs, section 512(l) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(l)) requires applicants with approved new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) to establish and maintain records and reports of data relating to experience with uses of such drug, or with respect to animal feeds bearing or containing such drug, to facilitate a determination under section 512(e) as to whether there may be grounds for suspending or withdrawing approval of the NADA or ANADA under section 512(e) or 512(m)(4).
In 2020, FDA amended § 514.80 (21 CFR 514.80) to require electronic submission of certain postmarketing safety reports for approved new animal drugs and to provide a procedure for requesting a temporary waiver of the requirement. We, therefore, retain use of certain paper-based forms. Section 514.80 requires applicants and nonapplicants to keep records of and report to us data, studies, and other information concerning experience with new animal drugs for each approved NADA and ANADA. Following complaints from animal owners or veterinarians, or following their own detection of a problem, applicants or nonapplicants are required to submit adverse event reports and product/manufacturing defect reports under § 514.80(b)(1), (b)(2)(i) and (ii), (b)(3), and (b)(4)(iv)(A) and (C) on Form FDA 1932.
The information collection includes electronic submission of adverse event reports and product/manufacturing defect reports under § 514.80(b)(1), (b)(2)(i) and (ii), (b)(3), and (b)(4)(iv)(A) and (C) using Form FDA 1932. The information collection also includes submissions under § 514.80(d)(2), by an applicant or nonapplicant requesting, in writing, a temporary waiver of the electronic submission requirements. The initial request may be by telephone or email to the Center for Veterinary Medicine's Division of Pharmacovigilance and Surveillance, with prompt written followup submitted as a letter to the application(s). FDA will grant waivers on a limited basis for good cause shown. If FDA grants a waiver, the applicant or nonapplicant must comply with the conditions for reporting specified by FDA upon granting the waiver.
In the
FDA estimates the burden of this collection of information as follows:
Upon review of the information collection, we have adjusted our estimated burden to reflect an overall increase of 136,029.75 hours and 1,677,019 responses/records, annually.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Submit written comments (including recommendations) on the collection of information by May 30, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Rachel Showalter, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 240-994-7399,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports the FDA's Animal Food (formerly Feed) Regulatory Program Standards (AFRPS) and Egg Regulatory Program Standards (ERPS). In the United States, Federal and State government agencies ensure the safety of human and animal food. FDA is responsible for ensuring that all human and animal food moving in interstate commerce, except those under the U.S. Department of Agriculture jurisdiction, are safe, wholesome, and labeled properly. States are responsible for conducting inspections and regulatory activities that help ensure human and animal food produced, processed, and distributed within their jurisdictions are safe and in compliance with State laws and regulations. States primarily perform inspections under their own regulatory authority. Some States conduct inspections of human and animal food facilities under contract with FDA. Because jurisdictions may overlap, FDA and States collaborate and share resources to protect human and animal food.
The FDA Food Safety Modernization Act calls for enhanced partnerships and provides a legal mandate for developing an Integrated Food Safety System (IFSS). FDA is committed to implementing an IFSS thereby optimizing coordination of human and animal food safety efforts with Federal, State, local, tribal, and territorial regulatory and public health agencies. Model standards provide a consistent, underlying foundation that is critical for uniformity across State and Federal agencies to ensure credibility of human and animal food programs within the IFSS. The AFRPS and ERPS provide a uniform and consistent approach to animal food and egg regulation in the United States. Implementation is voluntary.
The AFRPS and ERPS are the frameworks that each State should use to design, manage, and improve its animal food or egg regulatory program. Each standard has a purpose statement, requirement summary, description of program elements, projected outcomes, and a list of required documentation. When a state program voluntarily agrees to implement the standards, it must fully implement and maintain the individual program elements and documentation requirements in each standard in order to fully implement the standard. We invite you to visit our website (
Both the AFRPS and ERPS packages include forms, worksheets, and templates to help the State program assess and meet the program elements in the standard. State programs are not obligated to use the forms, worksheets, and templates. Other manual or automated forms, worksheets, and templates may be used as long as the pertinent data elements are present. States submit the information collected annually via email to the appropriate FDA program manager. Records and other documents specified in the AFRPS and ERPS must be maintained in good order by the state program and must be available to verify the implementation of each standard.
As set forth in the AFRPS and ERPS, the state program is expected to review and update its improvement plan on an annual basis. The state program completes an evaluation of its
In collaboration with the State Governments, FDA recently completed a revision of the animal food program standards that incorporated the most current knowledge and lessons learned in the application of the 2020 AFRPS by State partners and program assessment by FDA. In an effort to improve program effectiveness, understanding and clarity, changes to the AFRPS include those to program definitions, all 11 program standards, appendices, and assessment worksheets that may be used by the States who have adopted the AFRPS. Such changes include updates to terminology, most notably replacing the term “animal feed” with “animal food,” consistent with the terminology of the FDA Food Safety Modernization Act, and minor editorial changes. Other changes include streamlining both the standards and appendices to be less prescriptive in nature and focus more on capturing information needs. This process results in an overall reduction of 11 appendices (most of which provided more program specific guidance or examples and therefore are not expected to change the burden) and a reformatting of the remaining appendices to be more uniform, succinct, and tabular in structure. The revised program standards are the result of external collaboration and coordination between FDA, the Association of American Feed Control Officials and state governments in which we consider any formal comments received on the 2020 edition of the program standards.
In the
One comment addressed public access to government data and the Federal policy development process, among other topics, all of which we consider to be outside the scope of this information collection. Respondents to this information collection maintain records and provide procedures and other documentation to demonstrate a standardized animal feed regulatory program. Another comment questioned the practical utility of the AFRPS, suggesting that FDA should implement “a program that encourages uniform enforcement of laws/regulations across all 50 States.” We believe the AFRPS is the best way to achieve that goal.
We estimate the burden of this collection of information as follows:
No change in burden is expected to be incurred with the implementation of the revised AFRPS. However, based on a review of the information collection since our last submission, the estimated burden for the information collection reflects an overall adjustment increase of 188 responses and a corresponding increase of 2,817 burden hours. We
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) is announcing that a temporary permit has been issued to Bongards Creameries (the applicant) to market test several pasteurized standardized cheeses that deviate from the standards of identity for cheese products. The temporary permit will allow the applicant to evaluate commercial viability of the products and to collect data on consumer acceptance of the products.
This permit is effective for 15 months, beginning on the date the applicant introduces or causes introduction of the test products into interstate commerce, but not later than July 27, 2023.
Marjan Morravej, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5001 Campus Drive, College Park, MD 20740, 240-402-2371.
We are giving notice that we have issued a temporary permit to Bongards Creameries. We are issuing the temporary permit in accordance with 21 CFR 130.17, which addresses temporary permits for interstate shipments of experimental packs of food varying from the requirements of standards of identity issued under section 401 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 341).
The permit covers interstate marketing test of several pasteurized standardized cheeses. The test products deviate from the standards of identity for cheese products under 21 CFR 133.167, 133.169, 133.170, 133.171, 133.173, 133.174, 133.175, 133.179, and 133.180. The permit would allow the manufacture of cheese products using extra virgin olive oil, which is not permitted under the standards of identity for these cheese products, as the slice anti-sticking agent. Consumers can distinguish this deviation in manufacturing from standardized cheese through the ingredient list, wherein the “olive oil” ingredient would be declared as such according to its common or usual name followed by a means (
The purpose of the temporary permit is to allow the applicant to market test the products throughout the United States. The permit will allow the applicant to evaluate commercial viability of the products and to collect data on consumer acceptance of the products.
The permit provides for the temporary marketing of a maximum of 20 million pounds (9.09 million kilograms) of the test products. Bongards Creameries will manufacture the test products at its facilities located at 13200 County Rd. 51, Bongards, MN 55368, and 3001 Hwy. 45 Bypass W, Humboldt, TN 38343.
Bongards Creameries will produce, market test, and distribute the test products in any combination of cheese slices including Pasteurized Process American, Cheddar, Pepper Jack, Swiss, Mozzarella, and Provolone, throughout the United States.
Each ingredient used in the food must be declared on the labels as required by 21 CFR part 101. The permit is effective for 15 months, beginning on the date the applicant introduces or causes the introduction of the test products into interstate commerce, but not later than July 27, 2023.
Administration for Strategic Preparedness and Response (ASPR), Department of Health and Human Services (HHS).
Notice.
The National Advisory Committee on Seniors and Disasters (NACSD or the Committee) is required by section 2811B of the PHS Act as amended by the Pandemic and All Hazards Preparedness and Advancing Innovation Act (PAHPAIA) and governed by the provisions of the Federal Advisory Committee Act (FACA). The NACSD shall evaluate issues and programs and provide findings, advice, and recommendations to the Secretary of HHS and ASPR to support and enhance all-hazards public health and medical preparedness, response, and recovery aimed at meeting the needs of older adults. The Secretary of HHS has delegated authority to operate the NACSD to ASPR.
The NACSD will conduct a public meeting (virtual) on May 25, 2023, to discuss, finalize, and vote on an initial set of recommendations to the HHS Secretary and ASPR regarding challenges, opportunities, and priorities for national public health and medical preparedness, response, and recovery, specific to the needs of older adults in disasters. A more detailed agenda and meeting registration link will be available on the NACSD meeting website located at:
Members of the public may attend the meeting via a toll-free phone number or Zoom teleconference, which requires pre-registration. The meeting link to pre-register will be posted on
Dr. Maxine Kellman, NACSD Designated Federal Officer, Administration for Strategic Preparedness and Response (ASPR), Department of Health and Human Services (HHS), Washington, DC; 202-260-0447,
The NACSD invites those who are involved in or represent a relevant industry,
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Coast Guard, DHS.
Thirty-Day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0069, Ballast Water Management for Vessels with Ballast Tanks Entering U.S. Waters; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before May 30, 2023.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) the practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2023-0093], and must be received by May 30, 2023.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (88 FR 7100, February 2, 2023) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
Coast Guard, DHS.
Thirty-Day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995 the U.S. Coast Guard is forwarding an Information Collection Request (ICR), abstracted below, to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting an extension of its approval for the following collection of information: 1625-0041, Various International Agreement Pollution Prevention Certificates and Documents, and Equivalency Certificates; without change. Our ICR describes the information we seek to collect from the public. Review and comments by OIRA ensure we only impose paperwork burdens commensurate with our performance of duties.
You may submit comments to the Coast Guard and OIRA on or before May 30, 2023.
Comments to the Coast Guard should be submitted using the Federal eRulemaking Portal at
Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function.
A copy of the ICR is available through the docket on the internet at
A.L. Craig, Office of Privacy Management, telephone 202-475-3528, or fax 202-372-8405, for questions on these documents.
This notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. 3501
The Coast Guard invites comments on whether this ICR should be granted based on the Collection being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) the practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. These comments will help OIRA determine whether to approve the ICR referred to in this Notice.
We encourage you to respond to this request by submitting comments and related materials. Comments to Coast Guard or OIRA must contain the OMB Control Number of the ICR. They must also contain the docket number of this request, [USCG-2023-0094], and must be received by May 30, 2023.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments to the Coast Guard will be posted without change to
This request provides a 30-day comment period required by OIRA. The Coast Guard published the 60-day notice (88 FR 6291, January 31, 2023) required by 44 U.S.C. 3506(c)(2). That notice elicited no comments. Accordingly, no changes have been made to the Collection.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
30-Day notice and request for comments; revision of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). The information collection is published in the
Comments are encouraged and must be submitted (no later than May 30, 2023) to be assured of consideration.
Written comments and/or suggestions regarding the item(s) contained in this notice should be sent within 30 days of publication of this notice to
Requests for additional PRA information should be directed to Seth Renkema, Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, Office of Trade, Regulations and Rulings, 90 K Street NE, 10th Floor, Washington, DC 20229-1177, Telephone number 202-325-0056 or via email
CBP invites the general public and other Federal agencies to comment on the proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The purpose of all of these programs is to provide prescreened travelers dedicated processing into the United States. The benefit to the traveler is less time spent in line waiting to be processed. These Trusted Traveler programs are provided for in 8 CFR 235.7 and 235.12.
This information collection also includes the U.S. APEC Business Travel Card (ABTC) Program, which is a voluntary program that allows U.S. citizens to use fast-track immigration lanes at airports in the 20 other Asia-Pacific Economic Cooperation (APEC) member countries. This program is mandated by the Asia-Pacific Economic Cooperation Business Travel Cards Act of 2011, Public Law 112-54 and provided for by 8 CFR 235.13.
These collections of information include the data collected on the applications and kiosks for these programs. Applicants may apply to participate in these programs by using the Trusted Traveler Program Systems website (TTP) at
After arriving at the Federal Inspection Services area of the airport, participants in Global Entry can undergo a self-serve inspection process using a Global Entry kiosk, which are being transitioned to Global Entry (GE) Portals. During the self-service inspection, participants have their photograph and fingerprints taken, submit identifying information, and answer several questions about items they are bringing into the United States. When using the Global Entry kiosks, participants are required to declare all articles being brought into the United States pursuant to 19 CFR 148.11.
CBP will be updating the Trusted Travel Programs to align with the U.S. Department of State's Passport Options: CBP will modify the Trusted Traveler Program application by adding a third gender marker, “X” for applicants identifying as non-binary, intersex, and/or gender non-conforming (in addition to the existing “male and “female” gender markers). The “X” marker will be categorized as “Unspecified or Another Gender Identity”, in the document sections of the electronic Trusted Traveler Programs application.
In addition, coinciding with agency wide efforts to reduce burden on the public, CBP's new Global Entry (GE) Portals are replacing legacy kiosks, enabling quicker, touchless processing for participants by the end of FY 23.
Notice.
This notice announces that the Secretary of Homeland Security has authorized a change to the Parole Process for Haitians that the U.S. Department of Homeland Security (DHS) described in a
DHS will begin applying this amendment April 29, 2023.
Daniel Delgado, Acting Director, Border and Immigration Policy, Office of Strategy, Policy, and Plans, Department of Homeland Security, 2707 Martin Luther King Jr. Ave. SE, Washington, DC 20528-0445; telephone (202) 447-3459 (not a toll-free number).
On January 9, 2023, DHS published a notice titled
As described in the January 2023 notice, to be eligible, individuals must: (1) have a supporter in the United States who agrees to provide financial support for the duration of the beneficiary's parole period; (2) pass national security and public safety vetting; (3) fly at their own expense to an interior POE, rather than entering at a land POE; and (4) possess a valid, unexpired passport. Individuals are ineligible for this process if they have been ordered removed from the United States within the prior five years; have entered unauthorized into Mexico or Panama after January 9, 2023 (the date of the notice's publication); have entered unauthorized into the United States between POEs after January 9, 2023 (except for individuals permitted a single instance of voluntary departure or withdrawal of their application for admission to still maintain their eligibility for this process); or are otherwise deemed not to merit a favorable exercise of discretion.
The parole process for Haitians is intended to enhance border security by responding to and protecting against a significant increase of irregular migration by Haitians to the United States via dangerous routes that pose serious risks to migrants' lives and safety, while also providing a process for certain such nationals to lawfully enter the United States in a safe and orderly manner.
In response to the increasing number of Haitians traveling to the United States by sea without authorization through January 2023, and likelihood of another record level of interdictions this fiscal year (FY), DHS is announcing an amendment to the eligibility criteria announced in the January 9, 2023 notice
Parole processes established for nationals of Cuba, Haiti, Nicaragua, and Venezuela (CHNV) and their immediate family members have significantly reduced SWB encounters. Following the announcement of the CHNV parole processes, DHS has seen a drastic decrease in the number of Cubans, Haitians, Nicaraguans, and Venezuelans encountered at the SWB. In fact, DHS encountered 128,410 noncitizens who entered between POEs along the SWB in January 2023, which is the lowest monthly SWB encounters total since February 2021.
While DHS continues to see a meaningful reduction in encounters of CHNV nationals across the SWB following the announcement of the CHNV parole processes, maritime interdictions of Cuban and Haitian nationals in the Caribbean have increased in recent FYs and persist at high levels. Total interdictions at sea increased by 502 percent between FY 2020 (2,079) and FY 2022 (12,521). Interdictions continued to rise in FY 2023 with 7,402 through January, almost 60 percent of the total in FY 2022 within four months. Maritime migration from Haiti more than tripled in FY 2022, with a total of 4,025 Haitian nationals interdicted at sea compared to 1,205 in FY 2021 and 398 in FY 2020. In the first four months of FY 2023, Haitian interdictions are almost 50 percent of the Haitian FY 2022 total, comprising a
U.S. Border Patrol (USBP) apprehensions of Haitian nationals in southeast coastal sectors
The U.S. Coast Guard (USCG) has been challenged with several large group interdictions of Haitians in recent months. In one instance on January 22, 2023, the USCG encountered a sail freighter suspected of illegally transporting migrants with nearly 400 Haitians aboard, necessitating repatriations of eligible individuals back to the Bahamas.
While interdictions in February 2023 did ebb from the January peak so far this FY, the reduction to a combined 601 Haitian Coast Guard interdictions and USBP coastal apprehensions was not the same reduction in flows DHS observed along the SWB.
Human smugglers and irregular migrant populations continue to use unseaworthy, overly crowded vessels, piloted by inexperienced mariners, without any safety equipment—including but not limited to, personal flotation devices, radios, maritime global positioning systems, or vessel locator beacons. In FY 2022, the USCG recorded 107 noncitizen deaths, including those presumed dead, as a result of irregular maritime migration. In January 2022, the USCG located a capsized vessel with a survivor clinging to the hull. USCG crews interviewed the survivor, who indicated there were 34 others on the vessel who were not in the vicinity of the capsized vessel and the survivor.
The International Organization for Migration's (IOM) Missing Migrants Project reported at least 321 documented deaths and disappearances of migrants throughout the Caribbean in 2022, signaling the highest recorded number since they began tracking such events in 2014.
The U.S. Government's response to maritime migration in the Caribbean region is governed by Executive Orders, Presidential Directives, and resulting framework and plans that outline interagency roles and responsibilities. Homeland Security Task Force-Southeast (HSTF-SE) is primarily responsible for DHS's response to maritime migration in the Caribbean Sea and the Straits of Florida. Operation Vigilant Sentry is the DHS interagency operational plan for integrated operations to address and mitigate the threat of a maritime migration in the Caribbean Sea and the Straits of Florida.
The USCG supports HSTF-SE and views its migrant interdiction mission as a humanitarian effort to rescue those taking to the sea and encourage noncitizens to pursue lawful pathways to enter the United States. By allocating additional assets to migrant interdiction operations and to prevent conditions that could lead to maritime mass migration, the USCG assumes certain operational risk to other statutory missions. Some USCG assets were diverted from other key mission areas, including counter-drug operations, protection of living marine resources, and support for shipping navigation. Through a reduction of maritime migration, USCG would in turn reduce the operational risk to its other statutory missions.
In response to the increase in maritime migration and interdictions, and to disincentivize migrants from attempting the dangerous journey to the United States by sea, DHS will make individuals who have been interdicted at sea after April 27, 2023 ineligible for the parole process for Haitians. Further, DHS expects this change in eligibility criteria to materially reduce the number of maritime interdictions, by incentivizing migrants to use safe and orderly means to access the United States.
Migrants who take to the sea are putting their lives at incredible risk. The goal of this change, like the parole process for Haitians more broadly, is to save lives and undermine the profits and operations of the dangerous smuggling networks and transnational criminal organizations that callously prioritize their profits over the lives and safety of the people they transport and traffic. The parole process for Haitians will continue to incentivize intending migrants to use a safe and orderly means to access the United States via commercial air flights, thus ultimately reducing the demand for smuggling networks to facilitate the dangerous journey by sea.
Under the Paperwork Reduction Act (PRA), 44 U.S.C. chapter 35, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any new reporting requirements they impose. The process discussed in this notice involves two collections of information, both of which have previously been approved under emergency processing. The collections are as follows:
• USCIS, Form I-134A,
• CBP,
More information about both collections can be viewed at
Notice.
This notice announces that the Secretary of Homeland Security has authorized a change to the Parole Process for Cubans that the U.S. Department of Homeland Security (DHS) described in a
DHS will begin applying this amendment on April 28, 2023.
Daniel Delgado, Acting Director, Border and Immigration Policy, Office of Strategy, Policy, and Plans, Department of Homeland Security, 2707 Martin Luther King Jr. Ave. SE, Washington, DC 20528-0445; telephone (202) 447-3459 (not a toll-free number).
On January 9, 2023, DHS published a notice titled
The parole process for Cubans is intended to enhance border security by addressing the number of encounters of Cuban nationals at the SWB and at sea, which reached record levels in recent months, while also providing a process for certain such nationals to lawfully enter the United States in a safe and orderly manner.
In response to the increasing number of Cubans traveling to the United States by sea without authorization through January 2023, and the likelihood of another record number of interdictions this fiscal year (FY), DHS is announcing an amendment to the eligibility criteria announced in the January 9, 2023 notice
Parole processes established for nationals of Cuba, Haiti, Nicaragua, and Venezuela (CHNV) and their immediate family members have significantly reduced SWB encounters. Following the announcement of the CHNV parole processes, DHS has seen a drastic decrease in the number of Cubans, Haitians, Nicaraguans, and Venezuelans encountered at the SWB. In fact, DHS encountered 128,410 noncitizens who entered between POEs along the SWB in January 2023, which is the lowest monthly SWB encounters total since February 2021.
While DHS continues to see a meaningful reduction in encounters of CHNV nationals across the SWB following the announcement of the CHNV parole processes, maritime interdictions of Cuban and Haitian nationals in the Caribbean have increased in recent fiscal FYs and persist at high levels. Total interdictions at sea increased by 502 percent between FY 2020 (2,079) and FY 2022 (12,521). Interdictions continue to rise in FY 2023 with 7,402 through January, almost 60 percent of the total in FY 2022 within four months. Maritime migration from Cuba increased by nearly 600 percent in FY 2022, with 5,740 Cuban nationals interdicted at sea, compared to 827 in FY 2021. In the first four months of FY 2023, Cuban interdictions are over 80 percent of the Cuban FY 2022 total, comprising 65 percent of all FY 2023 interdictions at sea.
Apprehensions of Cuban nationals in southeast coastal sectors by U.S. Border Patrol have been increasing rapidly.
The U.S. Coast Guard (USCG) has interdicted and repatriated Cubans in recent months. On January 12, 2023, USCG repatriated 177 Cubans from 7 separate interdictions.
While maritime interdictions of Cuban nationals declined somewhat in February, DHS assesses that in the Caribbean, the weather and migrant knowledge of increased law enforcement presence played a significant role in this reduced maritime movement. Through much of February, weather conditions were unfavorable for maritime ventures, particularly on smaller vessels. However, DHS assesses this was only temporary. In the final days of February and early days of March 2023, DHS saw a return to multiple interdictions per day. The growing numbers of migrants taking to sea under dangerous conditions put lives at risk and places stress on DHS's resources.
Human smugglers and irregular migrant populations continue to use unseaworthy, overly crowded vessels, piloted by inexperienced mariners, without any safety equipment—including but not limited to, personal flotation devices, radios, maritime global positioning systems, or vessel locator beacons. In FY 2022, the USCG recorded 107 noncitizen deaths, including those presumed dead, as a result of irregular maritime migration. In January 2022, the USCG located a capsized vessel with a survivor clinging to the hull. USCG crews interviewed the survivor, who indicated there were 34 other individuals on the vessel who were not in the vicinity of the capsized vessel and the survivor.
The International Organization for Migration's (IOM) Missing Migrants Project reported at least 321 documented deaths and disappearances of migrants throughout the Caribbean in 2022, signaling the highest recorded number since IOM began tracking such events in 2014 and a 78% overall increase over the 180 documented cases in 2021.
The U.S. Government's response to maritime migration in the Caribbean region is governed by Executive Orders, Presidential Directives, and resulting framework and plans that outline interagency roles and responsibilities. Homeland Security Task Force-Southeast (HSTF-SE) is primarily responsible for DHS's response to
The USCG supports HSTF-SE and views its migrant interdiction mission as a humanitarian effort to rescue those who risk their lives by taking to the sea and encourage noncitizens to pursue legal pathways to enter the United States. By allocating additional assets to migrant interdiction operations and to prevent conditions that could lead to a maritime mass migration, the USCG assumes certain operational risk to other statutory missions. Some USCG assets were reallocated from other key mission areas, including counter-drug operations, protection of living marine resources, and support for shipping navigation. Through a reduction of maritime migration, USCG would in turn reduce the operational risk to its other statutory missions.
In response to the increase in maritime migration and interdictions, and to disincentivize migrants from attempting the dangerous journey to the United States by sea, DHS will make individuals who have been interdicted at sea after April 27, 2023 ineligible for the parole process for Cubans. Further, DHS expects this change in eligibility criteria to materially reduce the number of maritime interdictions, by incentivizing migrants to use safe and orderly means to access the United States.
Migrants who take to the sea are putting their lives at incredible risk. The goal of this change, like the parole process for Cubans more broadly, is to save lives at sea and undermine the profits and operations of the dangerous smuggling networks and transnational criminal organizations that callously prioritize their profits over the lives and safety of the people they transport and traffic. The parole process for Cubans will continue to incentivize intending migrants to use a safe and orderly means to access the United States via commercial air flights, thus ultimately reducing the demand for smuggling networks to facilitate the dangerous journey by sea.
Under the Paperwork Reduction Act (PRA), 44 U.S.C. chapter 35, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any new reporting requirements they impose. The process discussed in this notice involves two collections of information, both of which have previously been approved under emergency processing. The collections are as follows:
• USCIS, Form I-134A,
• CBP,
More information about both collections can be viewed at
Office of Policy Development and Research, Chief Data Officer, HUD.
Notice of proposed information collection.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 7th Street SW, Room 8210, Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
The
As a condition of granting access to the EIV system, each prospective user of the system must (1) request access to the system; (2) agree to comply with HUD's established rules of behavior; and (3) review and signify their understanding of their responsibilities of protecting data protected under the Federal Privacy Act (5 U.S.C. 522a, as amended). As such, the collection of information about the user and the type of system access required by the prospective user is required by HUD to: (1) identify the user; (2) determine if the prospective user in fact requires access to the EIV system and in what capacity; (3) provide the prospective user with information related to the Rules of Behavior for system usage and the user's responsibilities to safeguard data accessed in the system once access is granted; and (4) obtain the signature of the prospective user to certify the user's understanding of the Rules of Behavior and responsibilities associated with his/her use of the EIV system.
HUD collects the following information from each prospective user: Public Housing Agency (PHA) code, organization name, organization address, prospective user's full name, HUD-assigned user ID, position title, office telephone number, facsimile number, type of work which involves the use of the EIV system, type of system action requested, requested access roles to be assigned to prospective user, public housing development numbers to be assigned to prospective PHA user, and prospective user's signature and date of request. The information is collected electronically and manually (for those who are unable to transmit electronically) via a PDF-fillable or Word-fillable document, which can be emailed, faxed or mailed to HUD. If this information is not collected, the Department will not be in compliance with the Federal Privacy Act and be subject to civil penalties.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
(5) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“Commission”) has determined to review in part a final initial determination (“ID”) of the presiding chief administrative law judge (“CALJ”), finding no violation of section 337 as to the asserted patent claims. On review, the Commission has determined to find no violation of section 337 as to the asserted patent claims. The Commission has determined to review all findings and orders as to Respondent Glo Extracts (“Glo Extracts”) of Los Angeles, California and requests briefing from the parties as set forth below. The Commission has also determined to review all findings related to the asserted trademark. The Commission requests written submissions from the parties, interested government agencies, and other interested persons on the issues of remedy, the public interest, and bonding as to the asserted trademark, under the schedule set forth below.
Panyin A. Hughes, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-3042. Copies of non-confidential documents filed in connection with this investigation may be viewed on the Commission's electronic docket (EDIS) at
On November 10, 2021, the Commission instituted this investigation based on a complaint filed by Shenzhen Smoore Technology Limited (“Smoore” or “Complainant”) of Shenzhen, China. 86 FR 62567-69 (Nov. 10, 2021). The complaint alleged violations of section 337 based on the importation into the United States, the sale for importation, or the sale within the United States after importation of certain oil-vaping cartridges, components thereof, and products containing the same by reason of infringement of one or more of claims 1-3, 5, and 6 of U.S. Patent No. 10,357,623 (“the '623 patent”); claims 1, 2, and 7 of U.S. Patent No. 10,791,762 (“the '762 patent”); claims 1 and 11 of U.S. Patent No. 10,791,763 (“the '763 patent”); and U.S. Registered Trademark No. 5,633,060 (“the '060 mark”).
The Commission's notice of investigation named the following entities as respondents: BBTank USA, LLC (“BBTank”) of Lambertville, Michigan; Glo Extracts;
On December 16, 2021, the CALJ issued an ID granting a motion to terminate the investigation as to Head Candy based upon a consent order. Order No. 9 (Dec. 16, 2021),
On January 21, 2022, the CALJ issued an ID granting a motion to terminate the investigation as to International Vapor based upon withdrawal of allegations in the complaint as to International Vapor. Order No. 17 (Jan. 21, 2022),
On June 7, 2022, the CALJ issued an ID granting a motion to terminate the investigation as to Best Value Vacs and
The CALJ held an evidentiary hearing from August 1-August 5, 2022 and received post-hearing briefs thereafter.
On January 23, 2023, the CALJ issued an ID finding the following respondents in default:
On January 31, 2023, the CALJ issued an ID granting a motion to terminate the investigation as to The Calico group based upon settlement and a consent order. Order No. 46 (Jan. 31, 2023),
On February 1, 2023, the CALJ issued the final ID finding no violation of section 337. The ID found that by appearing and participating in the investigation, the participating parties (The Blinc Group Inc.; Bold Crafts, LLC; Greentank Technologies Corp.; iKrusher, Inc.; Next Level Ventures, LLC; Bulk Natural, LLC; Brand King, LLC; A&A Global Imports, Inc.) consented to personal jurisdiction at the Commission. ID at 19. The ID further found that the importation requirement under 19 U.S.C. 1337(a)(1)(B) is satisfied
The ID included the CALJ's recommended determination on remedy and bonding (“RD”). The RD recommended, should the Commission find a violation, issuance of a limited exclusion order and cease and desist orders. ID/RD at 105-108. The RD also recommended imposing no bond for covered products imported during the period of Presidential review because Smoore failed to meet its burden to establish a need for a bond.
On February 13, 2023, Smoore filed a petition for review of the ID and Respondents filed a contingent petition for review of the ID. On February 21, 2023, the parties, including OUII, filed responses to the petitions.
Having reviewed the record of the investigation, including the final ID, the parties' submissions to the ALJ, the petitions for review, and the responses thereto, the Commission has determined to review in part the final ID and orders issued in this investigation. Specifically, the Commission has determined to review the ID's domestic industry findings, all findings related to the asserted trademark, and all findings and orders as to Respondent Glo Extracts. On review, the Commission has determined to affirm the ID's finding that Smoore failed to show that its alleged domestic industry products practice any of the asserted patents. Thus, Smoore has necessarily failed to show the existence of a domestic industry under section 337(a)(3) as to the asserted patents and as such the Commission has determined to take no position on the economic prong of the domestic industry requirement related to the asserted patents. Accordingly, the Commission finds no violation with regard to the '623, '762, and '763 patents.
In connection with the '060 mark asserted against the respondents found in default and Glo Extracts, the Commission requests responses from Smoore, Glo Extracts, and OUII to the following questions pertaining to Glo Extracts:
(1) Whether Smoore has been able to serve Glo Extracts with the Amended Complaint and Notice of Investigation, Smoore's motion for summary determination, and any of the Orders from this investigation, including the ALJ's show-cause order;
(2) Smoore shall provide proof of service for any documents successfully served on Glo Extracts, or if unsuccessful, an explanation of its attempts to serve Glo Extracts with those documents, along with supporting evidence, and an explanation of its statement that Glo Extracts “evaded” service of the ALJ's show-cause order (
(3) Smoore shall also serve this notice on Glo Extracts and provide proof of service or an explanation (and supporting documentation) why it was unable to serve this notice;
(4) Whether the Commission should terminate the investigation as to Glo Extracts for lack of service or whether the Commission should find Glo Extracts in default and issue a remedy as to it.
(5) Whether the Commission should find Glo Extracts in violation of Section 337, if it is not found in default, and issue a remedy against it.
All assertions of facts concerning service, attempts to serve, and evasion of service shall be under oath in the form of an affidavit or declaration.
In connection with the final disposition of this investigation, the statute authorizes issuance of,
The statute requires the Commission to consider the effects of that remedy upon the public interest. The public interest factors the Commission will consider include the effect that an exclusion order and cease and desist orders would have on: (1) the public health and welfare, (2) competitive conditions in the U.S. economy, (3) U.S. production of articles that are like or directly competitive with those that are subject to investigation, and (4) U.S. consumers. The Commission is therefore interested in receiving written submissions that address the aforementioned public interest factors in the context of this investigation. In particular, the Commission requests that the parties respond to the statements on the public interest received from the various third parties.
If the Commission orders some form of remedy, the U.S. Trade Representative, as delegated by the President, has 60 days to approve, disapprove, or take no action on the Commission's determination.
In its initial submission, Complainant is also requested to identify the remedy sought and Complainant and OUII are requested to submit proposed remedial orders for the Commission's consideration. Complainant is further requested to provide the HTSUS subheadings under which the accused products are imported, and to supply the identification information for all known importers of the products at issue in this investigation. Complainant is also requested to identify and explain, from the record, articles that it contends are “components thereof and products containing the same” of the subject products, and thus potentially covered by the proposed remedial orders, if imported separately from the subject products.
The initial written submissions and proposed remedial orders must be filed no later than close of business on May 8, 2023. Reply submissions must be filed no later than the close of business on May 15, 2023. No further submissions on these issues will be permitted unless otherwise ordered by the Commission. Opening submissions are limited to 50 pages. Reply submissions are limited to 25 pages. No further submissions on any of these issues will be permitted unless otherwise ordered by the Commission.
Persons filing written submissions must file the original document electronically on or before the deadlines stated above. The Commission's paper filing requirements in 19 CFR 210.4(f) are currently waived. 85 FR 15798 (March 19, 2020). Submissions should refer to the investigation number (Inv. No. 337-TA-1286) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment by marking each document with a header indicating that the document contains confidential information. This marking will be deemed to satisfy the request procedure set forth in Rules 201.6(b) and 210.5(e)(2) (19 CFR 201.6(b) & 210.5(e)(2)). Documents for which confidential treatment by the Commission is properly sought will be treated accordingly. Any non-party wishing to submit comments containing confidential information must serve those comments on the parties to the investigation pursuant to the applicable Administrative Protective Order. A redacted non-confidential version of the document must also be filed with the Commission and served on any parties to the investigation within two business days of any confidential filing. All information, including confidential business information and documents for which confidential treatment is properly sought, submitted to the Commission for purposes of this investigation may be disclosed to and used: (i) by the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel, solely for cybersecurity purposes. All contract personnel will sign appropriate nondisclosure agreements. All nonconfidential written submissions will be available for public inspection on EDIS.
While temporary remote operating procedures are in place in response to COVID-19, the Office of the Secretary is not able to serve parties that have not retained counsel or otherwise provided a point of contact for electronic service. Accordingly, pursuant to Commission Rules 201.16(a) and 210.7(a)(1) (19 CFR 201.16(a), 210.7(a)(1)), the Commission orders that the Complainant completes service for any party/parties without a method of electronic service noted on the attached Certificate of Service and shall file proof of service on the Electronic Document Information System (EDIS).
The Commission vote for this determination took place on April 24, 2023.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
On April 20, 2023, the Department of Justice lodged a proposed consent decree with the United States District Court for the District of Colorado in the lawsuit entitled
The United States and the State of Colorado jointly filed this proposed consent decree pursuant to the Clean Air Act against Defendant WES DJ Gathering LLC f/k/a Kerr-McGee Gathering LLC to resolve allegations of violations of leak detection and repair requirements at three natural gas processing plants that the company owns and operates, known as the Fort Lupton Complex, located in Weld County, Colorado. The complaint in this case, filed previously on July 1, 2020, seeks injunctive relief and civil penalties for the defendant's alleged failures to monitor and repair leaking equipment across the three natural gas processing plants. The consent decree requires the defendant to perform injunctive relief to address the alleged violations, implement mitigation projects to help offset excess emissions caused by the alleged violations, and pay a $3,500,000 civil penalty. The civil penalty will be split evenly between the United States and the State of Colorado.
The publication of this notice opens a period for public comment on the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department website:
Please enclose a check or money order for $25.75 (25 cents per page reproduction cost) payable to the United States Treasury.
Bureau of Justice Statistics, Department of Justice.
30-Day notice.
The Department of Justice (DOJ), Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for 30 days until May 30, 2023.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Todd D. Minton, Bureau of Justice Statistics, 810 Seventh Street NW, Washington, DC 20531 (email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
DOJ seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOJ notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
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If additional information is required, contact: John R. Carlson, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, United States Department of Justice, Two Constitution Square, 145 N Street NE, 4W-218, Washington, DC 20530.
Employee Benefits Security Administration, Labor.
Notice of exemption.
This document contains a notice of exemption issued by the Department of Labor (the Department) from certain of the prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974 (ERISA or the Act) and/or the Internal Revenue Code of 1986 (the Code). This exemption allows TTI to continue to rely on the exemptive relief provided by Prohibited Transaction Class Exemption 84-14 (PTE 84-14 or the QPAM Exemption), notwithstanding the judgment of conviction against SMBC Nikko Securities, Inc. (Nikko Tokyo), as described below.
The exemption will be effective for a period of one year, beginning on February 13, 2023, and ending on February 12, 2024.
Mr. Joseph Brennan of the Department at (202) 693-8456. (This is not a toll-free number.)
On January 10, 2023, the Department published a notice of proposed exemption in the
This exemption provides only the relief specified in the text of the exemption and does not provide relief from violations of any law other than the prohibited transaction provisions of Title I of ERISA and the Code expressly stated herein.
The Department intends for the terms of this exemption to promote adherence by TTI to basic fiduciary standards under Title I of ERISA and the Code. An important objective in granting this exemption is to ensure that Covered Plans can terminate their relationships with TTI in an orderly and cost-effective fashion in the event the fiduciary of a Covered Plan determines that it is prudent to do so.
Based on the Applicant's adherence to all the conditions of the exemption, the Department makes the requisite findings under ERISA Section 408(a) that the exemption is: (1) administratively feasible, (2) in the interest of Covered Plans and their participants and beneficiaries, and (3) protective of the rights of the participants and beneficiaries of Covered Plans. Accordingly, affected parties should be aware that the conditions incorporated in this exemption are, individually and taken as a whole, necessary for the Department to grant the relief requested by the Applicant. Absent these or similar conditions, the Department would not have granted this exemption.
The Applicant requested an individual exemption pursuant to ERISA Section 408(a) in accordance with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011).
TTI is a global investment firm headquartered in London, UK. TTI is wholly owned by Sumitomo Mitsui Financial Group, Inc. (SMFG) and is currently a member of the Sumitomo Mitsui Banking Corporation group (the SMBC Group). The SMBC group provides asset management services through two subsidiaries. The first is TTI, which is managed independently of the broader SMBC Group. The second is Sumitomo Mitsui DS Asset Management Company, Limited, an investment manager headquartered in Tokyo. The SMBC Group also conducts securities market activities through the SMBC Nikko Securities franchise. As relevant to this exemption, that includes Nikko Tokyo, a Japanese broker-dealer.
In offering investment management services, TTI operates as a QPAM in reliance on the QPAM Exemption.
The QPAM Exemption exempts certain prohibited transactions between a party in interest and an “investment fund” (as defined in Section VI(b) of the QPAM Exemption) in which a plan has an interest if the investment manager with discretion over the investment of plan assets satisfies the definition of “qualified professional asset manager” and satisfies additional conditions of the exemption. The QPAM Exemption was developed and granted based on the essential premise that broad relief could be afforded for all types of transactions in which a plan engages only if the commitments and the investments of plan assets and the negotiations leading thereto are the sole responsibility of an independent, discretionary manager.
Section I(g) of the QPAM Exemption prevents an entity that may otherwise meet the definition of QPAM from utilizing the exemptive relief provided, for itself and its client plans, if that entity, an “affiliate” thereof,
On March 24, 2022, the Tokyo District Public Prosecutors Office charged Nikko Tokyo and four of its officers and employees in Tokyo District Court with violations of Japan's Financial Instruments and Exchange Act (the Misconduct).
On April 13, 2022, the Tokyo Public Prosecutor filed additional charges against Nikko Tokyo and two officers and employees of Nikko Tokyo for
Both TTI and Nikko Tokyo are direct subsidiaries of SMFG and thus are affiliates for the purposes of Section I(g) of the QPAM Exemption. Once the Tokyo District Court issued its final decision and sentenced Nikko Tokyo in connection with the Conviction, Section I(g) was triggered and TTI, as well as TTI's Covered Plan clients, lost the ability to rely on the QPAM Exemption.
On October 19, 2022, TTI submitted an exemption request to the Department that would permit TTI and its Covered Plan clients to continue to utilize the relief in the QPAM Exemption. In support of its exemption request, TTI asserts that Nikko Tokyo is a foreign affiliate with respect to TTI and has wholly separate businesses, operations, management, systems, premises, and legal and compliance personnel; that TTI was not involved in any way in the Misconduct; and that the Misconduct did not involve any ERISA assets. TTI further states that, since its acquisition by SMFG on February 28, 2020, TTI has remained a stand-alone business with distinct reporting lines, governance structures, and control frameworks.
In its exemption application, TTI submits that Covered Plans would be harmed because of the resulting severe limitations on the investment transactions that would be available to them. Further, TTI states that Covered Plans could incur significant costs, including transaction costs, costs associated with finding and evaluating other managers, and costs associated with reinvesting assets with those new managers. These and other assertions regarding projected hardships to Covered Plans are presented in greater detail in the proposed exemption and the Department encourages readers to consult the proposed exemption for additional context.
In its exemption application, TTI requested: (1) a longer five-year term of relief and (2) an exemption that would cover TTI and TTI's current and future affiliates and related entities. The Department, however, declined TTI's requests and instead proposed a limited one-year term that applies exclusively to TTI. In this way, the Department would retain the ability to review TTI's adherence to the conditions set out in this exemption before considering a longer term of relief.
The Department notes that this exemption includes protective conditions that allow Covered Plans to continue to utilize the services of TTI if they determine that it is prudent to do so. In this regard, this exemption allows Covered Plans to avoid cost and disruption to investment strategies that may arise if such Covered Plans are forced, on short notice, to hire a different QPAM or asset manager because TTI no longer is able to rely on the relief provided by PTE 84-14 due to the Conviction.
In the proposed exemption, the Department invited all interested persons to submit written comments and/or requests for a public hearing with respect to the notice of proposed exemption by February 13, 2023. The Department received one written comment from the Applicant and no requests for a public hearing.
Section III(i)(7) of the proposed exemption states the following:
Section III(i)(8) of the Proposed exemption provides:
The Applicant agrees that TTI's Board of Directors and the joint general manager of the Corporate Planning Department are the appropriate recipients of the Audit Report and the appropriate persons to provide the certifications described in Section III(i)(8). However, the Applicant believes the Department should clarify the exemption to make clear that the Corporate Planning Department is a group-level function of SMFG. As a result, the joint general manager does not have a direct reporting line to the highest-ranking compliance officer of TTI; instead, the joint general manager will provide parent-level oversight of the Audit Report and TTI's compliance with the terms of the final Exemption.
Additionally, given the Corporate Planning Department's distance from TTI's day-to-day operations, the Applicant believes that it would be appropriate for TTI's general counsel or one of its three most senior executive officers to provide the certification described in Section III(i)(7) as those individuals will be directly involved in ensuring that TTI complies with the exemption and will have the personal knowledge necessary to provide the required certifications. While the joint general manager's review will provide important parent-level oversight to the process, they will not be directly involved in the audit or addressing any potential deficiencies.
The Applicant requests that Section III(j)(7) be modified to read:
The Applicant also requests that Section III(i)(8) be modified to read:
Section III(l) of the proposed exemption provides:
The Applicant believes that the language used here—“an entity within TTI's corporate structure”—is imprecise. The Applicant requests that the Department replace “an entity within TTI's corporate structure” with “an affiliate of TTI within the meaning of Section VI(d) of the QPAM Exemption.”
Accordingly, the Applicant requests that Section III(l) be modified to read:
Section I(c) of the proposed exemption provides for a one-year Exemption Period (February 13, 2023 through February 12, 2024). The Applicant requests that the Department grant a permanent or multi-year exemption based on the remoteness of TTI's involvement in the conduct related to the Conviction. In support of this request, the Applicant states that Nikko Tokyo is a remote foreign affiliate of TTI and is not in the same vertical chain of ownership; that TTI had no role in, and received no benefit from, the misconduct underlying the Conviction; and that granting a permanent exemption is the appropriate solution to sufficiently protect both the public interest and the interests of plan participants.
In the introductory paragraph to the proposed exemption, the Department defines “Nikko Tokyo” as “Sumitomo Mitsui Banking Corporation Nikko Securities, Inc.” The Applicant states that Nikko Tokyo's legal name is “SMBC Nikko Securities, Inc.”
Section III(h)(1) of the proposed exemption requires TTI to develop, implement, maintain, adjust (to the extent necessary), and follow the written policies and procedures (the Policies). Section III(h)(2) of the proposed exemption requires TTI to implement a training program (the Training) during the Exemption Period for all relevant TTI asset/portfolio management, trading, legal, compliance, and internal audit personnel.
The Department is clarifying that TTI must develop and implement the Policies by a date that is six months after the effective date of this exemption. The Department is also clarifying that TTI must implement the Training by a date that is six months after the effective date of this exemption. The Department notes that a six-month development and implementation period for the Policies and Training is consistent with other recently granted QPAM exemptions.
Section (III)(i)(1) of the proposed exemption requires TTI to submit to an audit that covers the entire Exemption Period (February 13, 2023 through February 12, 2024). The Department is clarifying that the associated audit report must be completed by August 12, 2024. The Department notes that a six-month period for completing the audit report is consistent with other recently granted QPAM exemptions.
The complete application file (D-12080) is available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, Room N-1515, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, please refer to the notice of proposed exemption published on January 10, 2023, at 88 FR 1408.
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under ERISA Section 408(a) does not relieve a fiduciary or other party in interest from certain requirements of other ERISA provisions, including but not limited to any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of ERISA Section 404, which, among other things, require a fiduciary to discharge their duties respecting the plan solely in the interest of the plan's participants and beneficiaries and in a prudent fashion in accordance with ERISA Section 404(a)(1)(B).
(2) As required by ERISA Section 408(a), the Department hereby finds that the exemption is: (a) administratively feasible; (b) in the interests of Covered Plans and their participants and beneficiaries; and (c) protective of the rights of the Covered Plan's participants and beneficiaries.
(3) This exemption is supplemental to, and not in derogation of, any other ERISA provisions, including statutory or administrative exemptions and transitional rules. Furthermore, the fact that a transaction is subject to an administrative or statutory exemption is not dispositive for determining whether the transaction is in fact a prohibited transaction.
(4) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describe all material terms of the transactions that are the subject of the exemption and are true at all times.
Accordingly, after considering the entire record developed in connection with the Applicant's exemption application, the Department has determined to grant the following exemption under the authority of ERISA Section 408(a) in accordance with the
(a) The term “Conviction” means the judgment of conviction against SMBC Nikko Securities, Inc. (Nikko Tokyo) in Tokyo District Court for attempting to peg, fix or stabilize the prices of certain Japanese equity securities that Nikko Tokyo was attempting to place in a block offering that occurred on February 13, 2023.
(b) The term “Covered Plan” means a plan subject to Part IV of Title I of ERISA (an “ERISA-covered plan”) or a plan subject to Code section 4975 (an “IRA”), in each case, with respect to which TTI relies on PTE 84-14, or with respect to which TTI has expressly represented that the manager qualifies as a QPAM or relies on the QPAM class exemption (PTE 84-14 or the QPAM Exemption). A Covered Plan does not include an ERISA-covered plan or IRA to the extent that TTI has expressly disclaimed reliance on QPAM status or PTE 84-14 in entering into a contract, arrangement, or agreement with the ERISA-covered plan or IRA.
(c) The term “Exemption Period” means the one-year period beginning on the date of the Conviction.
(d) The term “TTI” means TT International Asset Management Ltd, and does not include SMBC Nikko Securities, Inc. (Nikko Tokyo) or any other affiliates of TT International Asset Management Ltd.
Under this exemption, TTI will not be precluded from relying on the exemptive relief provided by Prohibited Transaction Class Exemption 84-14 (PTE 84-14 or the QPAM Exemption) notwithstanding the Conviction, as defined in Section I(a), during the Exemption Period, as defined in Section I(c) provided that the conditions set forth in Section III below are satisfied.
(a) TTI (including its officers, directors, agents other than Nikko Tokyo, and employees) did not know of, did not have reason to know of, and did not participate in the criminal conduct that is the subject of the Conviction. Further, any other party engaged on behalf of TTI who had responsibility for or exercised authority in connection with the management of plan assets did not know or have reason to know of and did not participate in the criminal conduct that is the subject of the Conviction. For purposes of this exemption, “participate in” refers not only to active participation in the criminal conduct of Nikko Tokyo that is the subject of the Conviction, but also to knowing approval of the criminal conduct or knowledge of such conduct without taking active steps to prohibit it, including reporting the conduct to such individual's supervisors, and Board of Directors;
(b) TTI (including its officers, directors, employees, and agents, other than Nikko Tokyo) did not receive direct compensation, or knowingly receive indirect compensation, in connection with the criminal conduct that is the subject of the Conviction. Further, any other party engaged on behalf of TTI who had responsibility for, or exercised authority in connection with the management of plan assets did not receive direct compensation, or knowingly receive indirect compensation, in connection with the criminal conduct that is the subject of the Conviction;
(c) TTI does not currently and will not in the future employ or knowingly engage any of the individuals that participated in the criminal conduct that is the subject of the Conviction.
(d) At all times during the Exemption Period, TTI will not use its authority or influence to direct an “investment fund” (as defined in Section VI(b) of PTE 84-14) that is subject to ERISA or the Code and managed by TTI in reliance on PTE 84-14, or with respect to which TTI has expressly represented to a Covered Plan that it qualifies as a QPAM or relies on the QPAM Exemption, to enter into any transaction with Nikko Tokyo, or to engage Nikko Tokyo to provide any service to such investment fund, for a direct or indirect fee borne by such investment fund, regardless of whether such transaction or service may otherwise be within the scope of relief provided by an administrative or statutory exemption;
(e) Any failure of TTI to satisfy Section I(g) of PTE 84-14 arose solely from the Conviction;
(f) TTI did not exercise authority over the assets of any Covered Plan in a manner that it knew or should have known would further the criminal conduct that is the subject of the Conviction or cause TTI or its affiliates to directly or indirectly profit from the criminal conduct that is the subject of the Conviction;
(g) Other than with respect to employee benefit plans maintained or sponsored for its own employees or the employees of an affiliate, Nikko Tokyo will not act as a fiduciary within the meaning of ERISA Section 3(21)(A)(i) or (iii), or Code Section 4975(e)(3)(A) and (C), with respect to Covered Plan assets.
(h)(1) By a date that is six (6) months after the effective date of this exemption, TTI must develop, implement, maintain, adjust (to the extent necessary), and follow the written policies and procedures (the Policies). The Policies must require and be reasonably designed to ensure that:
(i) The asset management decisions of TTI are conducted independently of the corporate management and business activities of Nikko Tokyo;
(ii) TTI fully complies with ERISA's fiduciary duties and with ERISA and the Code's prohibited transaction provisions, as applicable with respect to each Covered Plan, and does not knowingly participate in any violation of these duties and provisions with respect to Covered Plans;
(iii) TTI does not knowingly participate in any other person's violation of ERISA or the Code with respect to Covered Plans;
(iv) Any filings or statements made by TTI to regulators, including, but not limited to, the Department of Labor (the Department), the Department of the Treasury, the Department of Justice, and the Pension Benefit Guaranty Corporation, on behalf of or in relation to Covered Plans, are materially accurate and complete to the best of such QPAM's knowledge at that time;
(v) To the best of TTI's knowledge at the time, TTI does not make material misrepresentations or omit material information in its communications with such regulators with respect to Covered Plans or make material misrepresentations or omit material information in its communications with Covered Plans;
(vi) TTI complies with the terms of this exemption; and
(vii) Any violation of or failure to comply with an item in subparagraphs (ii) through (vi) is corrected as soon as reasonably possible upon discovery or as soon after the TTI reasonably should have known of the noncompliance (whichever is earlier), and any such violation or compliance failure not so corrected is reported, upon the discovery of such failure to so correct, in writing, to the head of compliance and the general counsel (or their functional equivalent) of TTI, and the independent auditor responsible for reviewing compliance with the Policies. TTI will not be treated as having failed to develop, implement, maintain, or follow the Policies, provided it corrects any instance of noncompliance as soon as reasonably possible upon discovery, or as soon as reasonably possible after TTI reasonably should have known of
(2) By a date that is six (6) months after the effective date of this exemption, TTI must implement a training program (the Training) during the Exemption Period for all relevant TTI asset/portfolio management, trading, legal, compliance, and internal audit personnel. The Training required under this exemption may be conducted electronically and must: (a) at a minimum, cover the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions), ethical conduct, the consequences for not complying with the conditions of this exemption (including any loss of exemptive relief provided herein), and prompt reporting of wrongdoing; and (b) be conducted by a professional who has been prudently selected and who has appropriate technical training and proficiency with ERISA and the Code to perform the tasks required by this exemption;
(i)(1) TTI must submit to an audit by an independent auditor who has been prudently selected and who has appropriate technical training and proficiency with ERISA and the Code, to evaluate the adequacy of and TTI's compliance with the Policies and Training conditions described herein. The audit requirement must be incorporated in the Policies. The audit must cover the entire Exemption Period and must be completed by August 12, 2024.
(2) Within the scope of the audit and to the extent necessary for the auditor, in its sole opinion, to complete its audit and comply with the conditions for relief described herein, TTI will grant the auditor unconditional access to its businesses, including, but not limited to: its computer systems; business records; transactional data; workplace locations; training materials; and personnel. Such access will be provided only to the extent that it is not prevented by state or federal statute, or involves communications subject to attorney client privilege and may be limited to information relevant to the auditor's objectives as specified by the terms of this exemption;
(3) The auditor's engagement must specifically require the auditor to determine whether TTI has developed, implemented, maintained, and followed the Policies in accordance with the conditions of this exemption, and has developed and implemented the Training, as required herein;
(4) The auditor's engagement must specifically require the auditor to test TTI's operational compliance with the Policies and Training conditions. In this regard, the auditor must test, for TTI, transactions involving Covered Plans sufficient in size, number, and nature to afford the auditor a reasonable basis to determine TTI's operational compliance with the Policies and Training;
(5) Before the end of the relevant period for completing the audit, the auditor must issue a written report (the Audit Report) to TTI that describes the procedures performed by the auditor during the course of its examination. The Audit Report must include the auditor's specific determinations regarding:
(i) the adequacy of TTI's Policies and Training; TTI's compliance with the Policies and Training conditions; the need, if any, to strengthen such Policies and Training; and any instance of TTI's noncompliance with the written Policies and Training described in Section III(h) above. TTI must promptly address any noncompliance and promptly address or prepare a written plan of action to address any determination by the auditor regarding the adequacy of the Policies and Training and the auditor's recommendations (if any) with respect to strengthening the Policies and Training. Any action taken, or the plan of action to be taken by TTI must be included in an addendum to the Audit Report (and such addendum must be completed before the certification described in Section III(i)(7) below). In the event such a plan of action to address the auditor's recommendation regarding the adequacy of the Policies and Training is not completed by the time the Audit Report is submitted, the following period's Audit Report must state whether the plan was satisfactorily completed. Any determination by the auditor that TTI has implemented, maintained, and followed sufficient Policies and Training must not be based solely or in substantial part on an absence of evidence indicating noncompliance. In this last regard, any finding that TTI has complied with the requirements under this subparagraph must be based on evidence that TTI has actually implemented, maintained, and followed the Policies and Training required by this exemption. Furthermore, the auditor must not solely rely on the Report created by the compliance officer (the Compliance Officer), as described in Section III(m) below, as the basis for the auditor's conclusions in lieu of independent determinations and testing performed by the auditor, as required by Section III(i)(3) and (4) above; and
(ii) The adequacy of the Review described in Section III(m);
(6) The auditor must notify TTI of any instance of noncompliance identified by the auditor within five (5) business days after such noncompliance is identified by the auditor, regardless of whether the audit has been completed as of that date;
(7) With respect to the Audit Report, the general counsel, or one of the three most senior executive officers of the TTI affiliate to which the Audit Report applies must certify in writing, under penalty of perjury, that the officer has reviewed the Audit Report and this exemption and that to the best of such officer's knowledge at the time, TTI has addressed, corrected or remedied any noncompliance and inadequacy, or has an appropriate written plan to address any inadequacy regarding the Policies and Training identified in the Audit Report. The certification must also include the signatory's determination that the Policies and Training in effect at the time of signing are adequate to ensure compliance with the conditions of this exemption and with the applicable provisions of ERISA and the Code. Notwithstanding the above, no person, including any person identified by Japanese authorities, who knew of, or should have known of, or participated in, any misconduct underlying the Conviction, by any party, may provide the certification required by this exemption, unless the person took active documented steps to stop the misconduct underlying the Conviction;
(8) TTI's Board of Directors must be provided a copy of the Audit Report and the joint general manager of SMFG's Corporate Planning Department must review the Audit Report for TTI and certify in writing, under penalty of perjury, that such officer has reviewed the Audit Report. With respect to this subsection (8), such certifying joint general manager must not have known of, had reason to known of, or participated in, any misconduct underlying the Conviction, unless such person took active documented steps to stop the misconduct underlying the Conviction.
(9) TTI must provide its certified Audit Report, by electronic mail to
(10) TTI and the auditor must submit to
(11) The auditor must provide the Department, upon request, access to all the workpapers it created and utilized in the course of the audit for inspection and review, provided such access and inspection is otherwise permitted by law; and
(12) TTI must notify the Department of a change in the independent auditor no later than 60 days after the engagement of a substitute or subsequent auditor and must provide an explanation for the substitution or change including a description of any material disputes between the terminated auditor and TTI;
(j) Throughout the Exemption Period, with respect to any arrangement, agreement, or contract between TTI and a Covered Plan, TTI agrees and warrants:
(1) To comply with ERISA and the Code, as applicable with respect to such Covered Plan; refrain from engaging in prohibited transactions that are not otherwise exempt (and to promptly correct any prohibited transactions); and comply with the standards of prudence and loyalty set forth in ERISA Section 404 with respect to each such Covered Plan, to the extent that section is applicable;
(2) To indemnify and hold harmless the Covered Plan for any actual losses resulting directly from TTI's violation of ERISA's fiduciary duties, as applicable, and of the prohibited transaction provisions of ERISA and the Code, as applicable; a breach of contract by TTI; or any claim arising out of the failure of TTI to qualify for the exemptive relief provided by PTE 84-14 as a result of a violation of Section I(g) of PTE 84-14, other than the Conviction. This condition applies only to actual losses caused by TTI's violations. Actual losses include losses and related costs arising from unwinding transactions with third parties and from transitioning Plan assets to an alternative asset manager as well as costs associated with any exposure to excise taxes under Code Section 4975 because of TTI's inability to rely upon the relief in the QPAM Exemption.
(3) Not to require (or otherwise cause) the Covered Plan to waive, limit, or qualify the liability of TTI for violating ERISA or the Code or engaging in prohibited transactions;
(4) Not to restrict the ability of the Covered Plan to terminate or withdraw from its arrangement with TTI with respect to any investment in a separately managed account or pooled fund subject to ERISA and managed by TTI, with the exception of reasonable restrictions, appropriately disclosed in advance, that are specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors. In connection with any of these arrangements involving investments in pooled funds subject to ERISA entered into after the effective date of this exemption, the adverse consequences must relate to a lack of liquidity of the underlying assets, valuation issues, or regulatory reasons that prevent the fund from promptly redeeming a Covered Plan's investment, and the restrictions must be applicable to all such investors and effective no longer than reasonably necessary to avoid the adverse consequences;
(5) Not to impose any fees, penalties, or charges for such termination or withdrawal with the exception of reasonable fees, appropriately disclosed in advance, that are specifically designed to prevent generally recognized abusive investment practices or specifically designed to ensure equitable treatment of all investors in a pooled fund in the event the withdrawal or termination may have adverse consequences for all other investors, provided that such fees are applied consistently and in like manner to all such investors;
(6) Not to include exculpatory provisions disclaiming or otherwise limiting the liability of TTI for a violation of such agreement's terms. To the extent consistent with ERISA Section 410, however, this provision does not prohibit disclaimers for liability caused by an error, misrepresentation, or misconduct of a plan fiduciary or other party hired by the plan fiduciary who is independent of TTI and its affiliates, or damages arising from acts outside the control of TTI; and
(7) TTI must provide a notice of its obligations under this Section III(j) to each Covered Plan. For all other prospective Covered Plans, TTI must agree to its obligations under this Section III(j) in an updated investment management agreement between TTI and such clients or other written contractual agreement. Notwithstanding the above, TTI will not violate this condition solely because a Covered Plan refuses to sign an updated investment management agreement;
(k) Within 60 days after the effective date of this exemption, TTI provides notice of the exemption as published in the
(l) TTI must comply with each condition of PTE 84-14, as amended, with the sole exception of the violation of Section I(g) of PTE 84-14 that is attributable to the Conviction. If an affiliate of TTI's (as defined in Section VI(d) of PTE 84-14) is convicted of a crime described in Section I(g) of PTE 84-14 (other than the Conviction) during the Exemption Period, relief in this exemption would terminate immediately;
(m)(1) Within 60 days after the effective date of this exemption, TTI must designate a senior compliance officer (the Compliance Officer) who will be responsible for compliance with the Policies and Training requirements described herein. Notwithstanding the above, no person, including any person referenced in the indictment that gave rise to the Conviction, who knew of, or should have known of, or participated in, any misconduct described in the indictment, by any party, may be involved with the designation or responsibilities required by this condition unless the person took active documented steps to stop the misconduct. The Compliance Officer must conduct a review of the Exemption Period (the Exemption Review), to determine the adequacy and effectiveness of the implementation of the Policies and Training. With respect
(i) The Compliance Officer must be a professional who has extensive experience with, and knowledge of, the regulation of financial services and products, including under ERISA and the Code; and
(ii) The Compliance Officer must have a direct reporting line to the highest-ranking corporate officer in charge of legal compliance for asset management.
(2) With respect to the Exemption Review, the following conditions must be met:
(i) The Exemption Review includes a review of TTI's compliance with and effectiveness of the Policies and Training and of the following: any compliance matter related to the Policies or Training that was identified by, or reported to, the Compliance Officer or others within the compliance and risk control function (or its equivalent) during the previous year; any material change in the relevant business activities of TTI; and any change to ERISA, the Code, or regulations related to fiduciary duties and the prohibited transaction provisions that may be applicable to the activities of TTI;
(ii) The Compliance Officer prepares a written report for the Exemption Review (an Exemption Report) that (A) summarizes their material activities during the Exemption Period; (B) sets forth any instance of noncompliance discovered during the Exemption Period, and any related corrective action; (C) details any change to the Policies or Training to guard against any similar instance of noncompliance occurring again; and (D) makes recommendations, as necessary, for additional training, procedures, monitoring, or additional and/or changed processes or systems, and management's actions on such recommendations;
(iii) In the Exemption Report, the Compliance Officer must certify in writing that to the best of their knowledge at the time: (A) the report is accurate; (B) the Policies and Training are working in a manner which is reasonably designed to ensure that the Policies and Training requirements described herein are met; (C) any known instance of noncompliance during the prior year and any related correction taken to date have been identified in the Exemption Report; and (D) TTI complied with the Policies and Training, and/or corrected (or are correcting) any known instances of noncompliance in accordance with Section III(h) above;
(iv) The Exemption Report must be provided to appropriate corporate officers of TTI; the head of compliance and the general counsel (or their functional equivalent) of TTI; and must be made unconditionally available to the independent auditor described in Section III(i) above;
(v) The Exemption Review, including the Compliance Officer's written Report, must be completed within 90 days following the end of the period to which it relates.
(n) TTI imposes internal procedures, controls, and protocols to reduce the likelihood of any recurrence of conduct that is the subject of the Conviction;
(o) Nikko Tokyo complies in all material respects with any requirements imposed by a U.S. regulatory authority in connection with the Conviction;
(p) TTI maintains records necessary to demonstrate that the conditions of this exemption have been met for six (6) years following the date of any transaction for which TTI relies upon the relief in this exemption;
(q) During the Exemption Period, TTI must: (1) immediately disclose to the Department any Deferred Prosecution Agreement (a DPA) or Non-Prosecution Agreement (an NPA) with the U.S. Department of Justice, entered into by TTI or any of its affiliates (as defined in Section VI(d) of PTE 84-14) in connection with conduct described in Section I(g) of PTE 84-14 or ERISA Section 411; and (2) immediately provide the Department with any information requested by the Department, as permitted by law, regarding the agreement and/or conduct and allegations that led to the agreement;
(r) Within 60 days after the effective date of this exemption, TTI, in its agreements with, or in other written disclosures provided to Covered Plans, will clearly and prominently inform Covered Plan clients of their right to obtain a copy of the Policies or a description (Summary Policies) which accurately summarizes key components of TTI's written Policies developed in connection with this exemption. If the Policies are thereafter changed, each Covered Plan client must receive a new disclosure within 180 days following the end of the calendar year during which the Policies were changed. If TTI meets this disclosure requirement through Summary Policies, changes to the Policies shall not result in the requirement for a new disclosure unless, as a result of changes to the Policies, the Summary Policies are no longer accurate. With respect to this requirement, the description may be continuously maintained on a website, provided that such website link to the Policies or Summary Policies is clearly and prominently disclosed to each Covered Plan; and
(s) All the material facts and representations set forth in the Summary of Facts and Representations are true and accurate.
Signed at Washington, DC.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Office of Federal Contract Compliance Programs (OFCCP)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before May 30, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Nora Hernandez by telephone at 202-693-8633, or by email at
OFCCP administers and enforces three equal employment opportunity authorities, which prohibit employment discrimination and set affirmative action requirements for contractors that meet certain jurisdictional thresholds, Executive Order 11246, as amended (E.O. 11246); Section 503 of the Rehabilitation Act of 1973, as amended; and Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended. This Information Collection Request is the reauthorization of OFCCP's complaint program. The ICR includes the form that applicants and employees of contractors, authorized representatives, or third parties can use to file an employment discrimination complaint with OFCCP. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
Notice of availability; request for comments.
The Department of Labor (DOL) is submitting this Wage and Hour Division (WHD)-sponsored information collection request (ICR) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995 (PRA). Public comments on the ICR are invited.
The OMB will consider all written comments that the agency receives on or before May 30, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Mara Blumenthal by telephone at 202-693-8538, or by email at
The Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601, and its regulations at 29 CFR part 825, require private sector employers that employ 50 or more employees, all public and private elementary schools, and all public agencies to provide up to 12 weeks of unpaid, job-protected leave during any 12-month period to eligible employees for certain family and medical reasons. The Department has developed optional-use forms which can be used by employers to provide required notices to employees and by employees to provide certification of their need for leave for an FMLA-qualifying reason. The FMLA disclosures ensure that both employers and employees are aware of and can exercise their rights and meet their respective obligations under the FMLA. For additional substantive information about this ICR, see the related notice published in the
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless the OMB approves it and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid OMB Control Number.
DOL seeks PRA authorization for this information collection for three (3) years. OMB authorization for an ICR cannot be for more than three (3) years without renewal. The DOL notes that information collection requirements submitted to the OMB for existing ICRs receive a month-to-month extension while they undergo review.
National Credit Union Administration (NCUA).
Notice of submission to the Office of Management and Budget.
As required by the Paperwork Reduction Act, The National Credit Union Administration (NCUA) is submitting the information collection to the Office of Management and Budget (OMB) for renewal: Suspicious Activity Reports by Depository Institutions pursuant to the Security Program, Report of Suspected Crimes, Suspicious Transactions, Catastrophic Acts and Bank Secrecy Act Compliance. The information collection is currently authorized by OMB Control Number 3133-0094, which expires on May 31, 2023. This information collection allows NCUA to ensure compliance with regulatory and statutory requirements for adopting and requiring reports of suspicious transactions on a consolidated suspicious activity report (SARs) form.
Written comments should be received on or before May 30, 2023 to be assured consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submission may be obtained by contacting Mahala Vixamar at (703) 718-1155, emailing
By the National Credit Union Administration Board.
National Science Foundation.
Request for information.
The National Science Foundation (NSF) requests input from the full range of institutions and organizations across all sectors—industry, academia, non-profits, government, venture capital, and others—to inform the development of a roadmap for its newly-established Technology, Innovation, and Partnerships (TIP) Directorate, in accordance with the CHIPS and Science Act of 2022. This legislation tasks the TIP Directorate to develop a roadmap to guide investment decisions in use-inspired and translational research over a 3-year time frame, working towards the goal of advancing U.S. competitiveness in the identified key technology focus areas and addressing the identified societal, national, and geostrategic challenges. Investments would be in use-inspired research, translation of research results to impact, and education, training, and development of talent in the key technology areas and societal, national, and geostrategic challenges.
Interested persons or organizations are invited to submit comments on or before 11:59 p.m. (EST) on July 27, 2023.
Comments submitted in response to this notice may be sent by the following methods:
•
•
Responses may address one or as many topics as desired from the enumerated list provided in this RFI, noting the corresponding number of the topic(s) to which the response pertains. Submissions must not exceed 10 pages (exclusive of cover page) in 11-point or
Comments containing references, studies, research, and other empirical data that are not widely published should include copies or electronic links of the referenced materials; these materials, as well as a list of references, do not count toward the 10-page limit. No business proprietary information, copyrighted information, or personally identifiable information (aside from that requested above) should be submitted in response to this RFI. Comments submitted in response to this RFI may be posted online or otherwise released publicly.
For additional information, please direct questions to Chaitan Baru at
The CHIPS and Science Act of 2022 authorized the creation of a Directorate for Technology, Innovation, and Partnerships (TIP) at NSF with the purpose of (i) supporting use-inspired and translational research and accelerating the development and use of federally funded research, (ii) strengthening United States competitiveness by accelerating the development of key technologies, and (iii) growing the domestic workforce in key technology focus areas and expand the participation of United States students and researchers in areas of societal, national, and geostrategic importance, at all levels of education.
In establishing this new directorate, Congress identified ten initial key technology focus areas in which TIP investments should focus on advancing U.S. competitiveness, along with related societal, national, and geostrategic challenges to be addressed through TIP-supported research, as listed below.
(1) Artificial intelligence, machine learning, autonomy, and related advances.
(2) High performance computing, semiconductors, and advanced computer hardware and software.
(3) Quantum information science and technology.
(4) Robotics, automation, and advanced manufacturing.
(5) Natural and anthropogenic disaster prevention or mitigation.
(6) Advanced communications technology and immersive technology.
(7) Biotechnology, medical technology, genomics, and synthetic biology.
(8) Data storage, data management, distributed ledger technologies, and cybersecurity, including biometrics.
(9) Advanced energy and industrial efficiency technologies, such as batteries and advanced nuclear technologies, including but not limited to for the purposes of electric generation
(10) Advanced materials science, including composites 2D materials, other next-generation materials, and related manufacturing technologies.
(1) United States national security.
(2) United States manufacturing and industrial productivity.
(3) United States workforce development and skills gaps.
(4) Climate change and environmental sustainability.
(5) Inequitable access to education, opportunity, or other services.
The legislation tasked the Directorate to develop a roadmap to guide investment decisions in use-inspired and translational research over a 3-year time frame, working towards the goal of advancing U.S. competitiveness in the identified key technology focus areas and addressing the societal, national, and geostrategic challenges.
This RFI uses the following definitions:
1.
2.
3.
a. How could TIP collaborate with other government and private organizations to ensure workforce development activities address industry priorities across the key technology focus areas and societal, national, and geostrategic challenges while broadening the talent base through diversity, equity, inclusion, and accessibility?
b. How could the directorate inform state, local, and tribal government of the knowledge, skills, and abilities needed to build pathways to prepare future workers and reskill current workers for entry into the key technology focus areas?
4.
5.
6.
7. Other topics, in your view, that are relevant to developing a roadmap for TIP.
This meeting was noticed on April 20, 2023, at 88 FR 24452.
Wednesday, April 26, 2023, at 11:00-11:30 a.m. EDT.
This meeting is CANCELLED.
Point of contact for this meeting is: Chris Blair,
The National Science Board's Awards and Facilities Committee hereby gives notice of the scheduling of meetings for the transaction of National Science Board business pursuant to the National Science Foundation Act and the Government in the Sunshine Act.
This meeting will be held by videoconference through National Science Foundation headquarters, 2145 Eisenhower Ave., Alexandria, VA 22314.
Closed.
Point of contact for this meeting is: Michelle McCrackin,
National Science Foundation.
Submission for OMB review; comment request.
The National Science Foundation (NSF) has submitted the following information collection requirement to OMB for review and clearance under the Paperwork Reduction Act of 1995. This is the second notice for public comment; the first was published in the
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Alexandria, Virginia 22314; telephone (703) 292-7556; or send email to
Copies of the submission may be obtained by calling 703-292-7556. NSF may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number, and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
The additional information to be collected under the NSF's rule includes any additional employment, contact, or other information relating to a scholarship recipient's repayment obligation if the recipient fails to fulfill the terms and conditions of the scholarship, the conversion of that obligation into a Federal direct unsubsidized student loan administered by and payable to the Department of Education, and/or the referral of that repayment obligation to the Department of Treasury for amounts that remain unpaid and cannot be converted to such a loan.
Weeks of May 1, 8, 15, 22, 29, June 5, 2023. The schedule for Commission meetings is subject to change on short notice. The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Public.
Members of the public may request to receive the information in these notices electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555, at 301-415-1969, or by email at
There are no meetings scheduled for the week of May 1, 2023.
There are no meetings scheduled for the week of May 8, 2023.
There are no meetings scheduled for the week of May 22, 2023.
There are no meetings scheduled for the week of May 29, 2023.
For more information or to verify the status of meetings, contact Wesley Held at 301-287-3591 or via email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
On February 27, 2023, Long-Term Stock Exchange, Inc. (“LTSE” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change, as modified by Amendment No. 1. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend GEMX's Pricing Schedule at Options 7.
While the changes proposed herein are effective upon filing, the Exchange has designated the amendments become operative on November 1, 2023.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
GEMX proposes to amend its Pricing Schedule at Options 7. Specifically, GEMX proposes to: (1) add the defined term “Exposed Order” within Options 7, Section 1(c); and (2) amend Options 7, Section 6.C. to offer certain free ports in connection with an upcoming technology migration.
The Exchange proposes to define an Exposed Order for purposes of pricing within Options 7. The Exchange introduced the concept of an “exposure” in a rule change amending GEMX's routing rules.
At this time, the Exchange proposes to amend Options 7, Section 1(c) to provide,
An “Exposed Order” is an order that is broadcast via an order exposure alert as described within Options 5, Section 4 (Order Routing). Unless otherwise noted in Options 7, Section 3 pricing, Exposed Orders will be assessed the applicable “Taker” Fee and any order or quote that executes against an Exposed Order during a Route Timer will be paid/assessed the applicable “Maker” Rebate/Fee.
As proposed, the defined term would apply a Taker Fee, where applicable, to an executed Exposed Order. If an order or quote allocates against the Exposed Order during the Route Timer described within Options 5, Section 4, the Exchange would pay/assess the applicable Maker Rebate and/or Maker Fee. The Exchange believes that its proposal should provide increased opportunities for participation in executions on the Exchange, facilitating the ability of the Exchange to bring together participants and encourage more robust competition for orders.
In connection with a technology migration,
A Member may acquire additional legacy ports during the Transition Period and would be assessed the charges indicated in the current Pricing Schedule at Options 7, Section 6.C, respectively, for those additional legacy ports.
The technology migration does not require a Member to acquire any additional legacy ports or any specific number of new ports, rather the technology migration requires a new port to connect to the new GEMX environment. As is the case today, a Member may decide the number of ports they desire to subscribe to on the new technology platform.
Of note, only GEMX Members may utilize ports on GEMX and only one port is necessary to submit orders to GEMX. Similarly, a Market Maker quoting on GEMX only requires 1 SQF Port.
This proposal is not intended to impose any additional fees on any GEMX Member. Rather, this proposal is intended to permit a GEMX Member to utilize the new environment with the same type and quantity of legacy ports, at no additional cost, during the Transition Period.
GEMX will sunset legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports on December 29, 2023. After December 29, 2023, each Member would only be able to utilize the new ports for the new environment. Starting December 1, 2023, the port fees in Options 7, Section 6.C would apply to any substituted ports that a Member continues to subscribe to after the Transition Period.
The Exchange believes that its proposal is consistent with section 6(b) of the Act,
The proposed changes to the Pricing Schedule are reasonable in several respects. As a threshold matter, the Exchange is subject to significant competitive forces in the market for order flow, which constrains its pricing determinations. The fact that the market for order flow is competitive has long been recognized by the courts. In
The Commission and the courts have repeatedly expressed their preference for competition over regulatory intervention to determine prices, products, and services in the securities markets. In Regulation NMS, while adopting a series of steps to improve the current market model, the Commission highlighted the importance of market forces in determining prices and SRO revenues, and also recognized that current regulation of the market system “has been remarkably successful in promoting market competition in its broader forms that are most important to investors and listed companies.”
Congress directed the Commission to “rely on `competition, whenever possible, in meeting its regulatory responsibilities for overseeing the SROs and the national market system.' ”
The Exchange's proposal to define an Exposed Order for purposes of pricing within Options 7, Section 1(c) is reasonable because it will provide Members information as to the manner in which pricing will be applied to both the Exposed Order as well as an order or quote that allocates against the Exposed Order.
The Exchange's proposal to define an Exposed Order for purposes of pricing within Options 7, Section 1(c) is equitable and not unfairly discriminatory as the proposed pricing for Exposed Orders would be uniformly applied to all orders subject to the Exchange's Route Timer, as described in Options 5, Section 4.
The proposed amendments to Options 7, Section 6.C to permit Members to acquire a second set of FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports, at no cost, as part of the technology migration are reasonable because they will permit GEMX Members to migrate to the new platform without a pricing impact. Specifically, the proposal is intended to permit GEMX Members to migrate their legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports to new ports at no additional cost during the Transition Period. This proposal will allow Members to test their ports and maintain continuous connection to the
The proposed amendments to Options 7, Section 6.C to permit Members to acquire a second set of FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports, at no cost, as part of the technology migration are equitable and not unfairly discriminatory because no Member would have a pricing impact as a result of this proposal, provided the Member did not obtain additional new ports to connect to the GEMX environment beyond the quantity and type the Member had on November 1, 2023 or additional legacy ports. No Member would be assessed a fee for the new second set of ports, provided they acquired a new second set of ports commiserate with the type and quantity of ports they subscribed to as of November 1, 2023. A Member obtaining additional legacy ports, beyond the current type and quantity of ports they have as of November 1, 2023, would be assessed the fees noted in Options 7, Section 6.C as applicable. GEMX will sunset legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports on December 29, 2023, so no Member would have a second type or quantity of a particular port as of December 29, 2023. Starting in December 1, 2023, the port fees in Options 7, Section 6.C would apply to any substituted ports that a Member continues to subscribe to after the Transition Period.
The technology migration does not require a Member to acquire any additional quantity of new ports, nor would it reduce the total number of ports needed to connect to the match engine. Rather the technology migration requires a new port to replace any legacy port provided the Member desired to maintain the same number of ports on the new GEMX technology platform. Of note, only GEMX Members may utilize ports on GEMX and only one port is necessary to submit orders to GEMX. Similarly, a Market Maker quoting on GEMX only requires 1 SQF Port.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange believes its proposal remains competitive with other options markets, and will offer market participants with another choice of venue to transact options. The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
The Exchange's proposal to define an Exposed Order for purposes of pricing within Options 7, Section 1(c) does not impose an undue burden on competition because the proposed pricing for Exposed Orders would be uniformly applied to all orders subject to the Exchange's Route Timer, as described in Options 4, Section 5.
The proposed amendments to Options 7, Section 6.C to permit Members to acquire a second set of FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports, at no cost, as part of the technology migration do not impose an undue burden on competition because no Member would have a pricing impact as a result of this proposal, provided the Member did not obtain additional new ports to connect to the GEMX environment beyond the quantity and type the Member had on November 1, 2023 or additional legacy ports. No Member would be assessed a fee for the new second set of ports, provided they acquired a new second set of ports commiserate with the type and quantity of ports they subscribed to as of November 1, 2023. A Member obtaining additional legacy ports, beyond the current type and quantity of ports they have as of November 1, 2023, would be assessed the fees noted in Options 7, Section 6.C as applicable. GEMX will sunset legacy FIX Ports, SQF Ports, SQF Purge Ports, OTTO Ports, CTI Ports and FIX DROP Ports on December 29, 2023, so no Member would have a second type or quantity of a particular port as of December 29, 2023. Starting in December 1, 2023, the port fees in Options 7, Section 6.C would apply to any substituted ports that a Member continues to subscribe to after the Transition Period.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to make permanent the operation of its Flexible Exchange Options (“FLEX Options”) pilot program (“Pilot Program”) regarding permissible exercise settlement values for FLEX Index Options. The text of the proposed rule change is provided below.
(a) No change.
(b)
(1)-(4) No change.
(5) settlement type:
(A) No change.
(B)
(i) No change.
(ii) p.m.-settled (with exercise settlement value determined by reference to the reported level of the index derived from the reported closing prices of the component securities)[, except for a FLEX Index Option that expires on any business day that falls on or within two business days of a third Friday-of-the-month expiration day for a non-FLEX Option (other than a QIX option) may only be a.m.-settled; however, for a pilot period ending the earlier of May 8, 2023 or the date on which the pilot program is approved on a permanent basis, a FLEX Index Option with an expiration date on the third-Friday of the month may be p.m.-settled];
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to make permanent its Pilot Program that permits the Exchange to list FLEX Options whose exercise settlement value is derived from closing prices on the last trading day prior to expiration that expire on or within two business days of a third Friday-of-the-month expiration day for a non-FLEX Option (other than QIX options) (“FLEX PM Third Friday”). The Securities and Exchange Commission (the “Commission”) approved a Cboe Options rule change that, among other things, established a pilot program regarding permissible exercise settlement values for FLEX Index
By way of background, when cash-settled
As stated above, since its inception in 2010, the Exchange has continuously extended the FLEX PM Third Friday Pilot Program period and, during the course of the FLEX PM Third Friday Pilot Program and in support of the extensions of the FLEX PM Third Friday Pilot Program, the Exchange has submitted reports to the Commission regarding the Pilot Program that detail the Exchange's experience with the Pilot Program, pursuant to the FLEX PM Third Friday Pilot Program.
Also, during the course of the FLEX PM Third Friday Pilot Program, the Exchange provided the Commission with any additional data or analyses the Commission requested if it deemed such data or analyses necessary to determine whether the Pilot Program was consistent with the Exchange Act. The Exchange has made public on its website all data and analyses previously submitted to the Commission under the FLEX PM Third Friday,
The Exchange has concluded that the FLEX PM Third Friday does not negatively impact market quality or raise any unique or prohibitive regulatory concerns. The Exchange has not identified any evidence from the pilot data indicating that the trading of P.M.-settled FLEX options has any adverse impact on fair and orderly markets on Expiration Fridays for broad-based indexes or the underlying securities comprising those indexes, nor have there been any observations of abnormal market movements attributable to P.M.-settled FLEX options from any market participants that have come to the attention of the Exchange.
Based on a study conducted by the Commission's Division of Economic and Risk Analysis (“DERA”) staff on the pilot data from 2006 through 2018,
Moreover, the DERA staff study of the P.M.-settled SPX options pilot data (2006 through 2018) did not identify any significant economic impact on S&P 500 futures,
In particular, the DERA staff study found that an additional P.M.-settled SPX options settlement quantity equal to $10 billion in notional value is associated with a marginal impact on futures prices during the last 15 minutes of the trading day of only about $0.06 (where the hypothetical index level is 2,500), additional expiring open interest in P.M.-settled SPX options equal to $10 billion in notional value is associated with a marginal impact on futures prices during the last 15 minutes of the trading day of only about $0.05 (assumed index level is 2,500). Also, an additional
Likewise, the study identified that an additional total P.M.-settled SPX options settlement quantity equal to $10 billion in notional value corresponds to price movement in the S&P 500 of only about $0.08 (assuming an index level of 2,500) during the last 15 minutes of the trading day, and that additional expiring open interest equal to $10 billion in notional value corresponds to a price movement in the S&P 500 of only about $0.06 (assuming an index level of 2,500) during the last 15 minutes of the trading day. The study also identified that it would take an increase of $34 billion in notional value of total settlement quantity and of expiring open interest for one additional S&P 500 price reversal of greater than two standard deviations to occur in the last 15 minutes before the market close. Also, regarding potential impact to S&P 500 component securities, it would take an increase in total P.M.-settled SPX options settlement quantity equal to $20 billion to effect a price movement of only approximately $0.03 for a $200 stock, an increase in expiring open interest in P.M.-settled SPX options equal to $10 billion to effect a price movement less than half a standard deviation, and an increase in total P.M.-settled SPX settlement quantity equal to $7 billion to achieve a price reversal greater two standard deviations.
The study employed the same metrics to determine whether there is greater price volatility for S&P 500 futures, the S&P 500, and the component securities of the S&P 500 related to SPXPM option settlements during an environment of high market volatility (
Upon review of the results of the DERA staff study, the Exchange agrees that each of the above-described marginal price movements in S&P 500 futures, the S&P 500, and the S&P 500 component securities affected by increases in P.M.-settled SPX options settlement quantity and expiring open interest appear to be de minimis pricing changes from those that occur over regular trading hours (outside of the last 15 minutes of the trading day). Further, the Exchange has not observed any significant economic impact or other adverse effects on the market from similar reviews of its pilot reports and data submitted after 2018.
In addition to this, the Exchange notes that the S&P 500 is rebalanced quarterly. The changes resulting from each rebalancing coincide with the third-Friday of the quarterly rebalancing month (
The Exchange additionally focused its study of the post-2018 sample pilot data on reviewing for potential correlation between excess market volatility and price reversals and the hedging activity of liquidity providers. As explained in the DERA staff study, potential impact of P.M.-settled SPX options on the correlated equity markets is thought to stem from the hedging activity of liquidity providers in such options.
The Exchange observed that, on average, there were approximately 25% more MOC shares executed on expiration days (332 expiration days) than non-expiration days (209 non-expiration days). While, at first glance, the volume of MOC shares executed on expiration days seems much greater than the volume executed on non-expiration days, the Exchange notes that much of this difference is attributable to just eight expiration days—the quarterly index rebalancing dates captured within the scope of the post-2018 sample pilot data. The average MOC share volume on the eight quarterly rebalancing dates was approximately 4.8 times the average MOC share volume on the non-quarterly rebalancing expiration dates; again, indicating that the impact rebalancing may have on the S&P 500 Index is greater than any impact that P.M.-settled SPX options may have on the S&P 500 Index. That is, the Exchange observed that the majority of closing volume on quarterly rebalance dates is driven by rebalancing of shares in in the S&P 500, and not by P.M.-settled SPX options expiration-related hedging activity. Notwithstanding the MOC share volume on quarterly rebalancing dates, the volume of MOC shares executed on expiration days (324 expiration days) was only approximately 13% more than that on non-expiration days, substantially less than the increase in volume over non-expiration days wherein the eight index rebalancing dates are included in expiration day volume. In addition to this, the Exchange observed that the hedging MOC share volume (
The Exchange also observed that, across all third-Friday expirations, the notional value of the hedging futures positions was approximately 25% of the notional value of expiring ITM P.M.-settled SPX options, approximately 3.8% of the notional value of all expiring P.M.-settled SPX options, and approximately only 0.5% of the notional value of all P.M.-settled SPX options. As such, the estimated hedging activity from liquidity providers on expiration days is a fraction of the expiring open interest in P.M.-settled SPX options, which, the Exchange notes, is only 14% of the total open interest in P.M.-settled SPX options; thus, indicating negligible capacity for hedging activity to increase volatility in the underlying markets.
While unrelated to the initial concerns of P.M.-settlement as described above, at the request of the Commission, the Exchange recently completed an analysis intended to evaluate whether the introduction of P.M.-settled options impacted the quality of the A.M.-settled option market. Specifically, the Exchange compared values of key market quality indicators (specifically, the bid-ask spread
Given the time that as passed since the introduction of FLEX P.M.-settled options, the Exchange is unable to analyze whether the introduction of those options significantly impacted the market quality of FLEX P.M.-settled options. Additionally, the Exchange is unable to analyze whether the introduction of the FLEX P.M.-settled options significantly impacted the market quality of A.M.-settled FLEX options, as there is no book for FLEX options, as FLEX options are listed only if and when market participants create them for trading. However, the Exchange believes analyzing whether the introduction of new SPXW P.M.-settled expirations (
As a result of this analysis, the Exchange believes the introduction of SPX options with Tuesday and Thursday options had no significant impact on the market quality of SPXW options with Monday, Wednesday, and Friday expirations. With respect to the majority of series analyzed, the Exchange observed no statistically significant difference in the bid-ask spread or the effective spread of the series in the period prior to introduction of the Tuesday and Thursday expirations and the period following the introduction of the Tuesday and Thursday expirations. While statistically insignificant, the Exchange notes that in many series, particularly as they were closer to expiration, the Exchange observed that the values of these spreads decreased during the period following the introduction of the Tuesday and Thursday expirations.
To further note, given the significant changes in the closing procedures of the primary markets in recent decades, including considerable advances in trading systems and technology, the Exchange believes that the risks of any potential impact of P.M.-, cash-settled
The Exchange proposes to make the FLEX PM Third Friday Program permanent as P.M.-settled index products have become an integral part of the Exchange's product offerings, providing investors with greater trading opportunities and flexibility. As indicated by the significant growth in the size of the market for P.M.-settled options, such options have been, and continue to be, well-received and widely used by market participants. Therefore, the Exchange wishes to be able to continue to provide investors with the ability to trade FLEX PM options on a permanent basis. The Exchange believes that the permanent continuation of the FLEX PM Third Friday Pilot Program will serve to maintain the status quo by continuing to offer a product to which investors have become accustomed and have incorporated into their business models and day-to-day trading methodologies for nearly ten years. As such, the Exchange also believes that ceasing to offer FLEX PM options may result in significant market disruption and investor confusion. The Exchange has not identified any significant impact on market quality nor any unique or prohibitive regulatory concerns as a result of the FLEX PM Third Friday Pilot Program, and, as such, the Exchange believes that the continuation of the FLEX PM Third Friday Pilot Program as a pilot, including the use of time and resources to compile and analyze quarterly and annual pilot reports and pilot data, is no longer necessary and that making the FLEX PM Third Friday Pilot Program permanent will allow the Exchange to otherwise allocate time and resources to other industry initiatives.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of section 6(b) of the Act.
In particular, the Exchange believes that the making the FLEX PM Third Friday Pilot Program permanent will allow the Exchange to be able to continue to offer FLEX PM options on a continuous and permanent basis. These products have been, and continue to be, well-received and widely used by market participants, providing investors with greater trading opportunities and flexibility. The Exchange believes that the permanent continuation of the FLEX PM Third Friday Pilot Program will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest by continuing to offer a product to which investors have become accustomed and have incorporated into their business models and day-to-day trading strategies for approximately 13 years. The Exchange believes ceasing to offer the FLEX PM Third Friday Pilot Program may result in significant market disruption and investor confusion, as P.M.-settled index products, particularly SPX options, have become an integral part of the Exchange's product offerings, providing investors with greater trading opportunities and flexibility.
The Exchange further believes that making the FLEX PM Third Friday Pilot Program permanent will remove impediments to and perfect the mechanism of a free and open market and a national market system and protect investors, while maintaining a fair and orderly market, as the Exchange believes that previous concerns (arising in the 1980s) regarding options expirations potentially contributing to excess volatility and reversals around the close have been adequately diminished. As described in detail above, the Exchange has observed no significant adverse market impact or identified any meaningful regulatory concerns during the approximately 13-year operation of the FLEX PM Third Friday Program as a pilot nor during the 15 years since P.M.-settled index options (SPX) were reintroduced to the marketplace.
The Exchange also believes the introduction of FLEX PM options had no significant impact on the market quality of corresponding A.M.-settled options or other options. The Exchange believes this as a result of its analysis conducted after the introduction of SPXW options with Tuesday and Thursday expirations, which demonstrated no statistically significant impact on the bid-ask or effective spreads of SPXW options with Monday, Wednesday, and Friday expirations after trading in the SPXW options with Tuesday and Thursday expirations began. FLEX options are nearly identical to non-FLEX options and overlay the same indexes. Therefore, the Exchange believes analyzing the impact of new SPXW options on then-existing SPXW options permit the Exchange to extrapolate from this data that it is unlikely the introduction of P.M.-settled FLEX options significantly impacted the market quality of A.M.-settled options when the pilot began.
Additionally, the significant changes in the closing procedures of the primary markets in recent decades, including considerable advances in trading systems and technology, has significantly minimized risks of any potential impact of P.M.-, cash-settled FLEX options on the underlying cash markets. As such, the Exchange believes that a permanent FLEX PM Third Friday Pilot Program does not raise any unique or prohibitive regulatory concerns and that such trading has not, and will not, adversely impact fair and orderly markets on Expiration Fridays for the underlying indexes or their component securities. Further, as the Exchange has not identified any significant impact on market quality or any unique or prohibitive regulatory concerns as a result of offering FLEX PM options, the
Cboe Options does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that making the FLEX PM Third Friday Pilot Program permanent will impose any unnecessary or inappropriate burden on intramarket competition because FLEX PM options will continue to be available to all market participants who wish to participate in the FLEX PM options market. The Exchange believes that the growth that the P.M.-settled options market, including FLEX PM options, has experienced since their reintroduction through pilot programs indicates strong, continued investor interest and demand, warranting a permanent FLEX PM Third Friday Pilot Program. The Exchange believes that, for the period that P.M.-settled FLEX options have been in operation as pilot programs, they have provided investors with a desirable product with which to trade and wishes to permanently offer this product to investors. Furthermore, during the pilot period, the Exchange has not observed any significant adverse market effects nor identified any regulatory concerns as a result of the FLEX PM Third Friday Pilot Program, and, as such, the continuation of the FLEX PM Third Friday Pilot Program as a pilot, including the gathering, submission and review of the pilot reports and data, is no longer necessary—a permanent FLEX PM Third Friday Pilot Program will allow the Exchange to otherwise allocate time and resources to other industry initiatives.
The Exchange further does not believe that making the FLEX PM Third Friday Pilot Program permanent will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because it applies to a class of options listed only for trading on Cboe Options. The Exchange notes that other exchanges are free to and do offer competing products. To the extent that the permanent offering and continued trading of FLEX PM options may make Cboe Options a more attractive marketplace to market participants at other exchanges, such market participants may elect to become Cboe Options market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. by order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to make permanent the operation of its program (“Pilot Program”) that allows the Exchange to list P.M.-settled third Friday-of-the-month Mini-SPX Index (“XSP”) options and Mini-Russell 2000 Index (“MRUT”) options series. The text of the proposed rule change is provided below.
.01-.12 No change.
.13 In addition to A.M.-settled S&P 500 Stock Index (“SPX”) options
.13 In addition to A.M.-settled S&P 500 Stock Index (“SPX”) options approved for trading on the Exchange pursuant to Rule 4.13, the Exchange may also list options on SPX whose exercise settlement value is derived from closing prices on the last trading day prior to expiration (P.M.-settled third Friday-of-the-month SPX options series).
.14
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to make permanent its Pilot Program that permits the Exchange to list XSP and MRUT options whose exercise settlement value is derived from closing prices on the last trading day prior to expiration (“P.M.-settled”). The Securities and Exchange Commission (the “Commission”) approved a rule change that established the Pilot Program to allow the Exchange to list options on the S&P 500 Index (“SPX”) whose exercise settlement value is derived from closing prices on the last trading day prior to expiration (“SPXPM”) on February 8, 2013.
By way of background, when cash-settled
As stated above, since their inceptions in 2016 and 2020, the Exchange has continuously extended the P.M.-settled XSP Pilot Program and the P.M.-settled MRUT Pilot Program, respectively, and, during the course of the these Pilot Programs and in support of the extensions of these Pilot Programs, the Exchange has submitted reports to the Commission regarding the Pilot Programs that detail the Exchange's experience with the Pilot Programs, pursuant to the P.M.-settled XSP Approval Order and the P.M.-settled MRUT Approval Order (together, the “Pilot Product Approval Orders”).
The pilot reports contained the following volume and open interest data:
(1) monthly volume aggregated for all trades;
(2) monthly volume aggregated by expiration date;
(3) monthly volume for each individual series;
(4) month-end open interest aggregated for all series;
(5) month-end open interest for all series aggregated by expiration date; and
(6) month-end open interest for each individual series.
(1) a time series analysis of open interest; and
(2) an analysis of the distribution of trade sizes.
Finally, for series that exceed certain minimum parameters,
(1) a comparison of index price changes at the close of trading on a given Expiration Friday with comparable price changes from a control sample. The data includes a calculation of percentage price changes for various time intervals and compare that information to the respective control sample. Raw percentage price change data as well as percentage price change data normalized for prevailing market volatility, as measured by the Cboe Volatility Index (VIX), is provided; and
(2) a calculation of share volume for a sample set of the component securities representing an upper limit on share trading that could be attributable to expiring in-the-money series. The data includes a comparison of the calculated share volume for securities in the sample set to the average daily trading volumes of those securities over a sample period.
Also, during the course of the Pilot Products Pilot Programs, the Exchange provided the Commission with any additional data or analyses the
The Exchange has concluded that the Pilot Products Pilot Program does not negatively impact market quality or raise any unique or prohibitive regulatory concerns. The Exchange has not identified any evidence from the pilot data indicating that the trading of P.M.-settled XSP or MRUT options has any adverse impact on fair and orderly markets on Expiration Fridays for the Mini-SPX Index, the Mini-RUT Index or the underlying securities comprising the underlying indexes, nor have there been any observations of abnormal market movements attributable to P.M.-settled XSP or MRUT options from any market participants that have come to the attention of the Exchange.
Based on a study conducted by the Commission's Division of Economic and Risk Analysis (“DERA”) staff on the pilot data from 2006 through 2018,
Moreover, the DERA staff study of the P.M.-settled SPX options pilot data (2006 through 2018) did not identify any significant economic impact on S&P 500 futures,
In particular, the DERA staff study found that an additional P.M.-settled SPX options settlement quantity equal to $10 billion in notional value is associated with a marginal impact on futures prices during the last 15 minutes of the trading day of only about $0.06 (where the hypothetical index level is 2,500), additional expiring open interest in P.M.-settled SPX options equal to $10 billion in notional value is associated with a marginal impact on futures prices during the last 15 minutes of the trading day of only about $0.05 (assumed index level is 2,500). Also, an additional increase in settlement quantity or in expiring open interest, each equal to $20 million in notional value, did not result in any meaningful futures price reversals near the close (neither was found to cause a price reversal of over one standard deviation
Likewise, the study identified that an additional total P.M.-settled SPX options settlement quantity equal to $10 billion in notional value corresponds to price movement in the S&P 500 of only about $0.08 (assuming an index level of 2,500) during the last 15 minutes of the trading day, and that additional expiring open interest equal to $10 billion in notional value corresponds to a price movement in the S&P 500 of only about
The study employed the same metrics to determine whether there is greater price volatility for S&P 500 futures, the S&P 500, and the component securities of the S&P 500 related to SPXPM option settlements during an environment of high market volatility (
Upon review of the results of the DERA staff study, the Exchange agrees that each of the above-described marginal price movements in S&P 500 futures, the S&P 500, and the S&P 500 component securities affected by increases in P.M.-settled SPX options settlement quantity and expiring open interest appear to be de minimis pricing changes from those that occur over regular trading hours (outside of the last 15 minutes of the trading day). Further, the Exchange has not observed any significant economic impact or other adverse effects on the market from similar reviews of its pilot reports and data submitted after 2018.
In addition to this, the Exchange notes that the S&P 500 is rebalanced quarterly. The changes resulting from each rebalancing coincide with the third-Friday of the quarterly rebalancing month (
The Exchange additionally focused its study of the post-2018 sample pilot data on reviewing for potential correlation between excess market volatility and price reversals and the hedging activity of liquidity providers. As explained in the DERA staff study, potential impact of P.M.-settled SPX options on the correlated equity markets is thought to stem from the hedging activity of liquidity providers in such options.
The Exchange observed that, on average, there were approximately 25% more MOC shares executed on expiration days (332 expiration days) than non-expiration days (209 non-expiration days). While, at first glance, the volume of MOC shares executed on
The Exchange also observed that, across all third-Friday expirations, the notional value of the hedging futures positions was approximately 25% of the notional value of expiring ITM P.M.-settled SPX options, approximately 3.8% of the notional value of all expiring P.M.-settled SPX options, and approximately only 0.5% of the notional value of all P.M.-settled SPX options. As such, the estimated hedging activity from liquidity providers on expiration days is a fraction of the expiring open interest in P.M.-settled SPX options, which, the Exchange notes, is only 14% of the total open interest in P.M.-settled SPX options; thus, indicating negligible capacity for hedging activity to increase volatility in the underlying markets.
While unrelated to the initial concerns of P.M.-settlement as described above, at the request of the Commission, the Exchange recently completed an analysis intended to evaluate whether the introduction of P.M.-settled options impacted the quality of the A.M.-settled option market. Specifically, the Exchange compared values of key market quality indicators (specifically, the bid-ask spread
Given the time that as passed since the introduction of the Pilot Products, the Exchange is unable to analyze whether the introduction of Pilot Products significantly impacted the market quality of A.M.-settled options. Additionally, the Exchange is unable to analyze whether the introduction of the Pilot Products significantly impacted the market quality of A.M.-settled XSP or MRUT options, as applicable (which the Exchange does not list for trading). However, the Exchange believes analyzing whether the introduction of new SPXW P.M.-settled expirations (
As a result of this analysis, the Exchange believes the introduction of SPX options with Tuesday and Thursday options had no significant impact on the market quality of SPXW options with Monday, Wednesday, and Friday expirations. With respect to the majority of series analyzed, the Exchange observed no statistically significant difference in the bid-ask spread or the effective spread of the series in the period prior to introduction of the Tuesday and Thursday expirations and the period following the introduction of the Tuesday and Thursday expirations. While statistically insignificant, the Exchange notes that in many series, particularly as they were closer to expiration, the Exchange observed that the values of these spreads decreased during the period following the introduction of the Tuesday and Thursday expirations.
To further note, given the significant changes in the closing procedures of the primary markets in recent decades, including considerable advances in trading systems and technology, the Exchange believes that the risks of any potential impact of P.M.-, cash-settled XSP or MRUT options on the underlying cash markets are also de minimis.
The Exchange proposes to make the Pilot Products Pilot Programs permanent as P.M.-settled index products have become an integral part of the Exchange's product offerings, providing investors with greater trading opportunities and flexibility. As indicated by the significant growth in the size of the market for P.M.-settled options, such options have been, and continue to be, well-received and widely used by market participants. Therefore, the Exchange wishes to be able to continue to provide investors with the ability to trade the Pilot Products on a permanent basis.
The Exchange believes the proposed rule change is consistent with the Securities Exchange Act of 1934 (the “Act”) and the rules and regulations thereunder applicable to the Exchange and, in particular, the requirements of section 6(b) of the Act.
In particular, the Exchange believes that the making the Pilot Products Pilot Programs permanent will allow the Exchange to be able to continue to offer the Pilot Products on a continuous and permanent basis. These products have been, and continue to be, well-received and widely used by market participants, providing investors with greater trading opportunities and flexibility. The Exchange believes that the permanent continuation of the Pilot Products Pilot Programs will remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, protect investors and the public interest by continuing to offer products to which investors have become accustomed and have incorporated into their business models and day-to-day trading strategies for nearly seven (XSP) and three (MRUT) years. The Exchange believes ceasing to offer the Pilot Products may result in significant market disruption and investor confusion, as P.M.-settled index products have become an integral part of the Exchange's product offerings (the Exchange does not list A.M.-settled XSP and MRUT options), providing investors with greater trading opportunities and flexibility.
The Exchange further believes that making the Pilot Products Pilot Programs permanent will remove impediments to and perfect the mechanism of a free and open market and a national market system and protect investors, while maintaining a fair and orderly market, as the Exchange believes that previous concerns (arising in the 1980s) regarding options expirations potentially contributing to excess volatility and reversals around the close have been adequately diminished. As described in detail above, the Exchange has observed no significant adverse market impact or identified any meaningful regulatory concerns during the multi-year operation of the Pilot Products Pilot Programs as a pilot nor during the 15 years since P.M.-settled index options (SPX) were reintroduced to the marketplace.
The Exchange also believes the introduction of P.M.-settled XSP and MRUT options had no significant impact on the market quality of corresponding A.M.-settled options (as the Exchange does not list those) or other options (such as A.M.-settled SPX or RUT options). The Exchange believes this as a result of its analysis conducted after the introduction of SPXW options with Tuesday and Thursday expirations, which demonstrated no statistically significant impact on the bid-ask or effective spreads of SPXW options with Monday, Wednesday, and Friday expirations after trading in the SPXW options with Tuesday and Thursday expirations began. While SPXW options are P.M.-settled and SPX options are A.M.-settled, they are otherwise nearly identical products. P.M.-settled XSP options are nearly identical to P.M.-settled and A.M.-settled SPX options, as they are based on an index comprised of the same securities, just
Additionally, the significant changes in the closing procedures of the primary markets in recent decades, including considerable advances in trading systems and technology, has significantly minimized risks of any potential impact of P.M.-, cash-settled XSP and MRUT options on the underlying cash markets. As such, the Exchange believes that permanent Pilot Products Pilot Programs do not raise any unique or prohibitive regulatory concerns and that such trading has not, and will not, adversely impact fair and orderly markets on Expiration Fridays for the underlying indexes or their component securities. Further, as the Exchange has not identified any significant impact on market quality or any unique or prohibitive regulatory concerns as a result of offering the Pilot Products, the Exchange believes that the continuation of the Pilot Products Pilot Programs as pilots, including the gathering, submission and review of the pilot reports and data, is no longer necessary and that making the Pilot Products Pilot Programs permanent will
Cboe Options does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange does not believe that making the Pilot Products Pilot Programs permanent will impose any unnecessary or inappropriate burden on intramarket competition because the Pilot Products options will continue to be available to all market participants who wish to participate in the XSP and MRUT options markets. The Exchange believes that the growth that the markets for P.M.-settled products, including the Pilot Products, have experienced since their reintroduction through pilot programs indicates strong, continued investor interest and demand, warranting permanent Pilot Products Pilot Programs. The Exchange believes that, for the period that P.M.-settled XSP and MRUT options have been in operation as pilot programs, they have provided investors with desirable products with which to trade and wishes to permanently offer these products to investors. Furthermore, during the pilot period, the Exchange has not observed any significant adverse market effects nor identified any regulatory concerns as a result of the Pilot Products Pilot Programs, and, as such, the continuation of the programs as pilots, including the gathering, submission and review of the pilot reports and data, is no longer necessary—permanent Pilot Products Pilot Programs will allow the Exchange to otherwise allocate time and resources to other industry initiatives.
The Exchange further does not believe that making the Pilot Products Pilot Programs permanent will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because it applies to classes of options listed only for trading on Cboe Options. The Exchange notes that other exchanges are free to and do offer competing products. To the extent that the permanent offering and continued trading of P.M.-settled XSP and MRUT options may make Cboe Options a more attractive marketplace to market participants at other exchanges, such market participants may elect to become Cboe Options market participants.
The Exchange neither solicited nor received comments on the proposed rule change.
Within 45 days of the date of publication of this notice in the
A. by order approve or disapprove such proposed rule change, or
B. institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On January 6, 2023, Cboe Exchange, Inc. (“Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to make permanent a pilot program that permits the Exchange to list and trade cash-settled SPX options with third Friday-of-the-month expiration dates (“Expiration Friday”) whose exercise settlement value is derived from closing prices on the last trading day prior to expiration (“SPXPM”).
In February 2013, the Commission approved the Program on a pilot basis.
Since the Program's inception in 2013, the Exchange has submitted reports to the Commission regarding the Program that detail the Exchange's experience with the Program, pursuant to the SPXPM Approval Order.
As set forth more fully in the Notice, the Exchange concludes that the Program does not negatively impact market quality or raise any unique or prohibitive regulatory concerns.
The Exchange also completed an analysis intended to evaluate whether
Finally, the Exchange states that the significant changes in the closing procedures of the primary markets in recent decades, including considerable advances in trading systems and technology, have significantly minimized risks of any potential impact of P.M.-, cash-settled SPX options on the underlying cash markets.
The Commission is instituting proceedings pursuant to section 19(b)(2)(B) of the Act
Pursuant to section 19(b)(2)(B) of the Act,
The Commission requests that interested persons provide written submissions of their data, views, and arguments with respect to the issues identified above, as well as any other concerns they may have with the proposal. In particular, the Commission invites the written views of interested persons concerning whether the proposed rule change, as modified by Amendment No. 1, is consistent with sections 6(b)(5) or any other provision of the Act, or the rules and regulations thereunder. Although there do not appear to be any issues relevant to approval or disapproval that would be facilitated by an oral presentation of data, views, and arguments, the Commission will consider, pursuant to Rule 19b-4 under the Act,
Interested persons are invited to submit written data, views, and arguments regarding whether the proposed rule change, as modified by Amendment No. 1, should be approved or disapproved by May 19, 2023. Any person who wishes to file a rebuttal to any other person's submission must file that rebuttal by June 2, 2023. The Commission asks that commenters address the sufficiency of the Exchange's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 22, 2023, The Nasdaq Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the comments received. Accordingly, the Commission, pursuant to Section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 24, 2023, Cboe BZX Exchange, Inc. (the “Exchange” or “BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change, as modified by Amendment No. 1. Accordingly, the Commission, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 24, 2023, NYSE Arca, Inc. (“NYSE Arca” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 22, 2023, NYSE American LLC (“NYSE American” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On February 22, 2023, New York Stock Exchange LLC (“NYSE” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change and the comments received. Accordingly, the Commission, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(7) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to streamline the process to report an Exchange of Contract for Related Position (“ECRP”) transaction
In its filing with the Commission, CFE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CFE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
CFE Rule 414 (Exchange of Contract for Related Position) includes provisions that govern the execution of ECRP transactions in CFE products, and CFE Rule 415 (Block Trades) includes provisions that govern the execution of Block Trades in CFE products. Rule 414(i) and Rule 415(f) require each CFE Trading Privilege Holder (“TPH”) that desires to execute ECRP transactions and Block Trades in CFE products to designate at least one Authorized Reporter that is pre-authorized by a CFE Clearing Member to report ECRP
Rule 414(l) and Rule 415(i) describe the process that Authorized Reporters must use to notify the Exchange of ECRP transactions and Block Trades. The current notification process includes three steps. First, the Authorized Reporter that is the initiator of a notification of an ECRP transaction or Block Trade enters information regarding the transaction into the CFE System. Second, the Authorized Reporter that is the initiator of the notification of the ECRP transaction or Block Trade provides a reference ID generated for the transaction by the CFE System to the Authorized Reporter for the contra side of the transaction. Third, the Authorized Reporter for the contra side of the ECRP transaction or Block Trade accepts the notification to the Exchange of the transaction as entered by the initiating Authorized Reporter and enters contra side information for the transaction.
As a result, an Authorized Reporter that is reporting an ECRP transaction or Block Trade to the Exchange on behalf of both parties to the transaction must go through these three steps in order to report the transaction to the Exchange. In practice, this means that the Authorized Reporter must enter information for one side of the transaction on one screen within a Block/ECRP reporting tool that is a component of the CFE System, receive an email with a reference ID for the transaction generated by the CFE System, and then use the reference ID to separately enter information for the other side of the transaction on another screen within the Block/ECRP reporting tool.
CFE is proposing to amend Rule 414(l) and Rule 415(i) to allow an Authorized Reporter that is reporting an ECRP transaction or Block Trade to the Exchange on behalf of both parties to the transaction to report the transaction in one step. In practice, this would mean that the Authorized Reporter may enter at one time all of the required information for both sides of the transaction on one screen within the Block/ECRP reporting tool. The Authorized Reporter would no longer need to receive an email with a reference ID for the transaction or to go to another screen within the Block/ECRP reporting tool to enter the information for the contra side of the transaction. The proposed rule change does not change the information that is required to be reported to the Exchange relating to ECRP transactions and Block Trades.
The proposed rule change revises Rule 414 and Rule 415 in the following manner in order to allow an Authorized Reporter that is reporting an ECRP transaction or Block Trade to the Exchange on behalf of both parties to the transaction to do so in one step.
The proposed rule change proposes to split both Rule 414(l) and Rule 415(i) into two primary subsections. The first subsection in both proposed new Rule 414(l)(i) and proposed new Rule 415(i)(i) describes the current reporting process that would continue to apply when the parties to an ECRP transaction or Block Trade are using different Authorized Reporters to report the transaction to the Exchange. The second subsection in both proposed new Rule 414(l)(ii) and proposed new Rule 415(i)(ii) provides that if the parties to an ECRP transaction or Block Trade are each utilizing the same Authorized Reporter to notify the Exchange of the terms of the transaction, the Authorized Reporter is able to enter all of the required information regarding both sides of the transaction into the CFE System and to fully report the transaction to the Exchange.
Similarly, the proposed rule change proposes to revise Rule 414(m) and Rule 415(j) to provide for two alternative ways in which an ECRP transaction or Block Trade would be deemed to have been fully reported to the Exchange for timing purposes in connection with measuring adherence to permissible reporting period and reporting deadline provisions within Rule 414 and Rule 415. Proposed New Rule 414(m)(i) and proposed new Rule 415(j)(i) retain the current provision that an ECRP transaction or Block Trade shall be deemed to have been fully reported to the Exchange when the full report of the transaction has been received by the CFE System matching engine following notification to the CFE System of required information relating to the transaction by the initiating Authorized Reporter and acceptance and notification to the CFE System of required information relating to the transaction by the contra side Authorized Reporter. Proposed new Rule 414(m)(ii) and proposed new Rule 415(j)(ii) provide that an ECRP transaction or Block Trade shall be deemed to have been fully reported to the Exchange when the full report of the transaction has been received by the CFE System matching engine following notification to the CFE System of required information relating to the transaction by a single Authorized Reporter for both parties to the transaction.
The proposed rule change also includes some non-substantive proposed wording and organizational changes to Rule 414(l), Rule 414(m), Rule 415(i), and Rule 415(j). For example, the Exchange proposes to include revised lead-in language in Rule 414(l) and Rule 415(i) indicating that the CFE System includes a mechanism, in a form and manner provided by the Exchange, for Authorized Reporters to enter required information regarding an ECRP transaction or Block Trade, as applicable. As proposed to be revised, Rules 414(l) and Rule 415(i) then include in separate subsections, as further described above, the reporting provisions relating to the scenario in which both parties to an ECRP transaction or Block Trade, as applicable, are utilizing the same Authorized Reporter and the reporting provisions relating to the scenario in which the parties to an ECRP transaction or Block Trade are not utilizing the same Authorized Reporter. As another example, the Exchange proposes to change the organization of Rule 414(l) and Rule 415(i) by breaking out the provisions into additional subparagraphs with new numbering and lettering for those subparagraphs.
The Exchange believes that the proposed rule change is consistent with section 6(b) of the Act,
• to contribute to the ability of the Exchange to enforce compliance by its TPHs and persons associated with its TPHs with the provisions of the rules of the Exchange,
• to prevent fraudulent and manipulative acts and practices,
• to promote just and equitable principles of trade,
• to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities,
• to remove impediments to and perfect the mechanism of a free and open market and a national market system,
• and in general, to protect investors and the public interest.
The Exchange believes that the proposed rule change contributes to the Exchange's ability to enforce compliance by its TPHs and persons associated with its TPHs with the
Additionally, the proposed rule change proposes to make clear to TPHs the reporting process for the submission of required information regarding an ECRP transaction or Block Trade when an Authorized Reporter is reporting the transaction to the Exchange on behalf of both parties to the transaction by describing that process in CFE's rules. The proposed rule change also contributes to facilitating compliance with CFE rules by making it easier for Authorized Reporters to provide information to the Exchange regarding ECRP transactions and Block Trades when an Authorized Reporter is reporting both sides of the transaction. Similarly, the proposed rule change improves the functioning of the reporting mechanism for ECRP transactions and Block Trades and thus CFE's market by making the process to report these types of transactions more efficient where the Authorized Reporter is reporting both sides of the transaction. The proposed rule change does not substantively change the existing reporting requirements for ECRP transactions or Block Trades and instead serves to simplify the reporting process in the scenario in which both parties to an ECRP transaction or Block Trade, as applicable, are utilizing the same Authorized Reporter.
CFE does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that the proposed rule change will not burden intra-market competition because the proposed rule amendments will apply equally to all TPHs. The Exchange also believes that the proposed rule change will not burden inter-market competition because the proposed rule change contributes to the Exchange's ability to enforce compliance with its rules and to carry out its responsibilities as a self-regulatory organization by contributing to the Exchange's ability to obtain trade information that it may utilize in reviewing whether ECRP transactions and Block Trades comply with Rule 414 and 415.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change will become operative on April 28, 2023. At any time within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of section 19(b)(1) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given, pursuant to the provisions of the Government in the Sunshine Act, Public Law 94-409, that the Securities and Exchange Commission will hold an Open Meeting on Wednesday, May 3, 2023 at 10:00 a.m.
The meeting will be webcast on the Commission's website at
This meeting will begin at 10:00 a.m. (ET) and will be open to the public via webcast on the Commission's website at
1. The Commission will consider whether to adopt rule amendments that modernize and improve disclosure about repurchases of an issuer's equity securities that are registered under the Securities Exchange Act of 1934, including requiring issuers to present the disclosure using a structured data language.
2. The Commission will consider whether to adopt amendments to Form PF, the confidential reporting form for certain registered investment advisers to private funds, to require current reporting for certain private fund advisers, and revise certain other reporting requirements.
For further information and to ascertain what, if any, matters have been added, deleted or postponed, please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
On February 22, 2023, NYSE Chicago, Inc. (“NYSE Chicago” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Section 19(b)(2) of the Act
The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to section 19(b)(2) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission” or “SEC”).
Notice.
Notice of application for an order (“Order”) under sections 17(d) and 57(i) of the Investment Company Act of 1940 (the “Act”) and rule 17d-1 under the Act to permit certain joint transactions otherwise prohibited by sections 17(d) and 57(a)(4) of the Act and rule 17d-1 under the Act.
Applicants request an order to amend a previous order granted by the Commission that permits certain business development companies (“BDCs”) and closed-end management investment companies to co-invest in portfolio companies with each other and with certain affiliated investment entities.
SILVER POINT SPECIALTY LENDING FUND; SILVER POINT SPECIALTY CREDIT FUND MANAGEMENT, LLC; SILVER POINT CAPITAL FUND, L.P.; SILVER POINT CAPITAL OFFSHORE FUND, LTD.; SILVER POINT CAPITAL OFFSHORE MASTER FUND, L.P.; SILVER POINT CAPITAL, L.P.; SILVER POINT DISTRESSED OPPORTUNITIES FUND, L.P.; SILVER POINT DISTRESSED OPPORTUNITIES OFFSHORE MASTER FUND, L.P.; SILVER POINT DISTRESSED OPPORTUNITIES OFFSHORE FUND, L.P.; SILVER POINT DISTRESSED OPPORTUNITY INSTITUTIONAL PARTNERS (OFFSHORE), L.P.; SILVER POINT DISTRESSED OPPORTUNITY INSTITUTIONAL PARTNERS, L.P.; SILVER POINT DISTRESSED OPPORTUNITY INSTITUTIONAL PARTNERS MASTER FUND (OFFSHORE), L.P.; SILVER POINT DISTRESSED OPPORTUNITIES MANAGEMENT, LLC; SILVER POINT DISTRESSED OPPORTUNITY INSTITUTIONAL PARTNERS II (OFFSHORE), L.P.; SILVER POINT DISTRESSED OPPORTUNITY INSTITUTIONAL PARTNERS II, L.P.; SP DISTRESSED OPPORTUNITY IP II INTERMEDIATE, L.P.; SILVER POINT DISTRESSED OPPORTUNITY INSTITUTIONAL PARTNERS II MASTER FUND (OFFSHORE), L.P.; SILVER POINT DISTRESSED OPPORTUNITY INSTITUTIONAL PARTNERS II MASTER FUND, L.P.; SILVER POINT DISTRESSED OPPORTUNITY INSTITUTIONAL PARTNERS II MANAGEMENT, LLC; SILVER POINT SELECT OPPORTUNITIES FUND A, L.P.; SILVER POINT SPECIALTY CREDIT FUND II, L.P.; SILVER POINT SPECIALTY CREDIT FUND II (OFFSHORE), L.P.; SILVER POINT SPECIALTY CREDIT FUND II (OFFSHORE) B, L.P.; SILVER POINT SPECIALTY CREDIT FUND II (OFFSHORE) C, L.P.; SILVER POINT SPECIALTY CREDIT FUND II MINI-MASTER FUND (OFFSHORE), L.P.; SILVER POINT SPECIALTY CREDIT FUND II MINI-MASTER FUND, L.P.; SILVER POINT SPECIALTY CREDIT FUND II MANAGEMENT, LLC; SILVER POINT SPECIALTY CREDIT SILVER STAR FUND, L.P.; SILVER POINT SPECIALTY CREDIT SILVER STAR FUND MANAGEMENT, LLC; SILVER POINT LOAN FUNDING, LLC; SILVER POINT LOAN FUNDING MANAGEMENT, LLC; SILVER POINT SPECIALTY CREDIT FUND III (OFFSHORE), L.P.; SILVER POINT SPECIALTY CREDIT FUND III MANAGEMENT, LLC; SILVER POINT SPECIALTY CREDIT FUND III, L.P.; SILVER POINT SPECIALTY CREDIT III MASTER FUND (OFFSHORE), L.P.; SILVER POINT SPECIALTY CREDIT III MASTER FUND, L.P.; SILVER POINT RR MANAGER, L.P.; SILVER POINT CLO 1, LTD.; SILVER POINT CLO 2, LTD.
The application was filed on July 1, 2022, and amended on October 25, 2022 and March 10, 2023.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing on any application by emailing the SEC's Secretary at
The Commission:
Jennifer O. Palmer, Senior Counsel, or Terri G. Jordan, Branch Chief, at (202) 551-6825 (Division of Investment Management, Chief Counsel's Office).
For Applicants' representations, legal analysis, and conditions, please refer to Applicants' second amended and restated application, dated March 10, 2023, which may be obtained via the Commission's website by searching for the file number at the top of this document, or for an Applicant using the Company name search field, on the SEC's EDGAR system. The SEC's EDGAR system may be searched at
For the Commission, by the Division of Investment Management, under delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Oklahoma (FEMA-4706-DR), dated 04/24/2023.
Issued on 04/24/2023.
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 & Resilience, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 04/24/2023, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 17891 C and for economic injury is 17892 0.
GNP RLY, Inc. (GNP), has filed a verified notice of exemption under 49 CFR part 1152 subpart F—Exempt Abandonments to abandon an approximately 2.58-mile segment of a freight rail easement between milepost 23.8 and milepost 26.38, along with a spur that extends into Bothell, Wash., all in Woodinville, King County, Wash. (the Line). The Line traverses U.S. Postal Service Zip Code 98072.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received,
All pleadings, referring to Docket No. AB 1316X, must be filed with the Surface Transportation Board either via e-filing on the Board's website or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on GNP's representative, James H.M. Savage, 22 Rockingham Court, Germantown, MD 20874.
If the verified notice contains false or misleading information, the exemption is void ab initio.
GNP has filed a combined environmental and historic report that addresses the potential effects, if any, of the abandonment on the environment and historic resources. OEA will issue a Draft Environmental Assessment (Draft EA) by April 25, 2023. The Draft EA will be available to interested persons on the Board's website, by writing to OEA, or by calling OEA at (202) 245-0294. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339. Comments on environmental or historic preservation matters must be filed within 15 days after the Draft EA becomes available to the public.
Environmental, historic preservation, public use, or trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), GNP shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by GNP's filing of a notice of consummation by May 28, 2024, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available at
By the Board, Mai T. Dinh, Director, Office of Proceedings.
Federal Aviation Administration (FAA), DOT.
Notice of Commercial Space Transportation Advisory Committee meeting.
This notice announces a meeting of the Commercial Space Transportation Advisory Committee.
The meeting will take place on May 15, 2023 from 10:00 p.m. to 4:00 p.m.
Instructions on how to virtually attend the meeting, copies of meeting minutes, and a detailed agenda will be posted on the COMSTAC website at:
James Hatt, Designated Federal Officer, U.S. Department of Transportation, at (202) 267-4156, or by emal at
The Commercial Space Transportation Advisory Committee was created under the Federal Advisory Committee Act (FACA), in accordance with Public Law 92-463. Since its inception, industry-led COMSTAC has provided information, advice, and recommendations to the U.S. Department of Transportation through FAA regarding technology, business, and policy issues relevant to oversight of the U.S. commercial space transportation sector.
The meeting listed in this notice will be open to the public, virtually. Please see the website no later than five working days before the meeting for details on viewing the meeting on YouTube.
If you are in need of assistance or require a reasonable accommodation for this meeting, please contact the person listed in the
Interested members of the public may submit relevant written statements for the COMSTAC members to consider under the advisory process. Statements may concern the issues and agenda items mentioned above and/or additional issues that may be relevant for the U.S. commercial space transportation industry. Interested parties wishing to submit written statements should contact the person listed in the
Issued in Washington, DC.
Federal Aviation Administration (FAA), DOT.
Notice.
This notice announces a meeting of the Commercial Space Transportation Advisory Committee.
The meeting will take place on May 15, 2023 from 10:00 p.m. to 4:00 p.m.
Instructions on how to virtually attend the meeting, copies of meeting minutes, and a detailed agenda will be posted on the COMSTAC website at:
James Hatt, Designated Federal Officer, U.S. Department of Transportation, at (202) 267-4156, or by email at
The Commercial Space Transportation Advisory Committee was created under the Federal Advisory Committee Act (FACA), in accordance with Public Law 92-463. Since its inception, industry-led COMSTAC has provided information, advice, and recommendations to the U.S. Department of Transportation through FAA regarding technology, business, and policy issues relevant to oversight of the U.S. commercial space transportation sector.
The meeting listed in this notice will be open to the public, virtually. Please see the website no later than five working days before the meeting for details on viewing the meeting on YouTube.
If you are in need of assistance or require a reasonable accommodation for this meeting, please contact the person listed in the
Interested members of the public may submit relevant written statements for the COMSTAC members to consider under the advisory process. Statements may concern the issues and agenda items mentioned above and/or additional issues that may be relevant for the U.S. commercial space transportation industry. Interested parties wishing to submit written statements should contact the person listed in the
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of one or more persons that have been placed on OFAC's List of Specially Designated Nationals and Blocked Persons (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of these persons are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Andrea Gacki, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On April 24, 2023, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following persons are blocked under the relevant sanctions authorities listed below.
Environmental Protection Agency (EPA).
Final rule.
Pursuant to the U.S. Environmental Protection Agency's Significant New Alternatives Policy program, this action lists certain substances as acceptable, subject to use conditions, in the refrigeration and air conditioning sector for chillers—comfort cooling, residential dehumidifiers, residential and light commercial air conditioning and heat pumps, and a substance as acceptable, subject to use conditions and narrowed use limits, in very low temperature refrigeration. Through this action, EPA is incorporating by reference standards which establish requirements for electrical air conditioners, heat pumps, and dehumidifiers, laboratory equipment containing refrigerant, safe use of flammable refrigerants, and safe design, construction, installation, and operation of refrigeration systems. Finally, this action lists certain substances as acceptable, subject to use conditions, in the fire suppression sector for certain streaming and total flooding uses.
This rule is effective May 30, 2023. The incorporation by reference of certain material listed in the rule is approved by the Director of the Federal Register as of May 30, 2023. The incorporation by reference of certain other material listed in the rule was approved by the Director of the Federal Register as of May 11, 2015 and September 7, 2018.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2021-0836. All documents in the docket are listed on the
Holly Tapani, Stratospheric Protection Division, Office of Atmospheric Protection (Mail Code 6205A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-0679; email address:
This action finalizes listings of new alternatives for the refrigeration and air conditioning (AC) and fire suppression sectors. Specifically, EPA is:
• Listing hydrofluoroolefin (HFO)-1234yf, hydrofluorocarbon (HFC)-32, R-452B, R-454A, R-454B, and R-454C as acceptable, subject to use conditions, for use in chillers used in comfort cooling, including commercial AC and industrial process AC (IPAC);
• Listing HFO-1234yf, HFC-32, R-452B, R-454A, R-454B, and R-454C as acceptable, subject to use conditions, for use in residential dehumidifiers;
• Listing HFC-32 as acceptable, subject to use conditions, for use in self-contained room ACs and heat pumps (HPs);
• Listing R-1150 as acceptable, subject to use conditions and narrowed use limits, for use in very low temperature refrigeration (VLTR);
• Listing 2-bromo-3,3,3-trifluoropropene (2-BTP) as acceptable, subject to use conditions, in streaming—for non-residential use, except home offices and boats—and total flooding—in normally unoccupied spaces under 500 ft
• Listing EXXFIRE® as acceptable, subject to use conditions, in total flooding—for normally unoccupied areas; and
• Listing Powdered Aerosol H, also known as Pyroquench-α
EPA is finalizing these new listings after its evaluation of human health and environmental information for these substitutes in the refrigeration and AC sector and the fire suppression sector under the Significant New Alternatives Policy (SNAP) program based on the information that EPA has included in the docket. This action provides additional flexibility for industry by providing new options in specific uses.
The SNAP program implements section 612 of the Clean Air Act (CAA). Several major provisions of section 612 are:
Section 612(c) requires EPA to promulgate rules making it unlawful to replace any class I (chlorofluorocarbon (CFC), halon, carbon tetrachloride, methyl chloroform, methyl bromide, hydrobromofluorocarbon, and chlorobromomethane) or class II (hydrochlorofluorocarbon (HCFC)) ozone depleting substance (ODS) with any substitute that the Administrator determines may present adverse effects to human health or the environment where the Administrator has identified an alternative that (1) reduces the overall risk to human health and the environment and (2) is currently or potentially available.
Section 612(c) requires EPA to publish a list of the substitutes that it finds to be unacceptable for specific uses and to publish a corresponding list of acceptable substitutes for specific uses.
Section 612(d) grants the right to any person to petition EPA to add a substance to, or delete a substance from, the lists published in accordance with section 612(c).
Section 612(e) directs EPA to require any person who produces a chemical substitute for a class I substance to notify the Agency not less than 90 days before a new or existing chemical is introduced into interstate commerce for significant new use as a substitute for a class I substance. The producer must also provide the Agency with the producer's unpublished health and safety studies on such substitutes.
The regulations for the SNAP program are promulgated at 40 Code of Federal Regulations (CFR) part 82, subpart G, and the Agency's process for reviewing SNAP submissions is described in regulations at 40 CFR 82.180. Under these rules, the Agency has identified five types of listing decisions: acceptable; acceptable, subject to use conditions; acceptable, subject to narrowed use limits; unacceptable; and pending (40 CFR 82.180(b)). Use conditions and narrowed use limits are both considered “use restrictions,” as described below. Substitutes that are deemed acceptable with no use restrictions (no use conditions or narrowed use limits) can be used for all applications within the relevant end-uses in the sector. After reviewing a substitute, the Agency may determine that a substitute is acceptable only if certain conditions in the way that the substitute is used are met, to minimize risks to human health and the environment. EPA describes such substitutes as “acceptable, subject to use conditions” (40 CFR 82.180(b)(2)). For some substitutes, the Agency may
In making decisions regarding whether a substitute is acceptable or unacceptable, and whether substitutes present risks that are lower than or comparable to risks from other substitutes that are currently or potentially available in the end-uses under consideration, EPA examines the criteria in 40 CFR 82.180(a)(7)(i) through (vii):
“(i) Atmospheric effects and related health and environmental impacts; (ii) General population risks from ambient exposure to compounds with direct toxicity and to increased ground-level ozone; (iii) Ecosystem risks; (iv) Occupational risks; (v) Consumer risks; (vi) Flammability; and (vii) Cost and availability of the substitute.”.
Many SNAP listings include “comments” or “further information” to provide additional information on substitutes. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. However, regulatory requirements so listed are binding under other regulatory programs (
For additional information on the SNAP program, visit the SNAP website at
The following list identifies regulated entities that may be affected by this rule and their respective North American Industrial Classification System (NAICS) codes:
This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. To determine whether your facility, company, business, or organization could be affected by this action, you should carefully examine the regulations at 40 CFR part 82, subpart G and the revisions below. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the
Below is a list of acronyms and abbreviations used in the preamble of this document:
This section of the preamble describes EPA's final listings for certain refrigerants and fire suppressants in specific end-uses, including final use restrictions. In addition, this section provides responses to comments EPA received on the proposed listings during the public comment period for the proposed rule. One comment was received after the close of the comment period, to which no response from the Agency is required. The regulatory text for new listings is codified in appendix X of 40 CFR part 82, subpart G. The regulatory text for a revised listing is codified in appendix R of 40 CFR part 82, subpart G. The final regulatory text contains listing decisions for the end-uses discussed throughout this section below.
EPA previously listed HFO-1234yf as acceptable, subject to use conditions, in motor vehicle AC, in light-duty vehicles (74 FR 53445; October 19, 2009), in heavy-duty pickup trucks and complete heavy-duty vans (81 FR 86778; December 1, 2016) and in nonroad vehicles and service fittings for small refrigerant cans (87 FR 26276; May 4, 2022). EPA previously listed HFC-32 as acceptable, subject to use conditions, as a substitute in residential and light commercial AC and HPs (80 FR 19454; April 10, 2015) (86 FR 24444; May 6, 2021) and previously listed R-452B, R-454A, R-454B, and R-454C, (hereafter called “the four refrigerant blends”), as acceptable, subject to use conditions, as substitutes in residential and light commercial AC and HPs (86 FR 24444; May 6, 2021).
This final rulemaking finds HFC-32, HFO-1234yf, and the four refrigerant blends acceptable, subject to use conditions, as substitutes in chillers. The SNAP program divides chillers for comfort cooling into two general types based on the type of compressor used in the system,
Several use conditions finalized for chillers are identical to those finalized for other end-uses (residential dehumidifiers and residential and light commercial AC and HPs) finalized in sections II.B and II.D. below. Because of this similarity, EPA discusses the use conditions that would apply to all three end-uses in detail in section II.E below. For chillers, EPA is also finalizing an additional use condition related to adherence to the ASHRAE 15-2019 standard. In summary, the use conditions for chillers are:
(1) New equipment only—These refrigerants may be used only in new equipment designed specifically and clearly identified for the refrigerant,
(2) UL Standard—These refrigerants may be used only in chiller equipment that meet all requirements listed in the 3rd edition, dated November 1, 2019, of UL Standard 60335-2-40, “Household and Similar Electrical Appliances—Safety—Part 2-40: Particular Requirements for Electrical Heat Pumps, Air Conditioners and Dehumidifiers.” In cases where this final rule includes requirements different than those of the 3rd edition of UL Standard 60335-2-40, the appliance would need to meet the requirements of this final rule in place of the requirements in UL 60335-2-40, 3rd Edition. See section II.E below for further discussion on the requirements of this standard that EPA is incorporating by reference.
(3) Warning labels—Several warning labels are required as use conditions as detailed in section II.E below. These labels are similar or verbatim in language to those required by UL 60335-2-40, 3rd Edition. The warning labels must be provided in letters no less than 6.4 mm (
(4) Markings—Equipment must have distinguishing red (Pantone® Matching System (PMS) #185 or Reichs-Ausschuß für Lieferbedingungen und Gütesicherung
(5) For chillers, EPA is also finalizing a use condition related to adherence to the ASHRAE 15-2019 standard in addition to those common finalized use conditions for chillers, residential dehumidifiers, and self-contained room ACs. Specifically, EPA is requiring that these refrigerants may only be used in chillers that meet all requirements listed in the American National Standards Institute (ANSI)/ASHRAE Standard 15-2019 (hereafter “ASHRAE 15-2019”). In cases where this final rule includes requirements different than those of ASHRAE 15-2019,
EPA notes that there may be other requirements pertaining to the manufacture, use, handling, and disposal of the listed refrigerants that are not included in the information listed in the tables (
This rulemaking applies to chillers that are covered by the UL 60335-2-40 standard “Household and Similar Electrical Appliances—Safety—Part 2-40: Requirements for Electrical Heat Pumps, Air Conditioners and Dehumidifiers” and ASHRAE Standard 15-2019, “Safety Standard for Refrigeration Systems.” EPA understands that UL 60335-2-40 covers chillers used for comfort cooling.
In the initial rule establishing the SNAP program (59 FR 13044; March 18, 1994), EPA included within the refrigeration and AC sector the end-use “commercial comfort air conditioning” and then elaborated on that end-use by saying that “CFCs are used in several different types of mechanical commercial comfort AC systems, known as chillers.” EPA indicated “that over time, existing cooling capacity [from chillers] will be either retrofitted or replaced by systems using non-CFC refrigerants in a vapor compression cycle or by alternative technologies.” EPA also explained in that rule that vapor compression chillers can be categorized by the type of compressor used, including centrifugal, rotary, screw, scroll and reciprocating compressors. These compressor types are also divided into centrifugal and positive displacement chillers, the latter of which includes those with reciprocating, screw, scroll or rotary compressors.
Centrifugal chillers are equipment that utilize a centrifugal compressor in a vapor-compression refrigeration cycle. Centrifugal chillers are typically used for commercial comfort AC, although other uses, that we are not addressing here, do exist. Centrifugal chillers can be found in office buildings, hotels, arenas, convention halls, airport terminals and other buildings. Centrifugal chillers tend to be used in larger buildings.
Positive displacement chillers are those that utilize positive displacement compressors such as reciprocating, screw, scroll or rotary types. Positive displacement chillers are applied in similar situations as centrifugal chillers, again primarily for commercial comfort AC, except that positive displacement chillers tend to be used for smaller capacity needs such as in mid- and low-rise buildings.
A chiller is a type of equipment using refrigerant that typically cools water or a brine solution, which is then pumped to fan coil units or other air handlers to cool the air that is supplied to the occupied spaces transferring the heat to the water. The heat absorbed by the water can then be used for heating purposes, and/or can be transferred directly to the air (“air-cooled”), to a cooling tower or body of water (“water-cooled”), or through evaporative coolers (“evaporative-cooled”). A chiller or a group of chillers could similarly be used for district cooling where the chiller plant cools water or another fluid that is then pumped to multiple locations being served such as several different buildings within the same complex. Chillers may also be used to maintain operating temperatures in various types of buildings, for example, in data centers, server farms, and agricultural/food operations. Chillers are used in other applications, for example, to cool process streams in industrial applications. Chillers are also used for comfort cooling of operators or climate control and protecting process equipment in industrial buildings, for example, in industrial processes when ambient temperatures could approach 200 °F (93 °C) and corrosive conditions could exist. The listing finalized today applies to all types of chillers in comfort cooling applications.
The ANSI/ASHRAE Standard 34-2019 assigns a safety group classification for each refrigerant which consists of two to three alphanumeric characters (
The refrigerants are also assigned a flammability classification of 1, 2, 2L, or 3. Tests for flammability are conducted in accordance with American Society for Testing and Materials (ASTM) E681 using a spark ignition source at 140 °F (60 °C) and 14.7 psia (101.3 kPa).
For flammability classifications, refrigerant blends are designated based on the worst case of formulation for flammability and the worst case of fractionation for flammability determined for the blend.
Using these safety group classifications, ANSI/ASHRAE Standard 34-2019 categorizes HFO-1234yf, HFC-32 and the four refrigerant blends in this section of this final rule in the A2L Safety Group.
HFO-1234yf and HFC-32 are lower flammability refrigerants, and the four refrigerant blends are lower flammability refrigerant blends, all with an ASHRAE safety classification of A2L. The respective Chemical Abstracts Service Registry Identification Numbers (CAS Reg. Nos.) of HFO-1234yf, HFC-32 and the components of the four refrigerant blends are listed below.
HFO-1234yf, also known by the trade names “Solstice® yf” and “Opteon
Redacted submissions and supporting documentation for HFO-1234yf, HFC-32, and the four refrigerant blends are provided in the docket for this final rule (EPA-HQ-OAR-2021-0836) at
HFO-1234yf has a 100-year integrated GWP of less than four.
HFC-32, HFO-1234yf, and the other component of one of the four refrigerant blends, HFC-125, are excluded from EPA's regulatory definition of volatile organic compounds (VOC) (see 40 CFR 51.100(s)) for the purpose of addressing the development of State Implementation Plans (SIPs) to attain and maintain the National Ambient Air Quality Standards (NAAQS). The regulatory definition provides that “any compound of carbon” which “participates in atmospheric
The American Industrial Hygiene Association (AIHA) has established Workplace Environmental Exposure Limits (WEELs) of 1,000 ppm as an eight-hour time-weighted average (8-hr TWA) for HFC-32 and the component refrigerant HFC-125; the AIHA has established a WEEL of 500 ppm as an 8-hr TWA for HFO-1234yf. The manufacturer of R-452B, R-454A, R-454B, and R-454C recommends Acceptable Exposure Limits (AELs) for the workplace, respectively, of 874, 690, 854, and 615 ppm on an 8-hr TWA for these blends. EPA anticipates that users will be able to meet the AIHA WEELs and manufacturers' AELs and address potential health risks by following requirements and recommendations in the manufacturers' safety data sheet (SDS), the final use conditions (including adherence to ASHRAE Standard 15), and other safety precautions common to the refrigeration and AC industry.
HFC-32 and the four refrigerant blends' GWPs, ranging from about 150 to 700, are higher than those of some of the acceptable substitutes for new centrifugal and positive displacement chillers, including HCFO-1233zd(E), HFO-1336mzz(Z), and R-515B, with GWPs of 3.7, 9, and 287, respectively. The GWPs of HFO-1234yf, R-454A, R-454B, and R-454C are lower than some of the acceptable substitutes for new centrifugal and positive displacement chillers, such as R-450A and R-513A, with GWPs of approximately 600 and 630, respectively. HFC-32's and R-452B's GWPs of 675 and about 700 are higher than the GWPs of those refrigerants. The GWPs of HFC-32 and R-452B are, however, lower than those of all the refrigerants that EPA listed as unacceptable for chillers as of January 1, 2024, in the final rule issued December 1, 2016, which had GWPs of 1,000 or higher. Further, HFC-32 and HFC-452B can be used in chillers that are designed to be used with refrigerants having higher pressure and higher volumetric capacity, unlike most of the other refrigerants listed acceptable in chillers (
HFC-32's and the four refrigerant blends' GWPs, ranging from about 150 to 700, are higher than or comparable to those of some of the acceptable substitutes for new IPAC, including carbon dioxide (CO
Information regarding the toxicity of other available alternatives is provided in the listing decisions previously made (see
The flammability risks with HFO-1234yf, HFC-32, and the four refrigerant blends in these end-uses, determined by the likelihood of exceeding their respective lower flammability limits, are evaluated in the risk screens referenced above. In conclusion, while these refrigerants may pose greater
The UL Standard 60335-2-40 discussed in section II.E indicates that refrigerant charges greater than a specific amount (called “m
EPA is finalizing that chillers using HFO-1234yf, HFC-32, or one of the four refrigerant blends must adhere to ASHRAE Standard 15-2019, with all addenda published by the date of the NPRM for this rule, including addenda a, b, c, d, e, f, i, j, k, m, n, o, q, and r. Where the requirements specified in this final rule and ASHRAE Standard 15 are different, the requirements of this final rule would apply.
A summary of relevant aspects of ASHRAE 15-2019 is provided here for information only. This is not meant to be a full explanation of the Standard or how it is applied. ASHRAE 15-2019 specifies requirements for refrigeration systems,
Sections 7.2 and 7.3 of ASHRAE Standard 15 determine the maximum amount of refrigerant allowed in the system, while section 7.4 provides an option to locate equipment outdoors or in a machinery room constructed and maintained under conditions specified in the standard. Section 7.6 of ASHRAE Standard 15 addresses the refrigerants in this proposal when used for human comfort in “high-probability” systems, including requirements for nameplates, labels, refrigerant detectors (under certain conditions), airflow initiation and other actions (if a rise in refrigerant concentration is detected), and other restrictions.
In the interest of providing these ODS alternatives to industry quickly, as requested by commenters, and achieving reductions in other, less safe alternatives sooner, the Agency is finalizing use conditions that incorporate by reference the ASHRAE 15-2019 edition, as proposed, rather than a more recent version. EPA recognizes that ASHRAE 15 was recently updated and republished in late 2022. This final rule incorporates by reference all addenda published by the date of the NPRM, as proposed. EPA intends to review the 2022 version of ASHRAE Standard 15 and consider proposing revisions to the use conditions to incorporate by reference the 2022 version of that standard in a future notice and comment rulemaking.
EPA is finalizing the use conditions to ensure safe use of these ODS alternatives regarding their flammability, toxicity, exposure, and environmental effects. As discussed below, commenters generally supported the use conditions. The use conditions identified in this section above are explained below, in section II.E.1, in greater detail.
EPA is providing additional information related to these final listings. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. See section II.E.2 below for further discussion on what additional information EPA is including in these final listings. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of these substitutes as best practices for safer use.
In response to Chemours's comment referencing IPR for chillers, EPA acknowledges the complexities associated with breaking out IPR by compressor type, similarly to chillers. EPA understands the standard UL 60335-2-40 to apply only to comfort cooling and not to process cooling such as occurs in IPR. EPA may address additional substitutes for use in IPR in future rulemakings. The reference to chillers used for IPR remains in the preamble for this final rule to clarify that IPR is not in the scope of listings in this rule.
• appliances designed exclusively for industrial processing;
• appliances intended to be used in locations where special conditions prevail, such as the presence of a corrosive or explosive atmosphere (dust, vapour or gas).”
Based on EPA's review of standard UL 60335-2-40 and conversations with UL, it is EPA's understanding that equipment for industrial processing, included in the bullet points above, is not covered by this standard, and instead is covered by UL 60335-2-89. Excluding equipment designed solely for industrial processes limits the scope of UL 60335-2-40 to chillers designed for commercial and industrial comfort cooling. If a chiller in an industrial application is used mostly for comfort cooling and also cools processes or industrial equipment, EPA would consider it to fall under the SNAP end-use IPAC rather than IPR. The listings for HFC-32, described in this section above, will apply to these types of chillers on and after the effective date of this rule.
The discussion of ambient operating temperature for IPAC equipment was included as part of the description of the end-use under SNAP, providing an example of possible operating conditions. Any safety concerns surrounding use of HFC-32 in this end-use are sufficiently addressed by the use conditions that apply as described in section II.E.1, below. EPA agrees with Daikin that HFC-32 is suitable for use in IPAC, given that the Agency proposed to list HFC-32 as acceptable in this end-use in SNAP NPRM 25 and is finalizing this listing in this rulemaking.
Under SNAP, IPAC is considered comfort cooling equipment, as it protects the operators in addition to process equipment. EPA's SNAP program considers IPR equipment to be primarily for cooling of a process or product, not primarily for comfort cooling. EPA has not addressed or implied the suitability of HFC-32 for IPR in the NPRM or in this final rule. Any comments on the suitability of HFC-32 in IPR are outside the scope of the rulemaking. EPA is finalizing the listings for HFC-32 in chillers used in comfort cooling for commercial and industrial uses as described in this section of the preamble above.
EPA previously listed HFO-1234yf as acceptable, subject to use conditions in
This final rulemaking finds HFC-32, HFO-1234yf, and the four refrigerant blends acceptable, subject to use conditions, as substitutes in residential dehumidifiers. After consideration and evaluation of the comments received by the Agency in response to the NPRM, EPA is finalizing the listings for HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, and R-454C in residential dehumidifiers as proposed.
Several use conditions finalized for residential dehumidifiers are common to those for other end-uses in section II.A, above, and II.D, below. Because of this similarity, EPA discusses the use conditions that would apply to all three end-uses in section II.E. For residential dehumidifiers, those are the only use conditions EPA is finalizing and require the following:
(1) New equipment only—These refrigerants may be used only in new equipment designed specifically and clearly identified for the refrigerant,
(2) UL Standard—These refrigerants may be used only in residential dehumidifiers that meet all requirements listed in the 3rd edition, dated November 1, 2019, of UL Standard 60335-2-40, “Household and Similar Electrical Appliances—Safety—Part 2-40: Particular Requirements for Electrical Heat Pumps, Air Conditioners and Dehumidifiers” (UL Standard). In cases where this final rule includes requirements different from those of the 3rd edition of UL Standard 60335-2-40, the appliance must meet the requirements of the final rule in place of the requirements in UL 60335-2-40, 3rd Edition. See section II.E below for further discussion on the requirements of this standard that EPA is incorporating by reference.
(3) Warning labels—Several warning labels are required as use conditions as detailed in section II.E below. These labels are similar or verbatim in language to those required by the UL Standard. The warning labels must be provided in letters no less than 6.4 mm (
(4) Markings—Equipment must have distinguishing red (PMS #185 or RAL 3020) color-coded hoses and piping to indicate use of a flammable refrigerant. The residential dehumidifier shall have marked service ports, pipes, hoses and other devices through which the refrigerant is serviced. Markings shall extend at least 1 inch (25mm) from the servicing port and shall be replaced if removed.
EPA notes that there may be other requirements pertaining to the manufacture, use, handling, and disposal of the refrigerants that are not included in the information listed in the tables (
Residential dehumidifiers are primarily used to remove water vapor from ambient air or directly from indoor air for comfort or material preservation purposes in the context of the home.
Some dehumidifiers for residential or light commercial use are integrated with the space air conditioning equipment, for instance via a separate bypass in the duct through which air is dehumidified, a dehumidifying heat pipe across the indoor coil, or other types of energy recovery devices that move sensible and/or latent heat between air streams (
This final rulemaking finds HFO-1234yf, HFC-32, and the four refrigerant blends acceptable, subject to use conditions, in self-contained residential dehumidifiers. Note that dehumidifiers for residential or light commercial use that are integrated with AC equipment (
HFO-1234yf and HFC-32 are lower flammability refrigerants, and the four refrigerant blends are lower flammability refrigerant blends, all with an ASHRAE safety classification of A2L. See section II.A.2 above for further discussion on ASHRAE classifications.
See section II.A.3 above for further discussion on the environmental, flammability, toxicity, and exposure information for these refrigerants.
Redacted submissions and supporting documentation for HFO-1234yf, HFC-32 and the four refrigerant blends are provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
HFO-1234yf, R-454A, R-454B, and R-454C have GWPs ranging up to about 470, lower than all the acceptable substitutes for new residential dehumidifiers, including R-513A and R-410A with GWPs of 630 and 2,090, respectively. HFC-32 and R-452B have GWPs of 675 and 700, respectively, which are lower than some of the other acceptable substitutes for new residential dehumidifiers, such as HFC-134a, R-410A, and R-507A with GWPs of 1,430, 2,090 and 3,990 respectively, but higher than R-513A, with a GWP of about 630.
Information regarding the toxicity of other available alternatives is provided in the previous listing decisions for new residential dehumidifiers (
The flammability risk with HFO-1234yf, HFC-32, and the four refrigerant blends in the new residential dehumidifiers end-use, determined by the likelihood of exceeding their respective lower flammability limits, are evaluated in the risk screens referenced in this section above. While these refrigerants may pose greater flammability risk than other available substitutes in the new residential dehumidifiers end-use, this risk can be mitigated by use consistent with ASHRAE 15 and UL 60335-2-40—which are applicable under the use conditions—as well as recommendations in the manufacturers' SDS and other safety precautions common in the refrigeration and AC industry. EPA is finalizing use conditions to reduce the potential risk associated with the flammability of these alternatives so that they will not pose significantly greater risk than other acceptable substitutes in the new residential dehumidifiers end-use.
EPA is finalizing listing HFO-1234yf, HFC-32 and the four refrigerant blends as acceptable, subject to use conditions, for use in residential dehumidifiers for new equipment. EPA is finalizing the use conditions to ensure safe use of these ODS alternatives regarding their flammability, toxicity, exposure, and environmental effects. As discussed below, commenters generally supported the use conditions. The use conditions identified in this section above are explained below in section II.E.1 in greater detail.
EPA is providing additional information related to these final listings. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. See section II.E.2 below for further discussion on what additional information EPA is including in these final listings. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of these substitutes as best practices for safer use.
After review of comments, EPA agrees that a new non-residential end-use is not necessary. Therefore, EPA is not finalizing the proposed listing of HFC-32 as acceptable, subject to use conditions for use in a new end-use for new non-residential dehumidifiers and instead is clarifying that SNAP considers dehumidifiers for non-residential use to fall under the residential and light commercial AC and HPs end-use. HFC-32 has previously been listed as acceptable for use in this end-use.
After review of the comments received relating to the creation of the non-residential end-use, EPA determined finalizing this section of the proposal is unnecessary. Commenters stated that before the NPRM, industry understood dehumidifiers in a commercial, or other non-residential, context to be covered by the end-use residential and light commercial AC and HPs. If EPA were to finalize this new end-use, it would cause unnecessary confusion regarding which end-use certain dehumidification equipment would be covered by under the SNAP program. Given that dehumidifiers are covered by the same UL Standard as equipment included in residential and light commercial AC and HPs, and that charge sizes and room sizes are similar to light commercial AC systems, EPA considers the risk profile of non-residential dehumidifiers when using flammable refrigerants to be similar to that of other equipment in that end-use.
Chemours commented requesting EPA not to finalize creation of the new non-residential dehumidifiers end-use, given that industry has been classifying this type of equipment under residential and light commercial AC and HPs up until SNAP NPRM 25, and that the transition to lower-GWP options for non-residential dehumidifiers relies heavily on the availability of substitutes already listed acceptable in this end-use. Chemours goes on to discuss how it would be a large burden on stakeholders to resubmit SNAP applications for all the alternatives listed in residential and light commercial AC and HPs, and disruption of the current manufacturing of OEMs who had been operating under the assumption that certain refrigerants were allowed for use in their non-residential dehumidifier equipment that will no longer be acceptable if this end-use creation is finalized. MIAQ also suggested classifying non-residential dehumidifiers (or “non-consumer dehumidifiers”) as part of the residential and light commercial AC and HPs end-use.
AHRI and Desert-Aire commented suggesting EPA to include all dehumidifiers (both for residential and non-residential applications) into the existing residential and light commercial AC and HPs end-use, given that these equipment types are all covered under the same UL 60335-2-40 standard.
As mentioned above in section II.B, AHRI, Carrier, Chemours, Desert-Aire, and MIAQ suggested combining both the residential dehumidifiers and non-residential dehumidifiers end-uses into one end-use, “dehumidifiers.” MIAQ commented recommending that EPA adopt DOE's definition of consumer product dehumidifiers, into the two subcategories of “whole home” and “portable.” MIAQ also suggested defining non-residential dehumidifiers as dehumidifiers that are not consumer products. Carrier, Chemours, Desert-Aire, and MIAQ also suggested that the five refrigerants being finalized in this rulemaking for residential dehumidifiers—HFO-1234yf, R-452B, R-454A, R-454B, and R-454C—should also be listed for non-residential dehumidifiers. Desert-Aire cited similarities in the use-cases of the end-uses as justification for including these refrigerants in both end-uses. MIAQ further suggested allowing all previous refrigerants listed as acceptable under residential dehumidifiers to be applied to all types of dehumidifiers. Chemours and MIAQ cited certain equipment that cannot clearly be placed into either residential and light commercial AC and HPs or non-residential dehumidifiers based on the definitions proposed by EPA, including dehumidifiers that are ducted into an HVAC system and can be run entirely independently of any AC.
EPA acknowledges the suggestion to combine all dehumidifiers, including the current residential dehumidifiers end-use, with the residential and light commercial AC and HPs end-use. These types of equipment are covered by the same safety standards and also have significant overlap in their risk profiles. EPA notes that the Agency has in the past separated residential dehumidifiers from residential AC, stating that “While air conditioning systems often combine cooling and dehumidification, this application [residential dehumidifiers] serves only the latter purpose” (March 18, 1994; 59 FR at 13071) and “. . . we use the term `air conditioner' and `AC' to cover equipment that cools air, heats air, or has the function to do both (typically referred to as a `heat pump'). While such equipment might humidify or dehumidify the air, the term does not include equipment whose purpose is for latent cooling only (
Similarly, if EPA were to consider combining residential dehumidifiers with non-residential dehumidifiers, creating a general “dehumidifiers” end-use, we would also take this action through notice-and-comment rulemaking. Although these equipment types are also similar, EPA believes that the “light commercial” aspect of the residential and light commercial AC and HPs end-use better covers the risk profile of non-residential dehumidifiers. These types of equipment are all covered by the UL 60335-2-40 safety standard and have significant overlap in their risk profiles because of similar room sizes and charge sizes required for self-contained ACs and HPs and dehumidifiers used in non-residential settings.
Concerning the suggestion that EPA's SNAP program use DOE's definitions for dehumidifiers, EPA understands that consistency in equipment definitions between agencies is useful for stakeholders. However, EPA and DOE operate under separate authorities and in this context, these authorities have separate goals. Currently, the DOE's definitions of “whole home” versus “portable” dehumidifiers are similar to the SNAP definitions. EPA describes “whole home” dehumidifiers as ducted equipment, covered by the residential and light commercial AC and HPs end-use, while “self-contained” dehumidifiers, roughly equivalent to DOE's “portable” dehumidifiers, are covered by the residential dehumidifier end-use. DOE also defines equipment by user, describing equipment as either “consumer” or “non-consumer” products, whereas EPA's definitions reference whether or not the equipment is used in residential contexts. In this final rule, EPA is describing dehumidification equipment independently of DOE. However, EPA may consider taking action through a notice-and-comment rulemaking at a future date to adopt new definitions.
While the suggestion to list the same six refrigerants proposed in the residential dehumidifiers end-use in the non-residential dehumidifiers end-use would provide more than HFC-32 as an option for the equipment, by including non-residential dehumidifiers in the residential and light commercial AC and HPs end-use, many more refrigerant options, beyond the six discussed, will be available.
EPA previously listed HFC-32 as acceptable, subject to use conditions, in new self-contained room ACs and HPs in SNAP Rule 19 (80 FR 19461; April 10, 2015). In this action we are finalizing updates to applicable use conditions for new self-contained room ACs and HPs using HFC-32 to be consistent with the use conditions finalized in SNAP Rule 23 (86 FR 24444; May 6, 2021). EPA proposed replacing the previously required use conditions in compliance with UL 484 Standard, 8th Edition, with updated use conditions in compliance with UL 60335-2-40 Standard, 3rd Edition, effective 30 days after publication of the final rule. However, after review of the comments received, EPA has decided that manufacturers will be allowed to manufacture such equipment either according to UL 484, 8th Edition or according to UL 60335-2-40, 3rd Edition on or after the effective date of this final rule up to and including January 1st, 2024. Beginning January 2nd, 2024, UL will sunset UL 484 and only warning labels in compliance with UL 60335-2-40 will be permitted. Equipment manufactured before the effective date of this final action in compliance with the SNAP requirements applicable at the time of manufacture will remain in compliance.
The residential and light commercial AC and HPs end-use includes equipment for cooling air in individual rooms, in single-family homes, and sometimes in small commercial buildings. This end-use differs from commercial comfort AC, which uses chillers that cool water that is then used to cool air throughout a large commercial building, such as an office building or hotel. Examples of equipment for residential and light commercial AC and HPs include:
• Central ACs, also called unitary AC or unitary split systems. These systems include an outdoor unit with a condenser and a compressor, refrigerant lines, an indoor unit with an evaporator, and ducts to carry cooled air throughout a building. Central heat pumps are similar but offer the choice to either heat or cool the indoor space. These systems are not addressed in this rule.
• Multi-split ACs. These systems include one or more outdoor unit(s) with a condenser and a compressor and
• Mini-split ACs. These systems include an outdoor unit with a condenser and a compressor and a single indoor unit that is connected to the outdoor unit by refrigerant lines. Cooled air exits directly from the indoor unit rather than being carried through ducts. These systems are not addressed in this rule.
• Window ACs. These are self-contained units that fit in a window with the condenser extending outside the window. These types of units are regulated under this rule.
• Packaged terminal ACs (PTACs) and packaged terminal HPs (PTHPs). These are self-contained units that consist of a separate, un-encased combination of heating and cooling assemblies mounted through a wall.
• Portable room ACs. These are self-contained, factory-sealed, single package units that are designed to be moved easily from room to room and are intended to provide supplemental cooling within a room. These units typically have wheels or casters for portability and, under the UL 484 Standard for room ACs, must have a fan which operates continuously when the unit is on. Portable room ACs may contain an exhaust hose that can be placed through a window or door to eject heat to the outside. These types of units are regulated under this rule.
Of these types of equipment, window ACs, PTACs, PTHPs, and portable room ACs are self-contained equipment with the condenser, compressor, evaporator, and tubing all within casing in a single unit. These are the types of equipment for which EPA previously listed HFC-32 as acceptable, subject to use conditions, as codified in appendix R to 40 CFR part 82, subpart G.
See section II.A.2 above for further discussion on ASHRAE classifications.
See section II.A.3 above for further discussion on the environmental, flammability, toxicity, and exposure information for HFC-32.
Redacted submissions and supporting documentation for HFC-32 is provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
HFC-32 has a GWP of 675, higher than some of the acceptable substitutes for residential and light commercial air conditioning and heat pumps, including ammonia absorption, R-290, and R-454B with GWPs of zero, three, and about 470, respectively. HFC-32's GWP is lower than some of the acceptable substitutes for residential and light commercial air conditioning and heat pumps, such as R-452B, HFC-134a, and R-410A, with GWPs of approximately 700, 1,430, and 2,090, respectively.
Information on the toxicity and flammability risk of HFC-32 in this end-use category was provided in SNAP Rule 19. In summary, EPA found the toxicity risks of HFC-32 to be comparable to or lower than other acceptable alternatives. Although we noted that the flammability risk of HFC-32 may be greater than that of other available, nonflammable substitutes in the same end-use, we found that those risks are not significant even under worst-case assumptions. These risks of HFC-32 are similar to the risks of other flammable refrigerants found acceptable for this end-use category in SNAP Rule 23 (
EPA previously found HFC-32 acceptable, subject to use conditions, in new residential and light commercial AC for self-contained room AC units, including PTAC units, PTHPs, window AC and HP units, and portable AC units, designed for use in a single room in SNAP Rule 19 (80 FR 19454; April 10, 2015). Those requirements are codified in appendix R of 40 CFR part 82, subpart G. EPA provided information on the environmental and health properties of HFC-32 and the various substitutes available at that time for use in this end-use. Additionally, EPA's risk screen for this refrigerant is available in the docket for this previous rulemaking (EPA-HQ-OAR-2013-0748).
HFC-32 has an ASHRAE classification of A2L, indicating that it has low toxicity and lower flammability. The flammability risks are of potential concern because residential ACs and HPs traditionally used refrigerants that are not flammable. In the presence of a higher energy ignition source (
Previously, to address flammability, EPA listed HFC-32 as acceptable in new self-contained room AC units, subject to use conditions. The previous use conditions addressed safe use of this flammable refrigerant and included incorporation by reference of Supplement SA to the 8th edition (August 2, 2012) of UL Standard 484, refrigerant charge size limits based on cooling capacity and type of equipment, and requirements for markings and
EPA is finalizing the proposed updates to the use conditions that apply to HFC-32 in new self-contained room ACs and HPs for equipment manufactured after the effective date of this final rule, with the change from proposal that UL 484 may continue to be used up to and including its official sunset date, per UL, of January 1st, 2024. In the time between the effective date of this final rule and January 1st, 2024, manufacturers will be allowed to follow either UL 484, 8th Edition or UL 60335-2-40, 3rd Edition. The period during which manufacturers may follow either standard provides sufficient time for manufacturers to transition from UL 484 to UL 60335-2-40. EPA is making this change after considering public comment on the timing for the adopting UL 60335-2-40, discussed further below in this section. Several of the updated use conditions finalized for self-contained room ACs and HPs are common to those finalized for other end-uses in sections II.A and II.B above. Because of this similarity, EPA discusses the use conditions that apply to all three end-uses in section II.E. For HFC-32 in self-contained room ACs and HPs, these are the use conditions EPA is finalizing. In summary, with the updates finalized, the use conditions are the following:
(1) New equipment only—This refrigerant may only be used in new equipment designed specifically and clearly identified for the refrigerant,
(2) UL Standard—This refrigerant (
(3) Warning labels—Several warning labels were proposed as use conditions as detailed in section II.E below for equipment being designed in compliance with UL 60335-2-40. However, the previously required warning labels in compliance with UL 484 will also be acceptable through January 1st, 2024. Therefore, manufacturers will be allowed to manufacture such equipment either according to UL 484, 8th Edition or according to UL 60335-2-40, 3rd Edition on or after the effective date of this final rule up to and including January 1st, 2024; after this date, UL will sunset UL 484 and only UL 60335-2-40 will apply. Beginning January 2nd, 2024, only warning labels in compliance with UL 60335-2-40 will be permitted. Equipment manufactured before the effective date of this final action in compliance with the SNAP requirements applicable at the time of manufacture will remain in compliance. Equipment designed in compliance with either UL standard will be required to use warning label language that aligns with that standard using the font size specified by SNAP regulatory requirements. These labels are similar in language to those required by UL standards 484, 8th Edition and 60335-2-40, 3rd Edition. The warning labels must be provided in letters no less than 6.4 mm (
(4) Markings—Equipment must have distinguishing red (PMS #185 or RAL 3020) color-coded hoses and piping to indicate use of a flammable refrigerant. The equipment shall have marked service ports, pipes, hoses, and other devices through which the refrigerant is serviced. Markings shall extend at least one inch (25 mm) from the servicing port and shall be replaced if removed. This use condition is the same as what currently exists for HFC-32 in this end-use category.
The amendment to the regulatory text in appendix R is to indicate that the use conditions finalized apply to HFC-32 self-contained room AC units manufactured on or after the effective date of this final rule, May 30, 2023. Equipment manufactured before the effective date of the final rule is not affected by this action and is hence subject to the use conditions included in appendix R at the time they were manufactured. The finalized revisions to the current regulatory text update the use conditions that were included in the previous listing decision for HFC-32 in self-contained room ACs and HPs. EPA notes that there may be other requirements pertaining to the manufacture, use, handling, and disposal of the refrigerants that are not included in the information listed in the tables (
For manufacturers that adhere to UL 60335-2-40, 3rd Edition, the updated use conditions EPA is finalizing are similar to the ones that already exist in
The warning labels EPA is finalizing for the use of HFC-32 in self-contained room ACs and HPs designed to conform with UL 60335-2-40 are similar to those required as use conditions for the use of HFC-32 in residential and light commercial AC and HPs (excluding self-contained room ACs and HPs) and for R-452B, R-454A, R-454B, R-454C, and R-457A in residential and light commercial AC and HPs (including self-contained room ACs and HPs), included in SNAP Rule 23 in 2021 (86 FR 24463; May 6, 2021). EPA finds that using a common set of labels will aid in compliance, especially for a manufacturer that uses more than one of these refrigerants or produces both self-contained room ACs and HPs and other types of residential and light commercial AC and HPs. The updated label options EPA is finalizing use the word “WARNING” in lieu of “DANGER” or “CAUTION” and change “Risk of Fire or Explosion” to just “Risk of Fire.” However, the previous wording consistent with UL 484, 8th Edition is allowable up to and including January 1st, 2024 for manufacturers who would prefer transitioning to UL 60335-2-40, 3rd Edition at a date later than the effective date of this final rule. EPA is finalizing that the labels must be provided in letters no less than 6.4 mm (
EPA is updating the standard incorporated by reference in the use conditions, requiring users either to follow certain sections of the 2012 version of UL 484 or to adhere to the 3rd edition of UL 60335-2-40. Both UL Standard 484 and UL Standard 60335-2-40 were developed in an open and consensus-based approach, with the assistance of experts in the refrigeration and AC industry as well as experts involved in assessing the safety of products. The revision cycle for the 3rd edition, including final recirculation, concluded with its publication on November 1, 2019. The 2019 UL Standard overlaps with, and eventually will replace, the previously published version of several standards, including UL Standard 484, 8th Edition on January 2nd, 2024. EPA was aware of the continuing progress of UL Standards to address flammable refrigerants more appropriately. In the 2021 SNAP Rule (SNAP Rule 23) listing HFC-32 for other categories within the residential and light commercial AC and HPs end-use, we stated, “EPA understands that the standard we relied on in [SNAP] Rule 19 might `sunset' in the future. Therefore, we will continue to evaluate the market for the equipment addressed in that rule, including HFC-32 in self-contained room ACs, and whether to establish new or revised use conditions that reference UL 603352-40” (86 FR 24463; May 6, 2021). Today, we are finalizing such a change knowing that UL is replacing the standard to which such equipment is certified from UL 484 to the newer UL 60335-2-40 standard as of January 2nd, 2024. In addition, in order to allow manufacturers more time to transition their product lines from the earlier UL 484 standard to the UL 60335-2-40 standard, while still ensuring the safety of equipment manufactured with flammable refrigerants, EPA is allowing self-contained room ACs and HPs manufactured with HFC-32 to follow either standard up to and including January 1st, 2024.
Updating the UL standard incorporated as a use condition will allow more consistency among the products within this end-use and between HFC-32 and the five A2L refrigerants listed as acceptable, subject to use conditions, for this end-use including those listed for self-contained room ACs and HPs in SNAP Rule 23. This change will allow the industry to focus on the more recent standard. The change will be helpful in implementing any transitions needed or planned for manufacturers, installers, and technicians. A manufacturer, who may offer different products within this end-use with different refrigerants, could use similar processes, such as in developing and applying the warning labels required. Installers and technician, likewise, would not need to reference different standards depending on the type of equipment and the particular A2L refrigerant being used in that equipment, when putting in a new piece of equipment or servicing that equipment.
Another revision to the use conditions is charge sizes. In the 2019 SNAP Rule, charge sizes from both UL 484, 8th Edition, and those stipulated by tables within the rule needed to be followed. These will both continue to be requirements for equipment designed according to UL 484, 8th Edition. However, for equipment designed according to the 3rd edition of UL 60335-2-40, rather than requiring examination of both items and determining which charge size is lower, the updated use conditions will rely on a single document, UL 60335-2-40, 3rd Edition. As stated above, manufacturers will be allowed to select which standard they would like their equipment to follow, up to and including the UL 484, 8th Edition sunset date of January 1st, 2024, and equipment will be considered in compliance if their charge sizes are determined either by UL 60335-2-40, 3rd Edition or by UL 484, 8th Edition in combination with the tables in 40 CFR part 82, subpart G, appendix R.
The use conditions finalized in this action apply to new self-contained room ACs and HPs using HFC-32 manufactured on or after the effective date of this final rule (30 days after publication in the
EPA is providing additional information related to these final listings. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. See section II.E.2 below for further discussion on what additional information EPA is including in these final listings. EPA notes that the additional information is similar to, but not identical with, the additional information in the listing for HFC-32 in self-contained room ACs and HPs in SNAP Rule 19. EPA is finalizing additional information consistent with that included in the other final listings for air conditioning equipment in this rule and consistent with that included in the listings for four A2L refrigerant blends listed as acceptable subject to use conditions in self-contained room ACs and HPs in SNAP Rule 23. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of these substitutes as best practices for safer use.
AHRI suggested that EPA may want to consider an example of the process for sunsetting standards used by nationally recognized testing laboratories (NRTLs). They said that NRTLs will test and list equipment to various versions of standards starting at an agreed-upon date, and that there may be a transition period of several years until an older standard is sunset. AHRI also stated that existing equipment remains listed to existing safety standards until the manufacturer requests to have it changed, that equipment with major revisions is treated as “new” equipment, and that equipment with minor revisions does not require re-evaluation. AHRI stated that this would ensure that equipment can still be listed to these standards, taking care to avoid creating a cumbersome additional process to re-harmonize among companies and all of the NRTLs.
Daikin commented that they fully support the provision of the proposal to update use conditions for HFC-32 to allow warning labels in line with UL 60335-2-40 to eliminate the disparity between the warning use condition for HFC-32 PTACs (listed in SNAP Rule 19) and the other SNAP-approved A2L PTACs, listed in SNAP Rule 23.
EPA appreciates the information provided by AHRI on the process for “sunsetting standards used by NRTLs,” and we agree that it is important to have a pathway to compliance as new standards become available. EPA believes that adopting the same sunset date as UL will provide the greatest clarity for industry on how long UL 484 will be applicable under SNAP.
EPA acknowledges Daikin's support of the proposal to update the warning label use conditions for the existing listing of HFC-32 in self-contained room ACs and HPs, originally listed in SNAP Rule 19.
As described above, EPA is listing:
In addition, EPA is finalizing revisions to the use conditions that apply to the listing of:
• HFC-32 as acceptable, subject to use conditions, for use in self-contained room ACs and HPs for new equipment
These use conditions are summarized in the listings under subheadings II.A and II.B and the revisions to the use conditions are summarized under subheading II.D, above, and are explained here in greater detail. The use conditions EPA is finalizing (either as new listings or revisions to a previous listing) include conditions requiring use of each refrigerant in new equipment, which can be specifically designed for the refrigerant; use consistent with the UL 60335-2-40 industry standard, 3rd Edition, including testing, charge sizes, ventilation, usage space requirements, and certain hazard warnings and markings; and requirements for warning labels and markings on equipment to inform consumers and technicians of potential flammability hazards. The listings with specific use conditions are intended to allow for the use of these lower flammability refrigerants in a manner that will ensure they do not pose a greater overall risk to human health and the environment than other substitutes in these end-uses.
EPA is finalizing that these refrigerants may be used only in new equipment which has been designed to address concerns unique to flammable refrigerants—
This use condition would not affect the ability to service a system using one of these refrigerants once installed, including the adding of refrigerant or replacing components.
EPA is finalizing that the flammable refrigerants may be used only in equipment that meets all requirements in UL Standard 60335-2-40, 3rd Edition.
Those participating in the UL 60335-2-40 consensus standards process have tested equipment for flammability risk and evaluated the relevant scientific studies. Further, UL has developed safety standards including requirements for construction and system design, for markings, and for performance tests concerning refrigerant leakage, ignition of switching components, surface temperature of parts, and component strength after being scratched. Certain aspects of system construction and design, including charge size, ventilation, and installation space, and greater detail on markings, are discussed further below in this section. The UL 60335-2-40 Standard was developed in an open and consensus-based approach, with the assistance of experts in the AC industry as well as experts involved in assessing the safety of products. While similar standards exist from other bodies such as the International Electrotechnical Commission (IEC), we are finalizing to rely on specific UL standards that are most applicable and recognized by the U.S. market. This approach is the same as that in our previous rules on flammable refrigerants (
A summary of the requirements of UL 60335-2-40 as they affect the refrigerants and end-use addressed in this section of our rule follows. This summary is offered for information only and does not provide a complete review of the requirements in this standard.
Among the provisions in UL 60335-2-40 are limits on the amount of refrigerant allowed in each type of appliance based on several factors explained in that standard. The requirements in UL 60335-2-40 reduce the risk to workers and consumers. Annex GG of the standard provides the charge limits, ventilation requirements and requirements for secondary circuits. The standard specifies requirements for installation space of an appliance (
In addition to Annex GG and Table GG.1 mentioned above, UL 60335-2-40 has a requirement for the maximum charge for an appliance using an A2L refrigerant. Additional requirements exist for charge sizes exceeding three times the LFL.
Table GG.1 of the UL standard indicates that systems with refrigerant charges exceeding certain amounts are outside the scope of the standard, stating that “National standards apply.” Specifically, if the refrigeration circuit with the greatest mass of a flammable refrigerant is more than 260 times the lower flammability limit (in kg/m
EPA recognizes that an updated edition of this standard, Edition 4, was published on December 17, 2022. Nevertheless, EPA is finalizing this rulemaking to the 3rd Edition of this standard because the 4th Edition was not available ahead of the issuance of the proposed rule for the Agency to consider. Therefore, since the 4th Edition was published several months after the proposed rule and after the close of the comment period, EPA could not have reviewed the standard for inclusion in the proposal and there was no opportunity for public comment on whether to incorporate it into the use conditions for these listings. EPA intends to review the 4th edition and if appropriate, EPA will propose to update the use conditions contained in this final rule in a subsequent rulemaking.
EPA is requiring labeling of chillers and residential dehumidifiers. In addition, EPA is modifying the previously promulgated use conditions for HFC-32 self-contained room ACs and HPs (“equipment”) to update the warning label text. EPA is finalizing that the following labels, or the equivalent, must be provided in letters no less than 6.4 mm (
EPA expects that all residential dehumidifiers and all self-contained room ACs and HPs would be packaged, and hence this label would be placed as stipulated in item 1 above. For self-contained room ACs and HPs that are opting to continue being manufactured according to UL 484, 8th Edition, the existing labeling requirements apply until the standard sunsets on January 1, 2024, and are described in the section below. EPA expects that chillers could be provided packaged or not, and this label would be placed as stipulated in item 1 or 2, respectively.
The text of the warning labels, above in i. through iv., vi., and vii., is exactly the same as that required in UL 60335-2-40, while the text of the label identified in v. is similar to that in the UL Standard. The major difference between this rule's warning label requirements and the requirements in Table 101.DVF.1 of UL 60335-2-40 is that the markings for A2L refrigerants, including HFO-1234yf, HFC-32 and the four refrigerant blends, are required to be no less than 3.2 mm (
For those manufacturers of new self-contained room ACs and HPs opting to follow the UL 484, 8th Edition standard up to and including its sunset date of January 1st, 2024, EPA is finalizing that the following markings, or the equivalent, must be provided in letters no less than 6.4 mm (
(a) On the outside of the air conditioner: “DANGER—Risk of Fire or Explosion. Flammable Refrigerant Used. To Be Repaired Only By Trained Service Personnel. Do Not Puncture Refrigerant Tubing.”
(b) On the outside of the air conditioner: “CAUTION—Risk of Fire or Explosion. Dispose of Properly In Accordance With Federal Or Local Regulations. Flammable Refrigerant Used.”
(c) On the inside of the air conditioner near the compressor: “CAUTION—Risk of Fire or Explosion. Flammable Refrigerant Used. Consult Repair Manual/Owner's Guide Before Attempting To Service This Product. All Safety Precautions Must Be Followed.”
(d) On the outside of each portable air conditioner: “WARNING: Appliance shall be installed, operated and stored in a room with a floor area larger the “X” m
However, after the sunset of UL 484 on January 1st, 2024, the use conditions described above, related to the 3rd edition of UL 60335-2-40, will apply for all self-contained room ACs and HPs under SNAP.
Our understanding of the UL Standard is that red markings, similar to those EPA has applied as use conditions in past actions for flammable refrigerants (76 FR 78832; December 20, 2011 and 80 FR 19454; April 10, 2015 and 86 FR 24444; May 6, 2021), are required by the UL Standard for A2 and A3 refrigerants but not A2L refrigerants. EPA is finalizing that such markings apply to these A2L refrigerants as well, to establish a common, familiar and standard means of identifying the use of a flammable refrigerant.
These red markings will help technicians immediately identify the use of a flammable refrigerant, thereby potentially reducing the risk of using sparking equipment or otherwise having an ignition source nearby. The AC and refrigeration industry currently uses red-colored hoses and piping as means for identifying the use of a flammable refrigerant based on previous SNAP listings. Likewise, distinguishing coloring has been used elsewhere to indicate an unusual and potentially dangerous situation, for example in the use of orange-insulated wires in hybrid electric vehicles. Currently under the SNAP listings, as applicable, color-coded hoses or pipes must be used for ethane, HFC-32, R-452B, R-454A, R-454B, R-454C, R-457A, isobutane, propane, and R-441A in certain types of equipment where these are listed acceptable, subject to use conditions. All such tubing must be colored red PMS #185 or RAL 3020 to match the red band displayed on the container of flammable refrigerants AHRI Guideline N, “2017 Guideline for Assignment of Refrigerant Container Colors.” The intent of this requirement is to provide adequate notice for technicians and others that a flammable refrigerant is being used within a particular piece of equipment or appliance. Another goal is to provide adequate notification of the presence of flammable refrigerants for personnel disposing of appliances containing flammable refrigerants. As explained in a previous SNAP rule, one mechanism to distinguish hoses and pipes is to add a colored plastic sleeve or cap to the service tube. (80 FR 19465; April 10, 2015). Other methods, such as a red-colored tape could be used. The colored plastic sleeve, cap, or tape would have to be forcibly removed in order to access the service tube and would have to be replaced if removed. This would signal to the technician that the refrigeration circuit that she/he was about to access contained a flammable refrigerant, even if all warning labels were somehow removed. This sleeve, cap or tape would be of the same red color (PMS #185 or RAL 3020) and could also be boldly marked with a graphic to indicate the refrigerant was flammable. This could be a cost-effective alternative to painting or dyeing the hose or pipe.
EPA is finalizing the use of color-coded hoses or piping as a way for technicians and others to recognize that a flammable refrigerant is used in the equipment. This would be in addition to the proposed use of warning labels discussed above. EPA considers having two such warning methods to be reasonable and consistent with other general industry practices. This approach is the same as that adopted in our previous rules on flammable refrigerants (
For chillers, residential dehumidifiers, and self-contained room ACs and HPs, EPA is including additional information, found in the “Further Information” column of the regulatory text at the end of this document, to protect personnel from the risks of using flammable refrigerants. Similar to our previous listings of flammable refrigerants, EPA is including information on the OSHA requirements at 29 CFR part 1910, proper ventilation, personal protective equipment, fire extinguishers, use of spark-proof tools and equipment designed for flammable refrigerants, and training. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of these substitutes as best practices for safer use.
AHRI, Chemours, and UL stated that a new version of UL 60335-2-40, the 4th edition, may soon be published. Carrier and Daikin recommended using the 4th edition of UL 60335-2-40 instead of the proposed 3rd edition of that standard if the 4th edition is published before EPA issues a final rulemaking. EIA, an environmental group, stated that the 4th Edition of UL 60335-2-40 should be used in the final rule's use conditions if published before EPA takes final action on this rule. Trane recommended delaying approval of SNAP Rule 25 as it relates to chillers, until it can incorporate by reference the 4th Edition of UL 60335-2-40. UL stated that the 4th edition has many improvements over the 3rd edition, including updates requested by the fire service community. Anden and AprilAire both suggested EPA allow for use of the 3rd edition “in addition to” the 4th edition, rather than “in lieu of” the 4th edition, as EPA proposed. Chemours and Carrier suggested that EPA update previous rules with older editions of standards (
Some commenters, such as Daikin and Chemours, noted that the 2022 version of ASHRAE 15 was likely to be published a few months after the NPRM and before the final rule would be issued. UL mentioned the pending publication of ASHRAE 15-2022, in addition to the May of 2022 version of ASHRAE 15.2, a new residential version of the standard. Chemours and Carrier also stated that once the new versions of the UL 60335-2-40 and ASHRAE 15 standards are published, the use conditions of the proposed rule should be updated.
AHRI stated that it will be important to have a pathway to compliance as each new edition becomes available. LG Electronics and AHAM stated that NRTLs do not have a required date to comply with the 3rd edition and expressed concern that this will cause issues in obtaining proper testing for the products. AHAM commented, particularly with respect to the use of HFC-32 in self-contained room ACs and HPs, that the Agency must allow for transition periods within the rule so that manufactured products can comply with relevant safety standards. The Alliance commented on their support for dealing with codes and standards issues raised by AHAM and AHRI. They noted this is a critical issue and has been a critical issue for several years now, but that integration of the codes and standards will allow transition schedules for alternatives. Competition Advocates “encourage[d] EPA to revise its proposed SNAP Rule 25 use conditions to allow for an extended implementation time.” Trane commented that there should be an expedited process for updating the linked standards to allow for ease of compliance and ensure the availability of the latest technologies.
GE Appliances noted support for SNAP Rule 25 and urged EPA to move quickly in finalizing. AHAM urged the Agency to “expedite finalizing this rule,” referencing regulations in California limiting refrigerant options in dehumidifiers as of the start of 2023.
EPA is aware of the new 4th edition of UL 60335-2-40 and the ASHRAE 15-2022 standards that have recently been published. However, these editions were not available in advance of the development of the proposed rule and thus were not considered. In addition, the public did not have the opportunity to review and comment on a proposed rule that reflected those new editions. EPA recognizes that the UL standards are under continuous maintenance—as are ASHRAE Standards 15 and 15.2—and hence may change again, even though the mentioned editions are newly published. Past experience suggests it is difficult to align the regulatory development process with these standard-setting processes. EPA concluded that rather than wait for the issuance of a new edition (which could be replaced with a subsequent edition), it was important for EPA to act on the SNAP submissions and propose listings based on the best available information, which included the available editions of the relevant UL and ASHRAE standards. Furthermore, now that a 4th edition of the UL Standard and the 2022 version of ASHRAE 15 are released, EPA will review the relevant changes and may develop a subsequent rulemaking, allowing for a notice and comment period for the public to provide their opinions on the updates.
Some commenters supported moving forward with the rule using the 3rd edition of UL 60335-2-40 consistent with EPA's proposal. EPA concludes that reliance on the 3rd edition of the UL Standard, the 2019 version of ASHRAE 15, and other use conditions allows applicable products to be used safely. Given the comments received expressing desire for quick finalization of the rule, EPA's understanding that the 3rd edition provides many desired improvements on the 2nd edition, and environmental benefits to providing these ODS alternatives as quickly as possible, EPA is finalizing to the 3rd edition of UL 60335-2-40.
Regarding Trane's comment requesting an expedited updating process for standards, EPA does not have an automatic process or a process with fewer steps, as each particular iteration of a standard must be reviewed by the Agency. Additionally, updating the standard involves a change to regulations, and the Agency typically uses a notice-and-comment process to change the standard that is incorporated into regulations. In response to comments from Chemours and Carrier
Daikin noted that “EPA inaccurately characterized the operation of chillers in its general description of warning label use conditions “vii. For fixed equipment that is ducted, including chillers. . . .” 87 F.R. at 45523 (emphasis added).”
Diversified CPC International, a producer of specialty gases, including hydrocarbon refrigerants, commented on the use of hydrocarbon refrigerants and noted it has “been limited within the United States due to refrigerant charge limitations that are much lower than most regions in the world. For example, the IEC Standard IEC 60335-2-40 allows for 1,000 grams charge size for indoor air conditioning units and a 5 kg limit for outdoor air conditioning units.” They stated that EPA should consider modifying use conditions to allow compliance for larger A3 charge sizes for various types of equipment that falls under the scope of UL 60335-2-40, 3rd Edition and UL 60335-2-89, 2nd Edition. ATMOsphere, a trade group, stated that the next step for revising North American safety standards will be to form a CANENA Technical Harmonization Committee (THC) to discuss possibly adopting changes from the 7th and most recent edition of the IEC into a future edition 5 of UL 60335-2-40, with larger charge sizes for hydrocarbons.
EPA agrees with comments provided by Daikin indicating that EPA may have inadvertently mischaracterized the operation of chillers in its general description of warning label use conditions. In response to this comment, EPA has edited the warning label description for fixed equipment to keep the reference to ducted equipment and to remove the reference to chillers.
EPA is aware of the larger charge sizes for hydrocarbon refrigerants allowed in updated versions of UL standards, such as UL 60335-2-89, 2nd Edition and UL 60335-2-40, 3rd Edition. EPA did not propose to increase the charge sizes of A3 refrigerants, thus this request is beyond the scope of this rulemaking. Additionally, EPA did not consider equipment covered by the UL 60335-2-89 standard in this rulemaking. Any changes to use conditions for listings not included in the proposal are beyond the scope of this final rule, and if EPA concludes that proposing changes to the listings is warranted, it would typically initiate a separate rulemaking process. The Agency is familiar with the process of forming a CANENA THC to discuss proposals for adopting the changes in IEC 60335-2-40 Edition 7 into the next edition of the North American safety standards, including the 5th edition of UL 60335-2-40. If a 5th edition of UL 60335-2-40 is released, EPA can consider any relevant changes such as allowing for larger charge sizes for hydrocarbon refrigerants in a future rulemaking.
In the NPRM, EPA proposed to list R-1150 as acceptable, subject to use conditions and narrowed use limits, for use in new VLTR equipment. No comments were received in regard to this listing. Therefore, EPA is finalizing the listing of R-1150 in VLTR as proposed.
The very low temperature refrigeration (VLTR) end-use includes a wide range of equipment types. VLTR equipment is intended to maintain temperatures considerably lower than for refrigeration of food (below −62 °C or −80 °F). Examples of very low temperature refrigeration equipment include medical freezers and freeze-dryers, which generally require extremely reliable refrigeration cycles to maintain low temperatures and must meet stringent technical standards. In some cases, VLTR equipment may use a refrigeration system with two stages, each with its own refrigerant loop. This allows a greater range of temperatures and may reduce the overall refrigerant charge.
For this rulemaking, only equipment designed to reach temperatures lower than −80 °C (−112 °F) is addressed. See sections II.E.6 and II.E.7 below for a discussion of the narrowed use limits describing the reasoning for this temperature requirement. Examples of equipment covered by this final rule in the VLTR end-use include:
• Freeze dryers. This equipment typically includes a two-stage system, with a VLTR stage being addressed by this rule and a warmer stage, usually classified as IPR, not addressed in this final rule. The primary application of this equipment is for freeze drying material in a laboratory setting.
• Cold traps required to operate below −80 °C or −112 °F. This equipment is used during laboratory evaporation to condense vapors to prevent them from entering and damaging the pump, or leaking into the environment, ensuring a closed system within the vacuum pump.
• Very low temperature freezers designed to reach temperatures below −80 °C or −112 °F.
This final listing decision for R-1150 addresses these types of equipment, as well as other types of VLTR equipment not mentioned that fit within the narrowed use limits described in section II.F.6, under SNAP. This listing addresses all types of VLTR equipment that meet the requirements of the UL Standard 61010-2-011, 2nd Edition, and for all applications of such equipment under EPA's final use conditions and narrowed use limits. Because UL Standard 61010-2-011 only applies to laboratory equipment, we understand that only VLTR equipment that is also laboratory equipment is eligible to use R-1150 under the use condition.
EPA is listing R-1150 as acceptable, subject to use conditions and narrowed use limits, for use in VLTR equipment, including freeze-dryers, cold traps, and very low temperature freezers.
R-1150, also known as ethene or ethylene (CAS Reg. No. 75-85-1), is an unsaturated hydrocarbon. It is a flammable refrigerant with the ASHRAE safety classification A3. You may find a copy of the applicants' submissions, with CBI redacted, providing the required health and environmental information for this substitute in this end-use in Docket EPA-HQ-OAR-2021-0836 at
In addition to ODP and GWP, EPA evaluated potential impacts of R-1150 and other hydrocarbon refrigerants on local air quality. R-1150 is considered a VOC and is not excluded from EPA's regulatory definition of VOC (see 40 CFR 51.100(s)) for the purpose of addressing the development of SIPs to attain and maintain the NAAQS. As described below, EPA estimates that potential emissions of R-1150, when used in the refrigeration and AC sector in the VLTR end-use consistent with this listing under the SNAP program, would not have a significant impact on local air quality.
In response to the increased market share of hydrocarbon refrigerants, particularly in VLTR applications, EPA conducted additional analysis of various scenarios to consider the potential impacts on local air quality if hydrocarbon refrigerants were used in further applications.
Additionally, the analysis also considers the more realistic scenarios (Scenario 2, Scenario 3a, and Scenario 3b) where hydrocarbons are modeled only in the end-uses where the SNAP program has already listed them as acceptable, or for which SNAP submissions or international market trends indicate HCs soon could be used. Scenario 2 examines the likely emissions of lower maximum incremental reactivity (MIR) hydrocarbons, propane, isobutane, and ethane, in the residential and light commercial AC, residential dehumidifiers, retail refrigeration, and household refrigeration end-uses. Scenarios 3a and 3b also consider the use of higher MIR refrigerants propylene and R-1150 in laboratory equipment (IPR and VLTR end-uses, respectively) and R-1150 in small retail food refrigeration equipment (
In highly conservative Scenario 1b, examining widespread R-1150 adoption across the entire refrigeration and AC sector, modeling predicts that the single 8-hour average ground-level ozone concentration could increase by 11.7 percent in Los Angeles, which is the area with the highest level of ground-level ozone pollution in the United States. However, the assumptions modeled in 1b are highly unrealistic, given the significantly smaller number of applications in which R-1150 has been requested for use or is currently being used globally. VLTR, the only end-use being addressed in this listing, represents a very small segment of the refrigeration and AC sector.
In the more realistic scenarios 3a and 3b, where use of propylene and R-1150 in laboratory equipment and R-1150 in small retail food refrigeration equipment are included, the 8-hour ground-level ozone concentration in Los Angeles was found to increase by a maximum of 0.017 percent relative to the NAAQS on the worst modeled day. For purposes of this SNAP determination, this is not a significant increase in ground-level ozone. The modeling is also conservative by assuming a one-for-one substitution of hydrocarbons for current refrigerants because an actual transition would likely introduce less than one kilogram of hydrocarbon for each kilogram replaced. As a result of this analysis, EPA determined that the use of R-1150 consistent with the use conditions and narrowed use limits finalized in this rulemaking will not result in significantly greater risk to people's health or the environment than other alternatives available for the same use.
Ecosystem effects from R-1150 are expected to be small, as compared to the effects of other acceptable substitutes in
The American Conference of Governmental Industrial Hygienists (ACGIH) has established a TLV of 200 ppm as an 8-hour TWA for R-1150. EPA anticipates that users will be able to meet the TLV and address potential health risks by following the use condition limiting charge sizes to 150 g and the requirements and recommendations in the manufacturer's SDS, ASHRAE Standard 15, UL Standard 61010-2-011, 2nd Edition, and other safety precautions common to the refrigeration and AC industry.
R-1150 is a VOC that is more photochemically reactive and more likely to cause ground-level ozone pollution than acceptable refrigerants in this end-use. For example, R-1150 has a MIR of 9.07 g-O
Flammability risks of R-1150 are comparable to flammability risks of other available substitutes in the same end-use, such as ethane, while R-1150's flammability risks are higher than those of nonflammable refrigerants such as R-410A, CO
Toxicity risks are comparable to or lower than toxicity risks of other available substitutes in the same end-use. Toxicity risks can be minimized by use consistent with the TLV issued by the ACGIH, ASHRAE Standard 15, UL 61010-2-011—which applies under the final use conditions—and other industry standards, recommendations in the manufacturer's SDS, and other safety precautions common in the refrigeration and AC industry.
Although R-1150 presents a higher risk to local air quality than other available alternatives for this end-use, other alternatives such as ethane, propane, and most HFOs or HFCs, that are less photochemically reactive than R-1150 are not able to attain temperatures as low as those attainable by R-1150 because of their higher boiling points. Thus, EPA is finalizing listing this substitute as acceptable subject to use conditions and narrowed use limits in VLTR.
(1) EPA is finalizing the following use conditions to address flammability risks of R-1150: New equipment only—R-1150 may be used only in new equipment designed specifically and clearly identified for the refrigerant,
(2) UL Standard—R-1150 may be used only in laboratory equipment that meet all requirements listed in the 2nd edition, dated May 13th, 2021, of UL Standard 61010-2-011, “Safety Requirements for Electrical Equipment for Measurement, Control, and Laboratory Use—Part 011: Particular Requirements for Refrigerating Equipment.” In cases where this final rule includes requirements different than those of UL 61010-2-011, 2nd Edition, EPA is requiring that the equipment meet the requirements of this final rule in place of the requirements in the UL Standard. Requirements of note include:
• Warning labels—The following markings, or the equivalent, must be provided in letters no less than 6.4 millimeter (
i. Attach near the machine compartment: “DANGER—Risk of Fire or Explosion. Flammable Refrigerant Used. To Be Repaired Only By Trained Service Personnel. Do Not Puncture Refrigerant Tubing”
ii. Attach near the machine compartment: “CAUTION—Risk of Fire or Explosion. Flammable Refrigerant Used. Consult Repair Manual/Owner's Guide Before Attempting To Service This Product. All Safety Precautions Must Be Followed.”
iii. Attach on the exterior of the refrigeration equipment: “CAUTION—Risk of Fire or Explosion. Dispose of Properly In Accordance With Federal Or Local Regulations. Flammable Refrigerant Used.”
iv. Attach near all exposed refrigerant tubing: “CAUTION—Risk of Fire or Explosion Due To Puncture Of Refrigerant Tubing; Follow Handling Instructions Carefully. Flammable Refrigerant Used.”
v. Attach on the exterior of the refrigeration equipment: “This equipment is intended for use in commercial, industrial, or institutional occupancies as defined in the Safety Standard for Refrigeration Systems, ANSI/ASHRAE 15.”
vi. Attach on the exterior of the shipping carton: “CAUTION—Risk of Fire or Explosion. Dispose of Properly In Accordance With Federal Or Local Regulations.”
vii. The instructions shall include the following warnings as necessary:
a. “WARNING: Ensure all ventilation openings are not obstructed.”
b. “WARNING: Do not use mechanical devices or other means to accelerate the defrosting process, other than those recommended by the manufacturer.”
c. “WARNING: Do not damage the refrigerant circuit.”
• Markings—Equipment must have distinguishing red (PMS #185 or RAL 3020) color-coded hoses and piping to indicate use of a flammable refrigerant. The laboratory equipment shall have marked service ports, pipes, hoses and other devices through which the refrigerant is serviced. Markings shall extend at least 1 inch (25 mm) from the servicing port and shall be replaced if removed.
(3) Charge size—Equipment must use no more than 150 g of R-1150 in each refrigerant circuit using this refrigerant.
EPA notes that there may be other legal obligations pertaining to the manufacture, use, handling, and disposal of the proposed refrigerant that are not included in the information listed in the tables included in the regulatory text (
EPA is finalizing listing R-1150 as acceptable, subject to use conditions, for use in the VLTR end-use for new equipment reaching temperatures lower than −80 °C (−112 °F). The use conditions are identified in the listing under subheading II.F.4, above, and are explained here in greater detail. The use conditions EPA is finalizing include conditions requiring use of R-1150 in new equipment, which can be specifically designed for the refrigerant; use consistent with UL 61010-2-011, 2nd Edition, including testing, charge sizes, ventilation, usage space requirements, and certain hazard warnings and markings; and limiting charge size to 150 g of R-1150 per refrigerant circuit. The finalization of these use conditions is intended to allow for the use of R-1150, a flammable refrigerant, in a manner that will ensure it does not pose a greater overall risk to human health and the environment than other substitutes in this end-use.
EPA is finalizing that R-1150 may be used only in new equipment
EPA is finalizing that R-1150 may be used only in equipment that meets all requirements in UL 61010-2-011, 2nd Edition. This UL standard indicates that refrigerant charges greater than 150 g are beyond its scope and that additional requirements apply, such as for instance ASHRAE 15-2019. EPA has only evaluated equipment that fits within the scope of UL 61010-2-011.
UL has developed safety standards including requirements for construction and system design, for markings, and for performance tests concerning refrigerant leakage, ignition of switching components, surface temperature of parts, and component strength after being scratched. Certain aspects of system construction and design, including charge size, ventilation, and installation space, and greater detail on markings, are discussed further below in this section. The UL Standard was developed in an open and consensus-based approach, with the assistance of experts in the laboratory equipment industry as well as experts involved in assessing the safety of products. While similar standards exist from other bodies such as the IEC, we are finalizing to rely on a specific UL standard that is most applicable and recognized by the U.S. market. This approach is the same as that in our previous rules on flammable refrigerants (
A summary of the requirements of UL 61010-2-011, 2nd Edition as they affect R-1150 and the end-use addressed in this section of the rule follows. This summary is offered for information only and does not provide a complete review of the requirements in this standard. UL 61010-2-011, 2nd Edition requires the warning labels on the equipment to contain letters at least
These red markings will help technicians immediately identify the use of a flammable refrigerant, thereby potentially reducing the risk of using sparking equipment or otherwise having an ignition source nearby. The colored plastic sleeve or cap would have to be forcibly removed in order to access the service port, hose, or pipe. This would signal to the technician that the refrigeration circuit that she/he was about to access contained a flammable refrigerant, even if all warning labels were somehow removed. This sleeve would be of the same red color (PMS #185 or RAL 3020) and could also be boldly marked with a graphic to indicate the refrigerant was flammable. The use of a colored plastic sleeve or cap that is boldly marked with a graphic could be a cost-effective alternative to painting or dyeing the service port, hose, or pipe.
Among the provisions in UL 61010-2-011, 2nd Edition are limits on the amount of refrigerant allowed in each appliance. The limitations on refrigerant charge size for VLTR are consistent with UL 61010-2-011, 2nd Edition to reduce the risk to workers and consumers. EPA is requiring a charge size limit of 150 g for each refrigerant circuit or stage for the proposed refrigerant. Section 1.1.1 of the UL Standard states, “This document details all the requirements when up to 150 g of FLAMMABLE REFRIGERANT are used per stage of a REFRIGERATING SYSTEM. Additional requirements beyond the current scope of this document apply if a REFRIGERANT charge of FLAMMABLE REFRIGERANT exceeds this amount.” Thus, in order to ensure the standard's provisions apply and sufficiently address flammability risk, EPA is requiring that each refrigerant circuit must contain no more than 150 g of R-1150.
In addition to the general requirement that each refrigerant circuit must contain no more than 150 g of R-1150,
EPA is finalizing the following narrowed use limits for use of R-1150 in VLTR:
(1) Temperature range—R-1150 may only be used in equipment designed specifically to reach temperatures lower than −80 °C (−112 °F).
(2) The manufacturers of new very low temperature equipment must demonstrate that other alternatives are not technically feasible. They must document the results of their evaluation that showed the other alternatives to be not technically feasible and maintain that documentation in their files. This documentation, which does not need to be submitted to EPA unless requested to demonstrate compliance, “shall include descriptions of substitutes examined and rejected, processes or products in which the substitute is needed, reason for rejection of other alternatives,
The boiling point (b.p.) of a refrigerant determines the coldest temperature it can reach within its refrigerating capabilities. R-1150 has a b.p. of −104 °C, allowing it to refrigerate as cold as −104 °C. There are a limited number of refrigerants that are capable of reaching temperatures below −80 °C, such as the ODSs CFC-13 (b.p., −81.4 °C) and R-503 (b.p., −88.9 °C), and among the acceptable refrigerants in this end-use, ethane (b.p., −88.3 °C) and the high GWP refrigerants HFC-23 (b.p., −84.4 °C), R-508A (b.p., −87.4 °C) and R-508B (b.p., −87.4 °C).
EPA is providing additional information related to this listing. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. See section II.E.2 above for further discussion on what additional information EPA is including in this final listing. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of these substitutes as best practices for safer use.
No comments were received relating to the proposed listing of R-1150 in VLTR. For the reasons explained above, EPA is finalizing this section of the rule as proposed.
The fire suppression and explosion protection end-uses addressed in this action are total flooding and streaming. Total flooding systems, which historically employed halon 1301 as a fire suppression agent, are used in both normally occupied and unoccupied areas. In the United States, approximately 90 percent of installed total flooding systems protect anticipated hazards from ordinary combustibles (
As proposed, EPA is finalizing listing 2-BTP as acceptable, subject to use conditions. The use conditions are for use in normally unoccupied spaces under 500 ft
The redacted submission and supporting documentation for 2-BTP are provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
2-BTP vapors may reduce oxygen available for breathing, causing asphyxiation in high concentrations. Such vapors pose a potential hazard if large volumes are trapped in enclosed or low places. In addition, as noted above, if person(s) are exposed to high concentrations, the person(s) may experience central nervous system effects, such as drowsiness and dizziness, which may result in the person(s) not realizing that he/she is suffocating. These health effects after exposure are similar for other common fire suppressants.
To assess potential health risks from exposure to the proposed substitute for personnel during manufacturing, EPA developed an AEL of 2 ppm for 2-BTP based on review of available toxicity studies.
Exposure to the substitute is not likely during installation or servicing of 2-BTP total flooding systems for normally unoccupied spaces. The risk of accidental activation of the fire extinguishing system while personnel are present near the protected space is highly unlikely if proper procedures are followed. Proper instructions on system installation and servicing included in manuals for the 2-BTP systems should be adhered to. In the case of accidental release, engineering controls in accordance with the National Fire Protection Association (NFPA) 2001 Standard on Clean Agent Fire Extinguishing Systems to limit personnel exposure to discharges should be employed with 2-BTP systems.
EPA provides additional information on safe use of this substitute for establishments manufacturing, installing and maintaining equipment using this agent in the “Further Information” column of the regulatory listing. EPA recommends that a discharge time delay of 30 to 60 seconds is programmed in accordance with the NFPA 2001 standard. Although exposure is highly unlikely during installation and maintenance activities, exposure is possible upon reentry into a space after a system has been discharged. In the event of an accidental release, the space should be adequately ventilated. EPA recommends that personnel wear protective clothing, goggles, gloves, and particulate-removing respirators with National Institute for Occupational Safety and Health (NIOSH) type N95 or better filters while performing installation or maintenance, and a self-contained breathing apparatus (SCBA) while performing clean-up activities to reduce the risk of exposure. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of this substitute as best practices for safer use.
2-BTP is not expected to cause a significant risk to human health in the general population when used in total flooding systems in normally unoccupied areas. The use in spaces under 500 ft
EPA is finalizing listing 2-BTP as acceptable, subject to use conditions, as a total flooding agent for use in normally unoccupied spaces under 500 ft
2-BTP is not expected to pose a risk to workers during manufacture of 2-BTP fire extinguishers when the engineering controls and PPE requirements as referenced in the SDS for this substitute are followed. The potential health risks from exposure to the substitute for personnel during manufacturing is described above under total flooding applications.
EPA also assessed potential end-use exposure scenarios at 7.5-minute and 15-minute TWA exposures for 2-BTP following potential release of agent from the handheld extinguisher in confined spaces (
EPA is finalizing listing 2-BTP as acceptable, subject to use conditions, as a streaming agent for use in non-residential applications, except for commercial home office and personal watercraft, because the overall environmental and human health risk posed by the substitute is lower than or comparable to the overall risk posed by other alternatives listed as acceptable in the same end-use.
EPA is finalizing listing 2-BTP as acceptable, subject to use conditions. The use conditions are for use in normally unoccupied spaces under 500 ft
EPA is finalizing listing 2-BTP as acceptable, subject to use conditions, for use only in normally unoccupied spaces under 500 ft
Additionally, EPA is finalizing listing 2-BTP as acceptable subject to use conditions as a streaming agent for use
EPA received one comment on the 2-BTP section of the proposed rule. The commenter supported finalizing the rule as proposed.
As proposed, EPA is finalizing listing EXXFIRE ® as acceptable, subject to use conditions, for use in total flooding fire suppression systems in normally unoccupied spaces. EPA received no comments relating to the proposed listing of EXXFIRE ®. Prior to activation, the EXXFIRE ® formulation is in solid form and contained within a hermetically sealed steel container. Upon detection of a fire, nitrogen gas is released from the unit. The nitrogen gas dilutes the oxygen level within the enclosure, and consequently suppresses the fire. After activation, only gas components exit the casing. All solid products remain inside the casing before, during and after activation. Use of this agent should be in accordance with the safety guidelines in the latest edition of the NFPA 2001 standard.
The redacted submission and supporting documentation for EXXFIRE ® are provided in the docket for this proposed rule (EPA-HQ-OAR-2021-0836) at
EPA evaluated occupational and general population exposure at manufacture of EXXFIRE ® systems and at end use to ensure that the use of EXXFIRE ® will not pose unacceptable risks to workers or the general public. Exposure is possible upon reentry into a space after a system has been discharged. Protective gloves, tightly sealed goggles, protective work clothing, and particulate-removing respirators should be worn for installation and servicing activities, to protect workers in any event of potential discharge of the substitute, accidental or otherwise. Filling or servicing operations should be performed in well-ventilated areas. Toxicity risks can be minimized by use consistent with the NFPA 2001 standard, recommendations in the SDS, and other safety precautions common in the fire suppression industry. EPA provides additional information on safe use of this substitute for establishments manufacturing, installing and maintaining equipment using this agent in the “Further Information” column of the regulatory listing. Since this additional information is not part of the regulatory decision under SNAP, these statements are not binding for use of the substitute under the SNAP program. While the items listed are not legally binding under the SNAP program, EPA encourages users of substitutes to apply all statements in the “Further Information” column in their use of this substitute as best practices for safer use.
EPA is finalizing listing EXXFIRE ® as acceptable, subject to use conditions, in the end-use listed above because it does not pose greater overall environmental and human health risk than other available substitutes in the same end-use.
Consistent with the request by the submitter, and information we have available at this time for our review, the use condition requires that EXXFIRE ® be used in total flooding fire suppression systems only in areas that are not normally occupied. EPA conducted this evaluation for use only in unoccupied spaces, and information was provided by the submitter in the SNAP application specific for this type of space based on EPA guidance.
No comments were received regarding EPA's proposed listing for EXXFIRE ®, and for the reasons explained above EPA is finalizing this listing as proposed.
As proposed, EPA is finalizing listing Powdered Aerosol H, also known as Pyroquench-α
The redacted submission and supporting documentation for Powdered Aerosol H are provided in the docket for this final rule (EPA-HQ-OAR-2021-0836) at
EPA expects that procedures identified in the SDS for Powdered Aerosol H and good manufacturing practices will be adhered to, and that the appropriate safety and personal PPE consistent with OSHA guidelines will be used during installation, servicing, post-discharge clean-up and disposal of total flooding systems using Powdered Aerosol H. The manufacturer guidance upon installation of the system provides the appropriate time after which workers may re-enter the area for disposal to allow the maximum settling of all particulates.
EPA is finalizing listing Powdered Aerosol H as acceptable, subject to use conditions, in the end-use listed above because it does not pose greater overall environmental and human health risk than other available substitutes in the same end-use.
Consistent with the submitter's request, and information we have available at this time for our review, EPA finalizes the use condition that Powdered Aerosol H be used in total flooding fire suppression systems only in areas that are not normally occupied. EPA conducted this evaluation for use only in unoccupied spaces, and information was provided by the submitter in the SNAP application specific for this type of space based on EPA guidance.
No comments were received regarding EPA's proposed listing for Powdered Aerosol H, and for the reasons discussed above, EPA is finalizing this section of the rulemaking as proposed.
In light of the commenter's statement about confusion regarding the RCRA regulation of flammable refrigerants that are exempted under 40 CFR 82.154(a) from the venting prohibition, we note that we have already addressed the applicability of RCRA to spent refrigerants in a previous SNAP rule, which states, for example, that “propane and other HCs being recovered, vented, released, or otherwise disposed of from commercial and industrial appliances are likely to be hazardous waste under RCRA (see 40 CFR parts 261 through 270).” (
The formation in the atmosphere of trifluoroacetic acid (TFA) is expected to increase in the coming decades due to increased use of HFOs and HCFOs. TFA, a breakdown product of some HFCs, HCFCs, HFOs and HCFOs, is a persistent chemical with potential harmful effects on animals, plants, and humans. The concentration of TFA in rainwater and ocean water is, in general, significantly below known toxicity limits at present. Potential environmental impacts of TFA require future evaluation due to its persistence. (p. 14)
Most TFA currently found in the environment resulting from decomposition of refrigerants likely derived from HFC-134a, which is being phased down and the use of which is anticipated to decrease in end-uses where safer alternatives are found acceptable under the SNAP program. EPA also notes that the modeling studies referenced generally assume a one-to-one substitution of HFO-1234yf for HFC-134a to be conservative;
There are ongoing evaluations of the potential risks of TFA exposure. In 2020, the Environmental Effects Assessment Panel (EEAP) to the Montreal Protocol released an update
In its 2021 Summary Update for Policymakers,
TFA likely has natural geochemical sources, is widely used in industry and research laboratories, and is a by-product of the synthesis and degradation of fluorinated and perfluorinated compounds (PFCs). . . . TFA has recently been found in precipitation, surface waters, and indoor dust in China . . ., although concentrations are below those considered toxic. No additional studies on the toxicity of TFA to organisms have been reported, but prior research has shown that this compound is not highly toxic to mammals and aquatic organisms, although some plants and algae may be sensitive. . . . At present, it is not possible to quantify the proportion of anthropogenic sources of TFA resulting from substances not falling under the purview of the Montreal Protocol, but available evidence indicates that this breakdown product is of minimal risk to human health. (p. 10; references in the text omitted here)
In response to EIA's suggestion that EPA evaluate potential risks from TFA through future SNAP rules, EPA notes that it does consider ecotoxicity as a criterion when evaluating alternatives under SNAP's comparative risk framework, and the Agency has considered the potential impacts of TFA in past actions that found HFO-1234yf acceptable in certain end-uses. For example, EPA studied the potential generation of TFA when first listing neat (
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0226. The approved Information Collection Request includes five types of respondent reporting and recordkeeping activities pursuant to SNAP regulations: submission of a SNAP petition, filing a Toxic Substances Control Act (TSCA)/SNAP Addendum, notification for test marketing activity, recordkeeping for substitutes acceptable subject to use restrictions, and recordkeeping for small volume uses. This action does not impose a new information collection burden under the PRA because the existing Information Collection Request already includes recordkeeping for substitutes acceptable subject to use restrictions—
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, 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 because the rule has no net burden on the small entities subject to the rule. This action adds the additional options under SNAP of using HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, R-454C, R-1150, 2-BTP, EXXFIRE ®, and Powdered Aerosol H, in the specified end-uses, but does not mandate such use. Users who choose to avail themselves of this flexibility for R-1150 must make a reasonable effort to ascertain that other substitutes or alternatives are not technically feasible and must document and keep records of the results of such investigations. Because equipment for HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, and R-454C is not manufactured yet in the U.S. for the chillers and residential dehumidifiers end-uses, no change in business practice is required to meet the use conditions, resulting in no adverse impact compared with the absence of this rule. Similarly, R-1150, 2-BTP, EXXFIRE ®, and Powdered Aerosol H are listed as acceptable with use conditions consistent with industry standards and with the intended uses described by the submitters, also requiring no change in business practices and resulting in no adverse impact compared with the absence of this rule. The new use conditions for HFC-32 in self-contained room ACs and HPs were requested by industry and allow use consistent with the more recent standard, UL 60335-2-40, while also allowing continued use with another existing standard, UL 484, until the consensus standard setting organization sunsets that older standard; these would allow for greater consistency in business practices for different types of equipment using the same refrigerant while giving industry time to transition between two industry standards. Equipment for HFC-32 already manufactured prior to the effective date of this final rule would not be affected. Self-contained room ACs and HPs using HFC-32 have been subject to similar use conditions, and thus the updated requirements result in no adverse impact compared with the absence of this rule. Thus, the final rule will not impose new costs on small entities. We have therefore concluded that this action will have no net regulatory burden for any 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. The 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. It will not have substantial direct effects on Tribal governments, 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, as specified in Executive Order 13175.Thus, Executive Order 13175 does not apply to this action. EPA periodically updates Tribal officials on air regulations through the monthly meetings of the National Tribal Air Association and will share information on this rulemaking through this and other formats.
This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. While EPA has not conducted a separate analysis of risks to infants and children associated with this rule, the rule does contain use conditions that would reduce exposure risks to the general population, with the reduction of exposure being most important to the most sensitive individuals. This action's health and risk assessments are contained in the comparisons of toxicity for the various substitutes, as well as in the risk screens for the substitutes that are listed in this rule. The risk screens are in the docket for this rulemaking.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This action involves technical standards. EPA has decided to use and incorporate by reference three technical safety standards in the use conditions for the types of refrigeration and air conditioning equipment addressed in this action: two standards developed by UL and one developed by ASHRAE.
EPA incorporates by reference the 2019 edition of UL Standard 60335-2-40, which establishes requirements for the evaluation of commercial and residential AC and dehumidifier equipment and safe use of flammable refrigerants, among other things. Additionally, EPA uses and incorporates by reference the 2021 edition of UL Standard 61010-2-011, which establishes requirements for the evaluation of laboratory equipment and safe use of flammable refrigerants, among other things. These standards are discussed in greater detail in sections II.E and II.F.4 of this preamble.
The 2019 UL Standard 60335-2-40 and 2021 UL Standard 61010-2-011 are available at
EPA is also incorporating by reference ANSI/ASHRAE Standard 15-2019,
EPA is incorporating by reference the following addenda to ANSI/ASHRAE Standard 15-2019, available at
• Addendum a, ANSI-approved February 6, 2020, concerning updates to providing capacity factors for overpressure protection and introducing a method for calculating pressure relief capacity factors for refrigerants not included in the standard.
• Addendum b, ANSI-approved February 6, 2020, concerning updates to the definition of “listed,” and adding the term “labeled.”
• Addendum c, ANSI-approved September 1, 2020, concerning updates to allow the use of equipment using small amounts of non-A1 refrigerants if they are listed to appropriate safety standards.
• Addendum d, ANSI-approved April 29, 2022, concerning clarification that the standard does not apply to residential refrigeration systems.
• Addendum e, ANSI-approved January 27, 2022, concerning revisions to requirements related to refrigerant piping.
• Addendum f, ANSI-approved September 30, 2020, concerning the addition of a new appendix providing clarifying, nonmandatory information, movement of mandatory information into the body of the standard, and updates to references.
• Addendum i, ANSI-approved July 31, 2020, concerning the modification of the standard by deferring regulation of ammonia refrigeration to ANSI/IIAR 2 and removal of erroneous references to ammonia.
• Addendum j, ANSI-approved October 30, 2020, concerning the replacement of the terms “flammable” and “nonflammable” with the specific refrigerant class.
• Addendum k, ANSI-approved October 30, 2020, concerning the modification of the existing listing requirement in the standard by clarifying the acceptable product safety listing standards.
• Addendum m, ANSI-approved June 30, 2022, concerning the modification of allowances for the use of mechanical ventilation to expand this mitigation strategy for human comfort applications using A2L refrigerants, helping to harmonize the standard with UL 60335-2-40, 3rd Edition.
• Addendum n, ANSI-approved May 31, 2022, concerning the address of a continuous maintenance proposal to clarify wording about airflow face velocity.
• Addendum o, ANSI-approved April 29, 2022, concerning the clarification of notification requirements.
• Addendum q, ANSI-approved May 31, 2022, concerning the modification of requirements for mechanical ventilation in machinery rooms using only 2L classified refrigerants, updates to the graphical method for determining required ventilation rates, and addition of an alternate calculation method for compliance.
• Addendum r, ANSI-approved May 31, 2022, concerning the modification of the definition of machinery rooms.
EPA has already incorporated the following standards into appendix R: UL 471 (November 24, 2010); UL 484 (December 21, 2007, with changes through August 3, 2012); UL 541 (December 30, 2011); and UL 60335-2-24 (April 28, 2017).
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.
EPA believes that the human health or environmental conditions that exist prior to this action result in or have the potential to result in disproportionate and adverse human health or environmental effects on people of color, low-income populations and/or indigenous peoples. This action's health and environmental risk assessments are contained in the comparison of health and environmental risks for HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, R-454C, R-1150, 2-BTP, EXXFIRE®, and Powdered Aerosol H, as well as in the risk screens that are available in the docket for this rulemaking. EPA's analysis indicates that other environmental impacts and human health impacts of HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, R-454C, R-1150, 2-BTP, EXXFIRE®, and Powdered Aerosol H are comparable to or less than those of other substitutes that are listed as acceptable for the same end-use. Because adoption of the new substitutes listed in this final rule is voluntary, the Agency is unable to quantify when, where, and how much of the listed substitutes will be produced and used. Thus, EPA cannot determine the extent to which this rule will exacerbate or reduce existing disproportionate adverse effects on communities of color and low-income people as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
EPA believes that it is not practicable to assess whether this action is likely to result in new disproportionate and adverse effects on people of color, low-income populations and/or indigenous peoples. However, the listings for HFC-32, HFO-1234yf, R-452B, R-454A, R-454B, R-454C, R-1150, 2-BTP, EXXFIRE®, and Powdered Aerosol H in the end-uses addressed in this action provide additional lower-GWP and ODP or comparable alternatives in their respective end-uses. By providing lower-GWP and ODP or comparable alternatives for these end-uses, this rule is anticipated to reduce the use and eventual emissions of potent greenhouse gases in these end-uses, which could help to reduce the effects of climate change, including the public health and welfare effects on people of color, communities of low-income and/or Indigenous peoples. The Agency will continue to evaluate the impacts of this program on communities with environmental justice concerns and consider further action, as appropriate.
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Unless specified otherwise, all documents are available electronically through the Federal Docket Management System at
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Stratospheric ozone layer.
For the reasons set forth in the preamble, EPA amends 40 CFR part 82 as follows:
42 U.S.C. 7414, 7601, 7671-7671q.
The revisions read as follows:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
NMFS has received a request from the U.S. Coast Guard (Coast Guard) for authorization to take marine mammals incidental to conducting construction activities related to maintenance and repair at facilities in Alaska over the course of 5 years (2023-2028). As required by the Marine Mammal Protection Act (MMPA), NMFS is proposing regulations to govern that take, and requests comments on the proposed regulations.
Comments and information must be received no later than May 30, 2023.
Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to
Cara Hotchkin, Office of Protected Resources, NMFS, (301) 427-8401.
A copy of the Coast Guard's application and any supporting documents, as well as a list of the references cited in this document, may be obtained online at:
We received an application from Coast Guard requesting 5-year regulations and authorization to take multiple species of marine mammals. This proposed rule would establish a framework under the authority of the MMPA (16 U.S.C. 1361
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the Proposed Mitigation section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this proposed rule containing 5-year regulations, and for any subsequent Letters of Authorization (LOAs). As directed by this legal authority, this proposed rule contains mitigation, monitoring, and reporting requirements.
Following is a summary of the major provisions of this proposed rule regarding Coast Guard construction activities. These measures include:
• Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities.
• Shutdown of construction activities under certain circumstances to avoid injury of marine mammals.
• Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power.
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stocks for taking for certain subsistence uses (referred to as “mitigation”); and requirements pertaining to the mitigation, monitoring, and reporting of the takings are set forth. The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 of the Companion Manual for NAO 216-6A, which do not individually or
Information in the Coast Guard's application and this document collectively provide the environmental information related to proposed issuance of these regulations and subsequent incidental take authorization for public review and comment. We will review all comments submitted in response to this document prior to concluding our NEPA process or making a final decision on the request for incidental take authorization.
On March 15, 2021, NMFS received an application from the Coast Guard requesting authorization for take of marine mammals incidental to construction activities related to maintenance and repair at eight Coast Guard facilities in Alaska. On November 24, 2021 (86 FR 67023), we published a notice of receipt of the Coast Guard's application in the
The Coast Guard proposes to conduct construction necessary for maintenance and repair of existing in-water structures at the following eight Coast Guard station facilities in Alaska: Kodiak, Sitka, Ketchikan, Valdez, Cordova, Juneau, Petersburg, and Seward. These repairs would include installation and removal of steel, concrete, and timber piles, involving use of impact and vibratory hammers and Down-The-Hole drilling (DTH) equipment, and removal of piles by cutting, clipping, or vibration. Maintenance activities may also include underwater power washing. Up to 245 piles will be removed and replaced on a 1 to 1 basis (
The Coast Guard requests authorization to take individuals of 14 species by Level B harassment and, for an additional 3 species (harbor seal, harbor porpoise, and Dall's porpoise), by Level A harassment. The proposed regulations would be valid for 5 years (2023-2028).
Maintaining existing wharfs and piers is vital to sustaining the Coast Guard's mission and ensuring readiness. To ensure continuance of necessary missions at the eight facilities, the Coast Guard must conduct annual maintenance and repair activities at existing marine waterfront structures, including removal and replacement or repair of piles of various types and sizes. Exact timing and amount of necessary in-water work is unknown, but the Coast Guard estimates replacing up to 245 structurally unsound piles over the 5-year period, including individual actions currently planned and estimates for future marine structure repairs. Construction will include use of impact, DTH, and vibratory pile driving, including removal and installation of steel, concrete, composite, and timber piles. Pile removal may occur by various cutting or clipping methods and power washing may occur on some piles being repaired. Pile cutting, clipping, and power washing, and certain other activities (
The Coast Guard's inspection program prioritizes deficiencies in marine structures and plans those maintenance and repairs for design and construction. The Coast Guard's proposed activities include individual projects (where an existing need has been identified) and estimates for ongoing repairs. Estimates of activity levels for ongoing repairs are based on Coast Guard surveys of existing structures, which provide assessments of structure condition and estimates of numbers of particular pile types that may require replacement (at an assumed 1:1 ratio) over the 5-year duration of these proposed regulations. Additional allowance is made for the likelihood that future waterfront inspections will reveal unexpected damage, or that damage caused by severe weather events and/or incidents caused by vessels will result in need for additional contingency repairs. This regional programmatic approach to MMPA compliance is expected to allow for efficient compliance for the Coast Guard, while satisfying the requirements of the MMPA. The detailed discussion of planned or anticipated projects provided here and in the Coast Guard's application allow for more comprehensive analysis, while providing a reduction in the time and effort that could be required to obtain individual incidental take authorizations. LOAs could be issued for projects conducted at any or all of the eight facilities if they fit within the structure of the programmatic analysis provided herein and are able to meet the requirements described in the regulations.
The Coast Guard would report to NMFS on an annual basis prior to the start of in-water work windows to review results of relevant projects conducted in the preceding in-water work window and propose upcoming projects. The intent is to utilize lessons learned to better inform potential effects of future activities through adaptive management.
The proposed regulations would be valid for a period of 5 years from the date of issuance. The specified activities may occur at any time during the 5-year period of validity of the proposed regulations, subject to existing timing restrictions. These timing restrictions, or in-water work windows, are designed to protect fish species listed under the Endangered Species Act (ESA) as well as marine mammals under the MMPA. No work would occur outside these work windows unless necessary for the safety and stability of the structure. Work windows for the eight facilities are described in Table 1. Pile driving could occur on any day within in-water work windows during the period of validity of these proposed regulations.
For many projects the design details are not known in advance; thus, it is not possible to state the exact number of pile driving days that will be required. Days of pile driving at each site were based on the estimated work days using a slow production rate,
The eight facilities are located within the coastal waters of the Gulf of Alaska (Figure 1). For full details regarding the facilities and specified geographical region, please see sections 1.3 and 2, respectively, of the Coast Guard's application.
Coast Guard Base Kodiak is located on Womens Bay, a largely enclosed arm of the larger Chiniak Bay on the northeast side of Kodiak Island, Alaska's largest island. Womens Bay is separated from the rest of Chiniak Bay by Nyman Peninsula providing a protected harbor for Coast Guard vessels. Coast Guard vessels are the primary users of Womens Bay; however, a sea plane runway is present at the mouth of the bay and barges regularly transit Womens Bay.
The Coast Guard's Sitka Moorings are located near Sitka Harbor on the Sitka Channel separating Japonski Island from the larger Baranof Island. The Sitka Channel connects the Eastern Anchorage southeast of Sitka to the Western Anchorage northwest of the town. Beyond Coast Guard vessels, typical vessel traffic within the Sitka Channel includes private watercraft, commercial fishing vessels, and seaplanes.
Base Ketchikan is situated on Revillagigedo Island, which is separated from nearby Pennock Island by the East Channel of the Tongass Narrows. At Base Ketchikan, the Tongass Narrows are approximately 2,000 ft (610 meters (m)) across with steep surface bathymetry reaching a maximum mid-channel depth of over 100 ft (30 m). The Tongass Narrows are a busy passage frequented by private and commercial vehicles, including large cruise ships servicing the cruise terminal in Ketchikan (north of Base Ketchikan).
The Coast Guard's Valdez moorings are located west of the entrance to Valdez Harbor located on Port Valdez, itself part of the Valdez Arm of Prince William Sound. Port Valdez is the U.S.' northernmost ice-free port and non-Coast Guard vessel traffic in the immediate vicinity of the Valdez moorings includes private craft and commercial cargo vessels. The Valdez Marine Terminal is located 2.3 miles (3.7 kilometers (km)) south of the Valdez moorings and is the offshoring point for petroleum products transported via the Trans-Alaska Pipeline, with corresponding oil tanker traffic through the area. Depths adjacent to the Valdez moorings fall off steeply from approximately 13 ft (4 m) at the entrance to Valdez Harbor to over 600 ft (183 m) along the centerline of the Valdez Arm.
The dock used by the Coast Guard at Cordova is owned by the City of Cordova and is located on the Cordova waterfront on Orca Inlet, which separates the mainland from Hawkins Island. Orca Inlet is generally shallow reaching depths of 75 ft (23 m) at the deepest parts of the channel with significantly more shallow depths closer to Hawkins and Observation Islands.
The Coast Guard wharf at Station Juneau is on the southeast facing portion of the Juneau waterfront on the Gastineau Channel separating the North American mainland (Juneau) from Douglas Island. The Gastineau Channel is accessible to large vessels up to the bridge linking Douglas Island to the mainland and navigable by smaller vessels for its entire length. The Channel is generally shallow in the northern section but up to 35 ft (10.7 m) deep adjacent to the wharf frontage and up to 100 ft (30 m) in the mid-channel south of Station Juneau.
The Coast Guard moorings in Petersburg are located within Petersburg Harbor, which supports the area's commercial fishing industry. Petersburg is located at the northern end of the Wrangell Narrows separating Mitkof and Kupreanof Islands near the confluence with the Frederick Sound. The Narrows are generally only used by fishing boats and Alaska Marine Highway ferries as it is too shallow and narrow for use by larger vessels. Depths adjacent to the Petersburg Moorings are approximately 20 ft (6 m).
The dock used by the Coast Guard in Seward is owned by the City of Seward and is located within Seward Harbor. The Seward Harbor breakwaters separate the harbor and moorings from the main body of Resurrection Bay. Seward Harbor itself serves smaller craft, with larger cruise ships and ferries using facilities just east of the harbor. Depths within the harbor, including the harbor entrance, range between 12 and 15 ft (4-5 m).
As described above, the Coast Guard has requested incidental take regulations for its maintenance and repair program, which includes maintenance and repair activities at marine waterfront structures at eight facilities within the Gulf of Alaska. In order to address identified deficiencies in existing marine structures at the 8 facilities, the Coast Guard proposes to replace up to 245 structurally unsound piles over the 5-year period using methods including impact and vibratory pile driving, and DTH to make holes. Existing marine structures at the eight facilities are described in detail in section 6.8 of the Coast Guard's application and details of pile maintenance and repair activity are summarized in Table 2.
The project includes pile repair, extraction, and installation, all of which may be accomplished through a variety of methods. However, only extraction and installation using DTH equipment and vibratory and impact pile drivers
Vibratory hammers, which can be used to either install or extract a pile, contain a system of counter-rotating eccentric weights powered by hydraulic motors, and are designed in such a way that horizontal vibrations cancel out, while vertical vibrations are transmitted into the pile. The pile driving machine is lifted and positioned over the pile by means of an excavator or crane, and is fastened to the pile by a clamp and/or bolts. The vibrations produced cause liquefaction of the substrate surrounding the pile, enabling the pile to be extracted or driven into the ground using the weight of the pile plus the hammer.
Impact hammers use a rising and falling piston to repeatedly strike a pile and drive it into the ground. Steam, hydraulic and pneumatic hammers use compressed fluids to create the force to raise or drive a piston weight. A diesel hammer works much like a car engine with fuel injected into a combustion chamber where the fuel is then ignited and the force of the explosion drives a piston, which pushes the pile down with great force.
DTH systems create holes by combining impact forces from a hydraulically or pneumatically controlled piston and hammer that directly impact the substrate along with a rotating drill function, aided by an intricate series of rock cutting bits on the end of the hammer.
Steel piles are typically vibratory-driven for their initial embedment depths or to refusal and finished with an impact hammer for proofing or until the pile meets structural requirements, as necessary. Where structural requirements necessitate stronger support piles may need to be driven into bedrock substrates. DTH systems are used for this purpose. Proofing involves striking a driven pile with an impact hammer to verify that it provides the required load-bearing capacity, as indicated by the number of hammer blows per foot of pile advancement. Non-steel piles (concrete, timber, composite) are typically impact-driven for their entire embedment depth, in part because non-steel piles are often displacement piles (as opposed to pipe piles) and require some impact to allow substrate penetration. Pile installation can range from under one minute to 60 minutes depending on pile type, pile size, and conditions (
The most effective and efficient method of pile driving available would be implemented in each case. The method fitting these criteria may vary based on specific project requirements and local conditions. Impact driving, while generally producing higher levels of sound, also minimizes the net amount of active driving time, thus reducing the amount of time during which marine mammals may be exposed to noise. Impact, DTH, or vibratory pile driving could occur on any day but would not occur simultaneously. Location-specific pile totals are given in Table 2 and described below. These totals assume a 1:1 replacement ratio; however, the actual number installed may result in a replacement ratio of less than 1:1.
Steel, concrete, timber, and composite piles will all be a maximum of 24-inch (0.61 m) diameter. For purposes of analysis, it is assumed that any unknown pile type would be steel, since this would give a worst-case scenario in terms of loudest noise levels produced. All concrete, composite, and timber piles are assumed to be installed entirely by impact pile driver, and all steel piles are assumed to require some use of an impact driver. This is a conservative assumption, as all steel piles would be initially driven with a vibratory driver until they reach a point of refusal (where substrate conditions make use of a vibratory hammer ineffective) or engineering specifications require impact driving to verify load-bearing capacity. Therefore, some steel piles may not in fact require use of the impact driver during installation. DTH will only be used at Ketchikan and Kodiak.
At this time, of the 245 piles expected to be extracted, 5 have been identified as steel piles (3 at Cordova, 1 each at Seward and Valdez) and 106 as timber piles (50 each at Ketchikan and Juneau, 5 at Valdez, and 1 at Seward). The remaining piles have not been identified to type and so for analysis will be considered to be steel, typically the loudest type. Replacement will often be of the same type, but could include different materials, though diameters will generally be the same. Replacements for extracted timber piles will typically be composite piles of similar diameter.
Pile driving could occur on any work day within in-water work windows during the period of validity of these proposed regulations. Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see Proposed Mitigation and Proposed Monitoring and Reporting).
We have reviewed the Coast Guard's species descriptions that summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species, for accuracy and completeness and refer the reader to Sections 3 and 4 of the application, instead of reprinting all of the information here. Additional information regarding population trends and threats may be found in NMFS' Stock Assessment Reports (SAR;
Table 3 lists all species or stocks for which take is expected and proposed to be authorized for this action and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. PBR, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population, is considered in concert with known sources of ongoing anthropogenic mortality (as described in NMFS' SARs).
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in the specified geographical regions are assessed in either NMFS' U.S. Alaska SARs or U.S. Pacific SARs. All values presented in Table 3 are the most recent available at the time of writing and are available in the draft 2022 SARs (available online at:
Twelve species (with 23 managed stocks) are considered to have the potential to co-occur with Coast Guard activities to the degree that take is likely to occur. Table 4 identifies which stocks are expected to occur near each of the Coast Guard facilities. There are several species or stocks that occur in Gulf of Alaska waters, but which are not expected to occur in the vicinity of any of the eight Coast Guard facilities. In addition, the sea otter is found in coastal waters. However, sea otters are managed by the U.S. Fish and Wildlife Service and are not considered further in this document.
As indicated above, all 12 species (and 23 managed stocks) in Table 3 temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it. While Cuvier's beaked whales have been reported near all eight project areas, the spatial occurrence of this species generally offshore in deep water is such that take is not expected to occur, and it is not discussed further beyond the explanation provided here.
Gray whales occur exclusively in the North Pacific Ocean. The Eastern North Pacific stock of gray whales inhabit California and Mexico in the winter months, and the Chukchi, Beaufort, and Bering Seas in northern Alaska in the summer and fall. Gray whales have also been observed feeding in waters off Southeast Alaska during the summer (NMFS, 2022). The migration pattern of gray whales appears to follow a route along the western coast of Southeast Alaska, traveling northward from British Columbia through Hecate Strait and Dixon Entrance, passing the west coast of Baranof Island from late March to May and then return south in October and November (Jones
Two populations of gray whales are recognized, the eastern and a western North Pacific (ENP and WNP). WNP whales are known to feed in the Okhotsk Sea and off of Kamchatka before migrating south to poorly known wintering grounds, possibly in the South China Sea. The two populations have historically been considered geographically isolated from each other; however, data from satellite-tracked whales indicate that there is some overlap between the stocks. Two WNP whales were tracked from Russian foraging areas along the Pacific rim to Baja California (Mate
Kodiak, Sitka, and Juneau are within a gray whale migratory corridor Biologically Important Area (BIA) (Ferguson
Humpback whales are the most commonly observed baleen whale in Alaska and have been observed in Southeast Alaska in all months of the year (Baker
Prior to 2016, humpback whales were listed under the ESA as an endangered species worldwide. Following a 2015 global status review (Bettridge
Within Alaska waters, three current DPSs may occur: the Hawaii DPS (not listed), the Western North Pacific DPS (endangered), and the Mexico DPS (threatened). Humpback whales found in the project areas are predominantly members of the Hawaii DPS (98 percent probability in Southeast Alaska (Sitka, Ketchikan, Juneau, and Petersburg sites), 89 percent in the Gulf of Alaska (Kodiak, Seward, Valdez, and Cordova sites), and 91 percent in the Aleutian Islands), which is not listed under the ESA. However, based on a comprehensive photo-identification study, members of the Mexico DPS, which is listed as threatened, have a small potential to occur in all project locations (2 percent probability in Southeast Alaska, 11 percent in Gulf of Alaska, and 7 percent in the Aleutian Islands), and members of the Western North Pacific DPS have a small potential to occur in the Aleutian Islands (2 percent probability) and the Gulf of Alaska (1 percent probability) (Wade 2021).
On January 24, 2023, NMFS published the draft 2022 SARs (
NMFS' Office of Protected Resources, Permits and Conservation Division has generally considered peer-reviewed data in draft SARs (relative to data provided in the most recent final SARs), when available, as the best available science, and has done so in this proposed rule for all species and stocks, with the exception of a new proposal to revise humpback whale and harbor porpoise stock structures. Given that the proposed changes involve application of NMFS' Guidance for Assessing Marine Mammals Stocks and could be revised following consideration of public comments, it is more appropriate to conduct our analysis in this proposed rule based on the status quo stock structure identified in the most recent final SARs (2021; Carretta
Critical habitat was recently finalized for the humpback whale in Alaska (86 FR 21082, April 21, 2021). Designated critical habitat for the Western North Pacific and Mexico DPSs overlaps Kodiak Island; Cordova and Valdez are located near, but not within, critical habitat for the Mexico DPS. Kodiak, Sitka, Juneau, and Petersburg are within seasonal humpback whale feeding BIAs (Ferguson
The fin whale is widely distributed in all the world's oceans (Gambell, 1985), but typically occurs in temperate and polar regions from 20-70° north and south of the Equator (Perry
Fin whales appear to have complex seasonal movements and are seasonal migrants; they mate and calve in temperate waters during the winter and migrate to feed at northern latitudes during the summer (Gambell, 1985). The North Pacific population summers from the Chukchi Sea to California and winters from California southwards (Gambell, 1985). Aggregations of fin whales are found year-round off southern and central California (Dohl
Minke whales are found throughout the northern hemisphere in polar, temperate, and tropical waters. The International Whaling Commission has identified three minke whale stocks in the North Pacific: one near the Sea of Japan, a second in the rest of the western Pacific (west of 180° W), and a third, less concentrated stock throughout the eastern Pacific. NMFS further splits this third stock between Alaska whales and resident whales of California, Oregon, and Washington (Muto
In Alaska, minke whales feed primarily on euphausiids and walleye pollock. Minke whales are generally found in shallow, coastal waters within 200 m (656 ft) of shore (Zerbini
Killer whales have been observed in all oceans, but the highest densities occur in colder and more productive waters found at high latitudes. Killer whales occur along the entire coast of Alaska (Braham and Dahlheim, 1982), inland waterways of British Columbia and Washington (Bigg
Transient killer whales hunt and feed primarily on marine mammals, including harbor seals, Dall's porpoises, harbor porpoises, and sea lions. Resident killer whale populations in the eastern North Pacific feed mainly on salmonids, showing a strong preference for Chinook salmon (Muto
The Alaska Resident stock occurs from southeast Alaska to the Aleutian Islands and Bering Sea. The Northern Resident stock occurs from Washington north through part of southeast Alaska. The Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock occurs from the northern British Columbia coast to the Aleutian Islands and Bering Sea. The AT1 Transient stock occurs only in Prince William Sound and in the Kenai Fjords region. The West Coast Transient stock occurs from California north through southeast Alaska (Muto
Dahlheim
Members of the fish-eating resident stocks are the most commonly seen in nearshore waters with members of the Alaska Resident stock having the potential to occur at any of the facilities while Northern Resident individuals have the potential to occur at all of the facilities except Base Ketchikan which is south of their expected range (Muto
The Pacific white-sided dolphin is found in cool temperate waters of the North Pacific from the southern Gulf of California to Alaska. Across the North Pacific, it appears to have a relatively narrow distribution between 38° N and 47° N (Brownell
Results of aerial and shipboard surveys strongly suggest seasonal north-south movements of the species between California and Oregon/Washington; the movements apparently are related to oceanographic influences, particularly water temperature (Green
Pacific white-sided dolphins are highly gregarious with groups usually between 10 and 100 animals but ranging up to the thousands.
Dall's porpoise is found in temperate to subarctic waters of the North Pacific and adjacent seas (Jefferson
Harbor porpoise are common in coastal waters. They frequently occur in coastal waters of southeast Alaska and are observed most frequently in waters less than 350 ft (107 m) deep (Dahlheim
The primary range of the California sea lion includes the coastal areas and offshore islands of the eastern North Pacific Ocean from British Columbia to central Mexico, including the Gulf of California (Jefferson
In California and Baja California, births occur on land from mid-May to late-June. During August and September, after the mating season, the adult males migrate northward to feeding areas (Lowry
The northern fur seal is endemic to the North Pacific Ocean and occurs from southern California to the Bering Sea, Sea of Okhotsk, and Sea of Japan (Jefferson
Most northern fur seals are highly migratory. During the breeding season, most of the world's population of northern fur seals occurs on the Pribilof and Bogoslof islands (NMFS 2007). The main breeding season is in July (Gentry, 2009). Adult males usually occur onshore from May to August, though some may be present until November; females are usually found ashore from June to November (Muto
The northern fur seal spends approximately 90 percent of its time at sea, typically in areas of upwelling along the continental slopes and over seamounts (Gentry, 1981). The remainder of its life is spent on or near rookery islands or haulouts. While at sea, northern fur seals usually occur singly or in pairs, although larger groups can form in waters rich with prey (Antonelis and Fiscus, 1980; Gentry, 1981). Northern fur seals dive to relatively shallow depths to feed: 100-200 m for females, and <400 m for males (Gentry, 2009). Tagged adult female fur
The Steller sea lion's range extends across the North Pacific Rim from northern Japan to California with areas of abundance in the Gulf of Alaska and Aleutian Islands (Muto
Movement occurs between the western and eastern DPS of Steller sea lions, and increasing numbers of individuals from the western DPS have been seen in Southeast Alaska in recent years (Muto
Critical habitat has been defined in Alaska at major haulouts and major rookeries (50 CFR 226.202), but the project action areas do not overlap with Steller sea lion critical habitat. Additionally, no in-water work will occur from March 1 through October 1 at Valdez and Cordova to avoid overlap with Steller sea lion breeding season.
Harbor seals are common in the coastal and inside waters of the project areas. Harbor seals in Alaska are typically non-migratory with local movements attributed to factors such as prey availability, weather, and reproduction (Scheffer and Slipp, 1944; Fisher, 1952; Bigg 1969, 1981; Hastings
There are 12 stocks of harbor seals in Alaska, 5 of which occur in the project areas: (1) the South Kodiak stock ranges from Middle Cape on the west coast of Kodiak Island southwest to Chirikof Island and east along the south coast of Kodiak Island to Spruce Island; (2) the Prince William Sound stock ranges from Elizabeth Island off the southwest tip of the Kenai Peninsula to Cape Fairweather; (3) the Lynn Canal/Stephens Passage stock ranges north along the east and north coast of Admiralty Island from the north end of Kupreanof Island through Lynn Canal; (4) the Sitka/Chatham Strait stock ranges from Cape Bingham south to Cape Ommaney, extending inland to Table Bay on the west side of Kuiu Island and north through Chatham Strait to Cube Point off the west coast of Admiralty Island, and as far east as Cape Bendel on the northeast tip of Kupreanof Island; and (5) the Clarence Strait stock ranges along the east coast of Prince of Wales Island from Cape Chacon north through Clarence Strait to Point Baker and along the east coast of Mitkof and Kupreanof Islands north to Bay Point.
A UME is defined under the MMPA as “a stranding that is unexpected; involves a significant die-off of any marine mammal population; and demands immediate response.” The only currently ongoing UME investigation involves gray whales (
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Please refer to Table 3.
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The Estimated Take section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis and Determination section considers the content of this section, the Estimated Take section, and the Proposed Mitigation section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.
In the following discussion, we provide general background information on sound before considering potential effects to marine mammals from sound produced by pile driving.
This section contains a brief technical background on sound, on the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document.
The marine soundscape is comprised of both ambient and anthropogenic sounds. Ambient sound is defined as the all-encompassing sound in a given place and is usually a composite of sound from many sources both near and far (ANSI 1994, 1995). The sound level of an area is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (
The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
In-water construction activities associated with the project would include impact pile driving, vibratory pile driving, DTH, pile cutting, and power washing. Of these sounds, pile cutting and power washing are not expected to cause take of marine mammals and are thus not addressed further. The sounds produced by these activities fall into one of two general sound types: intermittent impulsive and continuous, non-impulsive. Impulsive sounds (
Three types of pile hammers would be used on this project: impact, vibratory, and DTH. Impact hammers operate by repeatedly dropping a heavy piston onto a pile to drive the pile into the substrate. Sound generated by impact hammers is characterized by rapid rise times and high peak levels, a potentially injurious combination (Hastings and Popper, 2005). Vibratory hammers install piles by vibrating them and allowing the weight of the hammer to push them into the sediment. Vibratory hammers produce significantly less sound than impact hammers. Peak sound pressure levels (SPLs) may be 180 dB or greater, but are generally 10 to 20 dB lower than SPLs generated during impact pile driving of the same-sized pile (Oestman
Rock or tension anchoring would be conducted using a DTH hammer. A DTH hammer is essentially a drill bit that drills through the bedrock using a rotating function like a normal drill in concert with a hammering pulse mechanism operated by a pneumatic (or sometimes hydraulic) component
The likely or possible impacts of the Coast Guard's proposed activity on marine mammals could involve both non-acoustic and acoustic stressors. Potential non-acoustic stressors could result from the physical presence of the equipment and personnel; however, any impacts to marine mammals are expected to primarily be acoustic in nature. Acoustic stressors include effects of heavy equipment operation during pile driving and removal.
The introduction of anthropogenic noise into the aquatic environment from DTH and pile driving is the primary means by which marine mammals may be harassed from the Coast Guard's specified activity. In general, animals exposed to natural or anthropogenic sound may experience physical and psychological effects, ranging in magnitude from none to severe (Southall
NMFS defines a noise-induced threshold shift (TS) as a change, usually an increase, in the threshold of audibility at a specified frequency or portion of an individual's hearing range above a previously established reference level (NMFS 2018). The amount of threshold shift is customarily expressed in dB. A TS can be permanent or temporary. As described in NMFS (2018), there are numerous factors to consider when examining the consequence of TS, including, but not limited to, the signal temporal pattern (
Depending on the degree (elevation of threshold in dB), duration (
Many studies have examined noise-induced hearing loss in marine mammals (see Finneran (2015) and Southall
Installing piles requires a combination of impact pile driving, vibratory pile driving, and DTH. For the project, these activities would not occur at the same time and there would likely be pauses in activities producing the sound during each day. Given these pauses and that many marine mammals are likely moving through the action area and not remaining for extended periods of time, the potential for TS declines.
Disturbance may result in changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located. Pinnipeds may increase their haul out time, possibly to avoid in-water disturbance (Thorson and Reyff, 2006). Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
In 2016, the Alaska Department of Transportation and Public Facilities (ADOT&PF) documented observations of marine mammals during construction activities (
Airborne noise would primarily be an issue for pinnipeds that are swimming or hauled out near the project sites within the range of noise levels elevated above the airborne acoustic harassment criteria. We recognize that pinnipeds in the water could be exposed to airborne sound that may result in behavioral harassment when swimming with their heads above water. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon the area and move further from the source. However, these animals would previously have been `taken' because of exposure to underwater sound above the behavioral harassment thresholds, which are in all cases larger than those associated with airborne sound. Thus, the behavioral harassment of these animals is already accounted for in these estimates of potential take. Therefore, we do not believe that authorization of incidental take resulting from airborne sound for pinnipeds is warranted, and airborne sound is not discussed further here.
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficient to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand, 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
The Coast Guard's construction activities could have localized, temporary impacts on marine mammal habitat and their prey by increasing in-water sound pressure levels and slightly decreasing water quality. Increased noise levels may affect acoustic habitat (see masking discussion above) and adversely affect marine mammal prey in the vicinity of the project area (see discussion below). During construction activities, elevated levels of underwater noise would ensonify nearby areas where both fishes and mammals occur and could affect foraging success.
Construction activities are of short duration and would likely have temporary impacts on marine mammal habitat through increases in underwater and airborne sound.
In-water pile driving, cutting, and power washing activities would also cause short-term effects on water quality due to increased turbidity. Local strong currents are anticipated to disburse any additional suspended sediments produced by project activities at moderate to rapid rates depending on tidal stage. The Coast Guard would employ other standard construction best management practices (see section 11 in the Coast Guard's application), thereby reducing any impacts. Therefore, the impact from increased turbidity levels is expected to be discountable.
The area likely impacted by the project is relatively small compared to the available habitat in the Gulf of Alaska. For a couple of facilities the ensonified area includes BIAs for feeding or migration for gray and/or humpback whales as well as critical habitats (see above). Kodiak and the distant areas around Cordova are included in the area designated as critical habitat for the Mexico DPS of humpback whales. Additionally, five haulout sites are located within 20 nautical miles (37 km) of Base Kodiak, the Seward Moorings, and of the Cordova Moorings. The planned activity is not anticipated to have any meaningful or lasting impacts to any of the aforementioned habitats of biological or critical importance, nor is it anticipated to significantly influence the behaviors of marine mammals in these habitats. Pile driving, power washing, and DTH may temporarily increase turbidity resulting from suspended sediments. Any increases would be temporary, localized, and minimal. The Coast Guard must comply with state water quality standards during these operations. In general, turbidity associated with pile installation is localized to about a 25-ft (7.6-m) radius around the pile (Everitt
Avoidance by potential prey (
The duration of the construction activities is relatively short. During each day, construction activities would generally only occur during daylight hours, with exceptions at the end of the work day to ensure safety of the site and construction personnel. Impacts to habitat and prey are expected to be minimal based on the short duration of activities and small size of affected areas, and the likelihood that the areas that are impacted are not of particular importance to marine mammals.
SPLs of sufficient strength have been known to cause injury to fish and fish mortality (Dahl
Fish react to sounds that are especially strong and/or intermittent low-frequency sounds. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. Hastings and Popper (2005) identified several studies that suggest fish may relocate to avoid certain areas of sound energy. Additional studies have documented effects of pile driving on fish (
The most likely impact to fish from pile driving and DTH activities at the project areas would be temporary behavioral avoidance of the area. The duration of fish avoidance of the area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution, and behavior is anticipated. There are times of known seasonal marine mammal foraging in the area of the facilities around fish processing/hatchery infrastructure or when fish are congregating, but the impacted areas are a small portion of the total foraging habitat available in the region. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe of the project and the small project footprint.
Construction activities, in the form of increased turbidity, have the potential to adversely affect forage fish and juvenile salmonid out-migratory routes in the project area. Both herring and salmon form a significant prey base for Steller sea lions, herring is a primary prey species of humpback whales, and both herring and salmon are components of the diet of many other marine mammal species that occur in the project area. Increased turbidity is expected to occur in the immediate vicinity (on the order of 25 ft or less) of construction activities. However, suspended sediments and particulates are expected to dissipate quickly within a single tidal cycle. Given the limited area affected and high tidal dilution rates any effects on forage fish and salmon are expected to be minor or negligible. In addition, best management practices would be in effect, which would limit the extent of turbidity to the immediate project area. Finally, exposure to turbid waters from construction activities is not expected to be different from the current exposure; fish and marine mammals in the region are routinely exposed to substantial levels of suspended sediment from glacial sources.
In-water work windows have been established to minimize the impacts of the proposed activity on sensitive life stages essential fish that are considered prey species for many marine mammals. Table 1 notes when periods of in-water work may not occur and at which facility.
In summary, given the short daily duration of sound associated with individual pile driving and DTH events and the relatively small areas being affected, pile driving and DTH activities associated with the proposed action are not likely to have a permanent, adverse effect on any fish habitat, or populations of fish species. Thus, we conclude that impacts of the specified activity are not likely to have more than short-term adverse effects on any prey habitat or populations of prey species. Further, any impacts to marine mammal habitat are not expected to result in significant or long-term consequences for individual marine mammals, or to contribute to adverse impacts on their populations.
This section provides an estimate of the number of incidental takes proposed for authorization, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would be by Level A or Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to the acoustic sources. Based on the nature of the activity, no serious injury or mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
The Coast Guard's proposed activity includes the use of continuous (vibratory, DTH) and impulsive (impact pile driving and DTH) sources, and therefore the 120 and 160 dB re 1 μPa (rms) thresholds, respectively, are applicable.
These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into estimating the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
The sound field in the project area is the existing background noise plus additional construction noise from the proposed project. Marine mammals are expected to be affected via sound generated by the primary components of the project (
The actual durations of each installation method vary depending on the type and size of the pile. In order to calculate distances to the Level A harassment and Level B harassment sound thresholds for piles of various sizes and equipment being used in this project, NMFS used acoustic monitoring data from other locations to develop source levels (Table 7). Note that piles and holes of differing sizes have different sound source levels (SSLs). For simplicity and to be precautionary we analyze the largest pile diameter of each type (
Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:
The recommended TL coefficient for most nearshore environments is the practical spreading value of 15. This value results in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions, which is the most appropriate assumption for the Coast Guard's proposed activity.
Using the practical spreading model, the Coast Guard determined underwater noise would fall below the behavioral effects thresholds of 120 dB rms or 160 dB rms for marine mammals at a maximum radial distances from 46 m for impact driving of timber or concrete piles to 13,594 m for DTH (Table 8). These distances determine the maximum Level B harassment zones for the project. It should be noted that based on the geography of many of the sites, sound will not reach the full distance of the Level B harassment isopleth. Generally, due to interaction with land, only a portion of the possible area is ensonified.
When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of take by Level A harassment. However, these tools offer the best way to predict appropriate isopleths when more sophisticated three dimensional modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources such as pile driving or DTH, NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS.
Inputs used in the User Spreadsheet (Table 9), and the resulting isopleths are reported below (Table 10). We analyzed scenarios with up to five piles per day to account for maximum possible production rates. Level A harassment thresholds for impulsive sound sources (impact pile driving and DTH) are defined for both SELcum and Peak SPL, with the threshold that results in the largest modeled isopleth for each marine mammal hearing group used to establish the Level A harassment isopleth. In this analysis, Level A harassment isopleths based on SELcum were always larger than those based on Peak SPL.
The above input scenarios lead to a PTS isopleth distance (Level A harassment threshold) of 0 to 517.1 m, depending on the marine mammal hearing group and scenario (Table 9).
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Here we describe how the information provided above is brought together to produce a quantitative take estimate.
Available information regarding marine mammal occurrence and abundance in the vicinity of the eight facilities includes monitoring data from the NMFS Alaska Regional Office, prior incidental take authorizations, and ESA consultations on additional projects (Table 11). When local density information is not available, data aggregated in the Navy's Marine Mammal Species Density Database (U.S. Navy, 2019, 2020) for the Gulf of Alaska or Northwest Testing and Training areas (Table 12) or nearby proxies from the monitoring data are used; whichever gives the most precautionary take estimate was chosen.
The data on abundance and occurrence from prior projects is derived from the following projects: (1) Kodiak—PSO monitoring reports from dock repair projects in 2018 and 2020 (NMFS Alaska Region). (2) Sitka—Data are from the Old Sitka Dock project (86 FR 22392, April 28, 2021). (3) Ketchikan—Data are from the Tongass Narrows project (85 FR 673, January 7, 2020) and other projects in preparation in the area. (4) Valdez—Data are from monitoring for an oil spill response in late April and early May 2020 (NMFS Alaska Region). (5) Juneau—Data are from the Erickson Dock project (84 FR 65360, November 27, 2019) and the Juneau Waterfront Improvement Project (85 FR 18562, April 2, 2020). (6) Seward—An IHA application for the Seward Passenger Terminal project recently received by NMFS included information resulting from consultation with the Alaska SeaLife Center, the Kenai Fjords NPS, local whale watching companies, and scientific literature to estimate the occurrence of marine mammals in Seward.
To quantitatively assess exposure of marine mammals to noise from pile driving and drilling activities when density estimates are most appropriate we used the density estimate and the annual anticipated number of work days for each activity (Table 2) at each facility to determine the number of animals potentially harassed on any one day of activity. The calculation is:
For example, exposure estimates at the Ketchikan site for gray whales were calculated by first finding the product of the SE Alaska species density (0.0155 animals/km
When occurrence data from prior projects are the most appropriate data for exposure estimation, we used the occurrence estimate (number/unit of time) and the maximum work days (converted to the appropriate unit of time as needed) per year (Table 2) at each facility to determine the number of animals potentially exposed to an activity. The calculation is:
And these values are then summed across activity/pile types.
When exposure estimates from density data are used for sites with no local occurrence data and the exposure estimate is less than a typical group size, we increase the estimated take based on that group size to account for the possibility a single group entering the project area would exceed authorized take. Table 13 shows the source of data used in exposure estimates.
The size of the Level B harassment zones for each facility and activity are in Table 14. Level A harassment take is only proposed for the activities creating the largest Level A harassment zones: DTH and impact driving of steel pipe piles (see Figures 6-2 through Figure 6-9 in the Coast Guard's application), and for species that would be difficult for observers to detect within large, unconfined zones: high frequency cetaceans and phocid pinnipeds. The topography of sites and facilities in Seward, Juneau, Sitka, and Petersburg are restricted such that noise would be confined to a small area or basin, and PSOs would be able to observe any marine mammals approaching the activity are and Level A shutdown zone with enough warning that work could be stopped before a take by Level A harassment would occur. The facilities at the remaining four sites (Kodiak, Ketchikan, Valdez, and Cordova) are less confined, and PSOs may be unable
Abbreviations for source data are: N—Navy density data, Ke—Ketchikan, Sit—Sitka, Sew—Seward, J—Juneau, V—Valdez, Ko—Kodiak, G—estimate rounded up to 1 group *—Not applicable (no take).
The calculated Level B harassment takes using the above data for each year are in Table 15 and for each facility over the course of the proposed rule are in Table 16. See Tables 6-14 through 6-21 in the application and the supplemental memo (composite piles) for detailed calculations of estimated take for each pile type and activity at each facility. The calculated Level A harassment takes using the above data for each year are in Table 17 and for each facility over the course of the proposed rule are in Table 18.
Table 19 summarizes Level A and Level B harassment take proposed to be authorized for the project as well as the percentage of each stock expected to be taken in the year with the maximum annual takes over the course of the project.
[Define “NA”].
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (“least practicable adverse impact”). NMFS does not have a regulatory definition for “least practicable adverse impact.” NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, as well as subsistence uses. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost and impact on operations.
The mitigation strategies described below largely follow those required and successfully implemented under previous incidental take authorizations issued in association with similar construction activities. Measurements from similar pile driving events were coupled with practical spreading loss and other relevant information to estimate harassment zones (see Estimated Take); these zones were used to develop mitigation measures for DTH and pile driving activities at the eight facilities. Background discussion related to underwater sound concepts and terminology is provided in the section on
The following mitigation measures are proposed:
• Avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 20 m of such activity, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions. The Coast Guard has elected to establish a minimum shutdown zone size of 20 m, larger than NMFS' typical requirement of a minimum 10 m shutdown zone;
• Conduct training between construction supervisors and crews and the marine mammal monitoring team and relevant Coast Guard staff prior to the start of all pile driving, cutting or power washing activity and when new personnel join the work, so that responsibilities, communication
• DTH and pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment zone;
• The Coast Guard will establish and implement a minimum shutdown zone of 20 m during all pile driving and removal activity, as well as the larger zones indicated in Table 20. The purpose of a shutdown zone is generally to define an area within which shutdown of the activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area). Shutdown zones typically vary based on the activity type and marine mammal hearing group. The Coast Guard has elected to establish a minimum shutdown zone size of 20 m, larger than NMFS' typical requirement of a minimum 10 m shutdown zone;
• Employ PSOs and establish monitoring locations as described in the application, any issued LOA and the Marine Mammal Monitoring Plan. The Holder must monitor the project area to the maximum extent possible based on the required number of PSOs, required monitoring locations, and environmental conditions. For all DTH and pile driving at least one PSO must be used. The PSO will be stationed as close to the activity as possible;
• The placement of the PSOs during all DTH and pile driving activities will ensure that the entire shutdown zone is visible during pile installation. Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone will not be visible (
• Monitoring must take place from 30 minutes prior to initiation of DTH and pile driving activity through 30 minutes post-completion of DTH and pile driving activity. Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine the shutdown zones clear of marine mammals. DTH and pile driving may commence following 30 minutes of observation when the determination is made;
• If DTH or pile driving is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal;
• The Coast Guard must use soft start techniques prior to beginning impact pile driving. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets. A soft start must be implemented at the start of each day's impact pile driving and at any time following cessation of impact pile driving for a period of 30 minutes or longer;
• As described previously, the Coast Guard would adhere to in-water work windows designed for the protection of fishes and marine mammals under other permitting requirements;
• The Coast Guard has volunteered that in-water construction activities will occur only during civil daylight hours; and
• Pile driving activity must be halted upon observation of either a species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the largest applicable harassment zone.
Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses.
In order to issue an LOA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of the authorized taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks.
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
• Monitoring must be conducted by qualified, NMFS-approved PSOs, in accordance with the following: PSOs must be independent (
• PSOs must record all observations of marine mammals as described in any issued LOA and the NMFS-approved Marine Mammal Monitoring Plan, regardless of distance from the pile being driven. PSOs shall document any behavioral reactions in concert with distance from piles being driven or removed;
PSOs must have the following additional qualifications:
• Ability to conduct field observations and collect data according to assigned protocols;
• Experience or training in the field identification of marine mammals, including the identification of behaviors;
• Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;
• Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates, times, and reason for implementation of mitigation (or why mitigation was not implemented when required); and marine mammal behavior; and
• Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary;
• The Coast Guard must establish the following monitoring locations. For all pile driving activities, a minimum of one PSO must be assigned to the active pile driving location to monitor the shutdown zones and as much of the Level B harassment zones as possible. Proposed monitoring locations are shown in Figures 6-1 through 6-41 of the application and summarized in Table 21. The number of PSOs required at each facility is dependent upon the size of the Level B harassment area as well as the topography of the activity site and a PSO's ability to observe the estimated Level A harassment area for the particular activity.
A draft marine mammal monitoring report will be submitted to NMFS within 90 days after the completion of pile driving activities, or 60 days prior to a requested date of issuance of any future LOAs for projects at the same location, whichever comes first. The report will include an overall description of work completed, a narrative regarding marine mammal sightings, and associated PSO data sheets. Specifically, the report must include:
• Dates and times (begin and end) of all marine mammal monitoring.
• Construction activities occurring during each daily observation period, including the number and type of piles driven or removed and by what method (
• PSO locations during marine mammal monitoring.
• Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
• Upon observation of a marine mammal, the following information: name of PSO who sighted the animal(s), and PSO location and activity at time of sighting; time of sighting; identification of the animal(s) (
• Number of marine mammals detected within the harassment zones, by species.
• Detailed information about any implementation of any mitigation triggered (
If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments.
In the event that personnel involved in the construction activities discover an injured or dead marine mammal, the LOA-holder must immediately cease the specified activities and report the incident to the Office of Protected Resources (OPR) (
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the animal(s) involved;
• Condition of the animal(s) (including carcass condition if the animal is dead);
• Observed behaviors of the animal(s), if alive;
• If available, photographs or video footage of the animal(s); and
• General circumstances under which the animal was discovered.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
DTH and pile driving activities associated with the maintenance projects, as described previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only for all species other than the harbor porpoise, harbor seal, and Dall's porpoise from underwater sounds generated from DTH and pile driving. Potential takes could occur if individual marine mammals are present in the ensonified zone when DTH or pile driving is happening.
No serious injury or mortality would be expected even in the absence of the proposed mitigation measures. For all species other than the harbor seal, harbor porpoise and Dall's porpoise, no Level A harassment is anticipated due to the confined nature of the facilities, ability to position PSOs at stations from which they can observe the entire shutdown zones, and the high visibility of the species expected to be present at each site. Additionally, much of the anticipated activity would involve vibratory driving or installation of small-diameter, non-steel piles, and include measures designed to minimize the possibility of injury. The potential for injury is small for mid- and low-frequency cetaceans and sea lions, and is expected to be essentially eliminated through implementation of the planned mitigation measures—soft start (for impact driving), and shutdown zones.
DTH and impact driving, as compared with vibratory driving, have source characteristics (short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks) that are potentially injurious or more likely to produce severe behavioral reactions. Given sufficient notice through use of soft start, marine mammals are expected to move away from a sound source that is annoying prior to its becoming potentially injurious or resulting in more severe behavioral reactions. Environmental conditions in these waters are expected to generally be good, with calm sea states, and we expect conditions would allow a high marine mammal detection capability, enabling a high rate of success in implementation of shutdowns to avoid injury.
As described previously, there are multiple species that should be considered rare in the proposed project areas and for which we propose to authorize only nominal and precautionary take. Therefore, we do not expect meaningful impacts to these species (
For remaining species, we discuss the likely effects of the specified activities in greater detail. Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (
The U.S. Navy has conducted multi-year activities potentially affecting marine mammals, and typically involving greater levels of activity than is contemplated here in various locations such as San Diego Bay and Puget Sound. Reporting from these activities has similarly reported no apparently consequential behavioral reactions or long-term effects on marine mammal populations (Lerma, 2014; U.S. Navy, 2016a and b).
Repeated exposures of individuals to relatively low levels of sound outside of preferred habitat areas are unlikely to significantly disrupt critical behaviors. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in viability for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable adverse impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the area while the activity is occurring. While vibratory driving or DTH associated with some project components may produce sound at distances of many kilometers from the pile driving site, thus intruding on higher-quality habitat, the project sites themselves and the majority of sound fields produced by the specified activities are within industrialized areas. Therefore, we expect that animals annoyed by project sound would simply avoid the area and use more-preferred habitats.
In addition to the expected effects resulting from authorized Level B
In addition, although affected humpback whales and Steller sea lions may be from DPSs that are listed under the ESA, it is unlikely that minor noise effects in a small, localized area of sub-optimal habitat would have any effect on the stocks' ability to recover. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activities will have only minor, short-term effects on individuals. The specified activities are not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts.
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• No mortality is anticipated or authorized.
• Use of soft start (for impact driving) is expected to minimize Level A harassment.
• No important habitat areas have been identified within the project area.
• For all species, the project locations are a very small and generally peripheral part of their range.
• Authorized Level A harassment would be very small amounts and of low degree.
• Monitoring reports from similar work in many of the locations in Alaska have documented little to no effect on individuals of the same species impacted by the specified activities.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activities will have a negligible impact on the affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(A) of the MMPA for specified activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is fewer than one-third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The amount of take NMFS proposes to authorize is below one-third of the estimated stock abundance of all species and stocks (take of individuals is less than 14 percent of the abundance of the affected stocks for the year of this rulemaking with the maximum amount of activity; see Table 19). This is likely a conservative estimate because it assumes all takes are of different individual animals, which is likely not the case. Some individuals may return multiple times in a day, but PSOs would count them as separate takes if they cannot be individually identified.
For fin whale, minke whale, Dall's porpoise, and Southeast Alaska harbor porpoise, no valid abundance estimate for the entire stock is available. There is no stock-wide abundance estimate for Northeast Pacific fin whales. However, Muto
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population sizes of the affected species or stocks.
In order to issue regulations and LOAs, NMFS must find that the specified activity will not have an “unmitigable adverse impact” on the subsistence uses of the affected marine mammal species or stocks by Alaskan Natives. NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity: (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine
As discussed above in the Effects of Specified Activities on Subsistence Uses of Marine Mammals section, subsistence harvest of harbor seals and other marine mammals is rare in the project areas and local subsistence users have not expressed concern about this project. All project activities will take place within industrialized areas where subsistence activities do not generally occur. The project also will not have an adverse impact on the availability of marine mammals for subsistence use at locations farther away, where these construction activities are not expected to take place. Some minor, short-term harassment of the harbor seals could occur, but any effects on subsistence harvest activities in the region will be minimal, and not have an adverse impact.
Based on the effects and location of the specified activity, and the mitigation and monitoring measures, NMFS has preliminarily determined that there will not be an unmitigable adverse impact on subsistence uses from the Coast Guard's planned activities.
The regulations governing the take of marine mammals incidental to Coast Guard maintenance construction activities would contain an adaptive management component.
The reporting requirements associated with this proposed rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Coast Guard regarding practicability) on an annual basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1531
NMFS is proposing to authorize take of Western DPS Steller sea lions (
NMFS requests interested persons to submit comments, information, and suggestions concerning the Coast Guard's request and the proposed regulations (see
Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Coast Guard is the sole entity that would be subject to the requirements in these proposed regulations, and the Coast Guard is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.
This proposed rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act because the applicant is a federal agency.
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, NMFS proposes to amend 50 CFR part 217 as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to incidental taking of marine mammals by the U.S. Coast Guard (Coast Guard) and those persons it authorizes or funds to conduct activities on its behalf in the areas outlined in paragraph (b) of this section and that occurs incidental to maintenance construction activities.
(b) The taking of marine mammals by the Coast Guard may be authorized in a Letter of Authorization (LOA) only if it occurs within Gulf of Alaska waters in
Regulations in this subpart are effective from [EFFECTIVE DATE OF A FINAL RULE], through [DATE 5 YEARS AFTER THE EFFECTIVE DATE OF A FINAL RULE].
Under LOAs issued pursuant to § 216.106 of this chapter and § 217.196, the Holder of the LOA (hereinafter “Coast Guard”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.190(b) by Level A or Level B harassment associated with maintenance construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
Except for takings described in § 217.192 and authorized by a LOA issued under § 216.106 of this chapter and § 217.196, it shall be unlawful for any person to do any of the following in connection with the activities described in § 217.190 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.196;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than as authorized;
(d) Take a marine mammal specified in such LOAs after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or
(e) Take a marine mammal specified in such LOAs after NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses.
When conducting the activities identified in § 217.190(a), the mitigation measures contained in this subpart and any LOA issued under § 216.106 of this chapter and § 217.196 must be implemented. These mitigation measures shall include but are not limited to:
(a)
(2) The Coast Guard shall conduct training between construction supervisors and crews and the marine mammal monitoring team and relevant Coast Guard staff prior to the start of all down-the-hole (DTH), pile driving, cutting or power washing activity and when new personnel join the work, so that responsibilities, communication procedures, monitoring protocols, and operational procedures are clearly understood.
(3) The Coast Guard shall avoid direct physical interaction with marine mammals during construction activity. If a marine mammal comes within 20 m of an activity regulated under this subpart, operations must cease and vessels must reduce speed to the minimum level required to maintain steerage and safe working conditions.
(b)
(2) For all DTH and pile driving activity, the Coast Guard shall implement shutdown zones with radial distances as identified in any LOA issued under § 216.106 of this chapter and § 217.196. If a marine mammal comes within or approaches the 20-m shutdown zone, such operations shall cease.
(3) For all DTH and pile driving activity, the Coast Guard shall designate monitoring zones with radial distances as identified in any LOA issued under § 216.106 of this chapter and § 217.196. Anticipated observable zones within the designated monitoring zones shall be identified in the Marine Mammal Monitoring Plan, subject to approval by NMFS.
(c)
(2) For all DTH and pile driving activities, a minimum of one PSO shall be stationed at the active pile driving rig or activity site or in reasonable proximity in order to monitor the entire shutdown zone.
(3) Monitoring must take place from 30 minutes prior to initiation of DTH and pile driving activity through 30 minutes post-completion of DTH and pile driving activity. Pre-start clearance monitoring must be conducted during periods of visibility sufficient for the lead PSO to determine the shutdown zones clear of marine mammals. DTH and pile driving activity may commence following 30 minutes of observation when the determination is made.
(4) If DTH and pile driving activity is delayed or halted due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily exited and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal.
(5) Monitoring shall be conducted by trained PSOs, who shall have no other assigned tasks during monitoring periods. Trained PSOs shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. The Coast Guard shall adhere to the following additional PSO qualifications:
(i) Independent observers (
(ii) At least one observer must have prior experience working as an observer.
(iii) Other observers may substitute education (degree in biological science or related field) or training for experience.
(iv) Where a team of three or more PSOs are required, one observer shall be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer.
(v) The Coast Guard shall submit PSO CVs for approval by NMFS.
(d)
(a)
(b)
(c)
(d)
(e)
(ii) These reports shall contain, at minimum, the following:
(A) Dates and times (begin and end) of all marine mammal monitoring;
(B) Construction activities occurring during each daily observation period, including the number and type of piles driven or removed and by what method (
(C) PSO locations during marine mammal monitoring;
(D) Environmental conditions during monitoring periods (at beginning and end of PSO shift and whenever conditions change significantly), including Beaufort sea state and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance;
(E) Upon observation of a marine mammal, the following information: Name of PSO who sighted the animal(s) and PSO location and activity at time of sighting; time of sighting; identification of the animal(s) (
(F) Number of marine mammals detected within the harassment zones, by species; and
(G) Detailed information about any implementation of any mitigation triggered (
(2) Coast Guard shall submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart.
(3) All draft and final monitoring reports must be submitted to
(f)
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(2) [Reserved]
(a) To incidentally take marine mammals pursuant to the regulations under this subpart, the Coast Guard must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of the regulations under this subpart.
(c) If an LOA expires prior to the expiration date of the regulations under this subpart, the Coast Guard may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Coast Guard must apply for and obtain a modification of the LOA as described in § 217.197.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the regulations of this subpart.
(g) Notice of issuance or denial of an LOA shall be published in the
(a) An LOA issued under § 216.106 of this chapter and § 217.196 for the activity identified in § 217.190(a) shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations under this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under the regulations of this subpart were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations in this subpart or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the
(c) An LOA issued under § 216.106 of this chapter and § 217.196 for the activity identified in § 217.190(a) may be modified by NMFS under the following circumstances:
(1)
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from the Coast Guard's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations under this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the
(2)