Agricultural Marketing Service
Federal Crop Insurance Corporation
Natural Resources Conservation Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
National Telecommunications and Information Administration
Air Force Department
Defense Acquisition Regulations System
Navy Department
Energy Information Administration
Federal Energy Regulatory Commission
Western Area Power Administration
Agency for Toxic Substances and Disease Registry
Food and Drug Administration
Health Resources and Services Administration
Indian Health Service
National Institutes of Health
Coast Guard
U.S. Customs and Border Protection
Fish and Wildlife Service
Indian Affairs Bureau
Occupational Safety and Health Administration
Workers Compensation Programs Office
Copyright Office, Library of Congress
Federal Aviation Administration
National Highway Traffic Safety Administration
Alcohol and Tobacco Tax and Trade Bureau
Foreign Assets Control Office
Internal Revenue Service
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.
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Federal Crop Insurance Corporation, U.S. Department of Agriculture (USDA).
Correcting amendment.
On June 29, 2023, the Federal Crop Insurance Corporation revised the Area Risk Protection Insurance (ARPI) Regulations, Common Crop Insurance Policy (CCIP) Basic Provisions, and the General Administrative Regulations. In reviewing the changes made, FCIC found some incorrect references and conflicting provisions that were not updated to accurately incorporate the changes, and a grammatical error was included in the amendatory instructions. This document makes the corrections.
Effective August 30, 2023.
Francie Tolle; telephone (816) 926-7730; email
The Common Crop Insurance Regulations in 7 CFR part 457 were revised by a final rule with request for comments published in the
• Common Crop Insurance Policy Basic Provisions (7 CFR 457.8);
• Texas Citrus Fruit Crop Insurance Provisions (7 CFR 457.119);
• Arizona-California Citrus Crop Insurance Provisions (7 CFR 457.121);
• Macadamia Nut Crop Insurance Provisions (7 CFR 457.131); and
• California Avocado Crop Insurance Provisions (7 CFR 457.175).
Acreage allotments, Crop insurance, Reporting and recordkeeping requirements.
Accordingly, 7 CFR part 457 is corrected by making the following amendments:
7 U.S.C. 1506(l), 1506(o).
The revision reads as follows:
(a) * * *
(2) * * *
(iii) Enterprise units must be allowed by the actuarial documents;
(f) Your approved yield will be determined in accordance with sections 3 and 5 of the Basic Provisions.
(g) Instead of reporting your production for the current crop year, as required by section 3(f)(1) of the Basic Provisions, there is a lag year and you are required to report production from two crop years ago by the production reporting date,
(b) Instead of reporting your production of marketable fresh fruit for the current crop year, as required by section 3(f)(1) of the Basic Provisions, there is a lag year and you are required to report production from two crop years ago by the production reporting date,
The revision reads as follows:
(d) Instead of reporting your production for the current crop year, as required by section 3(f)(1) of the Basic Provisions, there is a lag year and you are required to report production from two crop years ago by the production reporting date,
(e) Instead of reporting your production for the current crop year as required by section 3(f)(1) of the Basic Provisions, you are required to report the production for the crop year that ended on the October 31 immediately preceding the cancellation date,
(f) * * *
(2) * * * The percentages will be those described in sections 3 and 5 of the Basic Provisions. All other provisions of sections 3 and 5 of the Basic Provisions apply.
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Correcting amendments.
On March 29, 2021, the U.S. Department of Energy (“DOE”) published a final rule that amended the test procedure for room air conditioners (“room ACs”). This document corrects errors in the amended regulatory text as it appeared in the March 2021 final rule. Neither the errors nor the corrections in this document affect the substance of the rulemaking or any conclusions reached in support of the final rule.
Effective August 30, 2023.
Mr. Lucas Adin, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-5904. Email:
Ms. Sarah Butler, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 586-1777. Email:
DOE published a final rule in the
As published, the regulatory text in the March 2021 final rule may result in confusion as to the meaning of these terms and the references to provisions elsewhere in the test procedure. Because this final rule would simply correct errors in the text without making substantive changes in the March 2021 final rule, the changes addressed in this document are technical in nature.
DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the March 2021 final rule remain unchanged for this final rule technical correction. These determinations are set forth in the March 2021 final rule. 86 FR 16446, 16472.
Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B), DOE finds that there is good cause to not issue a separate notice to solicit public comment on the changes contained in this document. Issuing a separate notice to solicit public comment would be impracticable, unnecessary, and contrary to the public
Further, this rule correcting a regulatory text error makes non-substantive changes to the test procedure. As such, this rule is not subject to the 30-day delay in effective date requirement of 5 U.S.C. 553(d) otherwise applicable to rules that make substantive changes.
Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Intergovernmental relations, Small businesses.
This document of the Department of Energy was signed on August 23, 2023, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Signed in Washington, DC, on August 23, 2023.
For the reasons stated in the preamble, DOE corrects part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations by making the following correcting amendments:
42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.
The revisions read as follows:
4. * * *
4.2 * * *
4.2.1 If the unit has an inactive mode, as defined in section 2.14 of this appendix, measure and record the average inactive mode power, Pia, in watts.
5. * * *
5.2 * * *
5.2.2 * * *
AEC
5.3 * * *
5.3.6 * * *
AEC
5.3.7 * * *
AEC
Bureau of Industry and Security, Department of Commerce.
Final rule.
In this final rule, the Bureau of Industry and Security (BIS) amends the Export Administration Regulations (EAR) to create an additional option for the renewal of temporary denial orders (TDOs) by allowing BIS, under certain circumstances, to request that the Assistant Secretary for Export Enforcement renew an existing TDO for a period of no more than one year, rather than the current renewal period of no more than 180 days. This final rule also makes some conforming changes to remove references to the “EAA,” the Export Administration Act (EAA), and add in their place references to “ECRA,” the Export Control Reform Act (ECRA), to reflect the EAR's current statutory authority.
This rule is effective on August 29, 2023.
John Sonderman, Director, Office of Export Enforcement, Bureau of Industry and Security, Phone: (202) 482-5079, Email:
This final rule amends § 766.24 of the EAR (15 CFR parts 730 through 774) by adding an additional sentence after the first sentence of paragraph (d)(1). Specifically, this final rule creates an additional option for the renewal of temporary denial orders (TDOs) by allowing BIS, under certain circumstances, to request that the Assistant Secretary for Export Enforcement renew an existing TDO for a period of no more than one year, rather than the current renewal period of no more than 180 days.
This final rule does not change the current language set forth in the first sentence of paragraph (d)(1), which allows BIS to request the renewal of a TDO for a period of 180 days by demonstrating that such a renewal is necessary in the public interest to prevent an imminent violation of the EAR. Rather, this final rule allows BIS to request the renewal of a TDO for an extended period by demonstrating that a party that is subject to an existing TDO has engaged in a pattern of repeated, ongoing and/or continuous apparent violations of the EAR.
Under the current standard set forth in § 766.24(d)(1), a “violation may be `imminent' either in time or degree of likelihood” (15 CFR 766.24(b)(3)), and BIS may show “either that a violation is about to occur, or that the general circumstances of the matter under investigation or case under criminal or administrative charges demonstrate a likelihood of future violations.”
By contrast, this new standard requires BIS to show that since the issuance of a TDO, the respondent has engaged in a pattern of repeated, ongoing and/or continuous apparent violations of the EAR, including the terms of the TDO, and that renewal of the TDO for an extended period is appropriate to address such continued apparent violations. Such a showing should demonstrate not just the likelihood of future imminent violations of the EAR but should include specific facts demonstrating past apparent violations of the EAR.
An extended renewal is appropriate, for instance, in cases where a respondent has acted in apparent blatant disregard of the EAR, where a respondent has attempted to circumvent or has otherwise appeared to violate the restrictions of a TDO or the EAR, or has otherwise acted in a manner demonstrating a pattern of apparent noncompliance with the requirements of the EAR.
This final rule also makes conforming changes to paragraphs (a), (b)(1) and (e)(5) of § 766.24 to remove references to the `EAA' and add in their place references to `ECRA' to reflect the EAR's current statutory authority.
Since the imposition of sanctions on Russia in response to its further invasion of Ukraine in February 2022, and the imposition of similar sanctions on Belarus for its substantial enablement of Russia's invasion, BIS has imposed a number of TDOs on entities that have engaged in a pattern of repeated, ongoing, and/or continuous apparent violations of these Russia-related restrictions, most notably on a number of Russian and Belarusian airlines. Beginning with the issuance of a TDO against PJSC Aeroflot (“Aeroflot”) on April 7, 2022 (87 FR 21611, Apr. 12, 2022), which was subsequently renewed on October 3, 2022 (87 FR 60985, Oct. 7, 2022) and on March 29, 2023 (88 FR 19609, Apr. 3, 2023), BIS has issued a number of TDOs targeting Russian and Belarusian airlines that have repeatedly and deliberately continued to operate international and/or domestic flights involving aircraft subject to the EAR in apparent violation of the EAR and the applicable TDOs.
Similarly, on March 17, 2008, BIS imposed a TDO (73 FR 15130) which has been repeatedly renewed, most recently on May 5, 2023 (88 FR 30078, May 10, 2023), against Mahan Airways in connection with its numerous ongoing apparent violations of the EAR. The most recent renewal of this TDO stated that according to publicly available information, Aeroflot has begun sending its aircraft to Mahan Airways for repairs and/or maintenance.
Cases such as these, which involve an existing TDO combined with a pattern of repeated, ongoing, and/or continuous conduct that appears to violate a TDO or the EAR, leading to the need to repeatedly renew the applicable TDOs, are emblematic of the type of conduct which this extended renewal option is intended to address.
Such extended renewals will serve as an enhanced deterrent for such actors who are engaging in such apparent violative conduct and others who may be inclined to engage in behavior to facilitate such activities. Moreover, such extended renewals will provide enhanced notice to companies and individuals in the United States and abroad that they should avoid dealing with such actors of concern in connection with export, reexport, and transfer (in-country) transactions involving items subject to the EAR and in connection with any other activity subject to the EAR,
In the event that the Assistant Secretary determines that a request for renewal of a TDO does not satisfy this new standard for an extended renewal as described above under section A, it may nonetheless be extended for a period not exceeding 180 days, provided that BIS has demonstrated that such renewal is necessary in the public interest to prevent an imminent violation.
On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.
1. This rule has been determined to be not significant for purposes of Executive Order 12866.
2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.
4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.
5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601,
Administrative practice and procedure, Confidential business information, Exports, Law enforcement, Penalties.
Accordingly, part 766 of the Export Administration Regulations (15 CFR
50 U.S.C. 4801-4852; 50 U.S.C. 4601
(a) * * * Without limiting any other action BIS may take under the EAR with respect to any application, order, license or authorization issued under ECRA, BIS may ask the Assistant Secretary to issue a temporary denial order on an
(b) * * * (1) The Assistant Secretary may issue an order temporarily denying to a person any or all of the export privileges described in part 764 of the EAR upon a showing by BIS that the order is necessary in the public interest to prevent an imminent violation of ECRA, the EAR, or any order, license or authorization issued thereunder.
(d) * * * (1) If, no later than 20 days before the expiration date of a temporary denial order, BIS believes that renewal of the denial order is necessary in the public interest to prevent an imminent violation, BIS may file a written request setting forth the basis for its belief, including any additional or changed circumstances, asking that the Assistant Secretary renew the temporary denial order, with modifications, if any are appropriate, for an additional period not exceeding 180 days. In cases demonstrating a pattern of repeated, ongoing and/or continuous apparent violations, BIS may request the renewal of a temporary denial order for an additional period not exceeding one year. BIS's request shall be delivered to the respondent, or any agent designated for this purpose, in accordance with § 766.5(b) of this part unless exceptional circumstances exist, which will constitute notice of the renewal application.
(e) * * *
(5) * * * The issuance or renewal of the temporary denial order shall be affirmed only if there is reason to believe that the temporary denial order is required in the public interest to prevent an imminent violation of ECRA, the EAR, or any order, license or other authorization issued under ECRA.
Occupational Safety and Health Administration (OSHA), Labor.
Notification of extending final approval of a State Plan over a separable portion.
This document gives notice of final approval of the Oregon State occupational safety and health plan (State Plan) over temporary labor camps under section 18(e) of the Occupational Safety and Health Act of 1970 (OSH Act). As a result of this affirmative 18(e) determination, the Federal standard and enforcement authority as derived from the OSH Act will no longer apply to temporary labor camps in Oregon. This notification does not affect or disturb any other provisions or standards enforced by the U.S. Department of Labor's Wage and Hour Division at temporary labor camps in Oregon pursuant to an authority other than the OSH Act. This notification also does not affect or disturb the previous grant of final approval in 2005 as to all other issues covered by the Oregon State Plan.
The notification of extension of final approval is effective August 30, 2023.
Section 18 of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 667, provides that states which wish to assume responsibility for developing and enforcing their own occupational safety and health standards may do so by submitting, and obtaining Federal approval of, a state plan (State Plan or Plan). State Plan approval occurs in stages, beginning with initial approval under section 18(c) of the Act. If, after a period of no less than three years following initial approval, the Assistant Secretary determines that the State Plan has satisfied and continues to meet all criteria in section 18(e) of the OSH Act, the Assistant Secretary may make an affirmative determination under section 18(e) of the Act (referred to as “final approval” of the State Plan), which results in the relinquishment of concurrent Federal authority in the state with respect to occupational safety and health issues covered by the Plan (29 U.S.C. 667(e)). Procedures for section 18(e) determinations are found in 29 CFR part 1902, subpart D. In general, to be granted final approval, actual operation of the occupational safety and health Plan by the state must be at least as effective as the Federal OSHA program in all areas covered under the State Plan.
The Oregon State Plan, administered by the Oregon Department of Consumer and Business Services, received initial approval on December 28, 1972 (37 FR 28628). On January 23, 1975, OSHA and the State of Oregon entered into an Operational Status Agreement (OSA), which suspended the exercise of concurrent Federal authority in Oregon in all except specifically identified areas (40 FR 18427). On December 16, 2004, OSHA published a notification (69 FR 75436) that the Oregon State Plan was eligible for a determination as to whether final approval of the Plan should be granted under section 18(e) of the Act for all issues covered by the Plan, with the exception of temporary labor camps in agriculture, general industry, construction, and logging. The notification stated that the issue of temporary labor camps was being excluded from final approval at that time pending resolution of OSHA's
After allowing a period for public comment, the Assistant Secretary subsequently granted the Oregon State Plan final approval on May 12, 2005, with respect to all issues covered by the Plan except temporary labor camps (70 FR 24947). In granting final approval, the Assistant Secretary made an affirmative determination that the Oregon State Plan had applied and implemented, in actual operations, each of the criteria set forth in section 18(e) of the Act and 29 CFR 1902.37 as to all portions of the State Plan except temporary labor camps. In doing so, the Assistant Secretary considered various elements of the state Plan, including standards, variances, enforcement measures, the public employee program, staffing and resources, records and reports, voluntary compliance, and injury/illness rates, finding the State Plan had effectively applied and implemented each of those elements. Thus, the Assistant Secretary determined, the State Plan was at least as effective as the Federal program and met the statutory and regulatory requirements for final approval.
As a result of this affirmative determination under section 18(e) of the Act, OSHA's standards and enforcement authority over all worksites covered by the Oregon State Plan (except temporary labor camps) was relinquished. The OSA, effective January 23, 1975, and as amended, effective December 12, 1983 and November 27, 1991, was superseded by the grant of final approval, except that it continued to apply to temporary labor camps in agriculture, general industry, construction, and logging.
OSHA had initially approved the Oregon State Plan's Temporary Labor Camps standard on October 1, 1976 (41 FR 43485), concluding that the standard was at least as effective as the comparable Federal standard. The standard remained substantively unchanged until 2000, when the Oregon State Plan, on its own initiative through Administrative Order 5-2000, adopted revisions to the State's Agricultural Labor Housing (ALH) and Related Facilities standard (Division 4/J, OAR 437-004-1120) and the Labor Camps standard (Division 2/J, OAR 437-002-0142). Some of the updates to the rules included regrouping subjects into more logical categories, synchronizing certain definitions to more closely match those of other state regulatory agencies such as the Oregon Building Codes Division, and changing requirements for garbage and refuse, emergency exits, bedding, and ratios of toilet, handwashing, and bathing facilities.
OSHA responded to the Oregon State Plan on February 28, 2001, identifying instances in which OSHA had concerns that the State's standards were less effective than the comparable Federal rules. Over the next several years, OSHA, the Wage and Hour Division (WHD),
While those conversations were ongoing, OSHA and the Oregon State Plan began the separate process of section 18(e) final approval with the issuance of a
After further informal discussions with OSHA and WHD, along with feedback from its stakeholders, the Oregon State Plan subsequently filed changes to its ALH and Related Facilities and Temporary Labor Camps standards on March 24, 2008 (Administrative Order 4-2008), to make the rules as effective as Federal OSHA's. Some of the major changes to the ALH and Related Facilities rule (OAR 437-004-1120) included updated requirements for: space and ceiling heights (with effective dates of 2018 in some cases); screens; minimum window area; shower and sink ratios; nearby livestock operations; ground clearance; heating equipment; water pressure; laundry facilities; garbage pickup; and privy distance from housing. References to tents were also removed. For the Temporary Labor Camps rule (OAR 437-002-0142), Oregon removed the entire text of the rule and added new language stating that the ALH and Related Facilities rule at OAR 437-004-1120 applies to general industry, construction, and forest activities as well as agriculture, except for a few limited paragraphs that address certain camp registration and closure requirements. Following further communication with OSHA, Oregon subsequently made additional changes to the ALH and Related Facilities rule on January 26, 2009 (Administrative Order 1-2009), to reflect changes in heater technology, clarify effective dates, and to require enclosed, screened shelters for cooking and eating facilities.
All changes promulgated by Oregon Administrative Orders 4-2008 and 1-2009 were effective as of January 1, 2018. On August 21, 2018, at the quarterly monitoring meeting, the Oregon State Plan Administrator requested that OSHA review and consider removal of the temporary labor camps exception to the State Plan's 18(e) final approval status. WHD approved the changes on December 3, 2020, and the OSHA X regional office approved the rules and recommended removal of the temporary labor camps exception to Oregon's 18(e) final approval status on December 18, 2020.
Subsequently, on May 9, 2022, in response to a March 10, 2020, executive order issued by Oregon Governor Kate Brown, the Oregon State Plan adopted new “Rules to Address Employee and Labor Housing Occupant Exposure to High Ambient Temperatures” (pursuant to Administrative Order 3-2022), to take effect on June 15, 2022. Specifically, Administrative Order 3-2022 established a new Heat Illness Prevention standard applicable to general industry workers (OAR 437-002-0156), established a new Heat Illness Prevention standard applicable to agricultural workers (OAR 437-004-1131), and amended Oregon's ALH and Related Facilities standard (OAR 437-004-1120) to add new provisions on heat illness prevention in labor housing. OSHA approved this state-initiated change on June 3, 2022, finding the rules to be at least as effective as and more stringent than Federal requirements.
On March 13, 2023, OSHA published in the
In response to the March 13, 2023 proposal, OSHA received one comment, which supported the proposal, and no requests for an informal hearing. The one comment submitted was from Chuck Stribling, Chair of the Occupational Safety and Health State Plan Association (OSHSPA). OSHSPA is an organization of twenty-nine State Plans and U.S. Territories that have OSHA-approved State Plans. OSHSPA members work together to advance occupational safety and health in their respective States and Territories. OSHSPA also partners with OSHA, as well as many others, on key issues and concerns which impact employee safety and health. The comment stated that OSHSPA strongly supports OSHA's proposal to grant final approval to the Oregon State Plan over temporary labor camp enforcement authority in agriculture, general industry, construction, and logging. The comment further noted OSHSPA's observation that the Oregon State Plan temporary labor camp requirements are more protective than OSHA's requirements.
In accordance with section 18(e) of the Act and the procedures in 29 CFR part 1902, and after opportunity for public comment, the Assistant Secretary has considered all of the facts and comments presented in the record. Based on that record, and for the reasons described in further detail in the proposal (88 FR 15460-61), the Assistant Secretary has determined that Oregon's occupational safety and health program pertaining to temporary labor camps in agriculture, general industry, construction, and logging is at least as effective as the Federal program in actual operations in providing safe and healthful employment and places of employment and meets the criteria for final State Plan approval in section 18(e) of the Act and implementing regulations at 29 CFR part 1902. Accordingly, under section 18(e) of the Act, the exception to the Oregon State Plan's final approval for temporary labor camps in agriculture, general industry, construction, and logging is hereby removed, effective August 30, 2023.
The Assistant Secretary's determination granting final approval to the Oregon State Plan under section 18(e) of the Act for temporary labor camps in general industry, agriculture, construction, and logging terminates OSHA authority for concurrent Federal enforcement over temporary labor camps in Oregon where such authority is covered under the Oregon State Plan, as of the effective date of this determination. Section 18(e) provides that upon making this final approval determination, “the provisions of sections 5(a)(2), 8 (except for the purpose of carrying out subsection (f) of this section), 9, 10, 13, and 17 . . . shall not apply with respect to any occupational safety and health issues covered under the plan, but the Secretary may retain jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 before the date of determination.” 29 U.S.C. 667(e). Accordingly, this determination relinquishes concurrent Federal authority as derived from the OSH Act with respect to temporary labor camps in Oregon as follows: to issue citations for violations of the relevant Federal standards under sections 5(a)(2) and 9 of the Act; to conduct inspections and investigations under section 8 (except those necessary to evaluate the Plan under section 18(f) and other inspections, investigations, or proceedings necessary to carry out Federal responsibilities not specifically preempted by section 18(e)); to conduct enforcement proceedings in contested cases under section 10; to institute proceedings to correct imminent dangers under section 13; and to propose civil penalties or initiate criminal proceedings for violations of the Act under section 17. However, the Assistant Secretary retains jurisdiction under the above provisions in any proceeding commenced under section 9 or 10 of the Act before the effective date of the 18(e) determination. Finally, this determination supersedes the OSA between OSHA and the State of Oregon, which had remained in effect as to temporary labor camps only following the State Plan's receipt of final approval as to all other issues in 2005 (70 FR 24955).
This final approval determination does not affect Federal authority under provisions of the OSH Act not listed in section 18(e), nor does it affect Federal enforcement authority over issues which are not subject to State Plan enforcement. Additionally, this determination does not affect or disturb the authority of the U.S. Department of Labor's Wage and Hour Division to enforce Federal temporary labor camp standards pursuant to an authority other than the OSH Act, such as the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and WHD's regulations governing H-2A employment.
Under this 18(e) determination, Oregon will be expected to maintain a State program that is at least as effective as operations under the Federal program in protecting employee safety and health at covered workplaces. As provided by section 18(f) of the Act, the Assistant Secretary will continue to evaluate the manner in which the State is carrying out its Plan. The right to revoke or suspend final approval and reinstate Federal enforcement authority or, if the circumstances warrant, initiate action to withdraw approval of the State Plan is reserved should continuing evaluations show that the State has failed to maintain a program which is at least as effective as the Federal program, or that the State has failed to submit program change supplements as required by 29 CFR part 1953.
Executive Order 13132, “Federalism,” emphasizes consultation between Federal agencies and the States and establishes specific review procedures the Federal Government must follow as it carries out policies which affect State or local governments. Although the specific consultation procedures provided in section 6 of Executive Order
OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. 601
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210, authorized the preparation of this document under the authority specified by section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 667), Secretary of Labor's Order No. 8-2020 (85 FR 58393 (Sept. 18, 2020)), and 29 CFR part 1956.
Signed in Washington, DC.
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a special local regulation for an event identified as “Triathlons in Atlantic City” on September 10, 2023, to provide for the safety of life on navigable waterways during the IRONMAN 70.3 Atlantic City Triathlon. Our regulation for marine events within the Fifth Coast Guard District identifies the regulated area for this event in Atlantic City, NJ. During the enforcement period, the operator of any vessel in the regulated area must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
The regulations in 33 CFR 100.501 for Atlantic City, NJ, will be enforced for the regulated areas listed in Table 1 to Paragraph (i)(1) of § 100.501 for an event identified in the table as “Triathlons in Atlantic City” from 6:30 a.m. to 11:30 a.m. on September 10, 2023.
If you have questions about this notification of enforcement, call or email Petty Officer Christopher Payne, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, telephone: 215-271-4889, Email:
The Coast Guard will enforce special local regulations in 33 CFR 100.501 for the “Triathlons in Atlantic City” regulated Area from 6:30 a.m. to 11:30 a.m. on September 10, 2023. This action is being taken to provide for the safety of life on navigable waterways during the IRONMAN 70.3 Atlantic City Triathlon. Our regulation for marine events within the Fifth Coast Guard District, § 100.501, specifies the exact location of the regulated area for “Triathlons in Atlantic City” events within portions of the New Jersey Intracoastal Waterway. As reflected in § 100.501(d)(2), during the enforcement period, the operator of any vessel in the regulated area must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.
In addition to this notification of enforcement in the
Coast Guard, DHS.
Notification of enforcement of regulation.
The Coast Guard will enforce a special local regulation for the St. Petersburg P-1 Powerboat Grand Prix from September 2 through 3, 2023, to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Seventh district identifies the regulated area for this event in St. Petersburg, FL. During the enforcement period, no person or vessel may enter, transit through, anchor in, or remain within the designated area unless authorized by the Captain of the Port St. Petersburg or a designated representative.
The regulations in 33 CFR 100.703, Table 1 to § 100.703, Item 5 will be enforced daily from 8 a.m. until 6 p.m., on September 2, 2023 through September 3, 2023.
If you have questions about this notification of enforcement, call or email Marine Science Technician First Class Mara Brown, Sector St. Petersburg Prevention Department, Coast Guard; telephone (813) 228-2191, email
The Coast Guard will enforce the special local regulations in 33 CFR 100.703, Table 1 to § 100.703, Item No. 5, for the St. Petersburg P-1 Powerboat Grand Prix regulated area from September 2, 2023 through September 3, 2023. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for recurring marine events, Sector St. Petersburg, § 100.703, Table 1 § 100.703, Item No. 5, Specifies the location of the regulated area for the St. Petersburg Powerboat Grand Prix which encompasses portions Tampa Bay in the vicinity of the St. Petersburg Pier, in St. Peterburg, FL. During enforcement periods, as reflected in § 100.703, if you are the operator of a vessel in the regulated area you must comply with direction from the Patrol Commander or any designated representative.
In addition to this notice of enforcement in the
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a special local regulation for certain waters of the Detroit River, Grosse Ile, MI. This action is necessary to protect safety of life on navigable waters immediately prior to, during, and after the Find Your Way Home Swim. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Detroit or a designated representative.
This temporary final rule is effective from 5 a.m. through 3:30 p.m. on September 23, 2023.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this temporary rule, call or email Tracy Girard, Prevention Department, Sector Detroit, Coast Guard; telephone (313) 568-9564, or 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 doing so would be impracticable. The Coast Guard did not receive the final details of this swim event until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect participants, mariners and vessels from the hazards associated with this event.
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. 70041(a). The Captain of the Port Detroit (COTP) has determined that the likely combination of recreation vessels, commercial vessels, and an unknown number of spectators in close proximity to the swim along the water poses extra and unusual hazards to public safety and property. Therefore, the COTP is establishing a special local regulation around the event location to help minimize risks to safety of life and property during this event.
This rule establishes a temporary special local regulation from 5 a.m. through 3:30 p.m. on September 23, 2023. In light of the aforementioned hazards, the COTP has determined that a special local regulation is necessary to protect spectators, vessels, and participants. The special local regulation will encompass the following waterway: all waters of the Detroit River encompassed within the following six points: from 42°05.376′ N, 083°09.027′ W; a line drawn south to point 42°02.459′ N, 083°08.989′ W; a line drawn south east to point 42°00.039′ N, 083°08.417′ W; a line drawn west to point 42°00.024′ N, 083°08.501′ W; a line drawn north west to point 42°02.43′ N, 083°09.308′ W; a line drawn north to point 42°05.374′ N, 083°09.085′ W.
An on-scene representative of the COTP may permit vessels to transit the area when no swim activity is occurring. The on-scene representative may be present on any Coast Guard, state, or local law enforcement vessel assigned to patrol the event. Vessel operators desiring to transit through the regulated area must contact the Coast Guard Patrol Commander to obtain permission to do so. The COTP or his designated on-scene representative may be contacted via VHF Channel 16 or via telephone at (313) 568-9560.
The COTP or his designated on-scene representative will notify the public of the enforcement of this rule by all appropriate means, including a Broadcast Notice to Mariners and Local 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. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. 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), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-year of the special local regulation. Vessel traffic will be able to safely transit around this special local regulation zone which will impact a small designated area of the Detroit River from 5 a.m. through 3:30 p.m. on September 23, 2023. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the special local
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 special local regulation 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 contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal Government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting almost eleven hours that will prohibit entry into a designated area. It is categorically excluded from further review under paragraph L61 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 contact the person listed in the
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
(a)
(b)
(c)
(1) Vessels transiting through the regulated area are to maintain the minimum speeds for safe navigation.
(2) Vessel operators desiring to operate in the regulated area must contact the Coast Guard Patrol Commander to obtain permission to do so. The Captain of the Port Detroit (COTP) or his on-scene representative may be contacted via VHF Channel 16 or via telephone at (313) 568-9560. Vessel operators given permission to operate within the regulated area must comply with all directions given to them by the COTP or his on-scene representative.
(3) The “on-scene representative” of the COTP Detroit is any Coast Guard commissioned, warrant or petty officer or a Federal, State, or local law enforcement officer designated by or assisting the Captain of the Port Detroit to act on his behalf.
Coast Guard, DHS.
Final rule.
The Coast Guard is altering the operating schedule that governs the US41 Bridge, mile 16.0, over the Keweenaw Waterway between the towns of Houghton and Hancock, Michigan. This change is being made at the request of the Michigan Department of Transportation, who owns and operates this bridge.
This rule is effective September 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 Mr. Lee D. Soule, Bridge Management Specialist, Ninth Coast Guard District; telephone 216-902-6085, email
The US41 Bridge, mile 16.0, over the Keweenaw Waterway between the towns of Houghton and Hancock, Michigan, is owned and operated by MDOT and is the only crossing over the waterway. The US41 Bridge, mile 16.0, over the Keweenaw Waterway is a combination highway and railroad double deck lift bridge that provides a horizontal clearance of 7-feet in the down position, 103-feet in the open position, and 35-feet in the intermediate position above LWD.
The Keweenaw Waterway divides the Keweenaw Peninsula and is in the middle of the south shore of Lake Superior, a Great Lake known for hazardous weather conditions.
The Federal Government improved the Keweenaw Waterway in 1861 to accommodate interstate commerce and create a harbor of safe refuge for vessels caught in bad weather and is located halfway between Duluth, Minnesota and Sault Ste. Marie, Michigan. Commercial vessels, including some over 700-feet in length, and powered and non-powered recreational vessels utilize the waterway. The passenger vessel RANGER III operates from the east side of the US41 Bridge, mile 16.0, over the Keweenaw Waterway to Isle Royal and is operated by the National Park Service with a capacity of 128-passengers. A U.S. Coast Guard Station is located at the far west end of the waterway.
The bridge has special operating conditions listed in 33 CFR 117.635 that requires the bridge to open on signal; except that from April 15 through December 14, between midnight and 4 a.m., the draw shall be placed in the intermediate position and open on signal if at least 2 hours' notice is given. From December 15 through April 14 the draw shall open on signal if at least 12 hours' notice is given.
On May 19, 2022, we published in the
On April 12, 2023, we published in the
The Coast Guard is issuing this rule under authority 33 U.S.C. 499.
The Michigan Department of Transportation, who owns and operates the bridge, requested a change to the drawbridge operation schedule to help facilitate all modes of transportation at the bridge.
We received only two comments on the proposed rule and one was a duplication of the other. The commenter was in full support of the rule and no changes have been made as a result.
Ben Larson, Houghton County Administrator, on behalf of the residents, looked forward to the approval of the new regulation becoming.
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.
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, it has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice or that the scheduled openings will provide for the reasonable needs of navigation.
The Regulatory Flexibility Act of 1980 (RFA), 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
While some owners or operators of vessels intending to transit the bridge 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 contact 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 calls for no 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.
We did not receive any comments regarding 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 did not receive any comments regarding the Unfunded Mandates Reform Act of 1995.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev.1, associated implementing instructions, and Environmental Planning Policy COMDTINST 5090.1 (series) which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). The Coast Guard has 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 promulgates the operating regulations or procedures for drawbridges and is categorically excluded from further review, under paragraph L49, of Chapter 3, Table 3-1 of the U.S. Coast Guard Environmental Planning Implementation Procedures.
Neither a Record of Environmental Consideration nor a Memorandum for the Record are required for this rule.
Bridges.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 00170.1. Revision No. 01.3.
(a) The draw of the U.S. 41 Bridge, mile 16, shall open on signal, except that:
(1) From April 15 through December 14, between the hours of 7 a.m. and 7 p.m. Monday through Friday, less Federal holidays, the bridge shall open on signal from five minutes before to five minutes after the hour and half hour for vessels. Documented vessels over 300-feet shall not be held at the bridge but will be passed as soon as possible.
(2) From April 15 through December 14 between midnight and 4 a.m. daily, the draw shall be placed in the intermediate position and open on signal if at least 2 hours' notice is given.
(3) From December 15 through April 14 the draw shall open on signal if at least 12 hours' notice is given.
(b) [Reserved]
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain navigable waters within Lake St. Clair in Grosse Pointe Farms, MI. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards during a fireworks event. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Detroit.
This rule is effective from 9:30 p.m. through 10:30 p.m. on September 2, 2023, and in the case of inclement weather from 9:30 p.m. through 10:30 p.m. on September 3, 2023.
To view documents mentioned in this preamble as being
If you have questions on this rule, call or email Ms. Tracy Girard, U.S. Coast Guard; (313) 475-7475,
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 doing so is impracticable. The Coast Guard did not receive notice of the fireworks with sufficient time to undergo notice and comment. We must establish this safety zone by September 2, 2023 in order to protect the public form the hazards associated with a fireworks event.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Detroit (COTP) has determined that potential hazards associated with fireworks starting September 2, 2023, will be a safety concern for anyone within a 250-yard radius of the fireworks location. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while fireworks show is being displayed.
This rule establishes a safety zone from 9:30 p.m. through 10:30 p.m. on September 2, 2023. In the case of inclement weather on September 2, 2023, this safety zone will be enforced from 9:30 p.m. through 10:30 p.m. on September 3, 2023. The safety zone will cover all navigable waters within a 250 yard radius of location 42°24.51′ N 082°52.97′ W (WGS 84). The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the fireworks show is being displayed. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
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-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Lake St. Clair for less than an hour during the night when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal Government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than an hour that will prohibit entry within 250-yard radius of 42°24.51′ N 082°52.97′ W (WGS 84). It is categorically excluded from further review under paragraph L[60] 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 record keeping 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)
(1) In accordance with the general regulations in § 165.23, entry into, transiting, or anchoring within these safety zones is prohibited unless authorized by the COTP Detroit or a designated on-scene representative.
(2) The safety zones are closed to all vessel traffic, except as may be permitted by the COTP Detroit or a designated on-scene representative.
(3) The “on-scene representative” of the COTP Detroit is any Coast Guard commissioned, warrant or petty officer or a federal, state, or local law enforcement officer designated by the COTP Detroit to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zones must contact the COTP Detroit or an on-scene representative to obtain permission to do so. The COTP Detroit or an on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP Detroit or an on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for navigable waters on Lake St. Clair in Grosse Point Park, MI. The safety zone is necessary and intended to protect personnel, vessels, and the marine environment from potential hazards associated with fireworks displays created by the Foster family. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Detroit, or his designated representative.
This rule is effective from 9 p.m. through 10 p.m. on September 9, 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 Tracy Girard, Waterways Department, Sector Detroit, Coast Guard; telephone (313) 568-9564, 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
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Detroit (COTP) has determined that potential hazards associated with fireworks displays will be a safety concern for anyone within a 200-yard radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. This rule is necessary to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.
This rule establishes a safety zone from 9 p.m. through 10 p.m. on September 9, 2023. The safety zone will encompass all U.S. navigable waters of Lake St. Clair within a 200-yard radius of the fireworks launch site located 42°21.791′ N, 082°55.147′ W, near Windmill Point, MI. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. The Captain of the Port Detroit or his designated representative may be contacted via VHF Channel 16.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).
This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small, designated area of Lake St. Clair one hours during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM Marine Channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
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. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
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
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting approximately 1 hour that will prohibit entry within 200-yard radius of where the fireworks display will be conducted. It is categorically excluded from further review under paragraph L[60] 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 record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
(a)
(b)
(c)
(d)
(1) In accordance with the general regulations in § 165.23, entry into, transiting, or anchoring within this safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated representative.
(2) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or his designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Detroit or his designated representative. The COTP Detroit or his designated representative may be contacted via VHF Channel 16.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for certain navigable waters (all navigable waters within a 250 yard radius of location 42°23.13′ N 082°53.74′ W (WGS 84)) within Lake St. Clair in Grosse Pointe Farms, MI. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards during a fireworks event. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Detroit.
This rule is effective from 9 p.m. through 10 p.m. on September 8, 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 Ms. Tracy Girard, U.S. Coast Guard; (313) 475-7475,
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
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Detroit (COTP) has determined that potential hazards associated with fireworks starting September 8, 2023, will be a safety concern for anyone within a 250-yard radius of the fireworks location. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while fireworks show is being displayed.
This rule establishes a safety zone from 9 p.m. through 10 p.m. on September 8, 2023. The safety zone will cover all navigable waters within a 250-yard radius of location 42°23.13′ N 082°53.74′ W (WGS 84). The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the fireworks show is being displayed. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
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-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Lake St. Clair for less than an hour during the night when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human
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 record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
446 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)
(1) In accordance with the general regulations in § 165.23, entry into, transiting, or anchoring within these safety zones is prohibited unless authorized by the COTP Detroit or a designated on-scene representative.
(2) The safety zones are closed to all vessel traffic, except as may be permitted by the COTP Detroit or a designated on-scene representative.
(3) The “on-scene representative” of the COTP Detroit is any Coast Guard commissioned, warrant or petty officer or a federal, state, or local law enforcement officer designated by the COTP Detroit to act on his behalf.
(4) Vessel operators desiring to enter or operate within the safety zones must contact the COTP Detroit or an on-scene representative to obtain permission to do so. The COTP Detroit or an on-scene representative may be contacted via VHF Channel 16. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP Detroit or an on-scene representative.
Surface Transportation Board.
Final rule.
The Board updates for 2023 the fees that the public must pay to file certain cases and pleadings with the Board. Pursuant to this update, 76 of the Board's 136 fees will increase, and 60 fees will remain at their current levels.
This final rule is effective September 29, 2023.
Laura Mizner, (202) 245-0318, or Andrea Pope-Matheson, (202) 245-0363. If you require an accommodation under the Americans with Disabilities Act, please call (202) 245-0245.
The Board's regulations at 49 CFR 1002.3(a) provide for an annual update of the Board's entire user-fee schedule. Fees are generally revised based on the cost study formula set forth at 49 CFR 1002.3(d), which looks to changes in salary costs, publication costs, and Board overhead cost factors. Applying that formula, 76 of the Board's 136 fees will be increased and 60 will remain at their current levels.
Additional information is contained in the Board's decision. To obtain a free copy of the full decision, visit the Board's website at
Administrative practice and procedure, Common carriers, Freedom of information.
By the Board, Board Members Fuchs, Hedlund, Oberman, Primus, and Schultz.
For the reasons set forth in the preamble, title 49, chapter X, part 1002, of the Code of Federal Regulations is amended as follows:
5 U.S.C. 552(a)(4)(A), (a)(6)(B), and 553; 31 U.S.C. 9701; and 49 U.S.C. 1321. Section 1002.1(f)(11) is also issued under 5 U.S.C. 5514 and 31 U.S.C. 3717.
(a) Certificate of the Records Officer, $22.00.
(b) Services involved in examination of tariffs or schedules for preparation of certified copies of tariffs or schedules or extracts therefrom at the rate of $51.00 per hour.
(c) Services involved in checking records to be certified to determine authenticity, including clerical work, etc. incidental thereto, at a rate of $35.00 per hour.
(f)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces a closure for the 2023 fishing season for the red snapper private angling component in the exclusive economic zone (EEZ) off Texas in the Gulf of Mexico (Gulf) through this temporary rule. The red snapper recreational private angling component in the Gulf EEZ off Texas closes on September 2, 2023 until 12:01 a.m., local time, on January 1, 2024. This closure is necessary to prevent the private angling component from exceeding the Texas regional management area annual catch limit (ACL) and to prevent overfishing of the Gulf red snapper resource.
This closure is effective from 12:01 a.m., local time, on September 2, 2023 until 12:01 a.m., local time, on January 1, 2024.
Daniel Luers, NMFS Southeast Regional Office, telephone: 727-824-5305, email:
The Gulf reef fish fishery, which includes red snapper, is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
The final rule implementing Amendment 40 to the FMP established two components within the recreational sector fishing for Gulf red snapper: the private angling component, and the Federal for-hire component (80 FR 22422, April 22, 2015). Amendment 40 also allocated the red snapper recreational ACL (recreational quota) between the components and established separate seasonal closures for the two components. On February 6, 2020, NMFS implemented Amendments 50 A-F to the FMP, which delegated authority to the Gulf states (Louisiana, Mississippi, Alabama, Florida, and Texas) to establish specific management measures for the harvest of red snapper in Federal waters of the Gulf by the private angling component of the recreational sector (85 FR 6819, February 6, 2020). These amendments allocate a portion of the private angling ACL to each state, and each state is required to constrain landings to its allocation.
As described at 50 CFR 622.23(c), a Gulf state with an active delegation may request that NMFS close all, or an area of, Federal waters off that state to the harvest and possession of red snapper by private anglers. The state is required to request the closure by letter to NMFS, providing dates and geographic coordinates for the closure. If the request is within the scope of the analysis in Amendment 50A, NMFS publishes a notice in the
On November 21, 2022, NMFS received a request from the Texas Parks and Wildlife Department (TPWD) to close the EEZ off Texas to the red snapper private angling component for the first part of the 2023 fishing year. Texas requested that the closure be effective from January 1, 2023, until June 1, 2023. NMFS determined that the TPWD request was within the scope of analysis contained within Amendment 50A, and subsequently published a temporary rule in the
On August 24, 2023, NMFS received a new request from the TPWD to close the EEZ off Texas to the red snapper private angling component for the remainder of the 2023 fishing year. Texas requested that the closure be effective on September 2, 2023, through the end of the 2023 fishing year. NMFS has determined that this request is within the scope of analysis contained within Amendment 50A, which analyzed the potential impacts of a closure of all Federal waters off Texas when a portion of the Texas quota has been landed. As explained in Amendment 50A, Texas intends to maintain a year-round fishing season in state waters, during which the remaining part of Texas' ACL could be caught.
Therefore, the red snapper recreational private angling component in the Gulf EEZ off Texas will close from 12:01 a.m., local time, on September 2, 2023, until 12:01 a.m., local time, on January 1, 2024. This closure applies to all private-anglers (those on board vessels that have not been issued a valid charter vessel/headboat permit for Gulf reef fish) regardless of which state they are from or where they intend to land.
On and after the effective dates of the closure in the EEZ off Texas, the harvest and possession of red snapper in the EEZ off Texas by the private angling component is prohibited and the bag and possession limits for the red snapper private angling component in the closed area is zero.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.23(c), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, 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 are unnecessary and contrary to the public interest.
Such procedures are unnecessary because the rule implementing the area closure authority and the state-specific private angling ACLs has already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because a failure to implement the closure immediately would be inconsistent with Texas's State management plan and may result in less access to red snapper in State waters.
For the aforementioned reasons, there is good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of a closure; request for comments.
NMFS is opening directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 meters) length overall (LOA) using hook-and-line or pot gear in the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the 2023 total allowable catch of Pacific cod allocated to catcher vessels less than 60 feet (18.3 meters) LOA using hook-and-line or pot gear in the BSAI.
Effective 1200 hours, Alaska local time (A.l.t.), September 1, 2023, through 2400 hours, A.l.t., December 31, 2023. Comments must be received at the following address no later than 4:30 p.m., A.l.t., September 14, 2023.
You may submit comments on this document, identified by docket number NOAA-NMFS-2022-0094, by any of the following methods:
Krista Milani, 907-581-2062.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone 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 (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR parts 600 and 679.
NMFS closed directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 meters) LOA using hook-and-line or pot gear in the BSAI under § 679.20(d)(1)(iii) on January 16, 2023 (88 FR 3318, January 19, 2023).
NMFS has determined that as of August 24, 2023, approximately 1,400 metric tons of Pacific cod remain in the 2023 Pacific cod apportionment for catcher vessels less than 60 feet (18.3 meters) LOA using hook-and-line or pot gear in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2023 total allowable catch (TAC) of Pacific cod in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels less than 60 feet (18.3 meters) LOA using hook-and-line or pot gear in the BSAI. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) the current catch of Pacific cod by catcher vessels less than 60 feet (18.3 meters) LOA using hook-and-line or pot gear in 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 Pacific cod by catcher vessels less than 60 feet (18.3 meters) LOA using hook-and-line or pot gear in 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 August 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.
Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher vessels less than 60 feet (18.3 meters) LOA using hook-and-line or pot gear in 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 (see
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; modification of a closure; request for comments.
NMFS is opening directed fishing for Pacific cod by American Fisheries Act (AFA) trawl catcher/processors (CPs) in the Bering Sea and Aleutian Islands Management Area (BSAI). This action is necessary to fully use the 2023 total allowable catch of Pacific cod allocated to AFA trawl CPs in the BSAI.
Effective 1200 hours, Alaska local time (A.l.t.), September 1, 2023, through 1200 hours, A.l.t., November 1, 2023. Comments must be received at the following address no later than 4:30 p.m., A.l.t., September 14, 2023.
You may submit comments on this document, identified by docket number NOAA-NMFS-2022-0094, by any of the following methods:
Steve Whitney, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone 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 (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR parts 600 and 679.
NMFS closed directed fishing for Pacific cod by AFA trawl CPs in the BSAI under § 679.20(d)(1)(iii) on January 19, 2023 (88 FR 3318, January 19, 2023).
NMFS has determined that as of August 24, 2023, approximately 1,000 metric tons of Pacific cod remain in the 2023 Pacific cod total allowable catch (TAC) allocated to the AFA trawl CPs in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2023 TAC of Pacific cod in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by AFA trawl CPs in the BSAI. The Administrator, Alaska Region, NMFS, considered the following factors in reaching this decision: (1) the current catch of Pacific cod by AFA trawl CPs in 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 Pacific cod by AFA trawl CPs in 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 August 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.
Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by AFA trawl CPs in 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 September 14, 2023.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for certain Embraer S.A. Model EMB-135BJ airplanes. This proposed AD was prompted by reports of missing sealant on the rivets installed in the interface between rib 3 and the wing skin. This proposed AD would require applying sealant on the rivets installed in the interface between rib 3 and wing skin, as specified in an Agência Nacional de Aviação Civil (ANAC) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by October 16, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For material that is proposed for IBR in this NPRM, contact National Civil Aviation Agency (ANAC), Aeronautical Products Certification Branch (GGCP), Rua Dr. Orlando Feirabend Filho, 230—Centro Empresarial Aquarius—Torre B—Andares 14 a 18, Parque Residencial Aquarius, CEP 12.246-190—São José dos Campos—SP, Brazil; telephone 55 (12) 3203-6600; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Hassan Ibrahim, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3653; email
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Hassan Ibrahim, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3653; email
The ANAC, which is the aviation authority for Brazil, has issued ANAC AD 2023-03-01, effective March 6, 2023 (ANAC AD 2023-03-01) (also referred to as the MCAI), to correct an unsafe condition for certain Embraer S.A. Model EMB-135BJ airplanes. The MCAI states that missing sealant was identified on the rivets installed in the interface between rib 3 and the wing skin in some Embraer Model EMB-135BJ airplanes. The lack of sealant when a failure on the rivet installation exists may result in a potential ignition source inside the fuel tank during a lightning strike, which, combined with flammable fuel vapors, could result in a
The FAA is proposing this AD to address the unsafe condition on these products.
You may examine the MCAI in the AD docket at
ANAC AD 2023-03-01 specifies procedures for applying sealant on the rivets installed in the interface between rib 3 and wing skin.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require accomplishing the actions specified in ANAC AD 2023-03-01 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate ANAC AD 2023-03-01 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with ANAC AD 2023-03-01 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information required by ANAC AD 2023-03-01 for compliance will be available at
The FAA estimates that this AD, if adopted as proposed, would affect 10 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by October 16, 2023.
None.
This AD applies to Embraer S.A. Model EMB-135BJ airplanes, certificated in any category, having serial numbers 14501119 through 14501165 inclusive, 14501167 through 14501215 inclusive, and 14501217 through 14501236 inclusive.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by reports of missing sealant on the rivets installed in the interface between rib 3 and the wing skin. The FAA is issuing this AD to address the lack of sealant on the rivets, which may result in a potential ignition source inside the fuel tank during a lightning strike when a failure on the rivet installation exists, which, combined with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, Agência Nacional de Aviação Civil (ANAC) AD 2023-03-01, effective March 6, 2023 (ANAC AD 2023-03-01).
(1) Where ANAC AD 2023-03-01 refers to its effective date, this AD requires using the effective date of this AD.
(2) This AD does not adopt paragraph (c)(1) of ANAC AD 2023-03-01.
Although the service information referenced in ANAC AD 2023-03-01 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Hassan Ibrahim, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3653; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Agência Nacional de Aviação Civil (ANAC) AD 2023-03-01, effective March 6, 2023.
(ii) [Reserved]
(3) For ANAC AD 2023-03-01, contact ANAC, Aeronautical Products Certification Branch (GGCP), Rua Dr. Orlando Feirabend Filho, 230—Centro Empresarial Aquarius—Torre B—Andares 14 a 18, Parque Residencial Aquarius, CEP 12.246-190—São José dos Campos—SP, Brazil; telephone 55 (12) 3203-6600; email
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2023-04-18, which applies to all Dassault Aviation Model FALCON 2000 airplanes. AD 2023-04-18 requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. Since the FAA issued AD 2023-04-18, the FAA has determined that new or more restrictive airworthiness limitations are necessary. This proposed AD would continue to require certain actions in AD 2023-04-18 and would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in a European Union Aviation Safety Agency (EASA) AD, which is proposed for incorporation by reference (IBR). The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by October 16, 2023.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
• For material that is proposed for IBR in this NPRM, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
Tom Rodriguez, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410,
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Tom Rodriguez, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3226; email
The FAA issued AD 2023-04-18, Amendment 39-22365 (88 FR 15607, March 14, 2023) (AD 2023-04-18), for all Dassault Aviation Model FALCON 2000 airplanes. AD 2023-04-18 was prompted by an MCAI originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued AD 2022-0135, dated July 6, 2022 (EASA AD 2022-0135) (which corresponds to FAA AD 2023-04-18), to correct an unsafe condition.
AD 2023-04-18 requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2023-04-18 to address reduced controllability of the airplane. AD 2023-04-18 specifies that accomplishing the revision required by that AD terminates certain requirements of AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (AD 2010-26-05) for Model FALCON 2000 airplanes only. This proposed AD would therefore continue to allow that terminating action.
Since the FAA issued AD 2023-04-18, EASA superseded AD 2022-0135 and issued EASA AD 2023-0099, dated May 11, 2023 (EASA AD 2023-0099) (referred to after this as the MCAI), for all Dassault Aviation Model FALCON 2000 airplanes. The MCAI states that new or more restrictive airworthiness limitations have been developed.
The FAA is proposing this AD to address reduced controllability of the airplane. You may examine the MCAI in the AD docket at
EASA AD 2023-0099 specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.
This proposed AD would also require EASA AD 2022-0135, dated July 6, 2022, which the Director of the Federal Register approved for incorporation by reference as of April 18, 2023 (88 FR 15607, March 14, 2023).
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would retain certain requirements of AD 2023-04-18. This proposed AD would also require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, which are specified in EASA AD 2023-0099 already described, as proposed for incorporation by reference. Any differences with EASA AD 2023-0099 are identified as exceptions in the regulatory text of this AD.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to retain the IBR of EASA AD 2022-0135 and incorporate EASA AD 2023-0099 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0099 and EASA AD 2022-0135 through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0099 or EASA AD 2022-0135 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s)
The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.
For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).
The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions (
The FAA estimates that this AD, if adopted as proposed, would affect 168 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
The FAA estimates the total cost per operator for the retained actions from AD 2021-03-11 to be $7,650 (90 work-hours × $85 per work-hour).
The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.
The FAA estimates the total cost per operator for the new proposed actions to be $7,650 (90 work-hours × $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments on this airworthiness directive (AD) by October 16, 2023.
(1) This AD replaces AD 2023-04-18, Amendment 39-22365 (88 FR 15607, March 14, 2023) (AD 2023-04-18).
(2) This AD affects AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (AD 2010-26-05).
This AD applies to all Dassault Aviation Model FALCON 2000 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 05, Time Limits/Maintenance Checks.
This AD was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The FAA is issuing this AD to address reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
This paragraph restates the requirements of paragraph (j) of AD 2023-04-18, with no changes. Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2022-0135, dated July 6, 2022 (EASA AD 2022-0135). Accomplishing the revision of the existing maintenance or inspection program required by paragraph (j) of this AD terminates the requirements of this paragraph.
This paragraph restates the exceptions specified in paragraph (k) of AD 2023-04-18, with no changes.
(1) The requirements specified in paragraphs (1) and (2) of EASA AD 2022-0135 do not apply to this AD.
(2) Paragraph (3) of EASA AD 2022-0135 specifies revising “the approved AMP” within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, within 90 days after April 18, 2023 (the effective date of AD 2023-04-18).
(3) The initial compliance time for doing the tasks specified in paragraph (3) of EASA AD 2022-0135 is at the applicable “limitations” and “associated thresholds” as incorporated by the requirements of paragraph (3) of EASA AD 2022-0135, or within 90 days after April 18, 2023 (the effective date of AD 2023-04-18), whichever occurs later.
(4) The provisions specified in paragraphs (4) and (5) of EASA AD 2022-0135 do not apply to this AD.
(5) The “Remarks” section of EASA AD 2022-0135 does not apply to this AD.
This paragraph restates the requirements of paragraph (l) of AD 2023-04-18, with a new exception. Except as required by paragraph (j) of this AD, after the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Except as specified in paragraph (k) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2023-0099, dated May 11, 2023 (EASA AD 2023-0099). Accomplishing the maintenance or inspection program revision required by this paragraph terminates the requirements of paragraph (g) of this AD.
(1) This AD does not adopt the requirements specified in paragraphs (1) and (2) of EASA AD 2023-0099.
(2) Paragraph (3) of EASA AD 2023-0099 specifies revising “the approved AMP” within 12 months after its effective date, but this AD requires revising the existing maintenance or inspection program, as applicable, within 90 days after the effective date of this AD.
(3) The initial compliance time for doing the tasks specified in paragraph (3) of EASA AD 2023-0099 is at the applicable “limitations” and “associated thresholds” as incorporated by the requirements of paragraph (3) of EASA AD 2023-0099, or within 90 days after the effective date of this AD, whichever occurs later.
(4) This AD does not adopt the provisions specified in paragraphs (4) and (5) of EASA AD 2023-0099.
(5) This AD does not adopt the “Remarks” section of EASA AD 2023-0099.
After the existing maintenance or inspection program has been revised as required by paragraph (j) of this AD, no alternative actions (
Accomplishing the actions required by paragraphs (g) or (j) of this AD terminates the requirements of paragraph (g) of AD 2010-26-05 for Model FALCON 2000 airplanes only.
The following provisions also apply to this AD:
(1)
(2)
For more information about this AD, contact Tom Rodriguez, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3226; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(3) The following service information was approved for IBR on [DATE 35 DAYS AFTER PUBLICATION OF THE FINAL RULE].
(i) European Union Aviation Safety Agency (EASA) AD 2023-0099, dated May 11, 2023.
(ii) [Reserved]
(4) The following service information was approved for IBR on April 18, 2023 (88 FR 15607, March 14, 2023).
(i) European Union Aviation Safety Agency (EASA) AD 2022-0135, dated July 6, 2022.
(ii) [Reserved]
(5) For EASA ADs 2023-0099 and 2022-0135, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(6) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email
Securities and Exchange Commission.
Proposed rule; reopening of comment period.
The Securities and Exchange Commission (“Commission”) is reopening the comment period for its proposal,
The comment period for the proposed rule published in the
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
Studies, memoranda, or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the Commission's website. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at
Janet Jun, Senior Counsel; Christopher Staley, Branch Chief; or Melissa Roverts Harke, Assistant Director, Investment Adviser Regulation Office, Division of Investment Management, (202) 551-6787 or
The Commission proposed 17 CFR 275.223-1 under the Advisers Act (“rule 223-1” or “safeguarding rule”) on February 15, 2023, to address how advisers safeguard client assets and enhance investor protections.
Title 17 section 275.206(4)-2(a)(4) of the current custody rule requires the client funds and securities of which an adviser has custody to be verified by actual examination at least once during each calendar year by an independent public accountant. An adviser is deemed to have complied with this annual surprise examination requirement with respect to the accounts of certain pooled investment vehicles,
While the elements of the proposed safeguarding rule's audit provision remain largely unchanged from those of the current custody rule, the Proposal includes some key modifications; namely, (1) expanding the audit provision's availability from “pooled investment vehicle” clients to “any other entity”; (2) requiring the audited financial statements of non-U.S. clients to contain information substantially similar to statements prepared in accordance with U.S. GAAP and material differences with U.S. GAAP to be reconciled; and (3) requiring that the adviser or the entity enter into a written agreement with the auditor requiring the auditor to notify the Commission in the event of the auditor's termination or issuance of a modified opinion.
On August 23, 2023, the Commission adopted new rules designed to protect investors who invest in private funds.
Because compliance with the private fund adviser audit rule is predicated in part on an adviser complying with the current custody rule's audit provision, the proposed modifications to the audit provision as set forth in the proposed safeguarding rule, if adopted, would apply to advisers subject to the private fund adviser audit rule.
By the Commission.
Alcohol and Tobacco Tax and Trade Bureau, Treasury.
Notice of proposed rulemaking.
The Alcohol and Tobacco Tax and Trade Bureau (TTB) proposes to establish the 97,733-acre “San Luis Rey” American viticultural area (AVA) in San Diego County, California. The proposed AVA is located entirely within the existing South Coast AVA. TTB designates viticultural areas to allow vintners to better describe the origin of their wines and to allow consumers to better identify wines they may purchase. TTB invites comments on these proposals.
TTB must receive your comments on or before October 30, 2023.
You may electronically submit comments to TTB on this proposal and view copies of this document, its supporting materials, and any comments TTB receives on it within Docket No. TTB-2023-0007 as posted on
Karen A. Thornton, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street NW, Box 12, Washington, DC 20005; phone 202-453-1039, ext. 175.
Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act provisions pursuant to section 1111(d) of the Homeland Security Act of 2002, as codified at 6 U.S.C. 531(d). In addition, the Secretary of the Treasury has delegated certain administrative and enforcement authorities to TTB through Treasury Order 120-01.
Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.
Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and, once approved, a name and a delineated boundary codified in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.
Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and allows any interested party to petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions to establish or modify AVAs. Petitions to establish an AVA must include the following:
• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;
• An explanation of the basis for defining the boundary of the proposed AVA;
• A narrative description of the features of the proposed AVA that affect viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;
• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon;
• If the proposed AVA is to be established within, or overlapping, an existing AVA, an explanation that both identifies the attributes of the proposed AVA that are consistent with the existing AVA and explains how the proposed AVA is sufficiently distinct from the existing AVA and therefore appropriate for separate recognition; and
• A detailed narrative description of the proposed AVA boundary based on USGS map markings.
TTB received a petition from Rebecca Wood, managing member of Premium Vintners, LLC, proposing to establish the “San Luis Rey” AVA. Premium Vintners, LLC, operates Fallbrook Winery and farms several vineyards within the proposed AVA. The petition was submitted on behalf of Fallbrook Winery and other local vineyard owners and winemakers. The proposed AVA is located in San Diego County, California, and is entirely within the existing South Coast AVA (27 CFR 9.104). Within the proposed AVA, there are approximately 44 commercial vineyards, which cover a total of approximately 256 acres, as well as an additional 29 acres of planned vineyards. There are also 23 wineries within the proposed AVA. The
The proposed San Luis Rey AVA takes its name from the San Luis Rey River watershed, which includes most of the proposed AVA. According to the petition, the topography of the San Luis Rey River valley has a major effect on the climate of the proposed AVA. The river is named for the Mission San Luis Rey de Francia, which was established by Franciscan monks on a hill overlooking the valley in 1798. The petition states that the monks established a tradition of growing wine grapes in the region, with one contemporary noting in his memoires that the monks' “gardens produce the best olives and the best wine in all California.”
One of the USGS quadrangle maps used to create the boundary of the proposed AVA is titled “San Luis Rey, CA.” “San Luis Rey” also appears on that map as the name of a community within the proposed AVA. The petition provides a printout from a real estate website showing homes for sale within the proposed AVA under the heading “San Luis Rey Real Estate.” Finally, the petition includes examples of several business within the proposed AVA that use the name “San Luis Rey,” including the San Luis Rey Bakery and Restaurant, the San Luis Rey Training Center, and the San Luis Rey Equine Hospital.
The proposed San Luis Rey AVA is located within the San Luis Rey River valley. According to the petition, Interstate Highway 5 forms the western boundary and separates the proposed AVA from a narrow strip of densely populated land that is not suitable for commercial viticulture. West of this strip of land is the Pacific Ocean. The boundary of the Marine Corps Base Camp Pendleton, which is unavailable for commercial viticulture, forms the northwest portion of the proposed AVA boundary. The shared San Diego-Riverside County line forms the northern boundary of the proposed AVA, and Interstate Highway 15 forms the eastern boundary. Both of these boundaries exclude lands with higher mean annual temperatures than those found in the proposed AVA. The proposed southern boundary follows State Highway 78 to exclude lands with higher mean annual temperatures and different soils than are found in the proposed AVA.
According to the petition, the distinguishing features of the proposed San Luis Rey AVA are its topography, climate, and soils. The Pacific Ocean is to the west of the proposed AVA, so distinguishing feature information was not provided for that region.
The petition states that the proposed San Luis Rey AVA is a mostly hilly region along the San Luis Rey River valley. Elevations increase from 5 feet to 1,796 feet as one moves farther from the coast. The mean elevation within the proposed AVA is 563 feet. Slope angles within the proposed AVA average 10 degrees.
According to the petition, the low elevations allow cool marine air from the Pacific Ocean to flow through the proposed AVA, moderating temperatures. Afternoon breezes also help prevent fungal diseases such as powdery mildew by reducing the moisture on the vines caused by morning low cloud cover. Finally, the petition notes that the low elevations and a terrain consisting of gently rolling hills open to marine air almost eliminate the risk of spring frosts, which can affect vine growth at the beginning of the growing season. See the following Climate section for supporting evidence.
To the north of the proposed San Luis Rey AVA, within the established Temecula Valley AVA (27 CFR 9.50), elevations are higher, ranging from 575 to 2,831 feet with a mean elevation of 1,508 feet. The slopes are similar to those in the proposed AVA, with a mean slope angle of 10 degrees. To the south, within the established San Pasqual Valley AVA (27 CFR 9.25), the minimum elevation is higher than within the proposed AVA, at 304 feet, and the maximum elevation is lower at 725. However, the mean elevation within the San Pasqual Valley AVA is lower than that of the proposed AVA, at 408 feet. The mean slope angle within the San Pasqual Valley AVA is also shallower, at 6 degrees. To the southeast of the proposed AVA, within the established Ramona Valley AVA (27 CFR 9.191), elevations are higher, ranging from 680 to 3,133 feet, with a mean elevation of 1,766 feet. The slope angles within the Ramona Valley AVA are also steeper, with a mean of 12 degrees. The petition did not provide an exact range of elevations for the region to the east of the proposed AVA but did include a graphic showing elevations within the southern portion of California, indicating higher elevations.
According to the petition, the proximity of the proposed San Luis Rey AVA to the Pacific Ocean moderates the temperature extremes, generally resulting in mild winters and summers with lower maximum temperatures than regions farther inland. As evidence of the milder temperatures, the petition included information on the average annual mean temperature, average annual maximum temperature, average peak ripening and harvest season maximum temperature, and growing degree day
As shown
As noted above, the petition states that the proposed AVA experiences very little frost that occurs early in the season or late in autumn. Consequently, frost does not affect grape vine growth or ripening consistency in the proposed AVA. As evidence, the petition included the average number of days from 1981-2010 with temperatures at or below 32 degrees F for two locations within the proposed AVA, ranging from 0.8 to 4.7 days.
The petition also includes information about diurnal temperature variation, which it describes as the average monthly minimum temperature subtracted from the average monthly maximum temperature.
Finally, the petition compared annual precipitation amounts in the proposed San Luis Rey AVA to those of the surrounding regions. The proposed AVA has lower annual precipitation amounts than the regions to the north and southeast and slightly higher amounts than the region to the southeast. According to the petition, high amounts of rainfall during the spring and the grape ripening season can disrupt bloom formation, split fruit, and disrupt the ripening process.
According to
To the north of the proposed San Luis Rey AVA, within the established Temecula Valley AVA, the majority of soils are also within the Alfisols soil taxonomy order (48 percent). However, the region also has more soils in the Entisols and Mollisols orders than are found within the proposed AVA. The primary parent materials of the soils are granite and sandstone. To the south of the proposed AVA, within the established San Pasqual AVA, the soils are primarily within the Alfisols order, but lower amounts than the proposed AVA (33 percent). Entisols and Mollisols also occur with greater frequency within the San Pasqual AVA. The primary parent material is granite (77.48 percent), followed by granodiorite (13.45 percent). To the southeast of the proposed AVA, in the established Ramona Valley AVA, there are slightly fewer soils in the Alfisols order (46 percent) and more soils in the Entisols order (26 percent) than are found in the proposed AVA. The primary parent materials are granite and granodiorite, which are found in greater numbers than within the proposed AVA (36.60 and 35.23 percent, respectively).
T.D. ATF-218, published in the
TTB concludes that the petition to establish the 97,733-acre “San Luis Rey” AVA merits consideration and public comment, as invited in this document.
See the narrative boundary descriptions of the petitioned-for AVA in the proposed regulatory text published at the end of this document.
The petitioner provided the required maps, and they are listed below in the proposed regulatory text. You may also view the proposed San Luis Rey AVA boundary on the AVA Map Explorer on the TTB website, at
Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes
If TTB establishes this proposed AVA, its name, “San Luis Rey,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the proposed regulation clarifies this point. Consequently, wine bottlers using “San Luis Rey” in a brand name, including a trademark, or in another label reference as to the origin of the wine, would have to ensure that the product is eligible to use the viticultural area's name, “San Luis Rey.” The approval of the proposed San Luis Rey AVA would not affect any existing AVA, and any bottlers using “South Coast” as an appellation of origin or in a brand name for wines made from grapes grown within the San Luis Rey AVA would not be affected by the establishment of this new AVA. If approved, the establishment of the proposed San Luis Rey AVA would allow vintners to use “San Luis Rey”, “South Coast”, or both AVA names as appellations of origin for wines made from grapes grown within the proposed AVA, if the wines meet the eligibility requirements for the appellation.
TTB invites comments from interested members of the public on whether TTB should establish the proposed San Luis Rey AVA. TTB is interested in receiving comments on the sufficiency and accuracy of the name, boundary, topography, and other required information submitted in support of the AVA petition. In addition, because the proposed San Luis Rey AVA would be within the existing South Coast AVA, TTB is interested in comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the existing AVA. TTB is also interested in comments on whether the geographic features of the proposed AVA are so distinguishable from the South Coast AVA that the proposed San Luis Rey AVA should not be part of the established AVA. Please provide any available specific information in support of your comments.
Because of the potential impact of the establishment of the proposed San Luis Rey AVA on wine labels that include the term “San Luis Rey,” as discussed above under Impact on Current Wine Labels, TTB is particularly interested in comments regarding whether there will be a conflict between the proposed area names and currently used brand names. If a commenter believes that a conflict will arise, the comment should describe the nature of that conflict, including any anticipated negative economic impact that approval of the proposed AVA will have on an existing viticultural enterprise. TTB is also interested in receiving suggestions for ways to avoid conflicts, for example, by adopting a modified or different name for the proposed AVA.
You may submit comments on this notice by using one of the following methods:
•
•
Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 225 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments, and TTB considers all comments as originals.
In your comment, please clearly state if you are commenting for yourself or on behalf of an association, business, or other entity. If you are commenting on behalf of an entity, your comment must include the entity's name, as well as your name and position title. If you comment via
You may also write to the TTB Administrator before the comment closing date to ask for a public hearing. The TTB Administrator reserves the right to determine whether to hold a public hearing.
All submitted comments and attachments are part of the rulemaking record and are subject to public disclosure. Do not enclose any material in your comments that you consider confidential or that is inappropriate for disclosure.
TTB will post, and you may view, copies of this document, the related petition and selected supporting materials, and any comments TTB receives about this proposal within the related
Please contact TTB's Regulations and Rulings division by email using the web form available at
TTB certifies that this proposed regulation, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of a viticultural area name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.
This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.
Wine.
For the reasons discussed in the preamble, we propose to amend title 27, chapter I, part 9, Code of Federal Regulations, as follows:
27 U.S.C. 205.
(a)
(b)
(1) Oceanside, CA, 2018;
(2) San Luis Rey, CA, 2018;
(3) San Marcos, CA, 2018;
(4) Valley Center, CA, 2018;
(5) Bonsall, CA, 2018;
(6) Temecula, CA, 2018;
(7) Fallbrook, CA, 2018; and
(8) Morro Hill, CA, 2018.
(c)
(1) The beginning point is on the Oceanside map at the intersection of Interstate 5 and the Marine Corps Base (MCB) Camp Pendleton boundary. From the beginning point, proceed northeast for a total of 11.21 miles along the MCB Camp Pendleton boundary, crossing over the San Luis Rey map and onto the Morro Hill map, and continuing along the MCB Camp Pendleton boundary to its intersection with the Naval Weapons Station (NWS) Seal Beach Fallbrook California boundary; then
(2) Proceed east along the NWS Seal Beach Fallbrook California boundary for a total of 6.85 miles, crossing onto the Bonsall map and continuing north, then west along the boundary, and crossing back onto the Morro Hill map and continuing northerly along the boundary, crossing onto the Fallbrook map, and continuing along the boundary as it becomes concurrent with the MCB Camp Pendleton boundary, and continuing along the boundary to its intersection with De Luz Road; then
(3) Proceed east along De Luz Road for 0.38 mile to its intersection with Sandia Creek Drive; then
(4) Proceed northerly along Sandia Creek Drive for a total of 3.98 miles, crossing onto the Temecula map and continuing along Sandia Creek Drive to its intersection with an unnamed road known locally as Rock Mountain Road; then
(5) Proceed east along Rock Mountain Road for 0.21 mile to its intersection with the San Diego County line; then
(6) Proceed south then east along the San Diego County line for 6.72 miles to its intersection with an unnamed road known locally as Old Highway 395; then
(7) Proceed south along Old Highway 395 for a total of 14.9 miles, crossing onto the Bonsall map and continuing south along Old Highway 395 to its intersection with an unnamed road known locally as Old Castle Road; then
(8) Proceed east on Old Castle Road for a total of 0.59 mile, crossing onto the San Marcos map and continuing east along Old Castle Road to its intersection with Gordon Hill Road; then
(9) Proceed southeasterly along Gordon Hill Road for 0.92 mile to its intersection with the 800-foot elevation contour; then
(10) Proceed east along the 800-foot elevation contour for a total of 2.5 miles, crossing onto the Valley Center map and continuing east along the 800-foot elevation contour to its intersection with Canyon Country Lane; then
(11) Proceed northwest and then south along Canyon Country Lane for 0.83 mile to its intersection with the 1,240-foot elevation contour; then
(12) Proceed east along the 1,240-foot elevation contour for 2.90 miles to its intersection with Cougar Pass Road; then
(13) Proceed west then south along Cougar Pass Road for 0.4 mile to its intersection with Meadow Glen Way East; then
(14) Proceed south along Meadow Glen Way East for 0.46 mile to its intersection with Hidden Meadows Road; then
(15) Proceed southwest along Hidden Meadows Road for 0.73 mile to its intersection with Mountain Meadow Road; then
(16) Proceed southwest along Mountain Meadow Road for a total of 1.44 miles, crossing onto the San Marcos map and continuing along Mountain Meadow Road to the point where Mountain Meadow Road becomes known as Deer Springs Road just west of Interstate 15; then
(17) Proceed southwest along Deer Springs Road for 2.42 miles to its intersection with an unnamed road known locally as North Twin Oaks Valley Road; then
(18) Proceed south along North Twin Oaks Valley Road for 3.01 miles to its intersection with an unnamed road known locally as West Mission Road; then
(19) Proceed northwest along West Mission Road (which becomes South Santa Fe Avenue) for a total of 3.9 miles to its intersection with Robelini Drive; then
(20) Proceed southwest along Robelini Drive (which becomes Sycamore Avenue) for a total of 0.55 mile to its intersection with State Highway 78; then
(21) Proceed northwest, then westerly along State Highway 78 for a total of 9.09 miles, crossing onto the San Luis Rey map and continuing westerly along State Highway 78 to its intersection with Interstate 5; then
(22) Proceed northwest along Interstate 5 for a total of 3.14 miles, crossing onto the Oceanside map and returning to the beginning point.
Occupational Safety and Health Administration (OSHA), Labor.
Proposed rule; request for comments.
OSHA is proposing to amend its Representatives of Employers and Employees regulation to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party; such third-party employee representative(s) may accompany the OSHA Compliance Safety and Health Officer (CSHO) when they are reasonably necessary to aid in
Submit comments by October 30, 2023. All submissions must provide evidence of the submission date. (See the following section titled
Comments may be submitted as follows:
Section 8(e) of the OSH Act grants a representative of the employer and a representative authorized by employees the opportunity to accompany OSHA during the physical inspection of the workplace for the purpose of aiding the inspection. While OSHA long interpreted one of section 8(e)'s implementing regulations, 29 CFR 1903.8(c), to permit third-party representatives authorized by employees to accompany OSHA on the walkaround inspection when reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, a district court concluded that interpretation was not consistent with the regulation. OSHA is therefore proposing to revise 29 CFR 1903.8(c) to clarify the types of individuals who can be a representative(s) authorized by employees during OSHA's physical inspections of the workplace (also referred to as the “walkaround inspection”). This revision will more clearly align with section 8(e) of the OSH Act, 29 U.S.C. 657(e), and with OSHA's longstanding interpretation of the OSH Act.
OSHA is proposing two revisions of 29 CFR 1903.8(c). First, OSHA is proposing to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party. Second, OSHA is proposing to clarify that a third-party representative authorized by employees may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience. This proposed revision clarifies that the employees' options for third-party representation during OSHA inspections are not limited to only those individuals with skills and knowledge similar to that of the two examples provided in existing regulatory text: Industrial Hygienist or Safety Engineer.
The proposed revisions to 1903.8(c) do not change the CSHO's authority to determine whether an individual is a representative authorized by employees (29 CFR 1903.8(b)). Also, the proposed revisions do not affect other provisions of section 1903 that limit participation in walkaround inspections, such as the CSHO's authority to prevent an individual from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection (29 CFR 1903.8(d)) or the employer's right to limit entry of employee authorized representatives into areas of the workplace that contain trade secrets (29 CFR 1903.9(d)).
The agency preliminarily concludes that these changes would not increase costs or compliance burdens for employers.
The Occupational Safety and Health Act of 1970 (OSH Act or Act) was enacted “to assure so far as possible every working [person] in the Nation safe and healthful working conditions and to preserve our human resources.” 29 U.S.C. 651 (b). To effectuate the Act's purpose, Congress authorized the Secretary of Labor to promulgate occupational safety and health standards. See 29 U.S.C. 655. The Act
Section 8 of the OSH Act states that OSHA's inspection authority is essential to carrying out the Act's purposes and provides that employers must give OSHA access to inspect worksites “without delay.” 29 U.S.C. 657(a). Section 8(e) of the Act provides specifically that “[s]ubject to regulations issued by the Secretary, a representative of the employer and a representative authorized by [its] employees shall be given an opportunity to accompany [the CSHO] for the purpose of aiding such inspection.” 29 U.S.C. 657(e). Section 8(g) further authorizes the Secretary to promulgate such rules and regulations as the agency deems necessary to carry out the agency's responsibilities under this Act, including rules and regulations dealing with the inspection of an employer's establishment. 29 U.S.C. 657(g).
On May 5, 1971, OSHA proposed rules and general policies for the enforcement of the inspection, citation, and penalty provisions of the OSH Act. (36 FR 8376, May 5, 1971). OSHA subsequently issued regulations for inspections, citations, and proposed penalties at 29 CFR part 1903. (36 FR 17850, Sept. 4, 1971).
The OSH Act and 29 CFR part 1903 provide OSHA CSHOs with significant authority to conduct workplace inspections. Part 1903 contains specific provisions that describe the CSHO's authority and role in carrying out inspections under the OSH Act. For example, the CSHO is in charge of conducting inspections and interviewing individuals, and has authority to permit additional employer representatives and representative(s) authorized by employees to participate in the physical inspection of the workplace. See 29 CFR 1903.8(a). In addition, the CSHO has the authority to resolve any disputes about who the employer and employee representatives are and to deny any person from participating in the inspection whose conduct interferes with a fair and orderly inspection. See 29 CFR 1903.8(b), (d). The CSHO also has authority to use various reasonable investigative methods and techniques, such as taking photographs, obtaining environmental samples, and questioning individuals while carrying out their inspection. 29 CFR 1903.7(b); see also 1903.3(a).
Section 1903.8(c), the subject of this proposed rulemaking, grants additional authority to the CSHO to determine whether third-party representatives would aid in the physical workplace inspection. This paragraph provides: “The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.” 29 CFR 1903.8(c). Section 1903.8, which primarily addresses employer and employee representatives during inspections, has not been revised since 1971.
Since issuing its inspection-related regulations, OSHA has provided guidance on its interpretation of section 1903.8(c) and the meaning of representative authorized by employees for purposes of the OSHA walkaround inspection. For example, on March 7, 2003, OSHA issued a letter of interpretation to Mr. Milan Racic (Racic letter), a health and safety specialist with the International Brotherhood of Boilermakers. (Docket ID OSHA-2023-0008-0002). Mr. Racic asked whether a union representative who files a complaint on behalf of a single worker could then also act as a walkaround inspection representative in a workplace that has no labor agreement or certified bargaining agent. In its response letter, OSHA stated that there was no “provision for a walkaround representative who has filed a complaint on behalf of an employee of the workplace.” (Docket ID OSHA-2023-0008-0002).
On February 21, 2013, OSHA issued a letter of interpretation to Mr. Steve Sallman (Sallman letter) of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. (Docket ID OSHA-2023-0008-0003). Mr. Sallman asked whether workers at a worksite without a collective bargaining agreement could designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative. OSHA responded in the affirmative, explaining that such person could act on behalf of employees as long as they had been authorized by employees to serve as their representative.
OSHA further explained that the right is qualified by 29 CFR 1903.8, which gives CSHOs the authority to determine who can participate in an inspection. OSHA noted that while 1903.8(c) acknowledged that most employee representatives will be employees of the employer being inspected, the regulation also explicitly allowed walkaround participation by an employee representative who is not an employee of the employer when, in the judgment of the CSHO, such representative is reasonably necessary to the conduct of an effective and thorough physical inspection. OSHA explained that such representatives are reasonably necessary when they will make a positive contribution to a thorough and effective inspection.
OSHA gave several examples of how an authorized employee representative who was not an employee of the employer could make an important contribution to the inspection, noting that the representative might have a particular skillset or experience evaluating similar working conditions in a different facility. OSHA also highlighted the usefulness to workers and to the CSHO of an employee representative who is bilingual or multilingual to better facilitate communication between employees and the CSHO.
Additionally, OSHA noted that the 2003 Racic letter had inadvertently created confusion among the regulated community regarding OSHA's interpretation of an authorized employee representative for walkaround inspection purposes. OSHA explained that the Racic letter merely stated that a non-employee who files a complaint does not necessarily have a right to participate in an inspection arising out of that complaint, but that it did not address the rights of workers without a certified or recognized collective bargaining agent to have a representative of their own choosing participate in an inspection. OSHA withdrew the Racic letter to eliminate any confusion and then included its interpretation of 29 CFR 1903.8(c) as to who could serve as an authorized employee representative when it updated its Field Operations Manual (FOM) CPL 02-00-159 on October 1, 2015. (Docket ID OSHA-2023-0008-0004). The FOM explained that “[i]t is OSHA's view that representatives are `reasonably necessary', when they make a positive contribution to a thorough and effective inspection” and recognized that there may be cases in which workers without a certified or recognized bargaining agent would authorize a third party to represent the
In September 2016, several years after OSHA issued the Sallman letter, the National Federation of Independent Business (NFIB) filed a suit in the district court for the Northern District of Texas challenging the Sallman letter, arguing it should have been subject to notice and comment rulemaking and that it conflicted with OSHA's regulations and exceeded OSHA's statutory authority.
Nevertheless, the court rejected NFIB's claim that the Sallman letter conflicted with the OSH Act, finding that OSHA's Sallman letter of interpretation was “a persuasive and valid construction of the Act.”
Following this decision, on April 25, 2017, OSHA rescinded the Sallman letter. (Docket ID OSHA-2023-0008-0005). OSHA also revised the FOM to remove language that incorporated the Sallman letter. OSHA is now engaging in notice and comment rulemaking to clarify who may serve as a representative authorized by employees for the purpose of walkaround inspections.
The OSH Act authorizes the Secretary of Labor to issue safety and health “standards” and other “regulations.” See,
Numerous provisions of the OSH Act underscore Congress' understanding that OSHA's ability to conduct comprehensive inspections is essential to fulfilling the purposes of the OSH Act to protect working people from occupational safety and health hazards. Congress provided OSHA with broad authority to conduct inspections of workplaces and records, to require the attendance and testimony of witnesses, and to require the production of evidence. 29 U.S.C. 657(b). OSHA's ability to carry out these workplace inspections is critical to the OSH Act's entire enforcement scheme. 29 U.S.C. 658 (authorizing OSHA to issue citations for violations following an inspection or investigation); 659 (citations shall be issued within a reasonable time after inspection or investigation). Moreover, any approved State occupational safety and health plan must provide for an OSHA inspector's right of entry and inspection that is at least as effective as the OSH Act. 29 U.S.C. 667(c)(3).
To enable OSHA to conduct robust inspections, the OSH Act grants the Secretary broad authority to enact inspection-related regulations. Section 8(g)(2) of the Act generally empowers the Secretary to prescribe such rules and regulations as the Secretary may deem necessary for carrying out inspection activity. See 29 U.S.C. 657(g)(2). Section 8(e) also specifically contemplates regulations related to employee and employer representation during OSHA's inspection of the workplace. 29 U.S.C. 657(e).
In addition to granting OSHA broad authority to conduct comprehensive workplace inspections and promulgate regulations to effectuate those inspections, Congress also recognized the importance of ensuring employee participation and representation in the inspection process. The legislative history of section 8 of the OSH Act shows Congress' intent to provide representatives authorized by employees with an opportunity to accompany the inspector in order to benefit the inspection process and “provide an appropriate degree of involvement of employees.” S. Rep. No. 91-1282 91st Cong., 2nd Sess. (1970), reprinted in Legislative History of the Occupational Safety and Health Act of 1970 at 151 (Comm. Print 1971). Senator Harrison A. Williams of New Jersey, who was a sponsor of the bill that became the OSH Act, explained that the opportunity for workers themselves and a representative of their choosing to accompany OSHA inspectors was “manifestly wise and fair” and “one of the key provisions of the bill.” Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong. 1st Sess., reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 430 (Comm. Print. 1971).
The OSH Act's legislative history further indicates that Congress considered potential concerns related to the presence of a representative authorized by employees at the inspection and ultimately decided to expressly include this right in section 8(e) of the Act. Congressional debate around this issue included concern from some members of Congress that a representative authorized by employees' presence in the inspection would cause an undue burden on employers or be used as “an effort to ferment labor unrest.” See Comments of Congressperson William J. Scherle of Iowa, 92d Cong. 1st Sess., reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 1224 (Comm. Print 1971); see also Comments of Congressperson Michel of Illinois,
This proposed amendment was rejected, and Section 8(e) of the OSH Act reflects Congress' considered judgment of the best way to strike the balance between employers' concerns about workplace disruptions and the critical importance of employee representation in the inspection process. And while section 8(e) underscores the importance of employee representation in OSHA's workplace inspection, the Act itself does not place restrictions on who can be a representative authorized by employees. See 29 U.S.C. 657(e); see also
Instead, the Act authorizes the Secretary of Labor (via OSHA) to issue regulations and determine who may be an authorized employee representative for purposes of the OSHA inspection. 29 U.S.C. 657(e). Congress intended to give the Secretary of Labor the authority to issue regulations related to determining the specifics and resolving the question of who could be an authorized employee representatives for purposes of the walkaround inspection. See Legislative History of the Occupational Safety and Health Act of 1970, at 151 (Comm. Print 1971) (“Although questions may arise as to who shall be considered a duly authorized representative of employees, the bill provides the Secretary of Labor with authority to promulgate regulations for resolving this question.”).
While the OSH Act grants the Secretary of Labor broad authority to inspect workplaces “without delay” to find and remedy safety and health violations, 29 U.S.C. 657(a)(1)-(2), these inspections must be carried out in a manner consistent with the Fourth Amendment of the U.S. Constitution regarding reasonable searches. See
Based on the foregoing, OSHA has determined that section 8(e) of the OSH Act, as well as the Act's history and purpose, support OSHA's longstanding interpretation that the representative(s) authorized by employees may be employees of the employer or a third party and the agency's proposed revisions to 29 CFR 1903.8(c).
Section 8(e) of the OSH Act, 29 U.S.C. 657(e), Inspections, Investigations, and Recordkeeping, states that “[s]ubject to regulations issued by the Secretary” a representative authorized by employees “shall be given an opportunity to accompany the [CSHO] during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection.” The first sentence of existing section 1903.8(c) states that an authorized employee representative(s) shall be an employee(s) of the employer being inspected. However, the second sentence of paragraph (c) provides an exception for the presence of a third party if the CSHO determines there is good cause shown why their presence is reasonably necessary to conduct an effective and thorough physical inspection of the workplace. Paragraph (c) provides industrial hygienists and safety engineers as two examples of helpful non-employees who a CSHO might determine are reasonably necessary to include in the inspection.
Since its promulgation in 1971, OSHA has interpreted section 1903.8(c) to allow third parties to serve as authorized employee representatives on the walkaround inspection when reasonably necessary. However, as described in Background, Section II.C of this preamble, a district court held that OSHA's interpretation of paragraph (c) was inconsistent with the regulatory text as written. See
These changes will ensure employees are able to select trusted and knowledgeable representatives of their choice, leading to more effective inspections. The OSH Act gives employees in all workplaces—whether they have a collective bargaining agreement or not—the right to have a representative authorized by them to accompany OSHA during a workplace inspection for purposes of aiding the inspection. See 29 U.S.C. 657(e). The criteria outlined in paragraph (c) therefore applies to all worksites that OSHA inspects.
When the representative(s) authorized by employees are not employed by the employer, they may accompany the CSHO during the inspection if in the judgment of the CSHO, good cause has been shown why they are reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace. OSHA proposes to revise paragraph (c) to clarify that third-party representatives authorized by employees may have a variety of skills, knowledge, or experience that could aid the CSHO's inspection. This includes knowledge, skills, or experience with particular hazards or conditions in the workplace or similar workplaces, as well as any relevant language skills a representative may have to facilitate better communication between workers and the CSHO. Therefore, OSHA proposes to delete the examples of industrial hygienists and safety engineers currently in paragraph (c) so that the focus is properly on the knowledge, skills, or experience of the individual rather than their professional discipline. This proposed deletion does not signal that an industrial hygienist or safety engineer cannot be a representative authorized by employees.
In OSHA's experience, there are a multitude of third parties who might serve as representatives authorized by employees for purposes of the OSHA walkaround inspection. The examples discussed in this proposal are not
One scenario where OSHA has encountered third-party employee representatives is in union workplaces where employees have designated a union representative, such as an elected local union leader, business agent, or safety and health specialist, to be their representative for the walkaround inspection. These representatives are often employees of the union rather than the employer being inspected. Third-party representation may also arise in workplaces without collective bargaining agreements where employees have designated a representative from a worker advocacy group, community organization, or labor union to serve as their representative in an OSHA inspection.
Relatedly, there may be safety organizations, such as local safety councils, with safety professionals or technical representatives for the equipment used and operations performed at the employee's worksite. Section 1903.8(c) as proposed would more explicitly permit employees to designate such a safety professional or technical representative as their authorized employee representative.
Another scenario where employees may wish to designate a third-party representative is on multi-employer worksites or joint-employer worksites where it is not always clear at the time of the walkaround inspection which employees are employed by which employer. On many worksites, employees with different employers may work near each other and may have knowledge of the workplace conditions, work practices, and hazards; in some cases, they may even perform the same or similar work. On worksites like these, it is foreseeable that employees may choose to designate a third party as their representative for the walkaround inspection. Likewise, on worksites where non-union employees work in proximity to union employees, employees may wish to designate the union representative to speak of worksite conditions and operations on their behalf.
There may also be circumstances where employees are not fluent in English (or another language spoken by the CSHO) and want a trusted representative to allow for open and effective communication with the CSHO regarding workplace conditions. For example, employees might determine that a bilingual representative or an interpreter should represent them on the inspection and the CSHO might find such a representative is useful to ensure the CSHO receives an accurate account of workers' knowledge and experience with safety and health conditions in the workplace.
In other situations, employees may be reluctant to speak directly or candidly with government officials for a number of reasons. For example, some workers, such as immigrants, refugees, or other vulnerable workers, may be unfamiliar with OSHA and the agency's inspection process, face cultural barriers, or fear that their employer will retaliate against them for speaking to OSHA. In these situations, employees may not feel comfortable participating in OSHA's inspection without a trusted presence, which would negatively affect the CSHO's ability to obtain important information about workplace hazards and conditions. Worker advocacy organizations, labor organization representatives, consultants, or attorneys who are experienced in interacting with government officials or have relevant cultural competencies may be authorized by employees to represent them on walkaround inspections. The CSHO may determine such third-party representatives are reasonably necessary to the conduct of an effective and thorough physical workplace inspection if their presence during the walkaround inspection would enable more open and candid communication with employees who may not otherwise be willing to participate in the inspection.
In general, OSHA seeks comment on why employees may wish to be represented by a third-party representative. Additionally, OSHA seeks comment and examples of third-party representatives who have been or could be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.
Once the CSHO is notified that the employees have authorized a third party to represent them during a walkaround inspection, the CSHO would allow the third party to participate in the inspection so long as the CSHO determines that they would be reasonably necessary to aid in the inspection. The third party should have relevant skills, knowledge, or experience that would be helpful to OSHA's inspection despite not being directly employed by the employer.
OSHA has found that third-party representatives can help ensure that OSHA's walkaround inspection is comprehensive. In one example from 2012, a worker for a company removing asbestos at a worksite reported safety concerns to OSHA and a third party. The third party contacted OSHA and a community organization on behalf of the workers to ensure their safety and health concerns were fully communicated to and understood by the CSHO. The community organization's attorney and a former employee of the workplace were chosen as the employees' representatives to participate in the walkaround inspection. OSHA found the presence of both individuals to be very beneficial to the inspection because the representatives were able to clearly identify and communicate safety concerns to the CSHO during the walkaround. Many of the exposed workers on this worksite were not fluent in English, and having representatives who the workers trusted and facilitated communication with the CSHO enabled OSHA to conduct numerous worker interviews and better investigate the workplace conditions. OSHA seeks comment providing examples or information regarding any other unique skills of representatives authorized by employees that have been helpful or added safety and health value to the CSHO's physical inspection of the workplace.
The proposed revisions to paragraph (c) do not change the existing precondition that the CSHO must determine that any third-party employee representative's participation is reasonably necessary to the conduct of an effective and thorough inspection. These proposed revisions also do not implicate any other limitations found elsewhere in part 1903.
For example, paragraph 1903.8(a) explains that the CSHO is in charge of the inspection process. 29 CFR 1903.8(a). Paragraph 1903.8(b) authorizes the CSHO to resolve any disputes as to who the authorized representatives are, and if the CSHO is unable to determine who is the representative authorized by employees, the CSHO will then consult a reasonable number of employees concerning matters of safety and health in the workplace. 29 CFR 1903.8(b). Paragraph 1903.8(d) authorizes the CSHO to deny individuals from participating in the inspection if their conduct interferes with a fair and orderly inspection process. 29 CFR 1903.8(d). Therefore, the CSHO considers a range of factors when determining who can participate in the walkaround inspection as a representative authorized by employees.
In addition to the limitations in 29 CFR 1903.8, employers also maintain the right to request that areas of the facility containing trade secrets be off-limits to the representatives authorized
Finally, OSHA notes that paragraph 1903.8(c) addresses representatives authorized by employees for purposes of OSHA's physical inspections of workplaces. While OSHA proposes changes to this paragraph to clarify the relevant knowledge, skills, experience with hazards or conditions in the workplace or similar workplaces, or language skills of third-party representatives authorized by employees who may be reasonably necessary to aid in the CSHO's inspection, these proposed revisions are not intended to narrow or otherwise limit OSHA's authority to conduct effective and thorough workplace inspections, including its authority to be accompanied by other types of third parties or experts who may be needed to properly conduct the inspection. See generally, 29 U.S.C. 657(a), (b); see also 29 CFR 1903.4(b)(3).
OSHA seeks comment on whether the proposed changes to paragraph (c) are clear regarding representatives authorized by employees for purposes of walkaround inspections. Why or why not? OSHA also seeks comment on how to best communicate the right of all employees to employee representation on a physical inspection of the workplace.
Executive Orders 12866 and 13563 require OSHA estimate the benefits, costs, and net benefits of regulations. Executive Orders 12866 and 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1532(a)) also require OSHA to estimate the costs, assess the benefits, and analyze the impacts of certain rules that the agency promulgates. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This proposal is not significant under section 3(f)(1) of Executive Order 12866, as amended by Executive Order 14094, nor is it a major rule under the Unfunded Mandates Reform Act or Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801
OSHA is proposing to revise and clarify its requirements for employee authorized representation during OSHA's physical inspections of the workplace to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party. Additionally, OSHA is proposing to further clarify the relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills of third-party representative(s) authorized by employees who may accompany an OSHA Compliance Safety and Health Officer (CSHO) when they are reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace. The proposed revisions will also clarify that the employees' options for third-party representation during OSHA inspections are not limited to the two examples provided in existing regulatory text: Industrial Hygienist or Safety Engineer. OSHA has preliminarily determined that these clarifications do not introduce a new or expanded burden on employers.
As discussed earlier in Background, Section II. of this preamble, OSHA published rules and general policies for the enforcement of the inspection, citation, and penalty provisions of the OSH Act on September 4, 1971. These include Section 1903.8(c), the subject of this proposed rulemaking, which grants authority to the CSHO to determine whether a third-party representative would aid the physical workplace inspection and to have that representative accompany the CSHO on the inspection.
This proposed rule imposes no new burden on employers and does not require them to take any action to comply. The proposed rule clarifies who can be an authorized employee representative during OSHA's walkaround inspection. Regulatory impact analysis is meant to estimate the costs of a change from the current situation without the proposed or final rule to a world where the proposed or final rule exists. This proposed rule simply clarifies employee rights and OSHA's authority with regard to inspection procedures. The proposed clarification does not impose any costs on employers.
In evaluating potential costs, OSHA considered that employers may have policies and rules for third parties, such as visitors must wear PPE on site or participate in a safety briefing before entering as well as procedures in place to protect confidential business information from third parties who may be on site. However, such policies are not required by this regulation, and therefore any associated costs are therefore not attributable to this proposed rule. Moreover, OSHA believes there would be no real cost to an employer to have an additional visitor on site. PPE could be supplied from extra PPE that might be available on site for visitors or could be supplied by the third party. There is no cost to have one more individual present during any potential safety briefing since any potential briefing would be given regardless of the number of individual present.
In addition, this proposed rule does not require the employer make a third party available nor does it require the employer to pay for that third party's time. While there is an opportunity cost to the third party insomuch as their time is being spent on an inspection versus other activities they could be engaged in, that time is not compensated by the employer whose worksite is being inspected and is not a burden on that employer. OSHA has preliminarily determined that this proposed rule does not impose costs on employers. The agency welcomes comment on this determination and information on costs the public believes OSHA should consider.
While there are no new costs borne by employers associated with this proposal, clarifying Section 1903.8(c) will reinforce the benefits of the OSH Act. Third-party employee representatives—given their knowledge, expertise, or skills with hazardous workplace conditions—can increase employee participation and help ensure that CSHOs conduct comprehensive workplace inspections, leading to safer workplaces. OSHA welcomes information, data, and comments on anticipated cost savings and benefits.
The proposed rule does not impose costs of compliance on employers. Therefore, OSHA certifies that, if promulgated, the proposed rule will not have a significant economic impact on a substantial number of small entities.
This proposed rule for Worker Walkaround Representative Designation Process contains no information collection requirements subject to OMB
OSHA reviewed this proposed rule in accordance with the Executive Order on Federalism (E.O. 13132, 64 FR 43255, August 10, 1999), which requires that Federal agencies, to the extent possible, refrain from limiting State policy options, consult with States prior to taking any actions that would restrict State policy options, and take such actions only when clear constitutional and statutory authority exists, and the problem is national in scope. This proposal merely clarifies requirements related to employee representation during workplace safety and health inspections conducted by OSHA under the OSH Act. Because these inspections are conducted by OSHA, not States, and occur under the authority of federal law, OSHA does not believe that the proposal would restrict any State policy options.
Section 18(a) of the OSH Act states that “[n]othing in this Act shall prevent any State agency or court from asserting jurisdiction under State law over any occupational safety or health issue with respect to which no standard is in effect under section 6” (see 29 U.S.C. 667(a)). Because this rulemaking action involves a “regulation” issued under Section 8 of the OSH Act (29 U.S.C. 657), and not an occupational safety and health standard under section 6 of the OSH Act (29 U.S.C. 655), it does not preempt State law under section 18(a). See 29 U.S.C. 667(a). The effect of a rule on states and territories with OSHA-approved occupational safety and health State Plans is discussed in Section VIII, State Plans.
As discussed in the Summary and Explanation section of this preamble, this proposed rule would revise the language in OSHA's Representatives of employers and employees regulation, found at 29 CFR 1903.8(c), to explicitly clarify that the representative(s) authorized by employees may be an employee of the employer or a third party for purposes of an OSHA walkaround inspection. Additionally, OSHA is proposing to further clarify that when the CSHO has good cause to find that a representative authorized by employees who is not an employee of the employer would aid in the inspection, for example because they have knowledge or experience with hazards in the workplace, or other skills that would aid the inspection, the CSHO may allow the employee representative to accompany the CSHO on the inspection.
Among other requirements, section 18 of the OSH Act requires OSHA-approved State Plans to enforce occupational safety and health standards in a manner that is at least as effective as Federal OSHA's standards and enforcement program, and to provide for a right of entry and inspection of all workplaces subject to the Act that is at least as effective as that provided in section 8 (29 U.S.C. 667(c)(2)-(3)). As described above and in the Summary and Explanation of this preamble, OSHA believes that these proposed clarifying revisions would enhance the effectiveness of OSHA's inspections and enforcement of occupational safety and health standards. Therefore, OSHA has preliminarily determined that, within six months of the promulgation of a final rule, State Plans would be required to adopt regulations that are identical or “at least as effective” as this rule, unless they demonstrate that such amendments are not necessary because their existing requirements are already “at least as effective” in protecting workers as the Federal rule. See 29 CFR 1953.4(b)(3).
Of the 29 States and Territories with OSHA-approved State Plans, 22 cover both public and private-sector employees: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The remaining seven States and Territories cover only state and local government employees: Connecticut, Illinois, Maine, Massachusetts, New Jersey, New York, and the Virgin Islands.
OSHA reviewed this proposal according to the Unfunded Mandates Reform Act of 1995 (“UMRA”; 2 U.S.C. 1501
As noted above, the agency's regulations and standards do not apply to State and local governments except in States that have elected voluntarily to adopt a State Plan approved by the agency. Consequently, this proposal does not meet the definition of a “Federal intergovernmental mandate.” See Section 421(5) of the UMRA (2 U.S.C. 658(5)). Therefore, for the purposes of the UMRA, the agency certifies that this proposal would not mandate that State, local, or Tribal governments adopt new, unfunded regulatory obligations. Further, OSHA concludes that the rule would not impose a Federal mandate on the private sector in excess of $100 million (adjusted annually for inflation) in expenditures in any one year.
OSHA reviewed this proposed rule in accordance with Executive Order 13175 (65 FR 67249) and has preliminarily determined that it would not have “tribal implications” as defined in that order. The proposed clarifications to 29 CFR 1903.8(c), if promulgated, would not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. OSHA seeks comment on its preliminary determination. Additionally, OSHA plans to consult with the appropriate tribal entities regarding its preliminary determination.
OSHA reviewed the proposed rule in accordance with the requirements of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321
OSHA invites stakeholders to comment on all aspects of this proposal. In addition, OSHA is soliciting stakeholder input on regulatory options to allow for potential regulatory flexibility regarding the content of any final rule resulting from this rulemaking. In particular, OSHA seeks input on whether to maintain the existing requirement in 29 CFR 1903.8(c) for a third-party employee representative to be “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace” given that Section 8(e) of the OSH Act more generally provides that employee representatives “shall be given an opportunity to accompany” the CSHO “during the physical inspection of any workplace . . . for the purpose of aiding such inspection.” 29 U.S.C. 657(e).
Under OSHA's implementing regulations, OSHA defers to the employer's determination regarding which employer representative would aid the inspection. See 29 CFR 1903.8(a). On the other hand, currently, OSHA defers to the employees' determination regarding which representative would aid the inspection only if that representative is employed by the employer. See 29 CFR 1903.8(c). When the representative authorized by employees is a third party, the CSHO must determine that there is good cause why the third-party representative is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace. See 29 CFR 1903.8(c). If the CSHO makes that determination, the third-party employee representative may accompany the CSHO during the physical inspection of the worksite. Note that the CSHO is authorized to resolve any dispute as to who the employer's and employees' authorized representatives are and deny the right of accompaniment to any person whose conduct would interfere with a fair and orderly inspection. See 29 CFR 1903.8(b), (d).
OSHA solicits feedback regarding the “reasonably necessary” requirement in paragraph (c); the below questions do not affect CSHOs' authority under paragraphs (b) and (d).
1. Should OSHA defer to the employees' selection of a representative to aid the inspection when the representative is a third party (
2. Should OSHA retain the language as proposed, but add a presumption that a third-party representative authorized by employees is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace? Why or why not? Please provide any relevant information, examples, considerations and/or data to support your position.
3. Should OSHA expand the criteria for an employees' representative that is a third party to participate in the inspection to include circumstances when the CSHO determines that such participation would aid employees in effectively exercising their rights under the OSH Act? Why or why not? If so, should OSHA defer to employees' selection of a representative who would aid them in effectively exercising their rights?
Inspection-related requirements promulgated under the Occupational Safety and Health Act of 1970 (OSH Act) are regulations, not standards. Therefore, this rulemaking is governed by the notice and comment requirements in the Administrative Procedure Act (APA), 5 U.S.C. 553, rather than by section 6(b) of the OSH Act (29 U.S.C. 655(b)) and 29 CFR part 1911 (both of which apply only to promulgating, modifying or revoking occupational safety or health standards). The OSH Act requirement for the agency to hold an informal public hearing on a proposed rule, when requested, does not apply to this rulemaking. See 29 U.S.C. 655(b)(3).
The APA, which governs this rulemaking, does not require a public hearing; instead, it states that the agency must “give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. 553(c). To promulgate a proposed regulation, the APA requires the agency to provide the terms of the proposed rule (or a description of those terms) and specify the time, place, and manner of rulemaking proceedings. See 5 U.S.C. 553(b). The APA does not specify a minimum period for submitting comments.
In accordance with the goals of Executive Order 12866, OSHA is providing 60 days for public comment (see section 6(a)(1) of Executive Order 12866).
OSHA invites comments on all aspects of the proposed rule. OSHA will carefully review and evaluate any comments, information, or data received, as well as all other information in the rulemaking record, to determine how to proceed. When submitting comments, please follow the procedures specified in the sections titled
Occupational safety and health, health, administrative practice and procedures, law enforcement.
Douglas L. Parker, Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, authorized the preparation of this document pursuant to 29 U.S.C. 657; 5 U.S.C. 553; Secretary of Labor's Order 8-2020, 85 FR 58393 (2020).
For the reasons stated in the preamble, OSHA proposes to amend 29 CFR part 1903 to read as follows:
29 U.S.C. 657; Secretary of Labor's Order No. 8-2020 (85 FR 58393); and 5 U.S.C. 553.
(c) The representative(s) authorized by employees may be an employee of the employer or a third party. When the representative(s) authorized by
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the volatile organic compound (VOC) rules contained in the Indiana State Implementation Plan (SIP). Indiana modified its rules to provide an additional option for compliance with the volatile organic compound (VOC) vapor pressure limit for solvents used in cold cleaning degreasing operations. In addition, rule language was updated for clarity and consistency.
Comments must be received on or before September 29, 2023.
Submit your comments, identified by Docket ID No. EPA-R05-OAR-2021-0477 at
Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On July 14, 2021, Indiana submitted a request to revise the VOC rules in its SIP. The revisions are to the 326 Indiana Administrative Code (IAC) Article 8 Volatile Organic Compound rules. Indiana submitted revisions to the following: 326 IAC 8-3-1, “Applicability and exemptions”; 326 IAC 8-3-2, “Cold cleaner degreaser control equipment and operating requirements”; 326 IAC 8-3-3, “Open top vapor degreaser operation”; 326 IAC 8-3-4, “Conveyorized degreaser control equipment and operating requirements”; and 326 IAC 8-3-8, “Material requirements for cold cleaner degreasers”.
Indiana's July 14, 2021, submission, included a previous version of 326 IAC 8-3-1, effective on June 9, 2021. EPA found concerns with that version of 326 IAC 8-3-1(a)(1) as it added qualifying language so that the rules would only apply to sources “with the potential to emit VOC emissions of greater than or equal to fifteen (15) pounds per day.” This would constitute a relaxation of the Clean Air Act (CAA) requirement for VOC reasonably available control technology.
On January 23, 2023, Indiana submitted a revised version of 326 IAC 8-3-1, effective January 4, 2023, which removed the exemption language from 326 IAC 8-3-1(a)(1).
Indiana's current SIP VOC rules require sources operating cold cleaning degreasers to, among other things, use low vapor pressure solvent, not to exceed 1 millimeter of mercury (mm Hg) at 20 degrees Celsius, for cleaning or degreasing machine parts. These low vapor pressure solvents do not work well for some industries. These rules also allow sources to operate control systems that demonstrate equivalent or better emissions control with approval from both Indiana and EPA.
Indiana revised the control requirements for sources that use a solvent with a vapor pressure exceeding 1 mm Hg in 326 IAC 8-3-3, 326 IAC 8-3-4, and 326 IAC 8-3-8. The revised rules require VOC emission control with a capture efficiency of at least 90 percent. The control device must also either have at least a 90 percent destruction efficiency or have a VOC emission outlet concentration of less than 50 parts per million by volume. Indiana's rules also require compliance procedures. The changes replace the previously approved provision allowing an alternate VOC emission control system with approval of both Indiana and EPA in 326 IAC 8-3-3 and 326 IAC 8-3-4. This VOC control system requirement is an additional option in 326 IAC 8-3-8.
Indiana noted that, for some companies, the use of low vapor pressure solvents under 1 mm Hg results in poor performance and solvent contamination. Such sources cannot recycle the solvent because of the potential contamination. Such sources will thus often hand-clean machine parts, which results in all the solvent evaporating and thus being emitted into the air. Indiana further noted that hand-cleaning also produces a large amount of material that usually must be managed as hazardous waste, as the rags are contaminated with solvent and ink. Instead, the revised rules set parameters for control systems that specify standard VOC capture and control requirements for all users, which are expected to reduce the amount of solvent used and the amount of hazardous waste generated.
EPA considered the revisions in the latest version of 326 IAC 8-3-1 along with previously submitted revisions to 326 IAC 8-3-2, 326 IAC 8-3-3, 326 IAC 8-3-4, and 326 IAC 8-3-8 for approval into the Indiana SIP.
EPA finds it reasonable to replace the provision that allows sources to submit a source-specific alternate for SIP approval with the VOC control requirements added to 326 IAC 8-3-3, 326 IAC 8-3-4, and 326 IAC 8-3-8. The result is that cold cleaner degreasing operations electing to use solvents with a vapor pressure exceeding 1 mm Hg will all have the same VOC control requirement. EPA finds that Indiana's revisions to 326 IAC 8-3-2, 326 IAC 8-3-3, 326 IAC 8-3-4, and 326 IAC 8-3-8 are consistent with EPA guidance. Therefore, EPA is proposing to approve these VOC rule revisions.
Indiana revised several portions of 326 IAC 8-3-2, which provides the general requirements for its “Cold cleaner degreaser control equipment and operating requirements.” Indiana revised 326 IAC 8-3-2(b)(1)(E) to allow a control system that is approved by Indiana and EPA to use the VOC emission control equipment required by 326 IAC 8-3-8(b)(3). Indiana also added the requirement that solvent spray must be performed in an enclosed chamber to 326 IAC 8-3-2(b)(3). The addition of an enclosed chamber is expected to capture more VOC emissions that can be exhausted to the control device.
Indiana made administrative changes to 326 IAC 8-3-1
EPA evaluated the revisions under CAA 110(l) to determine whether the revisions would be expected to interfere with attainment and reasonable further progress of air quality standards. Indiana added control requirements for cold cleaning degreasing operations that use a solvent with a vapor pressure exceeding 1 mm Hg. As Indiana noted, many such sources would have additional VOC emissions from solvent contamination and hand cleaning of parts if required to instead use a solvent with a vapor pressure not exceeding 1 mm Hg. Indiana also removed the 15 pounds VOC per day exemption. Thus, under the revised rules all sources are now required to limit VOC emissions and a control device is now also required for certain sources. EPA expects the same or better VOC control from cold cleaning degreasing operations under the revised rules. The emission limits of criteria pollutants remain unchanged. EPA does not find any reason to expect interference with attainment of any air quality standard.
EPA is proposing to approve Indiana's VOC control rule sections 326 IAC 8-3-1, 326 IAC 8-3-2, 326 IAC 8-3-3, 326 IAC 8-3-4, and 326 IAC 8-3-8 as revisions to the Indiana SIP.
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Title 326 of the Indiana Administrative Code Article 8, Rule 3, Section 1 Applicability and exemptions, effective January 4, 2023; Section 2 Cold cleaner degreaser control equipment and operating requirements, effective June 9, 2021; Section 3 Open top vapor degreaser operation, effective June 9, 2021; Section 4 Conveyorized degreaser control equipment and operating requirements, effective June 9, 2021; and Section 8 Material requirements for cold cleaner degreasers, effective June 9, 2021, discussed in section II. of this preamble. EPA has made, and will continue to make, these documents generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993), 13563 (76 FR 3821, January 21, 2011), and 14094 (88 FR 21879, April 11, 2023);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color,
Indiana did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Volatile organic compounds.
Federal Communications Commission.
Proposed rule.
The Commission has before it a petition for rulemaking filed by Gray Television Licensee, LLC (Petitioner), the permittee of unbuilt station KWNV(DT), channel 7, Winnemucca, Nevada. The Petitioner requests the substitution of channel 16 for channel 7 at Winnemucca in the Table of Allotments.
Comments must be filed on or before September 29, 2023 and reply comments on or before October 16, 2023.
Federal Communications Commission, Office of the Secretary, 45 L Street NE, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve counsel for the Petitioner as follows: Joan Stewart, Esq., Wiley Rein LLP, 2050 M Street NW, Washington, DC 20036.
Joyce Bernstein, Media Bureau, at (202) 418-1647; or Joyce Bernstein, Media Bureau, at
In support, the Petitioner states its proposed channel substitution would serve the public interest by allowing Gray to build out this new station to avoid well-documented issues with indoor digital VHF reception since the 2009 digital transition. Petitioner states that the Commission has recognized the deleterious effects manmade noise has on the reception of VHF signals, finding that the propagation characteristics of these channels allow undesired signals and noise to be receivable at relatively farther distances, nearby electrical devices tend to emit noise in this band that can cause interference, and reception of VHF signals require physically larger antennas, relative to UHF channels. Additionally, the Commission has observed the large variability in the performance (especially intrinsic gain) of indoor antennas available to consumers, with most antennas receiving fairly well at UHF and the substantial majority not so well to very poor at high-VHF.
This is a synopsis of the Commission's
This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
Members of the public should note that all
Television.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:
47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334, 336, 339.
(j) * * *
Fish and Wildlife Service, Interior.
Proposed rule; extension of comment period.
We, the U.S. Fish and Wildlife Service (Service), are extending the comment period on our July 3, 2023, proposed rule to list the dunes sagebrush lizard (
The comment period on the proposed rule that published July 3, 2023, at 88 FR 42661, is extended. We will accept comments received or postmarked on or before October 2, 2023.
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Shawn Sartorius, Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna NE, Albuquerque, NM 87113; telephone 505-346-2525. Individuals in the United States who are deaf, deafblind, hard of hearing, or have a speech disability may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications relay services. Individuals outside the United States should use the relay services offered within their country to make international calls to the point-of-contact in the United States.
On July 3, 2023, we published a proposed rule (88 FR 42661) to list the dunes sagebrush lizard as an endangered species under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
We will accept written comments and information during the extended comment period on our proposed rule to list the dunes sagebrush lizard. We will consider information from all interested parties. We intend that any final action resulting from the proposal will be based on the best scientific and commercial data available and will be as accurate and as effective as possible. Our final determination will take into consideration all comments and any additional information we receive during the open comment period on the proposed rule.
Because we will consider all comments and information we receive during the open comment period, our final determination may differ from our July 3, 2023, proposed rule (88 FR 42661). Based on the new information we receive (and any comments on that new information), we may conclude that the dunes sagebrush lizard may warrant a different listing status compared to the original proposed rule.
If you already submitted comments or information on the July 3, 2023, proposed rule, please do not resubmit them. Any such comments are incorporated as part of the public record of the rulemaking proceeding, and we will fully consider them in the preparation of our final determination.
Comments should be as specific as possible. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you assert. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered species or a threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials by one of the methods listed in
The primary authors of this document are the staff members of the Fish and Wildlife Service's Species Assessment Team and the New Mexico Ecological Services Field Office.
The Endangered Species Act of 1973, as amended (16 U.S.C. 1531
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; notice of availability of a draft environmental assessment; request for comments.
This action proposes regulations that would implement Amendment 32 to the Pacific Coast Groundfish Fishery Management Plan. The proposed regulations include a suite of changes to non-trawl area management measures seaward of California and Oregon. Specifically, NMFS proposes to: allow increased fishing access with specific gear types to the Non-Trawl Rockfish Conservation Area for the commercial groundfish limited entry fixed gear sector and vessels that gear switch under the Trawl Individual Fishing Quota program; modify gear restrictions in the Non-Trawl Rockfish Conservation Area for all non-trawl commercial groundfish sectors; move the seaward boundary of the Non-Trawl Rockfish Conservation Area to 75 fathoms (137 meters) for all non-trawl commercial groundfish sectors and the directed commercial Pacific halibut fishery; create new Groundfish Conservation Areas, including new Yelloweye Rockfish Conservation Areas seaward of Oregon and Groundfish Exclusion Areas seaward of Southern California; create new Essential Fish Habitat Conservation Areas off Oregon; remove the Cowcod Conservation Area seaward of Southern California for all groundfish commercial and recreational non-trawl sectors, and enable the use of Block Area Closures to control the catch of groundfish for all commercial non-trawl sectors. The purpose of Amendment 32 is to provide fishing access to healthy groundfish stocks for non-trawl groundfish fisheries and the directed commercial halibut fishery while still meeting the conservation objectives of the Pacific Coast Groundfish Fishery Management Plan. NMFS also announces the availability of a draft Environmental Assessment that analyzes the potential effects of the associated proposed rule. In addition, this action proposes minor administrative regulatory revisions which would correct the name of the Cordell Bank Groundfish Conservation Area, amend the description of the Cordell Bank Groundfish Conservation Area, add new regulatory definitions for different types of fishing bait, and add new exemptions to Vessel Monitoring System reporting requirements.
Comments on this proposed rule and draft Environmental Assessment must be received on or before September 29, 2023.
You may submit comments on this document, identified by NOAA-NMFS-2023-0051, by the following method:
•
Information relevant to Amendment 32, which includes a draft Environmental Assessment, a Regulatory Impact Review, a Regulatory Flexibility Act analysis and a Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) analysis (all referred to hereafter as Analysis), are accessible via the internet at the NMFS West Coast Region website at:
Lynn Massey, phone: 562-900-2060, or email:
The Pacific Coast Groundfish fishery in the U.S. exclusive economic zone (EEZ) seaward of Washington, Oregon, and California is managed under the Pacific Coast Groundfish Fishery Management Plan (FMP). The Pacific Fishery Management Council (Council) developed the Pacific Coast Groundfish FMP pursuant to the Magnuson-Stevens Act, 16 U.S.C. 1801
This rule would implement regulations for Amendment 32 to the Pacific Coast Groundfish FMP (also referred to interchangeably as “this action”). Consistent with MSA Section 303(c)(1), the Council deemed the proposed regulations consistent with and necessary to implement Amendment 32 in a July 21, 2023 letter from Council Chairman Merrick Burden to Regional Administrator Jennifer Quan. The Notice of Availability for Amendment 32 that published on August 2, 2023 (88 FR 50830) describes FMP changes in, and requests comments on, Amendment 32
In addition to proposing changes to the regulations at 50 CFR part 300 and part 660 to implement Amendment 32, this proposed rule also proposes minor, clarifying and administrative revisions to the regulations in part660. These administrative changes would correct the name of the Cordell Bank Groundfish Conservation Area (Cordell Bank GCA), amend the description of the Cordell Bank GCA, add new regulatory definitions for different types of fishing bait, and add new exemptions to Vessel Monitoring System (VMS) reporting requirements.
In the early 2000s, several types of groundfish conservation areas (GCAs), defined at § 660.11, were implemented (as part of FMP Amendment 16-3) to protect overfished groundfish species off the U.S. West Coast; this includes the coastwide Non-Trawl Rockfish Conservation Area (Non-Trawl RCA) (68 FR 907, January 7, 2003), and the Cowcod Conservation Areas (CCAs) (66 FR 2338, January 11, 2001)) in the Southern California Bight. With the rebuilt status of almost all of these groundfish species (the exception being yelloweye rockfish, which is projected to rebuild by 2029), the Council has been prioritizing increased fishing access to these areas for groundfish non-trawl fisheries (
The Non-Trawl RCA is a coastwide, contiguous area bounded by specific latitude and longitude coordinates that approximate depth contours along the West Coast continental shelf and around select islands off Southern California. Non-Trawl RCA boundaries are not consistent along the coast; they vary by management area (
The seaward boundary of the Non-Trawl RCA approximates the 100 fathom (fm, 183 meters (m)) depth contour seaward of Oregon and the 100 (183 m) or 125 fm (229 m) depth contour seaward of California, depending on latitude (see Tables 2 North and South of subpart E and Tables 3 North and South to subpart F). The implementing regulations for Amendment 32 as included in this proposed rule would move the seaward boundary of the Non-Trawl RCA in to the depth contour that approximates 75 fm (137 m) seaward off both Oregon and California, which would open up approximately 2,411 square miles (sq mi, 6,244 square kilometers (sq km)) to all non-trawl commercial groundfish sectors and the non-tribal directed commercial Pacific halibut fishery. Adjusting the Non-Trawl RCA boundary for both the commercial non-tribal directed groundfish and halibut fisheries would reduce enforcement complexity and provide additional fishing opportunity. The Non-Trawl RCA boundaries in the Southern California Bight (south of 34°27′ N lat.) would not change, as the 75-100 fm (137-183 m) depth range is already open in this area.
The final rule for the 2023-24 Groundfish Harvest Specification and Management Measures action (87 FR 77007, December 16, 2022) authorized the use of two new hook-and-line gear configurations for use inside the Non-Trawl RCA by the directed open access sector as defined at § 660.11. These two new gear configurations included stationary vertical jig gear (see § 660.330(b)(3)(i)) and groundfish troll gear (see § 660.330(b)(3)(ii)). The implementing regulations for Amendment 32 as included in this proposed rule would allow vessels participating in the LEFG sector and vessels that use non-trawl gear under the Trawl IFQ program (
The two new hook-and-line gear configurations authorized as part of the 2023-24 Groundfish Harvest Specification and Management Measures action (87 FR 77007, December 16, 2022) were implemented along with a suite of gear specifications intended to minimize yelloweye rockfish bycatch and seabird interactions. For the stationary vertical jig gear, currently fishermen must have a minimum of 50 feet (15 m) between the bottom weight and the lowest fishing hook to ensure that fishing activity is occurring off the bottom (see § 660.330(b)(3)(i)(A)). In addition, currently only artificial bait is permitted; natural bait is prohibited (see § 660.330(b)(3)(i)(D)). The proposed regulations for Amendment 32 would modify these gear restrictions to instead allow a minimum of 30 feet (9 m) between the bottom weight and the lowest fishing hook, and allow the use of natural bait. These changes are expected to increase catch of underutilized stocks, while continuing to mitigate catch of rebuilding stocks. No changes in gear modifications are being proposed for the groundfish troll gear configuration. Fishermen must continue to have a minimum of 50 feet (15 m) between the bottom weight and the lowest fishing hook, and are still required to use artificial bait with groundfish troll gear.
The CCA was implemented in 2001 to reduce the bycatch of overfished cowcod (66 FR 2338, January 11, 2001), which was declared rebuilt in 2019. Within the CCA, which is comprised of the Western and Eastern CCAs, groundfish fishing by all commercial and recreational groundfish fisheries, including those that use both trawl and non-trawl gear, is prohibited. Amendment 32 and its implementing regulations included in this proposed rule would remove the CCA restrictions for all groundfish non-trawl fisheries, which would open up approximately 4,663 sq mi (12,077 sq km) to all non-trawl commercial groundfish sectors. The CCA would remain in place for groundfish trawl fisheries, as the scope of the Council's action only considered non-trawl sectors. The purpose of this change is to provide fishing opportunity in this area given the cowcod fishery has been declared rebuilt. Non-trawl fishing is currently allowed shoreward of the 40 fm (73 m) lines around the islands and banks within the current boundaries of the CCA. With the removal of the CCA restrictions, the 40 fm (73 m) restriction would no longer be in place (
The Council recommended defining new fathom lines around islands and banks that reside inside the current CCA. Specifically, the Council recommended that coordinates be defined in the regulations for the 50, 60, 75, 125, and 150 fm (91 m, 110 m, 137 m, 229 m, and 274 m) lines around Santa Barbara Island, San Nicolas Island, Cortes Bank, and Tanner Bank, and the 150 fm (274 m) line around Osborn Bank and the Eastern CCA. The purpose of defining these fathom lines around the islands and banks is to provide flexible management tools to restrict fishing seaward or shoreward of the new lines as needed, which would prevent interactions with certain nearshore species and control catch of groundfish. If Amendment 32 is approved and implemented in a final rule, these boundaries would be defined in the regulations and would be available for use in the future should the Council wish to recommend activating depth-based closures. The Council may also recommend modifying the status of these closures via an inseason action consistent with § 660.60(c) or via a rulemaking action for groundfish fisheries management.
Amendment 32 and its implementing regulations included in this proposed rule would create a new type of GCA called a GEA, which is intended to mitigate the impacts to sensitive environments from certain groundfish fishing activity. Specifically, eight GEAs would be established in this action: (1) Hidden Reef; (2) West of Santa Barbara Island; (3) Potato Bank; (4) 107/118 Bank; (5) Cherry Bank; (6) Seamount 109; (7) Northeast Bank; and (8) The 43-Fathom Spot. All of these GEAs would be located in the Southern California Bight within the area in which non-trawl CCA restrictions would be removed. These GEAs would keep approximately 428 square miles (1,100 sq km) closed to non-trawl fishing effort. The purpose of this change is to create a type of GCA that can be used to protect sensitive areas and that can be separate and distinct from groundfish essential fish habitat (EFH). These GEAs would prohibit all commercial and recreational groundfish fishing. Commercial fishing vessels would be allowed to continually transit through GEAs provided that all gear is stowed. Recreational vessels would be allowed to continually transit through GEAs provided that no gear is deployed. Vessels fishing for non-groundfish species, including highly migratory species, would be permitted within GEAs, provided that no groundfish is on board the vessel.
A YRCA is a type of GCA used to mitigate bycatch of yelloweye rockfish in groundfish fisheries. Given that yelloweye rockfish is still rebuilding, the Council considered establishing new YRCAs in the event that yelloweye rockfish bycatch increases with increased fishing access to the Non-Trawl RCA. Amendment 32 would establish four new YRCAs seaward of Oregon: (1) Tillamook YRCA; (2) Newport YRCA; (3) Florence YRCA; and (4) Heceta Bank YRCA. Within the YRCAs, restrictions would apply to both commercial groundfish non-trawl fisheries and the non-tribal directed commercial halibut fishery. In recommending Amendment 32, the Council proposed that only one of the YCRAs would be “active” at the time of implementation. The other three closures would be “inactive” until the Council recommends and NMFS implements those closures. Thus, in this proposed rule only the Heceta Bank YRCA is proposed to be active. The Tillamook, Newport, and Florence YRCAs would be defined and established in federal regulations at § 660.11, but would remain inactive until the Council recommends modifying their inactive status and NMFS implements such changes via an inseason action consistent with § 660.60(c) or a future rulemaking action on groundfish fisheries. NMFS would need to modify the status of these YRCAs for the non-tribal directed commercial halibut fishery via the rulemaking process, as the current regulations on the non-tribal directed halibut fishery do not include a regulatory mechanism for modifying closed areas inseason.
The Magnuson-Stevens Act requires that FMPs describe and identify EFH and minimize to the extent practicable adverse effects on EFH caused by fishing. The Pacific Coast Groundfish FMP authorizes the use of EFHCAs to protect groundfish EFH from specific types of fishing activity. Federal regulations at §§ 660.75 through 660.79 provide the coordinates for all current EFHCAs off the U.S. West Coast. At present, there are two types of EFHCAs: bottom trawl and bottom contact. Both bottom trawl and bottom contact EFHCAs apply to all fisheries and are not limited in application to groundfish fisheries. Amendment 32 would create a new type of EFHCA that prohibits using non-trawl bottom contact gear (
The Pacific Coast Groundfish FMP and its implementing regulations currently authorize the use of Block Area Closures (BACs) as a routine management measure to control bycatch of groundfish in trawl fisheries. BACs are size variable spatial closures in the EEZ bounded by latitude lines, defined at § 660.11, with depth contour approximations defined at §§ 660.71 through 660.74 ((10 fm (18 m) through 250 fm (457 m)), and § 660.76 (700 fm (1280 m)). Amendment 28 to the FMP (84 FR 63966, November 19, 2019) first established BACs as a management tool. The salmon bycatch minimization measures final rule (86 FR 10857, February 23, 2021) expanded BACs as a tool to minimize salmon bycatch. Amendment 32 and its implementing regulations included in this proposed rule would expand the use of BACs for groundfish non-trawl fisheries. The purpose of this change is to create a mechanism to control bycatch of groundfish and bycatch of protected or prohibited species from non-trawl fisheries given the new flexibilities (
This proposed rule would not implement specific individual BACs. This proposed rule would allow NMFS to close or reopen BACs preseason or inseason. The approach would be consistent with existing routine management measures in framework amendments to the FMP that have already been implemented and incorporated into the regulations. Most trip, bag, and size limits, and some GCA closures in the groundfish fishery, including Bycatch Reduction Areas and BACs, have been designated routine management measures in the Pacific Coast Groundfish FMP and in § 660.60(c). The Council can recommend to NMFS implementation or modification of these routine management measures through an expedited process involving a single Council meeting. Inseason changes are announced in the
When deciding whether to recommend BACs for NMFS to implement, consistent with the Pacific Coast Groundfish FMP, the Council considers environmental impacts, economic impacts, and public comments that are received via the Council process. Depending on the circumstances, NMFS may close areas for a defined period of time, for example, a few months or the remainder of the fishing year, or NMFS may maintain a closure for an indefinite period of time, for example, until reopened by a subsequent action. NMFS may close one or more BACs and the size of the BACs can vary. A
The Council prepared a detailed Analysis (see Electronic Access section of
The Council and NMFS expect that impacts to target and non-target species would be within those described in the 2023-2024 Biennial Harvest Specifications and Management Measures Environmental Assessment (EA), as this action would not change harvest specifications from those implemented in the 2023-2024 harvest specifications action (87 FR 77007, December 16, 2022). That analysis assumes that full annual catch limits (ACLs) are harvested for each stock within the fishery and NMFS issued a Finding of No Significant Impact for that action (see page 64 of 2023-2024 EA,
Prohibited species include those species and species groups whose retention is prohibited in the Pacific Coast groundfish fishery. Prohibited species include any species of salmonid, Pacific halibut, Dungeness crab caught seaward of Washington or Oregon, and groundfish species or species groups under the Pacific Coast Groundfish FMP for which quotas have been achieved and/or the fishery closed (see § 660.11). The Council and NMFS do not expect significant impacts to prohibited species including salmon, Dungeness crab, eulachon, and green sturgeon given the limited encounters and mortality associated with non-trawl fisheries. Non-trawl gear types have historically had little or no mortality of these species, and even with the expansion of opportunities for non-trawl fisheries through this action, mortality is expected to still be negligible.
Protected species include species other than prohibited species, that are protected under Federal law, including species listed under the Endangered Species Act (ESA), marine mammals protected under the Marine Mammal Protection Act (MMPA), and bird species protected under the Migratory Bird Treaty Act (MBTA). Protected species that may be affected by opening portions of the Non-Trawl RCA include humpback whales (listed under the ESA and MMPA), leatherback sea turtles (ESA), and short-tailed albatross (ESA and MBTA).
The portion of the Non-Trawl RCA being opened seaward of Oregon and California between 75 and 100/125 fm (137 and 183/229 m) overlaps with ESA-designated critical habitat for the Mexican distinct population segment (DPS) of humpback whales (see Figure 27 of the Analysis). NMFS evaluated the effects of the groundfish fishery on ESA-listed humpback whales and their critical habitat in the 2020 Biological Opinion for the Pacific Coast Groundfish Fishery (WCRO-2018-01378). Under the MMPA, the sablefish pot fishery, which is a sector within the LEFG fishery, is listed as a Category II fishery, which means there is occasional incidental mortality and serious injury of marine mammals. Although there would likely be an effort shift from the sablefish pot fishery as well as other non-trawl fisheries into the newly opened area, the Council and NMFS do not anticipate an overall increase in the number of participants in any non-trawl fishery sector. As explained in the Analysis, it is the amount of gear in the water rather than the amount of area or habitat designation that affects potential entanglement risk for whales. This action does not change the overall amount of sablefish that can be caught by the fishery, which was analyzed as part of the 2023-2024 Biennial Harvest Specifications and Management Measures EA (available at
The portion of the Non-Trawl RCA being opened seaward of Oregon and California between 75 and 100/125 fm (137 and 183/229 m) overlaps with ESA-designated critical habitat for leatherback sea turtles (see Figure 27 of the Analysis). The effects of the groundfish fishery on ESA-listed leatherback sea turtles was evaluated in the 2012 Biological Opinion (NWR-2012-876) for the Pacific Coast Groundfish Fishery. There have been no observed takes of leatherback turtles in any groundfish fishery from 2015-2019 (Agenda Item G.4.a, NMFS Report 5, June 2021). The only observed take in the groundfish fishery was in the Open Access pot fishery in 2008. Although there would likely be an effort shift from the LEFG sablefish pot fishery as well as other non-trawl fisheries into the newly opened area, the Council and NMFS do not anticipate an overall increase in the number of participants in any non-trawl fishery sector. As explained in the Analysis, it is the amount of gear in the water rather than the amount of area or habitat designation that affects potential entanglement risk for leatherback sea turtles. This action does not change the overall amount of sablefish that can be caught by the fishery, which was analyzed as part of the 2023-2024 Biennial Harvest Specifications and Management Measures EA. The density of pot gear and other non-trawl gear in the EEZ both shoreward and seaward of the Non-Trawl RCA will likely lessen, as some vessels will likely shift some of their effort to the newly opened depth bin. This will increase the spatial distribution of pot gear, but will not change the overall amount of effort nor will it concentrate effort in a particular area. Therefore, the Council and NMFS do not anticipate significant impacts to this species.
The portion of the Non-Trawl RCA being opened seaward of Oregon and California between 75 and 100/125 fm (137 and 183/229 m) could potentially increase interactions with ESA-listed short-tailed albatross. Longline gear, which is fished in all non-trawl sectors, is the primary gear evaluated in the 2017 Biological Opinion (O1EOFWOO-2017-F-03 16) for the Pacific Coast Groundfish Fishery. All vessels over 26 feet (8 m) in length and fishing with longline gear in the area North of 36° N lat. (
The portion of the Non-Trawl RCA being opened seaward of Oregon and California between 75 and 100/125 fm (137 and 183/229 m), as well as the area being opened by removing the CCA in Southern California could adversely affect bottom habitat that could be newly exposed to bottom contact groundfish gear, including pot and longline gear. The majority of the area to be opened in the Non-Trawl RCA is soft substrate with some areas that include mixed/hard substrate with habitat-forming invertebrates (such as corals, basketstars, brittlestars, demosponges, gooseneck barnacles, sea anemones, sea lilies, sea urchins, sea whips, tube worms, and vase sponges). These mixed/hard areas largely fall within currently identified EFHCAs for bottom trawl. As described above under the heading, “New Conservation Areas,” the Council recommended additional protection from groundfish non-trawl bottom contact gear (
The Council and NMFS anticipate that this action would increase the overall economic value of the groundfish and directed commercial halibut fisheries by providing access to almost three thousand square miles of fishing grounds that have been closed to non-trawl groundfish and halibut fishing for over two decades. In addition, relaxed gear and catch restrictions would allow for diversified fishing strategies and access to higher trip limits/quotas within the remaining Non-Trawl RCA boundaries. As detailed in the Analysis, fishing ports with lower attainment of sablefish are likely to benefit most from the new opportunities; however, ports with high attainment of sablefish could potentially also benefit from access to larger, higher value sablefish and reduced fuel costs from vessels not having to travel beyond 100 or 125 fm (183 or 229 m) to access larger sablefish.
In addition to the actions recommended by the Council above, NMFS is also proposing to make three minor regulatory changes in this final rule. These changes, which are necessary to improve clarity of existing regulations, are administrative in nature.
NMFS proposes to universally correct all instances of “Cordell Banks” to its correct name of “Cordell Bank.” NMFS also proposes to modify the description of the Cordell Bank GCA at § 660.70(q) to clarify that fishing is not permitted “within” its boundaries as opposed to “around” its boundaries, as currently specified in the regulations. The purpose of this change is to clarify the intended meaning of these regulations for fishermen and to support enforcement efforts, but this change would not constitute a material change to the GCA.
NMFS proposes to add regulatory definitions for artificial lure, bait (both natural and artificial), and weighted gear under § 660.11. This rule proposes to allow for the use of natural bait on non-bottom contact stationary vertical
Vessels participating in the limited entry groundfish fishery, open access vessels using non-groundfish trawl gear (vessels fishing for ridgeback prawn, California halibut, and sea cucumber trawl), and any vessels that use open access gear targeting groundfish or that have groundfish bycatch (salmon troll, prawn trap, Dungeness crab, halibut longline, California halibut line gear, and sheephead trap), are required to install a NMFS OLE type-approved mobile transceiver unit and to arrange for a NMFS OLE type-approved communications service provider to receive and relay transmissions to NMFS OLE prior to fishing. These units automatically record a vessel's position (
Under current regulation, exemptions from the VMS requirement for specific reasons are allowed (50 CFR 660.14(d)(4)). VMS users must follow the requirements at § 660.14(d)(4)(vi) to submit exemption reports. Current exemptions include a haul out exemption, an outside areas exemption, a permit exemption, and a long-term departure exemption. This proposed rule would create two new exemptions: one for maintenance that does not require a haulout, and one for sale of a vessel. Like the existing haulout exemption, the new maintenance exemption would allow VMS units to temporarily be inoperable and would allow transmissions to be discontinued while work is being done on the vessel. However, the new maintenance exemption would not be limited to maintenance that is conducted while a vessel is hauled out.
The new exemption for sale of a vessel would be an extension of the current long-term departure exemption. This new exemption for sale of a vessel is proposed as a response to situations in which new owners purchase vessels and discontinue use of VMS units used by the previous owners. If the previous owners do not submit a Long-Term Departure exemption prior to the sale, the requirement for the VMS units to operate continues to exist on the sold vessels, even when the new owners do not participate in an activity requiring VMS.
Both of these proposed new exemptions would create flexibilities in the vessel owners' VMS requirements when vessels are not participating in an activity requiring VMS. If these new exemptions are not added to the regulations, fishermen would continue to be in violation of VMS requirements while their vessels undergo long-term maintenance or when prior owners of newly purchased vessels did not submit a long-term departure exemption prior to selling the vessel.
Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act and Section 5 of the Northern Pacific Halibut Act of 1982 (Halibut Act, 16 U.S.C. 773c), the NMFS Assistant Administrator has determined that this proposed rule to implement Amendment 32 is consistent with the FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. For rulemaking efficiency, NMFS is also proposing minor administrative regulatory changes. These changes include corrections to all references to “Cordell Bank,” and, in the description of the Cordell Bank GCA at § 660.70(q), clarifying that fishing is not permitted “within” its boundaries as opposed to “around” its boundaries; adding new regulatory definitions for different types of fishing bait, and adding new exemptions to the Vessel Monitoring System reporting requirements.
This proposed rule has been determined to be not significant for purposes of Executive Order 12866.
There are no relevant federal rules that may duplicate, overlap, or conflict with this action.
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant adverse economic impact on a substantial number of small entities.
For purposes of the Regulatory Flexibility Act (5 U.S.C. 601
This proposed rule would directly affect groundfish vessels fishing in the directed Open Access, LEFG, IFQ gear switching, and California recreational fishery sectors. The proposed rule would also directly affect vessels participating in the non-tribal directed commercial Pacific halibut fishery. The table below shows the possible ranges and average numbers of vessels that participated in these fishery sectors from 2019-2022.
Of those participants, all open access, directed commercial halibut, and commercial passenger fishing vessels (CPFV) are considered small entities. In 2022, 197 of the 218 LEFG reported themselves as small entities. For those that reported themselves as large entities, there were some that owned multiple permits with one entity owning four permits, one owning three permits, and three owning two permits. Of the 9-16 vessels fishing in the IFQ gear switching sector from 2019-2022, these vessels used 20 trawl endorsed permits. In 2022, only one of those permit owners reported as a large entity. In addition, this proposed rule is not expected to place small entities at a significant competitive disadvantage to large entities.
The economic impact of the proposed action would be mostly positive for the affected small entities, as Amendment 32 and its proposed regulations would expand fishing opportunity (and therefore increase potential profitability) for all affected small entities through
For these reasons, NMFS believes that this proposed rule would not have a significant adverse economic impact on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared. Information Collection Requirements
This proposed rule contains a collection-of-information requirement subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). This rule would revise the existing requirements under OMB control # 0648-0573, “VMS and Declarations,” by adding and modifying declaration codes for the purpose of monitoring and enforcing the new provisions in the Non-Trawl RCA for limited fixed gear vessels and IFQ gear switchers. These new declaration codes are not anticipated to alter the number of respondents, anticipated responses, burden hours, or burden costs, as the affected vessels are already required to declare their fishing activities. The new declaration codes would allow NOAA's OLE to track those vessels that are declaring to fish inside the Non-Trawl RCA and identify what catch limits they should adhere to. Public reporting burden for submitting a declaration report is estimated to average 4 minutes per individual report, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.
Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Submit comments on these or any other aspects of the collection of information at
Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.
Fish, Fisheries, Fishing, Fishing vessels.
Fisheries, Fishing, Reporting and recordkeeping requirements.
For the reasons set out in the preamble, NMFS proposes to amend 50 CFR parts 300 and 660 as follows:
16 U.S.C. 773-773k
(f)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
16 U.S.C. 1801
The additions and revisions read as follows:
(1)
(i)
(vi)
The additions read as follows:
(a) * * *
(19) Fish for, take and retain, possess (except for the purpose of continuous transiting) or land any species of groundfish with groundfish non-trawl bottom contact gear (defined at § 660.11) in the following EFHCAs: Arago Reef West, Bandon High Spot East, Garibaldi Reef North, Garibaldi Reef South, and Nehalem Bank East.
(21) Fish for, take and retain, possess (except for the purpose of continuous transiting) or land any species of groundfish in a Block Area Closure enacted under subparts C through F of this part.
(d) * * *
(4) * * *
(iv) * * *
(A) * * *
(
(
(
(
The revisions and additions read as follows:
(d) * * *
(4)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(c) * * *
(3) * * *
(i) * * *
(C)
(h) * * *
(7) * * *
(ii) * * *
(A)
(
(
(g)
(1) 45°40.96′ N lat.; 124°27.52′ W long.;
(2) 45°40.96′ N lat.; 124°19.99′ W long.;
(3) 45°34.44′ N lat.; 124°14.48′ W long.;
(4) 45°31.93′ N lat.; 124°14.05′ W long.;
(5) 45°32.93′ N lat.; 124°22.54′ W long.;
(6) 45°36.95′ N lat.; 124°24.45′ W long.;
(7) 45°38.89′ N lat.; 124°25.92′ W long.; and connecting back to 45°40.96′ N lat.; 124°27.52′ W long.
(h)
(1) 44°46.00′ N lat.; 124°32.57′ W long.;
(2) 44°46.00′ N lat.; 124°32.00′ W long.;
(3) 44°42.00′ N lat.; 124°30.00′ W long.;
(4) 44°39.00′ N lat.; 124°30.00′ W long.;
(5) 44°39.00′ N lat.; 124°34.00′ W long.;
(6) 44°43.16′ N lat.; 124°34.00′ W long.;
(7) 44°44.54′ N lat.; 124°33.58′ W long.; and connecting back to 44°46.00′ N lat.; 124°32.57′ W long.
(i)
(1) 44°37.46′ N lat.; 124°24.92′ W long.;
(2) 44°37.46′ N lat.; 124°23.63′ W long.;
(3) 44°28.71′ N lat.; 124°21.80′ W long.;
(4) 44°28.71′ N lat.; 124°24.10′ W long.;
(5) 44°31.42′ N lat.; 124°25.47′ W long.; and connecting back to 44°37.46′ N lat.; 124°24.92′ W long.
(j)
(1) 44°41.76′ N lat.; 124°30.02′ W long.;
(2) 44°41.73′ N lat.; 124°21.60′ W long.;
(3) 44°25.25′ N lat.; 124°16.94′ W long.;
(4) 44°25.29′ N lat.; 124°30.14′ W long.;
(5) 44°41.76′ N lat.; 124°30.02′ W long.; and connecting back to 44°41.76′ N lat.; 124°30.02′ W long.
(k)
(1) 44°38.54′ N lat.; 124°27.41′ W long.;
(2) 44°38.54′ N lat.; 124°23.86′ W long.;
(3) 44°27.13′ N lat.; 124°21.50′ W long.;
(4) 44°27.13′ N lat.; 124°26.89′ W long.;
(5) 44°31.30′ N lat.; 124°28.35′ W long.; and connecting back to 44°38.54′ N lat.; 124°27.41′ W long.
(l)
(1) 44°30.04′ N lat.; 124°42.31′ W long.;
(2) 44°30.19′ N lat.; 124°40.46′ W long.;
(3) 44°25.00′ N lat.; 124°37.00′ W long.;
(4) 44°25.00′ N lat.; 124°45.00′ W long.;
(5) 44°26.71′ N lat.; 124°45.00′ W long.; and connecting back to 44°30.04′ N lat.; 124°42.31′ W long.
(m)
(1) 44°16.28′ N lat., 124°47.86′ W long.;
(2) 44°15.38′ N lat., 124°49.86′ W long.;
(3) 44°14.49′ N lat., 124°51.82′ W long.;
(4) 44°14.01′ N lat., 124°52.88′ W long.;
(5) 44°13.47′ N lat., 124°54.08′ W long.;
(6) 44°12.72′ N lat., 124°54.07′ W long.;
(7) 44°11.53′ N lat., 124°54.06′ W long.;
(8) 44°08.72′ N lat., 124°54.02′ W long.;
(9) 44°06.68′ N lat., 124°54.00′ W long.;
(10) 44°05.34′ N lat., 124°53.10′ W long.;
(11) 44°02.88′ N lat., 124°53.96′ W long.;
(12) 44°02.18′ N lat., 124°54.29′ W long.;
(13) 44°00.14′ N lat., 124°55.25′ W long.;
(14) 43°58.36′ N lat., 124°55.42′ W long.;
(15) 43°57.68′ N lat., 124°55.48′ W long.;
(16) 43°56.66′ N lat., 124°55.45′ W long.;
(17) 43°56.65′ N lat., 124°55.49′ W long.;
(18) 43°56.64′ N lat., 124°56.53′ W long.;
(19) 43°56.74′ N lat., 124°56.74′ W long.;
(20) 43°59.18′ N lat., 124°56.94′ W long.;
(21) 44°00.45′ N lat., 124°56.35′ W long.;
(22) 44°02.34′ N lat., 124°55.49′ W long.;
(23) 44°04.81′ N lat., 124°55.65′ W long.;
(24) 44°06.45′ N lat., 124°55.78′ W long.;
(25) 44°08.47′ N lat., 124°55.93′ W long.;
(26) 44°09.85′ N lat., 124°56.04′ W long.;
(27) 44°11.34′ N lat., 124°56.16′ W long.;
(28) 44°12.92′ N lat., 124°56.28′ W long.;
(29) 44°14.06′ N lat., 124°55.10′ W long.;
(30) 44°15.32′ N lat., 124°53.79′ W long.;
(31) 44°16.90′ N lat., 124°52.16′ W long.;
(32) 44°16.96′ N lat., 124°52.11′ W long.;
(33) 44°16.96′ N lat., 124°51.95′ W long.;
(34) 44°17.02′ N lat., 124°48.02′ W long.;
(35) 44°17.02′ N lat., 124°47.47′ W long.; and connecting back to 44°16.28′ N lat., 124°47.86′ W long.
(n)
(1) 41°51.00′ N lat., 124°23.75′ W long.;
(2) 41°51.00′ N lat., 124°20.75′ W long.;
(3) 41°48.00′ N lat., 124°20.75′ W long.;
(4) 41°48.00′ N lat., 124°23.75′ W long.; and connecting back to 41°51.00′ N lat., 124°23.75′ W long.
(o)
(1) 41°42.20′ N lat., 124°16.00′ W long.;
(2) 41°42.20′ N lat., 124°13.80′ W long.;
(3) 41°40.50′ N lat., 124°13.80′ W long.;
(4) 41°40.50′ N lat., 124°16.00′ W long.; and connecting back to 41°42.20′ N lat., 124°16.00′ W long.
(p)
(1) 41°21.50′ N lat., 124°12.00′ W long.;
(2) 41°21.50′ N lat., 124°10.00′ W long.;
(3) 41°20.00′ N lat., 124°10.00′ W long.;
(4) 41°20.00′ N lat., 124°12.00′ W long.; and connecting back to 41°21.50′ N lat., 124°12.00′ W long.
(q)
(1) 39°59.00′ N lat., 124°05.00′ W long.;
(2) 39°59.00′ N lat., 124°03.00′ W long.;
(3) 39°57.00′ N lat., 124°03.00′ W long.;
(4) 39°57.00′ N lat., 124°05.00′ W long.; and connecting back to 39°59.00′ N lat., 124°05.00′ W long.
(r)
(1) 39°57.00′ N lat., 124°05.00′ W long.;
(2) 39°57.00′ N lat., 124°02.00′ W long.;
(3) 39°54.00′ N lat., 124°02.00′ W long.;
(4) 39°54.00′ N lat., 124°05.00′ W long.; and connecting back to 39°57.00′ N lat., 124°05.00′ W long.
(s)
(1)
(i) 33°50.00′ N lat., 119°30.00′ W long.;
(ii) 33°50.00′ N lat., 118°50.00′ W long.;
(iii) 32°20.00′ N lat., 118°50.00′ W long.;
(iv) 32°20.00′ N lat., 119°37.00′ W long.;
(v) 33°00.00′ N lat., 119°37.00′ W long.;
(vi) 33°00.00′ N lat., 119°53.00′ W long.;
(vii) 33°33.00′ N lat., 119°53.00′ W long.; and
(viii) 33°33.00′ N lat., 119°30.00′ W long.
(2)
(3)
(i) 32°42.00′ N lat., 118°02.00′ W long.;
(ii) 32°42.00′ N lat., 117°50.00′ W long.;
(iii) 32°36.70′ N lat., 117°50.00′ W long.;
(iv) 32°30.00′ N lat., 117°53.50′ W long.; and
(v) 32°30.00′ N lat., 118°02.00′ W long.
(t)
(1)
(i) 33°46.14′ N lat., 119°10.45′ W long.;
(ii) 33°46.14′ N lat., 119°05.96′ W long.;
(iii) 33°41.40′ N lat., 119°05.96′ W long.; and
(iv) 33°41.40′ N lat., 119°10.45′ W long.
(2)
(i) 33°33.64′ N lat., 119°18.54′ W long.;
(ii) 33°33.64′ N lat., 119°07.57′ W long.;
(iii) 33°27.90′ N lat., 119°07.57′ W long; and
(iv) 33°27.90′ N lat., 119°18.54′ W long.
(3)
(i) 33°21.00′ N lat., 119°52.10′ W long.;
(ii) 33°21.00′ N lat., 119°45.67′ W long.;
(iii) 33°10.10′ N lat., 119°45.67′ W long.; and
(iv) 33°10.10′ N lat., 119°52.10′ W long.
(4)
(i) 33°05.51′ N lat., 119°41.29′ W long.;
(ii) 33°08.64′ N lat., 119°36.71′ W long.;
(iii) 33°03.50′ N lat., 119°31.69′ W long.; and
(iv) 33°00.36′ N lat., 119°36.27′ W long.
(5)
(i) 32°50.86′ N lat., 119°29.40′ W long.;
(ii) 32°56.96′ N lat., 119°19.82′ W long.;
(iii) 32°54.69′ N lat., 119°17.78′ W long.; and
(iv) 32°48.59′ N lat., 119°27.35′ W long.
(6)
(i) 32°43.75′ N lat., 119°37.00′ W long.;
(ii) 32°43.75′ N lat., 119°34.29′ W long.;
(iii) 32°31.95′ N lat., 119°26.94′ W long.;
(iv) 32°30.47′ N lat., 119°29.71′ W long.; and
(v) 32°39.54′ N lat., 119°37.00′ W long.
(7)
(i) 32°42.00′ N lat., 118°00.05′ W long.;
(ii) 32°42.00′ N lat., 117°50.00′ W long.;
(iii) 32°36.70′ N lat., 117°50.00′ W long.;
(iv) 32°36.18′ N lat., 117°50.23′ W long.; and
(v) 32°36.18′ N lat., 118°00.05′ W long.
(8)
(i) 32°27.39′ N lat., 119°37.00′ W long.;
(ii) 32°27.39′ N lat., 119°31.60′ W long.;
(iii) 32°19.91′ N lat., 119°31.60′ W long.; and
(iv) 32°19.91′ N lat., 119°37.00′ W long.
(u)
(v)
The revisions and additions read as follows:
(f) The 50 fm (91 m) depth contour around Santa Barbara Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°31.77′ N lat., 119°3.41′ W long.;
(2) 33°29.66′ N lat., 119°5.86′ W long.;
(3) 33°26.94′ N lat., 119°2.95′ W long.;
(4) 33°27.08′ N lat., 119°0.51′ W long.;
(5) 33°28.82′ N lat., 118°59.42′ W long.;
(6) 33°30.67′ N lat., 119°0.88′ W long.; and
(7) 33°31.77′ N lat., 119°3.41′ W long.
(g) The 50 fm (91 m) depth contour around Tanner Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°45.53′ N lat., 119°13.28′ W long.;
(2) 32°43.98′ N lat., 119°15.05′ W long.;
(3) 32°38.45′ N lat., 119°4.92′ W long.;
(4) 32°41.44′ N lat., 119°3.71′ W long.;
(5) 32°45.02′ N lat., 119°11.08′ W long.; and
(6) 32°45.53′ N lat., 119°13.28′ W long.
(h) The 50 fm (91 m) depth contour around San Nicholas Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°22.14′ N lat., 119°42.12′ W long.;
(2) 33°17.68′ N lat., 119°43.24′ W long.;
(3) 33°15.29′ N lat., 119°39.32′ W long.;
(4) 33°11.98′ N lat., 119°29.64′ W long.;
(5) 33°11.6′ N lat., 119°27.26′ W long.;
(6) 33°12.99′ N lat., 119°16.36′ W long.;
(7) 33°14.43′ N lat., 119°17.42′ W long.;
(8) 33°17.2′ N lat., 119°23.16′ W long.;
(9) 33°20.73′ N lat., 119°27.33′ W long.; and
(10) 33°22.14′ N lat., 119°42.12′ W long.
(i) The 50 fm (91 m) depth contour around Cortes Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°35.89′ N lat., 119°18.39′ W long.;
(2) 32°31.93′ N lat., 119°20.54′ W long.;
(3) 32°29.47′ N lat., 119°14.81′ W long.;
(4) 32°28.14′ N lat., 119°14.94′ W long.;
(5) 32°24.37′ N lat., 119°3.69′ W long.;
(6) 32°24.5′ N lat., 119°0.52′ W long.;
(7) 32°26.04′ N lat., 119°0.46′ W long.; and
(8) 32°35.89′ N lat., 119°18.39′ W long.
(n) The 60 fm (110 m) depth contour around Santa Barbara Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°32.34′ N lat., 119°3.85′ W long.;
(2) 33°28.79′ N lat., 119°6.76′ W long.;
(3) 33°26.46′ N lat., 119°3.12′ W long.;
(4) 33°27.08′ N lat., 119°0.37′ W long.;
(5) 33°28.86′ N lat., 118°59.31′ W long.;
(6) 33°30.82′ N lat., 119°0.97′ W long.; and
(7) 33°32.34′ N lat., 119°3.85′ W long.
(o) The 60 fm (91 m) depth contour around Tanner Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°45.65′ N lat., 119°13.29′ W long.;
(2) 32°44.21′ N lat., 119°15.68′ W long.;
(3) 32°37.4′ N lat., 119°4.89′ W long.;
(4) 32°41.42′ N lat., 119°3.32′ W long.;
(5) 32°45.66′ N lat., 119°12.1′ W long.; and
(6) 32°45.65′ N lat., 119°13.29′ W long.
(p) The 60 fm (110 m) depth contour around San Nicholas Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°26.41′ N lat., 119°39.84′ W long.;
(2) 33°22.94′ N lat., 119°47.34′ W long.;
(3) 33°16.39′ N lat., 119°42.64′ W long.;
(4) 33°11.86′ N lat., 119°29.61′ W long.;
(5) 33°11.52′ N lat., 119°27.25′ W long.;
(6) 33°12.97′ N lat., 119°16.3′ W long.;
(7) 33°14.48′ N lat., 119°17.42′ W long.;
(8) 33°17.23′ N lat., 119°23.14′ W long.;
(9) 33°21.21′ N lat., 119°27.84′ W long.;
(10) 33°22.65′ N lat., 119°34.31′ W long.; and
(11) 33°26.41′ N lat., 119°39.84′ W long.
(q) The 60 fm (110 m) depth contour around Cortes Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°36.79′ N lat., 119°18.81′ W long.;
(2) 32°31.94′ N lat., 119°20.75′ W long.;
(3) 32°29.5′ N lat., 119°15′ W long.;
(4) 32°27.95′ N lat., 119°15.12′ W long.;
(5) 32°24.03′ N lat., 119°3.72′ W long.;
(6) 32°24.46′ N lat., 118°59.56′ W long.;
(7) 32°25.42′ N lat., 118°59.42′ W long.;
(8) 32°27.41′ N lat., 119°1.99′ W long.; and
(9) 32°36.79′ N lat., 119°18.81′ W long.
(r) * * *
(139) 38°04.16′ N lat., 123°19.05′ W long.;
(140) 38°03.18′ N lat., 123°20.77′ W long.;
(141) 38°00.00′ N lat., 123°23.08′ W long.;
(142) 37°55.07′ N lat., 123°26.81′ W long.;
(186) 36°10.28′ N lat., 121°43.06′ W long.;
(v) The 75 fm (137 m) depth contour around Santa Barbara Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°33.58′ N lat., 119°4.84′ W long.;
(2) 33°33.2′ N lat., 119°5.37′ W long.;
(3) 33°31.75′ N lat., 119°4.61′ W long.;
(4) 33°28.67′ N lat., 119°7.06′ W long.;
(5) 33°26.38′ N lat., 119°3.24′ W long.;
(6) 33°27.08′ N lat., 119°0.26′ W long.;
(7) 33°28.85′ N lat., 118°59.21′ W long.;
(8) 33°30.85′ N lat., 119°0.94′ W long.;
(9) 33°31.91′ N lat., 119°2.98′ W long.; and
(10) 33°33.58′ N lat., 119°4.84′ W long.
(w) The 75 fm (137 m) depth contour around Tanner Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°45.66′ N lat., 119°14.45′ W long.;
(2) 32°44.19′ N lat., 119°15.9′ W long.;
(3) 32°37.02′ N lat., 119°4.65′ W long.;
(4) 32°41.45′ N lat., 119°3.14′ W long.;
(5) 32°45.77′ N lat., 119°11.93′ W long.; and
(6) 32°45.66′ N lat., 119°14.45′ W long.
(x) The 75 fm (137 m) depth contour around San Nicholas Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°30.94′ N lat., 119°45.06′ W long.;
(2) 33°28.59′ N lat., 119°52.02′ W long.;
(3) 33°16.05′ N lat., 119°43.86′ W long.;
(4) 33°15.2′ N lat., 119°39.36′ W long.;
(5) 33°11.71′ N lat., 119°29.48′ W long.;
(6) 33°11.39′ N lat., 119°26.58′ W long.;
(7) 33°12.96′ N lat., 119°16.23′ W long.;
(8) 33°14.52′ N lat., 119°17.42′ W long.;
(9) 33°17.24′ N lat., 119°23.09′ W long.;
(10) 33°21.24′ N lat., 119°27.83′ W long.;
(11) 33°22.71′ N lat., 119°33.54′ W long.; and
(12) 33°30.94′ N lat., 119°45.06′ W long.
(y) The 75 fm (137 m) depth contour around Cortes Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°37.38′ N lat., 119°19.45′ W long.;
(2) 32°31.9′ N lat., 119°20.9′ W long.;
(3) 32°29.52′ N lat.; 119°15.94′ W long.;
(4) 32°29.64′ N lat.; 119°15.4′ W long.;
(5) 32°29.24′ N lat.; 119°15.09′ W long.;
(6) 32°27.82′ N lat., 119°15.3′ W long.;
(7) 32°23.85′ N lat., 119°3.95′ W long.;
(8) 32°24.53′ N lat., 118°58.2′ W long.;
(9) 32°27.1′ N lat., 119°1.2′ W long.; and
(10) 32°37.38′ N lat., 119°19.45′ W long.
The revisions and additions read as follows:
(e) The 100 fm (183 m) depth contour around Santa Barbara Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°33.85′ N lat., 119°4.87′ W long.;
(2) 33°33.27′ N lat., 119°5.67′ W long.;
(3) 33°31.9′ N lat., 119°5.08′ W long.;
(4) 33°28.62′ N lat., 119°7.28′ W long.;
(5) 33°27.04′ N lat., 119°5.84′ W long.;
(6) 33°26.2′ N lat., 119°3.24′ W long.;
(7) 33°27.07′ N lat., 118°59.96′ W long.;
(8) 33°28.7′ N lat., 118°58.76′ W long.;
(9) 33°31′ N lat., 119°1.02′ W long.;
(10) 33°31.99′ N lat., 119°2.86′ W long.; and
(11) 33°33.85′ N lat., 119°4.87′ W long.
(f) The 100 fm (183 m) depth contour around Tanner Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°45.92′ N lat., 119°14.6′ W long.;
(2) 32°44.34′ N lat., 119°16.43′ W long.;
(3) 32°36.75′ N lat., 119°4.51′ W long.;
(4) 32°41.41′ N lat., 119°2.93′ W long.;
(5) 32°45.85′ N lat., 119°10.62′ W long.; and
(6) 32°45.92′ N lat., 119°14.6′ W long.
(g) The 100 fm (183 m) depth contour around San Nicholas Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°31.37′ N lat., 119°44.84′ W long.;
(2) 33°28.82′ N lat., 119°52.19′ W long.;
(3) 33°25.43′ N lat., 119°51.27′ W long.;
(4) 33°18.01′ N lat., 119°47.18′ W long.;
(5) 33°15.8′ N lat., 119°43.64′ W long.;
(6) 33°14.22′ N lat., 119°37′ W long.;
(7) 33°11.56′ N lat., 119°29.58′ W long.;
(8) 33°11.28′ N lat., 119°26.54′ W long.;
(9) 33°12.94′ N lat., 119°15.86′ W long.;
(10) 33°14.48′ N lat., 119°16.97′ W long.;
(11) 33°17.33′ N lat., 119°22.93′ W long.;
(12) 33°21.28′ N lat., 119°27.66′ W long.;
(13) 33°23.38′ N lat., 119°33.29′ W long.; and
(14) 33°31.37′ N lat., 119°44.84′ W long.
(h) The 100 fm (183 m) depth contour around Cortes Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°37.79′ N lat., 119°19.68′ W long.;
(2) 32°36.19′ N lat., 119°21.84′ W long.;
(3) 32°33.16′ N lat., 119°21.76′ W long.;
(4) 32°30.92′ N lat., 119°20.46′ W long.;
(5) 32°29.25′ N lat., 119°15.93′ W long.;
(6) 32°29.44′ N lat., 119°15.44′ W long.;
(7) 32°29.23′ N lat., 119°15.23′ W long.;
(8) 32°27.48′ N lat., 119°15.56′ W long.;
(9) 32°23.19′ N lat., 119°3.23′ W long.;
(10) 32°22.94′ N lat., 118°57.58′ W long.;
(11) 32°24.47′ N lat., 118°57.61′ W long.;
(12) 32°27.3′ N lat., 119°1.06′ W long.; and
(13) 32°37.79′ N lat., 119°19.68′ W long.
(m) The 125 fm (229 m) depth contour around Santa Barbara Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°33.96′ N lat., 119°4.88′ W long.;
(2) 33°33.28′ N lat., 119°5.88′ W long.;
(3) 33°30.98′ N lat., 119°6.32′ W long.;
(4) 33°28.52′ N lat., 119°7.7′ W long.;
(5) 33°26.93′ N lat., 119°5.94′ W long.;
(6) 33°25.96′ N lat., 119°3.34′ W long.;
(7) 33°27.01′ N lat., 118°59.73′ W long.;
(8) 33°28.68′ N lat., 118°58.43′ W long.;
(9) 33°31.2′ N lat., 119°1.09′ W long.;
(10) 33°32.04′ N lat., 119°2.77′ W long.; and
(11) 33°33.96′ N lat., 119°4.88′ W long.
(n) The 125 fm (229 m) depth contour around Tanner Bank and Cortes Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°46.01′ N lat., 119°14.63′ W long.;
(2) 32°44.35′ N lat., 119°16.58′ W long.;
(3) 32°40.85′ N lat., 119°11.61′ W long.;
(4) 32°38.93′ N lat., 119°11.9′ W long.;
(5) 32°41.32′ N lat., 119°18.11′ W long.;
(6) 32°36.16′ N lat., 119°22.16′ W long.;
(7) 32°33.09′ N lat., 119°21.89′ W long.;
(8) 32°30.73′ N lat., 119°20.43′ W long.;
(9) 32°28.94′ N lat., 119°15.4′ W long.;
(10) 32°27.46′ N lat., 119°15.62′ W long.;
(11) 32°24.58′ N lat., 119°9.83′ W long.;
(12) 32°22.97′ N lat., 119°3′ W long.;
(13) 32°22.03′ N lat., 118°56.26′ W long.;
(14) 32°24.63′ N lat., 118°57.54′ W long.;
(15) 32°34.72′ N lat., 119°10.24′ W long.;
(16) 32°37.93′ N lat., 119°7.88′ W long.;
(17) 32°36.55′ N lat., 119°4.42′ W long.;
(18) 32°41.5′ N lat., 119°2.65′ W long.;
(19) 32°45.98′ N lat., 119°10.71′ W long.; and
(20) 32°46.01′ N lat., 119°14.63′ W long.
(o) The 125 fm (229 m) depth contour around San Nicholas Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°31.65′ N lat., 119°44.84′ W long.;
(2) 33°28.91′ N lat., 119°52.35′ W long.;
(3) 33°25.39′ N lat., 119°51.44′ W long.;
(4) 33°17.94′ N lat., 119°47.31′ W long.;
(5) 33°15.33′ N lat., 119°43.4′ W long.;
(6) 33°14.03′ N lat., 119°37.02′ W long.;
(7) 33°11.49′ N lat., 119°29.58′ W long.;
(8) 33°11.21′ N lat., 119°26.46′ W long.;
(9) 33°12.9′ N lat., 119°15.74′ W long.;
(10) 33°14.51′ N lat., 119°14.92′ W long.;
(11) 33°14.76′ N lat., 119°17.07′ W long.;
(12) 33°17.44′ N lat., 119°22.82′ W long.;
(13) 33°21.37′ N lat., 119°27.53′ W long.;
(14) 33°23.44′ N lat., 119°33.11′ W long.; and
(15) 33°31.65′ N lat., 119°44.84′ W long.
(u) The 150 fm (274 m) depth contour around Santa Barbara Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°34.6′ N lat., 119°4.57′ W long.;
(2) 33°33.13′ N lat., 119°6.65′ W long.;
(3) 33°28.13′ N lat., 119°8.17′ W long.;
(4) 33°25.55′ N lat., 119°3.64′ W long.;
(5) 33°26.96′ N lat., 118°59.58′ W long.;
(6) 33°28.68′ N lat., 118°58.24′ W long.; and
(7) 33°34.6′ N lat., 119°4.57′ W long.;
(v) The 150 fm (274 m) depth contour around Tanner Bank and Cortes Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°46.12′ N lat., 119°14.73′ W long.;
(2) 32°44.37′ N lat., 119°16.82′ W long.;
(3) 32°41.02′ N lat., 119°12.01′ W long.;
(4) 32°39.28′ N lat., 119°12.18′ W long.;
(5) 32°41.46′ N lat., 119°18.28′ W long.;
(6) 32°36.17′ N lat., 119°22.31′ W long.;
(7) 32°32.97′ N lat., 119°22′ W long.;
(8) 32°30.57′ N lat., 119°20.54′ W long.;
(9) 32°28.94′ N lat., 119°15.53′ W long.;
(10) 32°27.45′ N lat., 119°15.79′ W long.;
(11) 32°24.86′ N lat., 119°12.93′ W long.;
(12) 32°21.43′ N lat., 118°55.1′ W long.;
(13) 32°24.67′ N lat., 118°57.37′ W long.;
(14) 32°34.34′ N lat., 119°9.28′ W long.;
(15) 32°37.39′ N lat., 119°7.54′ W long.;
(16) 32°36.38′ N lat., 119°4.32′ W long.;
(17) 32°41.59′ N lat., 119°2.46′ W long.;
(18) 32°46.07′ N lat., 119°10.68′ W long.; and
(19) 32°46.12′ N lat., 119°14.73′ W long.
(w) The 150 fm (274 m) depth contour around San Nicholas Island off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°33.22′ N lat., 119°46.7′ W long.;
(2) 33°28.97′ N lat., 119°53.04′ W long.;
(3) 33°24.67′ N lat., 119°51.27′ W long.;
(4) 33°19.95′ N lat., 119°50.23′ W long.;
(5) 33°13.07′ N lat., 119°41.99′ W long.;
(6) 33°13.1′ N lat., 119°34.66′ W long.;
(7) 33°11.45′ N lat., 119°29.57′ W long.;
(8) 33°11.13′ N lat., 119°26.22′ W long.;
(9) 33°11.8′ N lat., 119°20.64′ W long.;
(10) 33°12.91′ N lat., 119°15.53′ W long.;
(11) 33°14.52′ N lat., 119°14.72′ W long.;
(12) 33°15.32′ N lat., 119°16.01′ W long.;
(13) 33°14.78′ N lat., 119°16.97′ W long.;
(14) 33°15.73′ N lat., 119°19.02′ W long.;
(15) 33°16.73′ N lat., 119°18.97′ W long.;
(16) 33°19.37′ N lat., 119°24.95′ W long.;
(17) 33°21.69′ N lat., 119°27.44′ W long.;
(18) 33°23.82′ N lat., 119°32.87′ W long.; and
(19) 33°33.22′ N lat., 119°46.7′ W long.
(x) The 150 fm (274 m) depth contour around Osborn Bank off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 33°23.53′ N lat., 119°3.73′ W long.;
(2) 33°23.57′ N lat., 119°6.66′ W long.;
(3) 33°23.12′ N lat., 119°7.25′ W long.;
(4) 33°20.51′ N lat., 119°2.15′ W long.;
(5) 33°20.58′ N lat., 119°0.48′ W long.;
(6) 33°21.32′ N lat., 118°59.89′ W long.; and
(7) 33°23.53′ N lat., 119°3.73′ W long.
(y) The 150 fm (274 m) depth contour around the Eastern CCA area off the state of California is defined by straight lines connecting all of the following points in the order stated:
(1) 32°41.41′ N lat., 117°59.05′ W long.;
(2) 32°40.57′ N lat., 118°1.97′ W long.;
(3) 32°40.04′ N lat.,118°1.23′ W long.;
(4) 32°39.82′ N lat., 118°0.03′ W long.;
(5) 32°38.02′ N lat., 117°57.86′ W long.;
(6) 32°35.38′ N lat., 117°56.23′ W long.;
(7) 32°36.68′ N lat., 117°55.02′ W long.;
(8) 32°40.42′ N lat., 117°57.15′ W long.; and
(9) 32°41.41′ N lat., 117°59.05′ W long.
The revisions and additions read as follows:
(f)
(1) 45°47.95′ N lat., 124°31.70′ W long.;
(2) 45°52.28′ N lat., 124°38.46′ W long.;
(3) 45°56.45′ N lat., 124°38.00′ W long.;
(4) 45°58.33′ N lat., 124°38.75′ W long.;
(5) 46°00.83′ N lat., 124°36.78′ W long.;
(6) 45°59.94′ N lat., 124°34.63′ W long.;
(7) 45°58.90′ N lat., 124°33.47′ W long.;
(8) 45°54.27′ N lat., 124°30.73′ W long.;
(9) 45°53.62 N lat., 124°30.83′ W long.;
(10) 45°52.90′ N lat., 124°30.67′ W long.;
(11) 45°52.03 N lat., 124°30.60′ W long.;
(12) 45°51.75′ N lat., 124°30.85′ W long.; and
(13) 45°51.53′ N lat., 124°31.15′ W long.
(p)
(1) 43°16.24′ N lat., 124°27.66′ W long.;
(2) 43°14.23′ N lat., 124°29.28′ W long.;
(3) 43°14.03′ N lat., 124°28.31′ W long.;
(4) 43°11.92′ N lat., 124°28.26′ W long.;
(5) 43°11.02′ N lat., 124°29.11′ W long.;
(6) 43°10.13′ N lat., 124°29.15′ W long.;
(7) 43°09.26′ N lat., 124°31.03′ W long.;
(8) 43°08.60′ N lat., 124°30.98′ W long.;
(9) 43°10.22′ N lat., 124°37.82′ W long.;
(10) 43°16.91′ N lat., 124°37.50′ W long.;
(11) 43°16.51′ N lat., 124°28.97′ W long.;
(12) 43°16.88′ N lat., 124°28.16′ W long.; and
(13) 43°16.24′ N lat., 124°27.66′ W long.
(r)
(1) 42°57.18′ N lat., 124°46.01′ W long.;
(2) 42°56.10′ N lat., 124°47.48′ W long.;
(3) 42°56.66′ N lat., 124°48.79′ W long.;
(4) 42°55.02′ N lat., 124°50.45′ W long.;
(5) 42°55.70′ N lat., 124°52.79′ W long.;
(6) 43°03.91′ N lat., 124°50.81 W long.;
(7) 43°03.70′ N lat., 124°47.91′ W long.;
(8) 43°03.20′ N lat., 124°47.52′ W long.;
(9) 43°00.94′ N lat., 124°46.57′ W long.; and
(10) 42°57.18′ N lat., 124°46.01′ W long.
(yy)
(zz)
(c)(3) to read as follows:
(c) * * *
(3) Fish inside the nontrawl RCA with any gear type other than those specified at § 660.230(b)(6). In addition, a vessel may not carry more than one gear type as specified at § 660.230(b)(6) on board while declared to fish inside the nontrawl RCA (see § 660.13(d)(4)(iv)(A) for valid declarations for use inside the nontrawl RCA).
The additions and revisions read as follows:
(a)
(b) * * *
(6) Gear for use in the Nontrawl RCA. Inside the nontrawl RCA, only legal non-bottom contact hook-and-line gear configurations may be used for target fishing for groundfish by vessels that participate in the limited entry fixed gear sector as defined at § 660.11. On a fishing trip where any fishing will occur inside the nontrawl RCA, only one type of legal non-bottom contact gear may be carried on board, and no other fishing gear of any type may be carried on board or stowed during that trip. The vessel may fish inside and outside the nontrawl RCA on the same fishing trip, provided a valid declaration report as required at § 660.13(d) has been filed with NMFS OLE. Legal non-bottom contact hook-and-line gear means stationary vertical jig gear not anchored to the bottom and groundfish troll gear, subject to the specifications in paragraphs (b)(6)(i) and (ii) of this section.
(i)
(A) Must be a minimum of 30 feet between the bottom weight and the lowest fishing hook;
(B) No more than 4 vertical mainlines attached to or fished from the vessel (
(C) No more than 100 hooks may be in the water at one time, with no more than 25 extra hooks on board the vessel.
(ii)
(A) Must be a minimum of 50 feet between the bottom weight and the troll wire's connection to the horizontal mainline;
(B) No more than one mainline attached to or fished form the vessel may be used in the water at one time;
(C) No more than 500 hooks may be in the water at one time, with no more than 25 extra hooks on board the vessel;
(D) Hooks must be spaced apart by a visible maker (
(E) Natural bait or weighted hooks may not be used nor be on board the vessel. Artificial lures and bait are permitted.
(d) * * *
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(i) It is unlawful to operate a vessel with limited entry nontrawl gear in the nontrawl RCA, except for the purpose of continuous transit, or when the use of limited entry nontrawl gear is authorized in this section. It is unlawful to take and retain, possess, or land groundfish taken with limited entry nontrawl gear within the nontrawl RCA, unless otherwise authorized in this section.
(ii) Limited entry nontrawl vessels may transit through the nontrawl RCA, with or without groundfish on board, provided all groundfish nontrawl gear is stowed either: Below deck; or if the gear cannot readily be moved, in a secured and covered manner, detached from all lines, so that it is rendered unusable for fishing.
(iii) The nontrawl RCA restrictions in this section apply to vessels registered to limited entry fixed gear permits fishing for species other than groundfish with nontrawl gear on trips where groundfish species are retained. Unless otherwise authorized in this section, a vessel may not retain any groundfish taken on a fishing trip for species other than groundfish that occurs within the nontrawl RCA. If a vessel fishes in a non-groundfish fishery in the nontrawl RCA, it may not participate in any fishing for groundfish on that trip that is prohibited within the nontrawl RCA. [For example, if a vessel fishes in the salmon troll fishery within the RCA, the vessel cannot on the same trip fish in the sablefish fishery outside of the RCA.]
(iv) It is lawful to fish within the nontrawl RCA with limited entry fixed gear using hook and line gear only when trip limits authorize such fishing, and provided a valid declaration report as required at
(v) It is lawful to fish within the nontrawl RCA under the limited entry fixed gear trip limits specified in Table 2 (North) and Table 2 (South) of this subpart only when using the non-bottom contact hook-and-line gear types described at § 660.230(b)(6), and provided a valid declaration report as required at § 660.13(d), subpart C, has been filed with NMFS OLE.
(15)
(16)
(17)
(d) * * *
(7) Fish with bottom trawl gear (defined at § 660.11), other than demersal seine, unless otherwise specified in this section or § 660.330, within the EEZ in the following EFHCAs (defined at § 660.79): Brush Patch, Trinidad Canyon, Mad River Rough Patch, Samoa Deepwater, Eel River Canyon, Blunts Reef, Mendocino Ridge, Delgada Canyon, Tolo Bank, Navarro Canyon, Point Arena North, Point Arena South Biogenic Area, the Football, Gobbler's Knob, Point Reyes Reef, Cordell Bank/Biogenic Area, Rittenburg Bank, Farallon Islands/Fanny Shoal/Cochrane Bank, Farallon Escarpment, Half Moon Bay, Pescadero Reef, Pigeon Point Reef, Ascension
(8) Fish inside the nontrawl RCA with any gear type other than those specified at § 660.330(b)(3). In addition, a vessel may not carry more than one gear type as specified at § 660.330(b)(3) on board while declared to fish inside the nontrawl RCA (see §660.13(d)(4)(iv)(A) for valid declarations for use inside the nontrawl RCA).
The revisions and additions read as follows:
(a)
(b) * * *
(3)
(i) * * *
(A) Must be a minimum of 30 feet between the bottom weight and the lowest fishing hook;
(B) No more than 4 vertical mainlines attached to or fished from the vessel (
(ii) * * *
(B) No more than one mainline attached to or fished from the vessel may be used in the water at one time;
(d) * * *
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(i) It is unlawful to operate a vessel in the nontrawl RCA that has nontrawl gear onboard and is not registered to a limited entry permit on a trip in which the vessel is used to take and retain or possess groundfish in the EEZ, or land groundfish taken in the EEZ, except for the purpose of continuous transiting, or when the use of nontrawl gear is authorized in part 660.
(ii) On any trip on which a groundfish species is taken with nontrawl open access gear and retained, the open access nontrawl vessel may transit through the nontrawl RCA only if all groundfish nontrawl gear is stowed either: Below deck; or if the gear cannot readily be moved, in a secured and covered manner, detached from all lines, so that it is rendered unusable for fishing.
(iii) The nontrawl RCA restrictions in this section apply to vessels taking and retaining or possessing groundfish in the EEZ, or landing groundfish taken in the EEZ. Unless otherwise authorized by part 660, a vessel may not retain any groundfish taken on a fishing trip for species other than groundfish that occurs within the nontrawl RCA. If a vessel fishes in a non-groundfish fishery in the nontrawl RCA, it may not participate in any fishing for groundfish on that trip that is prohibited within the nontrawl RCA. [For example, if a vessel fishes in the salmon troll fishery within the RCA, the vessel cannot on the same trip fish in the sablefish fishery outside of the RCA.]
(iv) Fishing for “other flatfish” off California (between 42° N lat. south to the U.S./Mexico border) is allowed within the nontrawl RCA with hook and line gear only; and provided a valid declaration report as required at
(v) Target fishing for groundfish off Oregon and California (between 46°16′ N lat. and the U.S./Mexico border) is allowed within the nontrawl RCA for vessels participating in the directed open access sector as defined at § 660.11, subject to the gear restrictions at § 660.330(b)(3)(i-ii), and provided a valid declaration report as required at § 660.13(d) has been filed with NMFS OLE.
(16)
(i) It is unlawful to operate a vessel in the non-groundfish trawl RCA with non-groundfish trawl gear onboard, except for the purpose of continuous transiting, or when the use of trawl gear is authorized in part 660. It is unlawful to take and retain, possess, or land groundfish taken with non-groundfish trawl gear within the nontrawl RCA, unless otherwise authorized in part 660.
(ii) Non-groundfish trawl vessels may transit through the non-groundfish trawl RCA, with or without groundfish on board, provided all non-groundfish trawl gear is stowed either: Below deck; or if the gear cannot readily be moved, in a secured and covered manner, detached from all towing lines, so that it is rendered unusable for fishing; or remaining on deck uncovered if the trawl doors are hung from their stanchions and the net is disconnected from the doors.
(iii) The non-groundfish trawl RCA restrictions in this section apply to vessels taking and retaining or possessing groundfish in the EEZ, or landing groundfish taken in the EEZ. Unless otherwise authorized by Part 660, it is unlawful for a vessel to retain any groundfish taken on a fishing trip for species other than groundfish that
(iv) It is lawful to fish with non-groundfish trawl gear within the non-groundfish trawl RCA only under the following conditions:
(A) Pink shrimp trawling is permitted in the non-groundfish trawl RCA when a valid declaration report as required at
(B) When the shoreward line of the trawl RCA is shallower than 100 fm (183 m), vessels using ridgeback prawn trawl gear south of 34°27.00′ N lat. may operate out to the 100 fm (183 m) boundary line specified at
(17)
(18)
(19)
(c) * * *
(3) * * *
(i) * * *
(B)
(iv) * * *
(A)
Bureau for Management, Office of Acquisition and Assistance, PSC Rules and Policy Division (M/OAA/PSC), Agency for International Development (USAID).
Notice of information collection; request for comments.
In accordance with the Paperwork Reduction Act of 1995, M/OAA/PSC has proposed revisions to form AID 309-1 Contract With An Individual For Personal Services. The purpose of this notice is to allow 60 days for public comment preceding submission of the collection to OMB.
Interested persons are invited to submit comments within 60 days of this notice.
You may submit comments by any of the following methods:
•
•
Richard E. Spencer, Acting Division Chief, Management Bureau, Office of Acquisition and Assistance, PSC Rules and Policy Division (M/OAA/PSC), telephone (202) 916-2629, or via email at
A proposed update to the existing form is available for public comment before M/OAA/PSC will decide to publish the revised form. The authorities for the collection of information are: Foreign Assistance Act, Public Law 87-165, as amended; 48 CFR 37.104, Personal services contracts; and 48 CFR ch. 7, App. D, Direct USAID Contracts with a U.S. Citizen or a U.S. Resident Alien for Personal Services Abroad; and 48 CFR ch. 7, App. J, Direct USAID Contracts with a Cooperating Country National and with a Third Country National for Personal Services Abroad.
United States Agency for International Development/Mexico Mission (USAID/Mexico).
Notice of information collection; request for comment.
USAID/Mexico is seeking to increase understanding of the organizational landscape throughout the country to enhance USAID's development approach and understand local organizations' priority topic areas and capacities. USAID is issuing this Request for Information (RFI) to solicit information and potential interest from organizations to diversify USAID's partner and sub-partner base. The goal of the RFI is to better understand the organizational landscape in Mexico; diversify USAID/Mexico's partner and sub-partner base by creating avenues for new and underutilized partners and sub-partners to work with USAID; and brainstorm methods to support partners and sub-partners to become self-reliant and capable of achieving their development goals. The research data will be aggregated and not provide PII or other privacy-related information. USAID/Mexico invites the general public and other Federal agencies to take this opportunity to comment on the following new information collection, as required by the Paperwork Reduction Act of 1995.
All comments should be submitted within 60 calendar days from the date of this publication.
To access and review all the documents related to the information collection listed in this notice, please access the survey questionnaire at
Written requests for information or comments should be addressed to Andrea Capellan, Director, Office of Acquisition and Assistance, USAID/Mexico via email at
We are soliciting public comments to permit USAID to:
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record.
Agricultural Marketing Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Agricultural Marketing Service's (AMS) intention to request approval from the Office of Management and Budget (OMB) for an extension of the currently approved information collection, “Livestock, Poultry, and Grain Market News” (OMB 0581-0033).
Comments on this notice must be received by October 30, 2023 to be assured of consideration.
Interested persons are invited to submit comments concerning this notice by using the electronic process available at
Russell Avalos, Assistant to the Director; Livestock, Poultry, and Grain Market News Division; Livestock and Poultry Program; Telephone (202) 738-2112; or Email
LPGMN reporters communicate with buyers and sellers of livestock, poultry, meat, eggs, grain, local products, and their respective commodities on a daily basis to accomplish the Division's mission. This communication and information gathering is accomplished through the use of telephone conversations, facsimile transmissions, face-to-face meetings, and email messages. The information provided by respondents initiates Market News reporting, which must be timely, accurate, unbiased, and continuous if it is to be meaningful to the industry. AMS collects information on price, supply, demand, trends, movement, and other information of livestock, poultry, meat, grain, eggs, local products, and their respective commodities.
Comments are invited on: (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 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 the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will become a matter of public record.
Natural Resources Conservation Service, USDA.
Notice of intent (NOI) to prepare an environmental impact statement (EIS).
The Natural Resources Conservation Service (NRCS) Georgia State Office, announces its intent to prepare a watershed plan and EIS for the Lower Little Tallapoosa River 25A (also commonly known as Indian River), located in Carroll County on Indian Creek approximately 5 miles upstream of its confluence with Turkey Creek and approximately 14 miles northwest of Carrollton in the proximity of Bowdon, Georgia. The proposed watershed plan will examine alternative solutions to flood prevention and agricultural water management measures for the Carroll County Water Authority (CCWA) service area. NRCS is requesting comments to identify significant issues, potential alternatives, information, and analysis relevant to the proposed action from all interested individuals, Federal and State, agencies, and Tribes.
We will consider comments that we receive by October 16, 2023. Comments received after close of the
We invite you to submit comments in response to this notice. You may submit your comments through one of the methods below:
•
•
All comments received will be posted without change and made publicly available on
Diane A. Guthrie; telephone: (706) 546-2310; email:
The primary purpose of the watershed plan is to provide flood protection and damage reduction to meet current and future water demands in CCWA's service area and a rural water supply for 180,000 acres, providing 15,662 acre-feet of surface water. Watershed planning is authorized under the Watershed Protection and Flood Prevention Act of 1954 (Pub. L. 83-566), as amended, and the Flood Control Act of 1944 (Pub. L. 78-534).
The dominant land use of the watershed for the CCWA structure was historically a combination of agriculture and woodlands which generally remains unchanged today after more than 50 years, although some development has occurred downstream of the structure. The proposed Lower Little Tallapoosa River 25A project will address evaluating alternatives that will maintain or improve the currently provided level of flood protection and increase and maintain safe and reliable supplies of water for agriculture management and the local community. It will also increase water conservation and improve water delivery efficiency in the Lower Little Tallapoosa Watershed, which has been in use for nearly 50 years.
Development within the downstream breach zone has resulted in a change in classification for the Lower Little Tallapoosa River 25A to a high hazard structure. Due to changes in evaluation criteria, the dam does not meet current safety and performance standards for the integrity, stability, or capacity of a high hazard structure. Additionally, the current watershed structure will reach the end of its original 50-year design life in 2024 and needs to be brought into compliance with modern dam safety criteria including the regulations under the Georgia Rules for Safe Dams and NRCS TR-60 design criteria.
To meet the purpose of flood protection for the Lower Little Tallapoosa Watershed, the existing structures will be replaced with a new multipurpose structure to provide flood control and agriculture water management. A Draft Supplemental Watershed Plan and Environmental Assessment (EA) was prepared in 2021, which investigated and studied possible solutions to address flood protection and agricultural water management in the Lower Little Tallapoosa Watershed. As a result of the new information obtained during the EA process, the level of analysis this watershed project requires is more extensive than initially anticipated. Estimated Federal funds required for the construction of the proposed action may exceed $25 million and the proposed action will, therefore, require congressional approval per the 2018 Agriculture Appropriations Act amended funding threshold. In accordance with 7 CFR 650.7(a)(2), an EIS is required for projects requiring congressional approval.
The objective of the EIS is to formulate and evaluate alternatives for flood prevention and agricultural water management in the Carroll County Water Authority service area. The EIS is expected to evaluate two alternatives: one action alternative and one no action alternative. The alternatives that may be considered for detailed analysis include:
As mentioned above, the estimated Federal contribution to construction cost will exceed $25 million. This EIS will be prepared as required by section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA); the Council on Environmental Quality Regulations (40 CFR parts 1500-1508); and NRCS regulations that implement NEPA in 7 CFR part 650.
Resource concerns for scoping were identified and categorized as relevant or not relevant to the proposed action. CCWA and NRCS evaluated the current Lower Little Tallapoosa Watershed Structure No. 25A infrastructure along with relevant resource concerns for each proposed solution.
Environmental resources in the Lower Little Tallapoosa River 25A project area consist of the natural and human-made environment. Resource concerns to be
The following permits and authorizations are anticipated to be required:
•
•
•
•
•
•
A Draft EIS (DEIS) will be prepared and circulated for review and comment by agencies, Tribes, consulting parties, and the public for at least 45 days as required by 40 CFR 1503.1, 1502.20, 1506.11, and 1502.17, and 7 CFR 650.13. The DEIS is anticipated to be published in the
NRCS will decide whether to implement one of the alternatives as evaluated in the EIS. A Record of Decision will be completed after the required 30-day waiting period and will be publicly available. The responsible Federal official and decision maker for the NRCS is the Georgie NRCS State Conservationist.
CCWA held 7 public meetings between 2007 and 2017 as part of the EA process for its section 404 permit and 5 additional meetings with NRCS as part of the scoping process on May 23, 2018; July 16, 2018; March 28, 2019; August 1, 2019, and January 13, 2023. An additional public scoping meeting was held on May 1, 2023. Comments received, including the names and addresses of those who comment, will be part of the public record. Comments submitted anonymously will be accepted and considered. Scoping meeting presentation materials are available on the watershed project website:
Federal, State, Tribal, local agencies and representatives, and the public were invited to take part in this watershed plan scoping period through which coordination, sought input on issues of economic, environmental, cultural, and social importance in the watershed. CCWA and NRCS organized the public scoping meeting to provide an opportunity to review and evaluate the Lower Little Tallapoosa River 25A project alternatives, express concern or support, and gain further information regarding the Lower Little Tallapoosa River 25A project. To determine the most viable alternatives to carry forward to the EIS, CCWA used input obtained during public scoping discussions to focus on relevant resource concerns and issues and eliminated those that were not relevant from further detailed study.
NRCS invites agencies, Tribes, consulting parties, and individuals that have special expertise, legal jurisdiction, or interest in the Lower Little Tallapoosa River 25A project to provide comments concerning the scope of the analysis and identification of potential alternatives, information, and analyses relevant to the Proposed Action in writing.
NRCS will coordinate the scoping process to correspond with any required NHPA processes, as allowed in 36 CFR 800.2(d)(3) and 800.8 (54 U.S.C. 306108). The information about historic and cultural resources within the area potentially affected by the proposed Lower Little Tallapoosa River 25A project will assist NRCS in identifying and evaluating impacts to such resources in the context of both NEPA and NHPA.
NRCS will consult with Native American tribes on a government-to-government basis in accordance with 36 CFR 800.2 and 800.3, Executive Order 13175, and other policies. Tribal concerns, including impacts on Indian trust assets and potential impacts to cultural resources and historic properties, will be given due consideration.
This document is published pursuant to the NEPA regulations regarding publication of a NOI to issue an EIS (40 CFR 1501.9(d)). Watershed planning is authorized under the Watershed Protection and Flood Prevention Act of 1954, as amended, and the Flood Control Act of 1944.
The title and number of the Federal Assistance Program as found in the Assistance Listing
Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials that would be directly affected by proposed Federal financial assistance. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal financial assistance and direct Federal development. This Lower Little Tallapoosa River 25A project is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials.
In accordance with Federal civil rights law and USDA civil rights regulations and policies, USDA, its agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex,
Individuals who require alternative means of communication for program information (for example, braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA TARGET Center at (202) 720-2600 (voice and text telephone) or dial 711 for Telecommunications Relay Service (both voice and text telephone users can initiate this call from any phone). Additionally, program information may be made available in languages other than English.
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.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) is initiating a changed circumstances review (CCR) to determine if Highland Agro Food Private Limited (HA Food) is the successor-in-interest to Highland Agro in the context of the antidumping duty (AD) order on certain frozen warmwater shrimp (shrimp) from India. We preliminarily determine that HA Food is the successor-in-interest to Highland Agro.
Applicable August 30, 2023.
Terre Keaton Stefanova or Christopher Viers, AD/CVD Operations, Office IX, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1280 or (202) 482-0519, respectively.
On February 1, 2005, Commerce published in the
The merchandise subject to the
Pursuant to section 751(b)(1)(A) of the Act and 19 CFR 351.216(d), Commerce will conduct a CCR upon receipt of information concerning, or a request from, an interested party for a review of an AD order which shows changed circumstances sufficient to warrant a review of the order. The information submitted by HA Food supporting its claim that it is the successor-in-interest to Highland Agro demonstrates changed circumstances sufficient to warrant such a review.
Section 351.221(c)(3)(ii) of Commerce's regulations permits Commerce to combine the notice of initiation of a CCR and the notice of preliminary results if Commerce concludes that expedited action is warranted.
In this CCR, pursuant to section 751(b) of the Act, Commerce conducted a successor-in-interest analysis. In making a successor-in-interest determination, Commerce examines several factors, including, but not limited to, changes in the following: (1) management; (2) production facilities; (3) supplier relationships; and (4)
In accordance with 19 CFR 351.216, we preliminarily determine that HA Food is the successor-in-interest to Highland Agro. Record evidence, as submitted by HA Food, indicates that HA Food operates as essentially the same business entity as Highland Agro with respect to the subject merchandise.
For the complete successor-in-interest analysis, including discussion of business proprietary information,
In accordance with 19 CFR 351.309(c)(1)(ii), interested parties may submit case briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed no later than seven days after the case briefs, in accordance with 19 CFR 351.309(d). Parties who submit case or rebuttal briefs are encouraged to submit with each argument: (1) a statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request via ACCESS within 30 days of publication of this notice. Hearing requests should contain: (1) the party's name, address, and telephone number; (2) the number participants; and (3) a list of issues to be discussed. Oral presentations at the hearing will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing, in accordance with 19 CFR 351.310(d).
Consistent with 19 CFR 351.216(e), we will issue the final results of this CCR no later than 270 days after the date on which this review was initiated, or within 45 days if all parties agree to our preliminary finding.
This notice is published in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216(b), 351.221(b) and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In response to a request for a changed circumstances review (CCR), the U.S. Department of Commerce (Commerce) is initiating a CCR of the antidumping duty (AD) order on certain cut-to-length carbon-quality steel plate products (CTL plate) from the Republic of Korea (Korea). Additionally, Commerce preliminarily determines that the post-corporate reorganization Dongkuk Steel Mill Co., Ltd. (Dongkuk Steel) is the successor-in-interest to the pre-reorganization Dongkuk Steel. Interested parties are invited to comment on these preliminary results.
Applicable August 30, 2023.
Christopher Williams, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4243.
On February 10, 2000, Commerce published the AD order on CTL plate from Korea in the
The new Dongkuk Steel explained that it requested a CCR because the former Dongkuk Steel spun-off its two business units in a reorganization in which new Dongkuk Steel, and a new operating entity, Dongkuk Coated Metal Co., Ltd. (Dongkuk CM) now operate as subsidiaries of Dongkuk Holdings Co., Ltd. (Dongkuk Holdings).
We did not receive comments from other interested parties concerning this request.
The merchandise covered by this
Pursuant to section 751(b)(1) of the Act, and 19 CFR 351.216, Commerce will conduct a CCR of an order upon receipt of information or a review request from an interested party for a review of an AD order which shows changed circumstances sufficient to warrant a review of the order. In the past, Commerce has used CCRs to address the applicability of cash deposit rates after there have been changes in the name or structure of a respondent, such as a merger or spinoff (“successor-in-interest” or “successorship” determinations).
Section 351.221(c)(3)(ii) of Commerce's regulations permits Commerce to combine the notice of initiation of a CCR and the notice of preliminary results if Commerce concludes that expedited action is warranted.
In this CCR, pursuant to section 751(b) of the Act, Commerce conducted a successor-in-interest analysis. In making a successor-in-interest determination, Commerce examines several factors, including, but not limited to, changes in the following: (1) ownership and management; (2) production facilities; (3) supplier relationships; and (4) customer base.
In accordance with 19 CFR 351.216, we preliminarily determine that the new Dongkuk Steel is the successor-in-interest to the former Dongkuk Steel. Record evidence, as submitted by the new Dongkuk Steel, indicates that the new Dongkuk Steel operates as essentially the same business entity as the former Dongkuk Steel with respect to the subject merchandise.
For the complete successor-in-interest analysis,
In accordance with 19 CFR 351.309(c)(1)(ii), interested parties may submit case briefs not later than 14 days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request via ACCESS within 14 days of publication of this notice.
All submissions are to be filed electronically using ACCES. An electronically filed document must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Time on the established deadline.
Should our final results remain unchanged from these preliminary results, we will instruct U.S. Customs and Border Protection to assign entries of subject merchandise produced or exported by new Dongkuk Steel the AD cash deposit rate applicable to former Dongkuk Steel.
Consistent with 19 CFR 351.216(e), we will issue the final results of this CCR no later than 270 days after the date on which this review was initiated, or within 45 days if all parties agree to our preliminary finding.
This notice is published in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216(b), 351.221(b) and 351.221(c)(3).
Office for Coastal Management, National Ocean Service, National Oceanic and Atmospheric Administration, Department of Commerce.
Notice of public meeting; request for comments.
The National Oceanic and Atmospheric Administration (NOAA), Office for Coastal Management, will hold a virtual public meeting to solicit input on the performance evaluation of the Narragansett Bay National Estuarine Research Reserve. NOAA also invites the public to submit written comments.
NOAA will hold a virtual public meeting on Wednesday, October 11, 2023, at 12:30 p.m. Eastern Time (ET). NOAA will close the meeting 15 minutes after the conclusion of public comments and after responding to any clarifying questions from meeting participants. NOAA will consider all relevant written comments received by Friday, October 20, 2023.
Comments may be submitted by one of the following methods:
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Pam Kylstra, Evaluator, NOAA Office for Coastal Management, by email at
Section 312 of the Coastal Zone Management Act (CZMA) requires NOAA to conduct periodic evaluations of federally approved national estuarine research
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of hybrid meeting.
The North Pacific Fishery Management Council (Council) Crab Plan Team will meet. See
The meeting will be held on Tuesday, September 12, 2023, through Thursday, September 14, 2023, from 9 a.m. to 4:30 p.m., Pacific Standard time.
The meetings will be a hybrid meeting. The in-person component of the meeting will be held at the Alaska Fishery Science Center in the Traynor Room 2076, 7600 Sand Point Way NE, Building 4, Seattle, WA 98115, If you plan to attend in-person you need to notify Sarah Rheinsmith (
Sarah Rheinsmith, Council staff; phone: (907) 271-2809; email:
The agenda will include: (a) summer trawl survey results; (b) Fishery summary 2022/2023; (c) Ecosystem Status report; (d) Economic status of fisheries update; (e) PIBKC (Pribilof Island Blue King Crab) SAFE (Stock Assessment and Fishery Evaluation) report; (f) BBRKC (Bristol Bay Red King) Crab SAFE report; (g) Snow crab SAFE report; (h) BBRKC and snow crab report cards; (i) Tanner crab SAFE report; (j) NSRKC (Norton Sound Red King Crab) proposed models; (k) Overfishing status updates; (l) BSFRF (Bering Sea Fisheries Research Foundation) update; and (m) additional topics. The agenda is subject to change, and the latest version will be posted at
You can attend the meeting online using a computer, tablet, or smart phone, or by phone only. Connection information will be posted online at:
Public comment letters will be accepted and should be submitted electronically to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments on proposed renewal incidental harassment authorization.
NMFS received a request from the Office of Naval Research (ONR) for the renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to Arctic Research Activities (ARA) in the Beaufort Sea and eastern Chukchi Sea. These activities identical to those covered in the current authorization. Pursuant to the Marine Mammal Protection Act (MMPA), prior to issuing the currently active IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed renewal not previously provided during the initial 30-day comment period.
Comments and information must be received no later than September 14, 2023.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, and should be submitted via email to
Electronic copies of the original application, renewal request, and supporting documents (including NMFS
Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.
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 such species or stocks for taking for certain subsistence uses (referred to here as “mitigation measures”). Monitoring and reporting of such takings are also required. The meaning of key terms such as “take,” “harassment,” and “negligible impact” can be found in section 3 of the MMPA (16 U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e) indicate that IHAs may be renewed for additional periods of time not to exceed 1 year for each reauthorization. In the notice of proposed IHA for the initial authorization, NMFS described the circumstances under which we would consider issuing a renewal for this activity, and requested public comment on a potential renewal under those circumstances. Specifically, on a case-by-case basis, NMFS may issue a one-time 1-year Renewal IHA following notice to the public providing an additional 15 days for public comments when (1) up to another year of identical, or nearly identical, activities as described in the Detailed Description of Specified Activities section of the initial IHA issuance notice is planned, or (2) the activities as described in the Description of the Specified Activities and Anticipated Impacts section of the initial IHA issuance notice would not be completed by the time the initial IHA expires and a renewal would allow for completion of the activities beyond that described in the
1. A request for renewal is received no later than 60 days prior to the needed Renewal IHA effective date (recognizing that the Renewal IHA expiration date cannot extend beyond 1 year from expiration of the initial IHA).
2. The request for renewal must include the following:
• An explanation that the activities to be conducted under the requested Renewal IHA are identical to the activities analyzed under the initial IHA, are a subset of the activities, or include changes so minor (
• A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized.
3. Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures will remain the same and appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45 days), with direct notice by email, phone, or postal service to commenters on the initial IHA, is provided to allow for any additional comments on the proposed renewal. A description of the renewal process may be found on our website at:
The NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity.” The activity for which incidental take of marine mammals is being requested addressed here qualifies as a military readiness activity.
In August 2022, the U.S. Navy prepared an Overseas Environmental Assessment (OEA) analyzing the project. Prior to issuing the IHA for the project, we reviewed the 2022 OEA and the public comments received, determined that a separate NEPA analysis was not necessary, and subsequently adopted the document and issued our own Finding of No Significant Impact in support of the issuance of an IHA (87 FR 57458; September 20, 2022).
We have reviewed ONR's application for a renewed IHA for ongoing Arctic Research Activities from September 2023 to September 2024 and the 2022 IHA monitoring report. Based on that review, we have determined that the proposed action is identical to that considered in the previous IHA. In addition, no significant new circumstances or information relevant to environmental concerns have been identified. Thus, we have preliminarily determined that the preparation of a new or supplemental NEPA document is not necessary.
On September 14, 2022, NMFS issued an IHA to ONR to take marine mammals incidental to Arctic Research Activities in the Beaufort and Chukchi Seas (87 FR 57458; September 20, 2022), effective
This proposed Renewal IHA would cover the sixth year of a larger project for which ONR obtained prior IHAs (83 FR 48799, September 27, 2018; 84 FR 50007, September 24, 2019; 85 FR 53333, August 28, 2020; 86 FR 54931, October 5, 2021; 87 FR 57458, September 20, 2022). The larger project supports the development of an under-ice navigation system under the ONR Arctic Mobile Observing System (AMOS) project.
ONR's ARA includes the AMOS experiments in the Beaufort and Chukchi Seas. Project activities involve acoustic testing and a multi-frequency navigation system concept test using left-behind active acoustic sources. More specifically, these experiments involve the deployment of moored, drifting, and ice-tethered active acoustic sources from the Research Vessel Sikuliaq. Another vessel will be used to retrieve the acoustic sources. The activities proposed under the Renewal IHA are identical to those in the initial 2022 IHA.
Anticipated impacts, which would consist of Level B harassment of marine mammals, would also be identical to those analyzed and authorized in the initial 2022 IHA (87 FR 57458, September 20, 2022). ONR's request is for take of a small number of ringed seals (
A detailed description of ARA activities for which take is proposed here may be found in the Notices of the Proposed and Final IHA for the initial 2022 authorization (87 FR 44339, July 26, 2022; 87 FR 57458, September 20, 2022). The location, timing, and nature of the activities, including the types of equipment planned for use, are identical to those described in the previous notices. The proposed renewal would be effective for a period not exceeding 1 year from the date of expiration of the initial IHA.
A description of the marine mammals in the area of the activities for which authorization of take is proposed here, including information on abundance, status, distribution, and hearing, may be found in the Notices of the Proposed IHA (87 FR 44339, July 26, 2022) for the initial 2022 authorization. NMFS has reviewed the monitoring data from the initial IHA, Stock Assessment Reports, information on relevant Unusual Mortality Events (UMEs), unusual and other scientific literature, and determined that neither this nor any other new information affects which species or stocks have the potential to be affected or the pertinent information in the Description of the Marine Mammals in the Area of Specified Activities contained in the supporting documents for the initial 2022 IHA.
A description of the potential effects of the specified activity on marine mammals and their habitat for the activities for which the authorization of take is proposed here may be found in the Notices of the Proposed and Final IHAs for the initial 2022 authorization (87 FR 44339, July 26, 2022; 87 FR 57458, September 20, 2022). NMFS has reviewed the monitoring data from the initial IHA, recent draft Stock Assessment Reports, information on relevant UMEs, and other scientific literature, and determined that neither this nor any other new information affects our initial analysis of impacts on marine mammals and their habitat.
A detailed description of the methods and inputs used to estimate take for the specified activity are found in the Notices of the Proposed and Final IHAs for the initial 2022 authorization (87 FR 44339, July 26, 2022; 87 FR 57458, September 20, 2022). The activities applicable to this authorization remain unchanged from the previously issued IHA. Similarly, the stocks taken, methods of take, and types of take remain unchanged from the previously issued IHA, as do the number of takes, which are indicated below in table 1.
The proposed mitigation, monitoring, and reporting measures included as requirements in this authorization are identical to those included in the
• All ships operated by or for the Navy must have personnel assigned to stand watch at all times while underway.
• During moored and drifting acoustic source deployment, ONR must implement a mitigation zone of 180 feet (55 meters) around the deployed source. Deployment must cease if a marine mammal is visually detected within the mitigation zone.
• Ships must avoid approaching marine mammals head-on and must maneuver to maintain a mitigation zone of 500 yards (457 meters) around all observed cetaceans and 200 yards (183 meters) around all other observed marine mammals, provided it is safe to do so.
• Ship captains and subsistence whalers will maintain at-sea communication to avoid conflict of ship transit with hunting activity.
• Activities must cease if a marine mammal species for which take was not authorized, or a species for which authorization was granted but the authorized number of takes have been met, is observed approaching or within the Level A or Level B harassment zones. Activities must not resume until the animal is confirmed to have left the area.
• While underway, all ships must have at least one person trained through the U.S. Navy Marine Species Awareness Training Program on watch during all activities.
• Watch personnel must use standardized data collection forms, whether hard copy or electronic. Watch personnel must distinguish between sightings that occur on transit or during deployment of acoustic sources. Data will be recorded on all days of activities even if marine mammals are not sighted.
• During deployment of acoustic sources or unmanned underwater vehicles (UUVs), visual observation must begin 30 minutes prior to deployment and continue through 30 minutes following the source deployment.
• The ONR will submit a draft report to NMFS Office of Protected Resources (OPR) and Alaska Regional (AKR) on all monitoring conducted under the IHA within 90 calendar days of the completion of each research cruise, or 60 days prior to the issuance of any subsequent IHA for this project, whichever comes first. The report must include data regarding acoustic source use, the number of shutdowns during monitoring, any marine mammal sightings (including the marine mammal's location (latitude and longitude)), and the number of individuals of each species observed during source deployment and operation, and their behavior and distance from the project activities. A final report must be prepared and submitted to NMFS OPR and AKR within 30 days following resolution of comments on the draft report from NMFS.
• If no comments are received from NMFS within 30 days of submission of the draft final report, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.
• In the event that personnel involved in the survey activities discover an injured or dead marine mammal, the ONR must report the incident to the OPR NMFS and to the AKR Stranding Coordinator as soon as feasible. The report must include time, date, and location of discover, species identification, animal condition, observed behaviors, photographs and/or video footage, if available, and circumstances under which the animal was discovered.
• In the event of a ship strike of a marine mammal by any vessel involved in the activities covered by the authorization, the ONR must report the incident to OPR, NMFS and to the AKR Stranding Coordinator as soon as feasible. The report must include time, date, and location of the incident, species identification, vessel speed, vessel course/heading and operations, sound source status, avoidance measures taken, environmental conditions, animal's estimated size, length, and behavior, presence and behavior of other marine mammals in the area, estimated fate of the animal, and photos/video footage of the animal, if available.
As noted previously, NMFS published a notice of a proposed IHA (87 FR 44339, July 26, 2022) and solicited public comments on both our proposal to issue the initial IHA and on the potential for a Renewal IHA, should certain requirements be met.
There we no substantive comments received that needed to be addressed in the notice announcing the issuance of the initial 2022 IHA (87 FR 57458, September 20, 2022).
The proposed action of this Renewal IHA, ONR's Arctic Research Activities, would be identical to the activities analyzed in the initial 2022 IHA. Based on the analysis detailed in the notices of the initial authorization of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS found that the total marine mammal take from the activity would have a negligible impact on all affected marine mammal species and stocks. Furthermore, the mitigation measures and monitoring and reporting requirements are identical to those in the initial 2022 IHA.
NMFS has preliminarily concluded that there is no new information suggesting that our analysis or findings should change from those reached for the initial 2022 IHA. Based on the information and analysis contained here and in the referenced documents, NMFS has determined the following: (1) the required mitigation measures will effect the least practicable impact on marine mammal species or stocks and their habitat; (2) the authorized takes will have a negligible impact on the affected marine mammal species or stocks; (3) the authorized takes represent small numbers of marine mammals relative to the affected stock abundances; (4) ONR's activities will not have an unmitigable adverse impact on taking for subsistence purposes as no relevant subsistence uses of marine mammals are implicated by this action; and, (5) appropriate monitoring and reporting requirements are included.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA, 16 U.S.C. 1531
There is one marine mammal species (Arctic ringed seal) with confirmed occurrence in the study area that is listed as threatened under the ESA. The NMFS Alaska Regional Office of Protected Resources Division issued a Biological Opinion on September 13, 2022 under section 7 of the ESA, on the issuance of an IHA to ONR under section 101(a)(5)(D) of the MMPA by the NMFS Permits and Conservation Division. The Biological Opinion concluded that the action is not likely to jeopardize the continued existence of Arctic ringed seals, and is not likely to destroy or adversely modify Arctic ringed seal critical habitat.
As a result of these preliminary determinations, NMFS proposes to issue a Renewal IHA to ONR for conducting Arctic Research Activities in the Beaufort and Chukchi Seas from September 14, 2023 to September 13, 2024, provided the previously described mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed and final initial IHA can be found at
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of open meeting.
This notice announces a public meeting of the Commerce Spectrum Management Advisory Committee (Committee). The Committee provides advice to the Assistant Secretary of Commerce for Communications and Information and the National Telecommunications and Information Administration (NTIA) on spectrum management policy matters.
The meeting will be held September 21, 2023, from 1:00 p.m. to 4:00 p.m., Eastern Daylight Time (EDT).
The meeting will be held at the Verizon Technology and Policy Center, 1300 I St. NW, Suite 500 East, Washington, DC 20005. Public comments may be emailed to
Antonio Richardson, Designated Federal Officer, at (202) 482-4156 or
This Committee is subject to the Federal Advisory Committee Act (FACA), 5 U.S.C. app. 2, and is consistent with the National Telecommunications and Information Administration Act, 47 U.S.C. 904(b). The Committee functions solely as an advisory body in compliance with the FACA. For more information about the Committee visit:
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 the collection of certain information by the agency. Under the Paperwork Reduction Act (“PRA”), Federal agencies are required to publish notice in the
Comments must be submitted on or before October 30, 2023.
You may submit comments, identified by OMB Control No. 3038-0103, by any of the following methods:
•
•
•
Please submit your comments using only one of these methods and identify that it is for the renewal of Collection Number 3038-0103.
Chase Lindsey, Assistant Chief Counsel, Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581; (202) 740-4833;
Under the PRA, 44 U.S.C. 3501
• Pursuant to § 17.01(a), futures commission merchants (“FCMs”), clearing members, and foreign brokers shall identify new special accounts to the Commission on Form 102A;
• Pursuant to § 17.01(b), clearing members shall identify volume threshold accounts to the Commission on Form 102B; and
• Pursuant to § 17.01(c), omnibus volume threshold account originators and omnibus reportable sub-account originators shall identify reportable subaccounts to the Commission on Form 71 when requested via a special call by the Commission or its designee.
Additional reporting requirements arise from § 18.04, which results in the collection of information via Form 40 from and regarding traders who own, hold, or control reportable positions; volume threshold account controllers; persons who own volume threshold accounts; reportable sub-account controllers; and persons who own reportable sub-accounts.
Reporting requirements also arise from § 20.5(a), which requires all reporting entities to submit Form 102S for swap counterparty or customer consolidated accounts with reportable positions. In addition, § 20.5(b) requires every person subject to books or records under current § 20.6 to complete a 40S filing after a special call upon such person by the Commission.
In addition to the reporting requirements summarized above, § 18.05 imposes recordkeeping requirements upon: (1) Traders who own, hold, or control a reportable futures or options on futures position; (2) volume threshold account controllers; (3) persons who own volume threshold accounts; (4) reportable sub-account controllers; and (5) persons who own reportable subaccounts.
With respect to the collection of information, the CFTC 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 automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to
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
Consumer Financial Protection Bureau.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (CFPB) requests the extension of the Office of Management and Budget's (OMB's) approval for an existing information collection titled “Real Estate Settlement Procedures Act (Regulation X)” approved under OMB Number 3170-0016.
Written comments are encouraged and must be received on or before September 29, 2023 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Requests for additional information should be directed to Anthony May, Paperwork Reduction Act Officer, at (202) 435-7278, or email:
Regulation X requires these information collections. However, to the extent that compliance with requirements in Regulation Z
Department of the Air Force, Department of Defense.
Notice of intent.
Pursuant to the Bayh-Dole Act and implementing regulations, the Department of the Air Force hereby gives notice of its intent to grant a partially exclusive (the field to include outdoor recreation) patent license agreement to Bowerbags, LLC, a corporation of the State of Ohio, having a place of business at 601 East 3rd St., Dayton, Ohio 45402.
Written objections must be filed no later than fifteen (15) calendar days after the date of publication of this Notice.
Submit written objections to Jaclyn Lauren Williams, Technology Business Specialist, 2510 Fifth Street, Bldg. 840, Room 413.30, Wright-Patterson AFB, OH 45433; Phone: (702) 715-4402; or Email:
Jaclyn Lauren Williams, Technology Business Specialist, 2510 Fifth Street, Bldg. 840, Room 413.30, Wright-Patterson AFB, OH 45433; Phone: (702) 715-4402; or Email:
The Department of the Air Force intends to grant the partially exclusive patent license agreement for the invention described in: U.S. Patent No. 8,857,681 B2, entitled, “Load Carriage Connector and System,” filed March 8, 2013, and issued October 14, 2014.
A load carriage connector and system for rapid mounting and demounting of a user-carried load. The connector utilizes two mating halves comprising a male connector half and a female connector half. The connector is configured to allow mating under various angles of approach, allowing the user to reliably couple the system even under conditions in which the user is unable to view the orientation of the connectors. Additionally, the configuration of the connector system allows the user to quickly and efficiently decouple the connector halves, even while under tensile or shear load.
The Department of the Air Force may grant the prospective license unless a timely objection is received that sufficiently shows the grant of the license would be inconsistent with the Bayh-Dole Act or implementing regulations. A competing application for a patent license agreement, completed in compliance with 37 CFR 404.8 and received by the Air Force within the period for timely objections, will be treated as an objection and may be considered as an alternative to the proposed license.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice.
The Defense Acquisition Regulations System has submitted to OMB for clearance, the following proposal for extension of a collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by September 29, 2023.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
You may also submit comments, identified by docket number and title, by the following method: Federal eRulemaking Portal:
Angela Duncan, 571-372-7574, or
This requirement supports implementation of section 1656(b) of the National Defense Authorization Act for fiscal year 2018. Section 1656 prohibits DoD from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service to carry out the nuclear deterrence mission and homeland defense mission that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as a part of any system.
This requirement is implemented in the Defense Federal Acquisition Regulation Supplement (DFARS) through the provision at 252.204-7017, Prohibition on the Acquisition of Covered Defense Telecommunications Equipment or Services—Representation, and the clause at 252.204-7018, Prohibition on Acquisition of Covered Defense Telecommunications Equipment or Services.
This clearance covers the following requirements:
• DFARS 252.204-7017 requires that if an offeror provides an affirmative representation under the provision at 252.204-7016, Covered Defense Telecommunications Equipment or Services—Representation, that offeror is required to represent whether it will or will not provide under the contract covered defense telecommunications equipment or services.
• DFARS 252.204-7018 requires contractors to report covered telecommunications equipment, systems, and services identified during performance of a contract.
Department of Defense (DoD).
Renewal of Federal Advisory Committee meeting.
The DoD is publishing this notice to announce that it is renewing the Defense Policy Board (DPB).
Jim Freeman, DoD Advisory Committee Management Officer, 703-692-5952.
The DoD is renewing the DPB in accordance with chapter 10 of title 5, United States Code (U.S.C.) (commonly known as the “Federal Advisory Committee Act” or “FACA”) and 41 CFR 102-3.50(d). The charter and contact information for the DPB's Designated Federal Officer (DFO) are found at
The DPB provides the Secretary of Defense and the Deputy Secretary of Defense (“the DoD Appointing Authority”) independent advice and recommendations on matters concerning defense policy and national security issues. Specifically, the DPB
The DPB shall be composed of not more than 20 members who have distinguished backgrounds in defense and national security affairs. These members will come from varied backgrounds including prior government or military service, multinational corporations, academia, or other non-government organizations. Individual members will be appointed according to DoD policy and procedures, and serve a term of service of one-to-four years with annual renewals. One member will be appointed as Chair of the DPB. No member, unless approved according to DoD policy and procedures, may serve more than two consecutive terms of service on the DPB, or serve on more than two DoD Federal advisory committees at one time.
Individual members are appointed according to DoD policy and procedures, and serve a term of service of one-to-four years with annual renewals. One member will be appointed as Chair of the DPB. No member, unless approved according to DoD policy and procedures, may serve more than two consecutive terms of service on the DPB, or serve on more than two DoD Federal advisory committees at one time.
DPB members who are not full-time or permanent part-time Federal civilian officers or employees, or active duty members of the Uniformed Services, are appointed as experts or consultants, pursuant to 5 U.S.C. 3109, to serve as special government employee members. DPB members who are full-time or permanent part-time Federal civilian officers or employees, or active duty members of the Uniformed Services are appointed pursuant to 41 CFR 102-3.130(a), to serve as regular government employee members.
All DPB members are appointed to provide advice based on their best judgment without representing any particular point of view and in a manner that is free from conflict of interest. Except for reimbursement of official DPB-related travel and per diem, members serve without compensation.
The public or interested organizations may submit written statements about the DPB's mission and functions. Written statements may be submitted at any time or in response to the stated agenda of planned meeting of the DPB. All written statements shall be submitted to the DFO for the DPB using the link provided in this
Department of the Navy (DoN), Department of Defense (DoD).
Notice of issuance of Certificate of Alternate Compliance.
The U.S. Navy hereby announces that a Certificate of Alternate Compliance has been issued for USS
This Certificate of Alternate Compliance is effective August 30, 2023 and is applicable beginning August 23, 2023.
Lieutenant Ryan Feingold, JAGC, U.S. Navy, Admiralty Attorney, Office of the Judge Advocate General, Admiralty and Claims Division (Code 15), 1322 Patterson Ave SE, Suite 3000, Washington Navy Yard, DC 20374-5066, 202-685-5075, or
Background and Purpose.
Executive Order (E.O.) 11964 of January 19, 1977 and 33 U.S.C. 1605 provide that the requirements of the International Regulations for Preventing Collisions at Sea, 1972 (72 COLREGS), as to the number, position, range, or arc of visibility of lights or shapes, as well as to the disposition and characteristics of sound-signaling appliances, shall not apply to a vessel or class of vessels of the Navy where the Secretary of the Navy shall find and certify that, by reason of special construction or purpose, it is not possible for such vessel(s) to comply fully with the provisions without interfering with the special function of the vessel(s). Notice of issuance of a Certificate of Alternate Compliance must be made in the
In accordance with 33 U.S.C. 1605, the Admiralty Counsel of the Navy, under authority delegated by the Secretary of the Navy, hereby finds and certifies that USS
The Admiralty Counsel of the Navy further finds and certifies that these navigational lights are in closest possible compliance with the applicable provision of the 72 COLREGS.
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a new information collection request (ICR).
Interested persons are invited to submit comments on or before October 30, 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 Jones, 202-453-7835.
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.
The Charter School Programs (CSP) was originally authorized under Title V, Part B, Subpart 1, Sections 5201 through 5211 of the Elementary and Secondary Education Act (ESEA) of 1965, as amended by the No Child Left Behind (NCLB) Act of 2001. For fiscal year 2017 and thereafter, ESEA has been amended by the Every Student Succeeds Act (ESSA), (20USC 7221-7221i), which reserves funds to improve education by supporting innovation in public education and to: (2) provide financial assistance for the planning, program design, and initial implementation of charter schools; (3) increase the number of high-quality charter schools available to students across the United States; (4) evaluate the impact of charter schools on student achievement, families, and communities, and share best practices between charter schools and other public schools; (5) encourage States to provide support to charter schools for facilities financing in an amount more nearly commensurate to the amount States typically provide for traditional public schools; (6) expand opportunities for children with disabilities, English learners, and other traditionally underserved students to attend charter schools and meet the challenging State academic standards; (7) support efforts to strengthen the charter school authorizing process to improve performance management, including transparency, oversight and monitoring (including financial audits), and evaluation of such schools; and (8) support quality, accountability, and transparency in the operational performance of all authorized public chartering agencies, including State educational agencies, local educational agencies, and other authorizing entities.
The U.S. Department of Education (ED) is requesting authorization to collect data from CSP grantees within the Developer program through a new online platform. In 2022, ED began development of a new data collection system, the Charter Online Management and Performance System (COMPS), designed specifically to reduce the burden of reporting for users and increase validity of the overall data. This new collection consists of questions responsive to the actions established in the program's final rule published in the
Office of Elementary and Secondary Education (OESE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act (PRA) of 1995, the Department is proposing a new information collection request (ICR).
Interested persons are invited to submit comments on or before October 30, 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 Adrienne Hawkins, (202) 987-1248.
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.
The U.S. Department of Education (ED) is requesting authorization to collect data from CSP grantees within the SE program through a new online platform. In 2022, ED began development of a new data collection system, the Charter Online Management and Performance System (COMPS), designed specifically to reduce the burden of reporting for users and increase validity of the overall data. This new collection consists of questions responsive to the actions established in the program's final rule published in the
Grid Deployment Office, Department of Energy.
Notice of application.
In Commodities US LLC (the Applicant or In Commodities) has applied for authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before September 29, 2023.
Comments, protests, motions to intervene, or requests for more information should be addressed by electronic mail to
Christina Gomer, (240) 474-2403,
The United States Department of Energy (DOE) regulates electricity exports from the United States to foreign countries in accordance with section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)) and regulations thereunder (10 CFR 205.300
Section 202(e) of the FPA provides that an entity which seeks to export electricity must obtain an order from DOE authorizing that export (16 U.S.C. 824a(e)). On April 10, 2023, the authority to issue such orders was delegated to the DOE's Grid Deployment Office (GDO) by Delegation Order No. S1-DEL-S3-2023 and Redelegation Order No. S3-DEL-GD1-2023.
On June 21, 2023, In Commodities filed an application with DOE (Application or App.) for authorization to transmit electric energy to Canada for a five-year term. App at 1.
In its Application, In Commodities states that it is a Delaware limited liability company with its headquarters in Denmark, and that “is also registered as a foreign limited liability company in the states of New Jersey, New York, and Texas.”
The existing international transmission facilities to be utilized by the Applicant have been previously authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning In Commodities' Application should be clearly marked with GDO Docket No. EA-502. Additional copies are to be provided directly to Divna Gavric, In Commodities US LLC, 251 Little Falls Drive, Wilmington, DE 19808,
A final decision will be made on the requested authorization after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE evaluates whether the proposed action will have an adverse impact on the sufficiency of supply or reliability of the United States electric power supply system.
Copies of this Application will be made available, upon request, by accessing the program website at
Grid Deployment Office, Department of Energy.
Notice of application.
Royal Bank of Canada (the Applicant or RBC) has applied for renewed authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before September 29, 2023.
Comments, protests, motions to intervene, or requests for more information should be addressed by electronic mail to
Christina Gomer, (240) 474-2403,
The United States Department of Energy (DOE) regulates electricity exports from the United States to foreign countries in accordance with section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)) and regulations thereunder (10 CFR 205.300
Section 202(e) of the FPA provides that an entity which seeks to export electricity must obtain an order from DOE authorizing that export. (16 U.S.C. 824a(e)). On April 10, 2023, the authority to issue such orders was delegated to the DOE's Grid Deployment Office (GDO) by Delegation Order No. S1-DEL-S3-2023 and Redelegation Order No. S3-DEL-GD1-2023.
On September 4, 2008, DOE issued Order No. EA-342, authorizing RBC to transmit electric energy from the United States to Canada as a power marketer. Such authority was renewed in 2013 (EA-342-A) and 2018 (EA-342-B). On June 12, 2023, RBC filed an application
In its Application, RBC states that “[n]either RBC nor any of its affiliates (collectively, the `RBC Companies') owns, operates or controls any electric power transmission or distribution facilities in the United States.”
The existing international transmission facilities to be utilized by the Applicant have been previously authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning RBC's Application should be clearly marked with GDO Docket No. EA-342-C. Additional copies are to be provided directly to Laura Mul, RBC Capital Markets, LLC, 200 Vesey Street, 9th Floor, New York, NY 10281,
A final decision will be made on the requested authorization after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE evaluates whether the proposed action will have an adverse impact on the sufficiency of supply or reliability of the United States electric power supply system.
Copies of this Application will be made available, upon request, by accessing the program website at
Grid Deployment Office, Department of Energy.
Notice of application.
Eastern Maine Electric Cooperative, Inc. (the Applicant or EMEC) has applied for a Presidential permit to acquire, operate, and maintain facilities for the distribution of electric energy at the international border between the United States and Canada.
Comments, protests, or motions to intervene must be submitted on or before September 29, 2023.
Comments, protests, motions to intervene, or request for more information should be addressed by electronic email to
Christina Gomer, (240) 474-2403,
The Department of Energy (DOE) issues permits for the construction, operation, maintenance, or connection of electric transmission facilities at the United States international border, pursuant to E.O. 10485, as amended by E.O. 12038. On April 10, 2023, the authority to issue such orders was delegated to the DOE's Grid Deployment Office (GDO) by Delegation Order No. S1-DEL-S3-2023 and Redelegation Order No. S3-DEL-GD1-2023.
On June 2, 2022, EMEC filed an application (Application or App.) with the DOE “to import a small amount of energy from New Brunswick, Canada to serve two small seasonal camps that are in EMEC's service territory near the Canadian border.” App. at 1. EMEC “is a nonprofit utility built by and belonging to the communities it serves in Aroostook County, Penobscot County, and Washington County, Maine, which are located on Maine's Eastern Border with Canada.”
The facilities for which EMEC seeks a permit “consists of one single phase overhead circuit, which is a 7200-volt distribution line, 60Hz. The conductor size is either #6 or #4 wire. It is a single-phase line with a neutral.”
Comments and other filings concerning EMEC's Application should be clearly marked with GDO Docket No. PP-501. Additional copies are to be provided directly to Scott Hallowell, PO Box 425, Calais, ME 04619,
Copies of this Application will be made available, upon request, on the program website at
Grid Deployment Office, Department of Energy.
Notice of application.
NS Power Energy Marketing Incorporated (the Applicant or NSP Marketing) has applied for renewed authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before September 29, 2023.
Comments, protests, motions to intervene, or requests for more information should be addressed by electronic mail to
Christina Gomer, (240) 474-2403,
The United States Department of Energy (DOE) regulates electricity exports from the United States to foreign countries in accordance with section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)) and regulations thereunder (10 CFR 205.300
Section 202(e) of the FPA provides that an entity which seeks to export electricity must obtain an order from DOE authorizing that export. (16 U.S.C. 824a(e)). On April 10, 2023, the authority to issue such orders was delegated to the DOE's Grid Deployment Office (GDO) by Delegation Order No. S1-DEL-S3-2023 and Redelegation Order No. S3-DEL-GD1-2023.
On August 30, 2018, DOE issued Order No. EA-455 authorizing NSP Marketing to transmit electric energy from the United States to Canada as a power marketer. On June 30, 2023, NSP Marketing filed an application with DOE (Application or App.) for renewal of its export authority for an additional five-year term. App. at 1.
In its Application, NSP Marketing states it is a wholly-owned subsidiary of Nova Scotia Power Inc. (`NSPI') and that NSPI “is a wholly-owned subsidiary of Emera Incorporated (Emera).
The existing international transmission facilities to be utilized by the Applicant have been previously authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning NSP Marketing's Application should be clearly marked with GDO Docket No. EA-455-A. Additional copies are to be provided directly to Matt Clarke, Nova Scotia Power, 1223 Lower Water St., Halifax, NS B3J 3S8 Canada,
A final decision will be made on the requested authorization after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE evaluates whether the proposed action will have an adverse impact on the sufficiency of supply or reliability of the United States electric power supply system.
Copies of this Application will be made available, upon request, on the program website at
Office of Environmental Management, Department of Energy.
Notice of open meeting: cancellation.
On August 9, 2023, the Department of Energy published a notice of open meeting announcing a meeting on September 7, 2023, of the Environmental Management Site-Specific Advisory Board, Portsmouth. This notice announces the cancellation of this meeting.
The meeting scheduled for September 7, 2023, announced in the August 9, 2023, issue of the
Eric Roberts, Board Support Manager, by Phone: (270) 554-3004 or Email:
Grid Deployment Office, Department of Energy.
Notice of application.
MFT Energy US Power LLC (the Applicant) has applied for authorization to transmit electric energy from the United States to Canada pursuant to the Federal Power Act.
Comments, protests, or motions to intervene must be submitted on or before September 29, 2023.
Comments, protests, motions to intervene, or requests for more information should be addressed by electronic mail to
Christina Gomer, (240) 474-2403,
The United States Department of Energy (DOE) regulates electricity exports from the United States to foreign countries in accordance with section 202(e) of the Federal Power Act (FPA) (16 U.S.C. 824a(e)) and regulations thereunder (10 CFR 205.300
Section 202(e) of the FPA provides that an entity which seeks to export electricity must obtain an order from DOE authorizing that export. (16 U.S.C. 824a(e)). On April 10, 2023, the authority to issue such orders was delegated to the DOE's Grid Deployment Office (GDO) by Delegation Order No. S1-DEL-S3-2023 and Redelegation Order No. S3-DEL-GD1-2023.
On May 15, 2023, MFT Energy US Power LLC filed an application with DOE (Application or App.) for authorization to transmit electric energy to Canada for a ten-year term. App. at 1.
In its Application, MFT Energy US Power LLC states that it is “wholly owned by MFT Energy US, Inc., a Delaware corporation” which the Applicant states is “wholly owned by MFT Energy A/S, registered in Denmark.”
The existing international transmission facilities to be utilized by the Applicant have been previously authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.
Comments and other filings concerning MFT Energy US Power LLC's Application should be clearly marked with GDO Docket No. EA-500. Additional copies are to be provided directly to Simon Fisker Rathjen, MFT Energy US Power LLC, 70 W. Madison Street, Chicago, IL 60602,
A final decision will be made on the requested authorization after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after DOE evaluates whether the proposed action will have an adverse impact on the sufficiency of supply or reliability of the United States electric power supply system.
Copies of this Application will be made available, upon request, by accessing the program website at
U.S. Energy Information Administration (EIA), Department of Energy (DOE).
Notice and request for comments.
DOE requests a three-year extension, with changes, to Form DOE-417
DOE must receive all comments on this proposed information collection no later than October 30, 2023. If you anticipate any difficulties in submitting your comments by the deadline, contact the person listed in the
Written comments may be sent to DOE-417 Recertification, C/O Matthew Tarduogno, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, or by email at
Matthew Tarduogno, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585,
This information collection request contains: (1)
(2)
(3)
(4)
(4a)
• Minor edit to alert criteria 2 to add “as defined in the NERC Glossary of Terms”
• Under “Criteria for Filing” section, added alert criteria 27, “Uncontrolled loss of a total of 500 MW of more from inverter-based resource(s) for greater than 30 minutes at a common point of interconnection to the bulk electric system.”
• Under “Cause” in the “Type of Emergency” section, added the following subcategories to physical attack:
• Under “Cause” in the “Type of Emergency” section, added the following subcategories to suspicious activity:
• Under “Cause” in the “Type of Emergency”, combined “Cyber event information technology” and “Cyber Event (operational technology)” and added the following subcategories:
• Updated Instructions: Replaced “Office of Electricity” with “Office of Cybersecurity, Energy Security, and Emergency Response.
• Updated Instructions: Replaced “Assistant Secretary” with “Director.”
• Update Instructions: Appendix A. Replace “What is Excluded” text for generating entities with “For entities who have 300 MW or more of generation there are no exclusions allowed. All items need to be addressed.”
(5)
(6)
(7)
(8)
Comments are invited on whether or not: (a) The proposed collection of information is necessary for the proper performance of agency functions, including whether the information will have a practical utility; (b) DOE's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used, is accurate; (c) DOE can improve the quality, utility, and clarity of the information it will collect; and (d) DOE can minimize the burden of the collection of information on respondents, such as automated collection techniques or other forms of information technology.
Take notice that the Commission has received the following Natural Gas and Oil Pipeline Rate and Refund Report filings:
Filings Instituting Proceedings
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595 or
Take notice that on August 18, 2023, Transcontinental Gas Pipe Line Company, LLC (Transco), P.O. Box 1396, Houston, Texas 77251, filed an application under section 7(b) of the Natural Gas Act (NGA), and part 157 of the Commission's regulations requesting authorization for its Abandonment of South Marsh Island 147 to South Marsh Island 130 Project (Project). The Project consists of the abandonment of its offshore transmission lateral extending from South Marsh Island Block 147 to a subsea tie-in in South Marsh Island Block 130 and auxiliary facilities, Offshore, Louisiana. Transco states that the Project will permit it to eliminate costs and risks associated with retention of the SMI 147 to SMI 130 Lateral. Transco estimates the total cost of the Project to be $2.56 million, all as more fully set forth in the application which is on file with the Commission and open for public inspection.
In addition to publishing the full text of this document in the
Any questions regarding the proposed project should be directed to Andre Pereira, Regulatory Analyst, Lead; P.O. Box 1396, Houston, Texas 77251; by phone at: 713-215-4362; or by email at:
Pursuant to section 157.9 of the Commission's Rules of Practice and Procedure,
There are three ways to become involved in the Commission's review of this project: you can file comments on the project, you can protest the filing, and you can file a motion to intervene in the proceeding. There is no fee or cost for filing comments or intervening. The deadline for filing a motion to intervene is 5:00 p.m. Eastern Time on September 13, 2023. How to file protests, motions to intervene, and comments is explained below.
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and
Any person wishing to comment on the project may do so. Comments may include statements of support or objections, to the project as a whole or specific aspects of the project. The more specific your comments, the more useful they will be.
Pursuant to sections 157.10(a)(4)
To ensure that your comments or protests are timely and properly recorded, please submit your comments on or before September 13, 2023.
There are three methods you can use to submit your comments or protests to the Commission. In all instances, please reference the Project docket number CP23-531-000 in your submission.
(1) You may file your comments electronically by using the eComment feature, which is located on the Commission's website at
(2) You may file your comments or protests electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments or protests by mailing them to the following address below. Your written comments must reference the Project docket number CP23-531-000.
The Commission encourages electronic filing of comments (options 1 and 2 above) and has eFiling staff available to assist you at (202) 502-8258 or
Persons who comment on the environmental review of this project will be placed on the Commission's environmental mailing list, and will receive notification when the environmental documents (EA or EIS) are issued for this project and will be notified of meetings associated with the Commission's environmental review process.
The Commission considers all comments received about the project in determining the appropriate action to be taken. However, the filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding. For instructions on how to intervene, see below.
Any person, which includes individuals, organizations, businesses, municipalities, and other entities,
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
There are two ways to submit your motion to intervene. In both instances, please reference the Project docket number CP23-531-000 in your submission.
(1) You may file your motion to intervene by using the Commission's eFiling feature, which is located on the Commission's website (
(2) You can file a paper copy of your motion to intervene, along with three copies, by mailing the documents to the address below. Your motion to intervene must reference the Project docket number CP23-531-000.
The Commission encourages electronic filing of motions to intervene (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Protests and motions to intervene must be served on the applicant either by mail or email at: Andre Pereira, Regulatory Analyst, Lead; P.O. Box 1396, Houston, Texas 77251; or by email at:
All timely, unopposed
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
On August 22, 2023, Rumford Falls Hydro LLC submitted to the Federal Energy Regulatory Commission (Commission) a copy of its application for a Clean Water Act Section 401(a)(1) water quality certification filed with the Maine Department of Environmental Protection (Maine DEP), in conjunction with the above captioned project. Pursuant to Section 401 of the Clean Water Act
If Maine DEP fails or refuses to act on the water quality certification request on or before August 22, 2024, then the agency certifying authority is deemed waived pursuant to section 401(a)(1) of the Clean Water Act, 33 U.S.C. 1341(a)(1).
Take notice that on August 17, 2023, Columbia Gas Transmission, LLC (Columbia), 700 Louisiana Street, Suite 1300, Houston, Texas 77002-2700, filed in the above referenced docket, a prior notice request for authorization, in accordance with section 7 of the Natural Gas Act, and part 157 Sections 157.205 and 157.216 of the Federal Energy Regulatory Commission's (Commission) regulations under the Natural Gas Act and Columbia's blanket certificate issued in Docket No. CP83-76-000. Columbia seeks authorization to abandon two injection/withdrawal well, connecting pipeline, and appurtenances located in the Victory B Storage Field in Marshall County, West Virginia, all as more fully set forth in the application which is on file with the Commission and open for public inspection.
In addition to publishing the full text of this document in the
Any questions regarding this prior notice request should be directed to David A. Alonzo, Manager, Project Authorizations, Columbia Gas Transmission, LLC, 700 Louisiana Street, Suite 1300, Houston, Texas 77002-2700, at (832) 320-5477 or david.
There are three ways to become involved in the Commission's review of this project: you can file a protest to the project, you can file a motion to intervene in the proceeding, and you can file comments on the project. There is no fee or cost for filing protests, motions to intervene, or comments. The deadline for filing protests, motions to intervene, and comments is 5:00 p.m. Eastern Time on October 23, 2023. How to file protests, motions to intervene, and comments is explained below.
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Pursuant to section 157.205 of the Commission's regulations under the NGA,
Protests must comply with the requirements specified in section 157.205(e) of the Commission's regulations,
Any person has the option to file a motion to intervene in this proceeding. Only intervenors have the right to request rehearing of Commission orders issued in this proceeding and to subsequently challenge the Commission's orders in the U.S. Circuit Courts of Appeal.
To intervene, you must submit a motion to intervene to the Commission in accordance with Rule 214 of the Commission's Rules of Practice and Procedure
All timely, unopposed motions to intervene are automatically granted by operation of Rule 214(c)(1). Motions to intervene that are filed after the intervention deadline are untimely and may be denied. Any late-filed motion to intervene must show good cause for being late and must explain why the time limitation should be waived and provide justification by reference to factors set forth in Rule 214(d) of the Commission's Rules and Regulations. A person obtaining party status will be placed on the service list maintained by the Secretary of the Commission and will receive copies (paper or electronic) of all documents filed by the applicant and by all other parties.
Any person wishing to comment on the project may do so. The Commission considers all comments received about the project in determining the appropriate action to be taken. To ensure that your comments are timely and properly recorded, please submit your comments on or before October 23, 2023. The filing of a comment alone will not serve to make the filer a party to the proceeding. To become a party, you must intervene in the proceeding.
There are two ways to submit protests, motions to intervene, and comments. In both instances, please reference the Project docket number CP23-529-000 in your submission.
(1) You may file your protest, motion to intervene, and comments by using the Commission's
(2) You can file a paper copy of your submission by mailing it to the address below. Your submission must reference the Project docket number CP23-529-000.
To mail via USPS, use the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
To send via any other courier, use the following address: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
The Commission encourages electronic filing of submissions (option 1 above) and has eFiling staff available to assist you at (202) 502-8258 or
Throughout the proceeding, additional information about the project will be available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at FERC.gov using the “eLibrary” link as described above. The eLibrary link also provides access to the texts of all formal documents issued by the Commission, such as orders, notices, and rulemakings.
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. For more information and to register, go to
Take notice that on August 22, 2023, Texas Eastern Transmission, LP (Texas Eastern), requested that the Federal Energy Regulatory Commission (Commission) grant an extension of time until December 23, 2023, to complete construction of the Perulack Compressor Units Replacement Project (Project) and place the Project facilities into service, as authorized in the September 23, 2021 Order Issuing Certificate and Approving Abandonment (Certificate Order),
Texas Eastern states it has completed abandonment activities as of June 30, 2023, and since that time has installed major foundations, set prefabricated buildings, installed major equipment, erected the compressor building, set the turbines, installed a portion of the main gas and utility pipeline, and installed electrical raceways and wiring. The remaining Project activities include the
Texas Eastern explains that its original construction schedule contemplated construction activities commencing in August 2021, running for approximately 16 months, and included construction windows based on meeting customer firm service requirements during peak demand season. Texas Eastern began construction in October 2021 shortly after receiving the Certificate Order, however, modifications to the schedule and construction phases were required to meet Texas Eastern's obligations for the upcoming winter heating season, resulting in a 24-month construction timeline. To avoid service disruption during the winter heating season, Texas Eastern states it planned for construction activities not to occur during the winter when there is a high demand for gas. Accordingly, the remaining Project activities are scheduled to be completed before the start of the 2023-2024 winter heating season. Texas Eastern avers its request for a three-month extension is consistent with Commission precedent and will not result in any additional environmental impacts not already examined on the record.
This notice establishes a 15-calendar day intervention and comment period deadline. Any person wishing to comment on Texas Eastern's request for an extension of time may do so. No reply comments or answers will be considered. If you wish to obtain legal status by becoming a party to the proceedings for this request, you should, on or before the comment date stated below, file a motion to intervene in accordance with the requirements of the Commission's Rules of Practice and Procedure (18 CFR 385.214 or 385.211) and the Regulations under the NGA (18 CFR 157.10).
As a matter of practice, the Commission itself generally acts on requests for extensions of time to complete construction for NGA facilities when such requests are contested before order issuance. For those extension requests that are contested,
In addition to publishing the full text of this document in the
The Commission strongly encourages electronic filings of comments in lieu of paper using the “eFile” link at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file scoping comments 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. The application is not ready for environmental analysis at this time.
l.
The Lake Lynn Project is currently operated as a dispatchable peaking facility, with storage. The current license requires Lake Lynn Generation, LLC to maintain Cheat Lake between 868 feet and 870 feet NGVD 29 from May 1 through October 31, 857 feet and 870 feet NGVD 29 from November 1 through March 31, and 863 feet and 870 feet NGVD 29 from April 1 through April 30 each year. The current license also requires Lake Lynn Generation, LLC to release a downstream minimum flow of 212 cubic-feet-per-second (cfs), or inflow, from the dam when not generating, with an absolute minimum flow of 100 cfs regardless of inflow, when not generating. The project generates about 144,741 megawatt-hours annually. Lake Lynn Generation, LLC proposes no modifications to its existing facilities or operations. Lake Lynn Generation, LLC proposes new environmental measures and to remove approximately 307 acres of land from the existing project boundary.
m. Copies of the application can be viewed on the Commission's website at
You may also register at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595, or at
n. Scoping Process
Pursuant to the National Environmental Policy Act (NEPA), Commission staff intends to prepare either an environmental assessment (EA) or an environmental impact statement (EIS) (collectively referred to as the “NEPA document”) that describes and evaluates the probable effects, including an assessment of the site-specific and cumulative effects, if any, of the proposed action and alternatives. The Commission's scoping process will help determine the required level of analysis and satisfy the NEPA scoping requirements, irrespective of whether the Commission issues an EA or an EIS.
Commission staff will hold two scoping meetings for the project to receive input on the scope of the NEPA document. A daytime meeting will be held at 2:00 p.m. on September 25, 2023, at the Cranberry Hotel in Morgantown, West Virginia, and will focus on the concerns of resource agencies, Native American Tribes, and non-governmental organizations (NGOs). An evening meeting will be held at 6:00 p.m. on September 25, 2023, at the same location, and will focus on receiving input from the public. We invite all interested agencies, Native American Tribes, NGOs, and individuals to attend one or both of these meetings. The times and locations of these meetings are as follows:
Copies of the Scoping Document (SD1) outlining the subject areas to be addressed in the NEPA document were distributed to the parties on the Commission's mailing list and Lake Lynn Generation LLC's distribution list. Copies of the SD1 will be available at the scoping meeting or may be viewed on the web at
The applicant and Commission staff will conduct an environmental site review of the project on September 26, 2023, beginning at 9:30 a.m. All interested agencies, Native American Tribes, NGOs, and individuals are invited to attend. All participants are responsible for their own transportation to the site and during the environmental site review. Please RSVP via email to
All persons attending the environmental site review must adhere
At the scoping meetings, Commission staff will: (1) summarize the environmental issues tentatively identified for analysis in the NEPA document; (2) solicit from the meeting participants all available information, especially quantifiable data, on the resources at issue; (3) encourage statements from experts and the public on issues that should be analyzed in the NEPA document, including viewpoints in opposition to, or in support of, the staff's preliminary views; (4) determine the resource issues to be addressed in the NEPA document; and (5) identify those issues that require a detailed analysis, as well as those issues that do not require a detailed analysis.
The meetings will be recorded by a court reporter and become part of the Commission's formal record on the project. Agencies, Native American Tribes, NGOs, and individuals with environmental expertise and concerns are encouraged to attend the meetings and to assist the staff in defining and clarifying the issues to be addressed in the NEPA document.
1. Section 205 of the Federal Power Act (FPA), 16 U.S.C. 824d, and 18 CFR part 35 (2022), require, among other things, that all rates, terms, and conditions for jurisdictional services be filed with the Commission. In Order No. 2001, the Commission revised its public utility filing requirements and established a requirement for public utilities, including power marketers, to file Electric Quarterly Reports.
2. The Commission requires sellers with market-based rate authorization to file Electric Quarterly Reports summarizing contractual and transaction information related to their market-based power sales as a condition for retaining that authorization.
3. In Order No. 2001, the Commission stated that,
[i]f a public utility fails to file a[n] Electric Quarterly Report (without an appropriate request for extension), or fails to report an agreement in a report, that public utility may forfeit its market-based rate authority and may be required to file a new application for market-based rate authority if it wishes to resume making sales at market-based rates.
4. The Commission further stated that,
[o]nce this rule becomes effective, the requirement to comply with this rule will supersede the conditions in public utilities' market-based rate authorizations, and failure to comply with the requirements of this rule will subject public utilities to the same consequences they would face for not satisfying the conditions in their rate authorizations, including possible revocation of their authority to make wholesale power sales at market-based rates.
5. Pursuant to these requirements, the Commission has revoked the market-based rate tariffs of market-based rate sellers that failed to submit their Electric Quarterly Reports.
6. Sellers must file Electric Quarterly Reports consistent with the procedures set forth in Order Nos. 2001, 768,
7. In the event that any of the above-captioned market-based rate sellers have already filed its Electric Quarterly Reports in compliance with the Commission's requirements, its inclusion herein is inadvertent. Such market-based rate seller is directed, within 15 days of the date of issuance of this order, to make a filing with the Commission identifying itself and providing details about its prior filings that establish that it complied with the Commission's Electric Quarterly Report filing requirements.
8. If any of the above-captioned market-based rate sellers do not wish to continue having market-based rate authority, that seller may file a notice of cancellation with the Commission pursuant to section 205 of the FPA to cancel its market-based rate tariff.
(A) Within 15 days of the date of issuance of this order, each public utility listed in the caption of this order shall file with the Commission all delinquent Electric Quarterly Reports. If a public utility subject to this order fails to make the filings required in this order, the Commission will revoke that public utility's market-based rate authorization and will terminate its electric market-based rate tariff. The Secretary is hereby directed, upon expiration of the filing deadline in this order, to promptly issue a notice, effective on the date of issuance, listing the public utilities whose tariffs have been revoked for failure to comply with the requirements of this order and the Commission's Electric Quarterly Report filing requirements.
(B) The Secretary is hereby directed to publish this order in the
By the Commission.
Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-603 (Critical Energy/Electric Infrastructure Information Data Request), which will be submitted to the Office of Management and Budget (OMB) for a review of the information collection requirements.
Comments on the collection of information are due September 29, 2023.
Send written comments on FERC-603 to OMB through
Please submit copies of your comments (identified by Docket No. IC23-10-000) to the Commission as noted below. Electronic filing through
• Electronic Filing: Documents must be filed in acceptable native applications and print-to-PDF, but not in scanned or picture format.
• For those unable to file electronically, comments may be filed by USPS mail or by hand (including courier) delivery.
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FERC submissions must be formatted and filed in accordance with submission guidelines at:
Ellen Brown may be reached by email at
This collection of information provides an alternative to seeking CEII in accordance with the Freedom of Information Act (FOIA).
In the aftermath of the September 11, 2001 terrorist attacks, the Commission
Under 18 CFR 388.13(g)(5), a request for CEII must contain:
• The requester's name, title, address, and telephone number;
• The name, address, and telephone number of the person or entity on whose behalf the information is requested;
• A detailed Statement of Need; and
• An executed non-disclosure agreement.
Under 18 CFR 388.133(h)(2), the non-disclosure agreement indicates the individual's willingness to adhere to limitations on the use and disclosure of the information requested, and stipulates at minimum that the CEII:
• Will only be used for the purpose for which it was requested;
• May only be discussed with authorized recipients;
• Must be kept in a secure place in a manner that would prevent unauthorized access;
• Must be destroyed or returned to the Commission upon request; and
• Is not subject to release under either FOIA or Sunshine Laws.
In addition, the non-disclosure agreement provides that the Commission may audit the recipient's compliance with the non-disclosure agreement; that a recipient is obligated to protect the CEII even after a designation has lapsed
The Request Form
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document that will discuss the environmental impacts of the Rio Bravo Pipeline Route Amendment (Route Amendment), which involves four minor route adjustments to the previously authorized pipeline alignment, as well as a pipe thickness design modification to use an alternative maximum allowable operating pressure (MAOP) calculation, as compared to the previously authorized Rio Bravo Pipeline Project, which was approved by the Commission on November 22, 2019, in Docket No. CP16-455-000.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies regarding the Route Amendment. As part of the National Environmental Policy Act (NEPA) review process, the Commission takes into account concerns the public may have about proposals and the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. This gathering of public input is referred to
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC on or before 5:00 p.m. Eastern Time on September 22, 2023.
Comments may be submitted in written form. Further details on how to submit comments are provided in the Public Participation section of this notice.
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts specifically related to the modifications proposed in the Route Amendment, which are detailed further below. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. Commission staff will consider all written comments during the preparation of the environmental document.
This notice is being sent to the Commission's current environmental mailing list for this Route Amendment. State and local government representatives should notify their constituents of this proposed Route Amendment and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a Rio Bravo Pipeline Company, LLC (Rio Bravo) representative may contact you about the acquisition of an easement to construct, operate, and maintain the facilities proposed in the Route Amendment. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the Route Amendment, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with state law. The Commission does not subsequently grant, exercise, or oversee the exercise of that eminent domain authority. The courts have exclusive authority to handle eminent domain cases; the Commission has no jurisdiction over these matters.
Rio Bravo provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know?” which addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature, which is located on the Commission's website (
(2) You can file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP23-519-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.
Additionally, the Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595 or
The four proposed route adjustments are specific to Willacy and Cameron Counties, Texas, as detailed below:
• adjust the certificated route between approximate milepost (MP) 69.8 to approximate MP 79.4 in Willacy County to conform to the U.S. Fish and Wildlife Service's Biological Opinion issued for the Rio Bravo Pipeline Project and to minimize impacts on potential ocelot habitat (the “U.S. Fish and Wildlife Service Route Adjustment”);
• adjust the certificated route between approximate MP 92.4 and MP 93.0 in Willacy County to accommodate requirements of the International Boundary and Water Commission and landowner requests (the “North Floodway Route Adjustment”);
• adjust the certificated route between approximate MP 99.7 and MP 100.5 in Willacy and Cameron Counties to accommodate a landowner request (the “Arroyo Colorado Route Adjustment”);
• relocate a meter station and extend the approved Rio Bravo Pipeline route approximately 0.6 mile in Cameron County from the currently certificated terminus site to the meter station within the fence line of the approved Rio Grande LNG Terminal site (the “Terminus Adjustment”);
• modify the design (pipe wall thickness) of a majority of the route located in Class 1 areas to use an “alternative MAOP,” which would maintain the currently authorized MAOP of 1,825 pounds per square inch gauge, decrease the pipe wall thickness of the 48-inch-diameter pipeline from 0.87 inch to 0.78 inch, decrease the pipe wall thickness of the 42-inch-diameter
• increase the proposed wall thickness of the pipeline system for certain Class 2 areas and bore locations.
The general locations of the Route Amendment facilities are shown in appendix 1.
Commission staff is currently assessing the relative increases and/or decreases in impacts on land that would result from the Route Amendment compared to the project as certificated. Apart from the four discrete route adjustment locations, the Rio Bravo Pipeline facilities and activities will be located and constructed within workspaces as reflected in FERC's final EIS issued under Docket No. CP16-454-000, as updated in the Amendment EA issued under Docket No. CP20-481-000. According to Rio Bravo, the Route Amendment would affect less wetland, forest land, and prime farmland soil acreage compared to the project as currently authorized.
Any environmental document issued by the Commission will discuss impacts that could occur as a result of the construction and operation of the four route adjustment locations proposed in the Route Amendment under the relevant general resource areas:
Commission staff will also evaluate reasonable alternatives to the proposed Route Amendment or portions of the Route Amendment and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Following this scoping period, Commission staff will determine whether to prepare an environmental assessment (EA) or an environmental impact statement (EIS). The EA or the EIS will present Commission staff's independent analysis of the issues. If Commission staff prepares an EA, a
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this Route Amendment to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the Texas State Historic Preservation Office, and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project amendment's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers.
This list also includes all landowners affected by the four proposed route adjustment locations (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the Route Amendment and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed Route Amendment.
If you need to make changes to your name/address, or if you would like to remove your name from the mailing list, please complete one of the following steps:
(1) Send an email to
OR
(2) Return the attached “Mailing List Update Form” (appendix 2).
Additional information about the Route Amendment is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Any public sessions or site visits will be posted on the Commission's calendar located at
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file using the Commission's eFiling system at
In lieu of electronic filing, you may submit a paper copy. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852. All filings must clearly identify the project name and docket number on the first page: Spencer Mountain Project (P-2607-016).
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted but is not ready for environmental analysis at this time.
l. The existing Spencer Mountain Project consists of the following existing facilities: (1) a 12-foot-high, 636-foot-long masonry and rubble dam with a crest elevation of 634.7 feet mean sea level (msl); (2) a 68-acre reservoir with a storage capacity of 166 acre-feet; (3) a 58.9-foot-long canal headwork, consisting of four 6-foot-wide gates; (4) a 53.8-foot-long canal spillway connected to the downstream side of the canal headwork; (5) a 30-foot-wide, 10-foot-deep, 3,644-foot-long open earthen canal; (6) a 32-foot-wide trashrack at the powerhouse forebay with a 2.5-inch
The project operates in a run-of-river mode with a minimum bypass flow of 76 cubic feet per second. Spencer Mountain Hydropower, LLC proposes no changes to the project facilities or operations. The project has an average annual generation of 4,064 megawatt-hours.
m. In addition to publishing the full text of this document in the
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.
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 representative of the applicant specified in the particular application.
o.
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document, that will discuss the environmental impacts of the Oak Grove Enhancement Project involving construction and operation of facilities by ANR Pipeline Company (ANR) in Richland and West Carroll Parishes, Louisiana. The Commission will use this environmental document in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies regarding the project. As part of the National Environmental Policy Act (NEPA) review process, the Commission takes into account concerns the public may have about proposals and the environmental impacts that could result from its action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. This gathering of public input is referred to as “scoping.” The main goal of the scoping process is to focus the analysis in the environmental document on the important environmental issues. Additional information about the Commission's NEPA process is described below in the NEPA Process and Environmental Document section of this notice.
By this notice, the Commission requests public comments on the scope of issues to address in the environmental document. To ensure that your comments are timely and properly recorded, please submit your comments so that the Commission receives them in Washington, DC, on or before 5:00 p.m. Eastern Time on September 25, 2023. Comments may be submitted in written form. Further details on how to submit comments are provided in the Public Participation section of this notice.
Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. Commission staff will consider all written comments during the preparation of the environmental document.
If you submitted comments on this project to the Commission before the opening of this docket on August 1, 2023, you will need to file those comments in Docket No. CP23-523-000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this proposed project and encourage them to comment on their areas of concern.
If you are a landowner receiving this notice, a pipeline company representative may contact you about the acquisition of an easement to construct, operate, and maintain the proposed facilities. The company would seek to negotiate a mutually acceptable easement agreement. You are not required to enter into an agreement. However, if the Commission approves the project, the Natural Gas Act conveys the right of eminent domain to the company. Therefore, if you and the company do not reach an easement agreement, the pipeline company could initiate condemnation proceedings in court. In such instances, compensation would be determined by a judge in accordance with State law. The
ANR provided landowners with a fact sheet prepared by the FERC entitled “An Interstate Natural Gas Facility On My Land? What Do I Need To Know? ” which addresses typically asked questions, including the use of eminent domain and how to participate in the Commission's proceedings. This fact sheet along with other landowner topics of interest are available for viewing on the FERC website (
There are three methods you can use to submit your comments to the Commission. Please carefully follow these instructions so that your comments are properly recorded. The Commission encourages electronic filing of comments and has staff available to assist you at (866) 208-3676 or
(1) You can file your comments electronically using the eComment feature, which is located on the Commission's website (
(2) You can file your comments electronically by using the eFiling feature, which is located on the Commission's website (
(3) You can file a paper copy of your comments by mailing them to the Commission. Be sure to reference the project docket number (CP23-523-000) on your letter. Submissions sent via the U.S. Postal Service must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Room 1A, Washington, DC 20426. Submissions sent via any other carrier must be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
Additionally, the Commission offers a free service called eSubscription which makes it easy to stay informed of all issuances and submittals regarding the dockets/projects to which you subscribe. These instant email notifications are the fastest way to receive notification and provide a link to the document files which can reduce the amount of time you spend researching proceedings. Go to
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
ANR proposes to construct and operate 34.1 miles of new 30-inch-diameter natural gas pipeline to replace 33.6 miles of existing 30-inch-diameter natural gas pipeline that ANR would abandon. The Oak Grove Enhancement Project would continue to provide about 1,233 million square cubic feet per day of natural gas to its existing end user. No increase in natural gas capacity is anticipated. According to ANR, its project would improve the integrity and reliability of ANR's system by replacing vintage pipeline facilities installed in the 1950's with new pipeline facilities.
The Oak Grove Enhancement Project would consist of the following facilities:
• Installation of 34.1 miles of new 30-inch-diameter segment of natural gas pipeline, which will begin at ANR's existing Delhi Compressor Station (CS) in Richland Parish and primarily parallel the existing Line 0-501, 1-501, and 2-501 pipelines before the new segment ties into the existing route just south of State Route 586 in West Carroll Parish at the terminus of the existing Line 0-501 segment to be abandoned.
• Abandonment in place and by removal of 33.6 miles of existing 30-inch-diameter natural gas pipeline, which begins at ANR's existing Delhi CS in Richland Parish and terminates just south of State Route 586 in West Carroll Parish. Approximately 1 percent (0.25 mile) of the existing Line 0-501 segment would be abandoned by removal, while the remaining existing pipeline segments (totaling 33.35 miles) would be abandoned in place.
The general location of the project facilities is shown in appendix 1.
Construction and abandonment of the proposed facilities would disturb about 702.4 acres of land for the replacement pipeline. Following construction, ANR would maintain about 170.3 acres for permanent operation of the project's facilities; the remaining acreage would be restored. Approximately 91 percent (31.1 miles) of the new pipeline would be co-located with existing rights-of-way or paralleling existing utility corridors. Areas where ANR was unable to co-locate the pipeline with existing rights-of-way or parallel existing corridors was primarily due to reroutes around Wetland Reserve Program easements, sensitive environmental areas, and constructability issues (
Any environmental document issued by the Commission will discuss impacts that could occur as a result of the abandonment, construction, and operation of the proposed project under the relevant general resource areas:
• geology and soils;
• water resources and wetlands;
• vegetation and wildlife;
• threatened and endangered species;
• cultural resources;
• land use;
• environmental justice;
• air quality and noise; and
• reliability and safety.
Commission staff will also evaluate reasonable alternatives to the proposed project or portions of the project and make recommendations on how to lessen or avoid impacts on the various resource areas. Your comments will help Commission staff identify and focus on the issues that might have an effect on the human environment and potentially eliminate others from further study and discussion in the environmental document.
Following this scoping period, Commission staff will determine whether to prepare an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). The EA or the EIS will present Commission staff's
With this notice, the Commission is asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues of this project to formally cooperate in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for section 106 of the National Historic Preservation Act, the Commission is using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes Federal, State, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project and includes a mailing address with their comments. Commission staff will update the environmental mailing list as the analysis proceeds to ensure that Commission notices related to this environmental review are sent to all individuals, organizations, and government entities interested in and/or potentially affected by the proposed project.
(1) Send an email to
(2) Return the attached “Mailing List Update Form” (appendix 2).
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208-FERC, or on the FERC website at
Public sessions or site visits will be posted on the Commission's calendar located at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, motions to intervene, and protests is 30 days from the issuance date of this notice by the Commission.
The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, or recommendations using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
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m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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p. The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Western Area Power Administration, DOE.
Notice of rate order extending transmission and firm electric service rates.
The extension of the Desert Southwest Region's (DSW) existing transmission service rates for the Pacific Northwest-Pacific Southwest Intertie Project (Intertie) and the existing transmission and firm electric service formula rates for the Parker-Davis Project (PDP) have been confirmed, approved, and placed into effect on an interim basis. The existing rates under Rate Schedules INT-FT5, INT-NFT4, PD-F7, PD-FT7, PD-FCT7, and PD-NFT7 are set to expire on September 30, 2023. This rate extension makes no changes to the existing rates and extends them through September 30, 2024.
The extended rates under Rate Schedules INT-FT5, INT-NFT4, PD-F7, PD-FT7, PD-FCT7, and PD-NFT7 will be placed into effect on an interim basis on October 1, 2023.
Jack D. Murray, Regional Manager, Desert Southwest Region, Western Area Power Administration, P.O. Box 6457, Phoenix, AZ 85005-6457, or Tina Ramsey, Rates Manager, Desert Southwest Region, Western Area Power Administration, (602) 605-2565, or email:
Western Area Power Administration (WAPA) published a
By Delegation Order No. S1-DEL-RATES-2016, effective November 19,
Following review of DSW's proposal, Rate Order No. WAPA-210 is hereby confirmed, approved, and placed into effect on an interim basis. This extends, without adjustment, the existing Rate Schedules INT-FT5, INT-NFT4, PD-F7, PD-FT7, PD-FCT7, and PD-NFT7 through September 30, 2024. WAPA will submit Rate Order No. WAPA-210 and the extended rate schedules to FERC for confirmation and approval on a final basis.
The rates in Rate Order No. WAPA-210 are established in accordance with section 302 of the Department of Energy (DOE) Organization Act (42 U.S.C. 7152).
By Delegation Order No. S1-DEL-RATES-2016, effective November 19, 2016, the Secretary of Energy delegated: (1) the authority to develop power and transmission rates to the Western Area Power Administration (WAPA) Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, or to remand or disapprove such rates, to FERC. By Delegation Order No. S1-DEL-S3-2023, effective April 10, 2023, the Secretary of Energy also delegated the authority to confirm, approve, and place such rates into effect on an interim basis to the Under Secretary for Infrastructure. By Redelegation Order No. S3-DEL-WAPA1-2023, effective April 10, 2023, the Under Secretary for Infrastructure further redelegated the authority to confirm, approve, and place such rates into effect on an interim basis to WAPA's Administrator. This extension is issued under Redelegation Order No. S3-DEL-WAPA1-2023 and DOE rate extension procedures set forth in 10 CFR part 903.
On August 22, 2013, FERC approved and confirmed Rate Schedules INT-FT5 and INT-NFT4 under Rate Order No. WAPA-157 on a final basis for a 5-year period through April 30, 2018.
DSW is extending the existing Intertie transmission service rates under Rate Schedules INT-FT5 and INT-NFT4 for one year, through September 30, 2024. The existing rates provide sufficient revenue to pay all annual costs, including interest expense, and repay investment within the allowable period consistent with the cost recovery criteria set forth in Department of Energy (DOE) Order RA 6120.2.
On September 18, 2014, FERC approved and confirmed Rate Schedules PD-F7, PD-FT7, PD-FCT7, and PD-NFT7 under Rate Order No. WAPA-162 on a final basis for a 5-year period through September 30, 2018.
DSW is extending the existing PDP transmission and firm electric service formula rates under Rate Schedules PD-F7, PD-FT7, PD-FCT7, and PD-NFT7 for a one-year period, through September 30, 2024. The existing formula rates provide sufficient revenue to pay all annual costs, including interest expense, and repay investment within the allowable period consistent with the cost recovery criteria set forth in DOE Order RA 6120.2.
In accordance with 10 CFR 903.23(a), DSW filed a notice in the
WAPA previously determined that this action fits within the following categorical exclusions listed in appendix B to subpart D of 10 CFR 1021.410: B4.3 (Electric power marketing rate changes). Categorically excluded projects and activities do not require preparation of either an environmental impact statement or an environmental assessment.
WAPA has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
The provisional rates and formula rates herein confirmed, approved, and placed into effect on an interim basis, together with supporting documents, will be submitted to FERC for confirmation and final approval.
In view of the above and under the authority delegated to me, I hereby confirm, approve, and place into effect on an interim basis, Rate Order No. WAPA-210, which extends the existing transmission rates and firm electric service and transmission formula rates under Rate Schedules INT-FT5, INT-NFT4, PD-F7, PD-FT7, PD-FCT7, and PD-NFT7 through September 30, 2024. The rates will remain in effect on an interim basis until: (1) FERC confirms and approves this extension on a final basis; (2) subsequent rates are confirmed and approved; or (3) such rates are superseded.
This document of the Department of Energy was signed on August 24, 2023, by Tracey A. LeBeau, Administrator, Western Area Power Administration, pursuant to delegated authority from the Secretary of Energy. That document, with the original signature and date, is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE
The first day of the first full billing period beginning on or after May 1, 2013, and will remain in effect through September 30, 2018, or until superseded by another rate schedule. [Note: This rate schedule was extended by Rate Order No. WAPA-181 through September 30, 2020, by Rate Order No. WAPA-192 through September 30, 2023, and by Rate Order No. WAPA-210 through September 30, 2024.]
To firm point-to-point transmission service customers where capacity and energy are supplied to the Pacific Northwest-Pacific Southwest Intertie Project (Intertie) transmission system at points of interconnection with other systems and transmitted and delivered, less losses, to points of delivery on the Intertie transmission system.
For transmission service of one year or longer, the rate is $19.32 for each kilowatt (kW) per year, payable monthly at the rate of $1.61 for each kW per month.
For transmission service up to one year, the maximum rate for each kW is as follows:
Discounts may be offered from time-to-time in accordance with Western's Open Access Transmission Tariff (OATT).
Western will bill firm point-to-point transmission service customers monthly by applying the rates listed above to the amount of capacity reserved. Payment for long-term transmission service will be required one month in advance of said service.
Alternating current at 60 hertz, three-phase, delivered and metered at the voltages and points of delivery established by the service agreement or contract.
There shall be no entitlement to transfer of reactive kilovolt-amperes at delivery points, except when such transfers may be mutually agreed upon by the customer and Western or their authorized representatives.
Capacity and energy losses incurred in connection with the transmission and delivery of capacity and energy under this rate schedule shall be supplied by the customer in accordance with the service agreement or contract. If losses are not fully provided by a customer, charges for financial compensation may apply.
Western will assess a charge for any unreserved use of the transmission system. Unreserved use occurs when a customer uses transmission service that it has not reserved or uses transmission service in excess of its reserved capacity. Unreserved use may also include a customer's failure to curtail transmission when requested.
The charge for unreserved use is two times the maximum allowable rate for the service at issue, assessed as follows: The penalty for a single hour of unreserved use is based on the daily short-term rate. The penalty for more
A customer that exceeds its reserved capacity at any point of receipt or point of delivery, or a customer that uses transmission service at a point of receipt or point of delivery that it has not reserved, is required to pay for all ancillary services that were provided by the Western Area Lower Colorado (WALC) Balancing Authority and associated with the unreserved use. The customer will pay for ancillary services based on the amount of transmission service used and not reserved.
The first day of the first full billing period beginning on or after May 1, 2013, and will remain in effect through September 30, 2018, or until superseded by another rate schedule. [Note: This rate schedule was extended by Rate Order No. WAPA-181 through September 30, 2020, by Rate Order No. WAPA-192 through September 30, 2023, and by Rate Order No. WAPA-210 through September 30, 2024.]
To nonfirm transmission service customers where capacity and energy are supplied to the Northwest-Pacific Southwest Intertie Project (Intertie) transmission system at points of interconnection with other systems and transmitted and delivered, less losses, to points of delivery on the Intertie transmission system.
The nonfirm transmission service rate is 2.21 mills for each kilowatt per hour. Discounts may be offered from time-to-time in accordance with Western's Open Access Transmission Tariff (OATT).
Western will bill nonfirm transmission service customers monthly by applying the rate listed above to the amount of capacity reserved.
Alternating current at 60 hertz, three-phase, interruptible, delivered and metered at the voltages and points of delivery established by service agreement or in advance by Western. Curtailment conditions shall be determined by Western and in accordance with Western's OATT.
There shall be no entitlement to transfer of reactive kilovolt amperes at delivery points, except when such transfers may be mutually agreed upon by the customer and Western or their authorized representatives.
Capacity and energy losses incurred in connection with the transmission and delivery of capacity and energy under this rate schedule shall be supplied by the customer in accordance with the service agreement or contract. If losses are not fully provided by a customer, charges for financial compensation may apply.
Western will assess a charge for any unreserved use of the transmission system. Unreserved use occurs when a customer uses transmission service that it has not reserved or uses transmission service in excess of its reserved capacity. Unreserved use may also include a customer's failure to curtail transmission when requested.
The charge for unreserved use is two times the maximum allowable rate for the service at issue, assessed as follows: The penalty for a single hour of unreserved use is based on the daily short-term rate. The penalty for more than one assessment of unreserved use for any given duration (
A customer that exceeds its reserved capacity at any point of receipt or point of delivery, or a customer that uses transmission service at a point of receipt or point of delivery that it has not reserved, is required to pay for all ancillary services that were provided by the Western Area Lower Colorado (WALC) Balancing Authority and associated with the unreserved use. The customer will pay for ancillary services based on the amount of transmission service used and not reserved.
The first day of the first full billing period beginning on or after October 1, 2008, through September 30, 2013, or until superseded, whichever occurs earlier. [Note: This rate schedule was extended by Rate Order No. WAPA-162 through September 30, 2018, by Rate Order No. WAPA-184 through September 30, 2023, and by Rate Order No. WAPA-210 through September 30, 2024.]
In the area served by the Parker-Davis Project (P-DP).
To firm electric service customers for firm power service supplied through one meter at one point of delivery, unless otherwise provided by service agreement or contract.
Alternating current at 60 hertz, three-phase, delivered and metered at the voltages and points of delivery established by service agreement or contract.
For each month in which there is excess energy available, offered, and delivered to the firm electric service customer, such excess energy shall be billed at the Energy Rate.
For each month in which there is a contract violation involving an unauthorized overrun of energy and/or capacity, such overruns shall be billed at 10 times the Energy and/or Capacity Rate in this rate schedule. For each month in which there is a contract violation involving an unauthorized overrun of transmission, such overrun shall be billed at two times the Transmission Charge in this rate schedule.
If delivery is made at transmission voltage but metered on the low-voltage side of the substation, the meter readings will be increased to compensate for transformer losses as provided for in the contract.
The firm electric service customer will normally be required to maintain a power factor at all points of measurement between 95-percent lagging and 95-percent leading.
The first day of the first full billing period beginning on or after October 1, 2008, through September 30, 2013, or until superseded, whichever occurs earlier. [Note: This rate schedule was extended by Rate Order No. WAPA-162 through September 30, 2018, by Rate Order No. WAPA-184 through September 30, 2023, and by Rate Order No. WAPA-210 through September 30, 2024]
In the area served by the Parker-Davis Project (P-DP).
To Salt Lake City Area/Integrated Projects (SLCA/IP) southern division customers, where SLCA/IP capacity and energy are supplied to the P-DP system by the Colorado River Storage Project (CRSP) at points of interconnection with the CRSP system and transmitted and delivered on a unidirectional basis, less losses, to southern division customers at points of delivery on the P-DP system.
Alternating current at 60 hertz, three-phase, delivered and metered at the voltages and points of delivery established by service agreement or contract.
The annual rate for each kilowatt per year is equal to the annual transmission revenue requirement divided by the estimated transmission delivery commitments, rounded to the nearest 12 cent increment. The annual rate is payable monthly at a rate for each kilowatt per month equal to the annual rate divided by 12.
Western will bill firm transmission service customers monthly by applying the rates under this rate schedule to the amount of capacity reserved. Payment for service will be required one month in advance of said service.
There shall be no entitlement to transfer of reactive kilovolt-amperes at delivery points, except when such transfers may be mutually agreed upon by the customer and Western or their authorized representatives.
Capacity and energy losses incurred in connection with the transmission and delivery of capacity and energy under this rate schedule shall be supplied by the customer in accordance with the service agreement or contract.
Western will assess a charge for unauthorized use of transmission service at a rate equal to two times the applicable rate for the service at issue. The charge will be applied to use in excess of the reservation amount, which shall be the difference between the amount of transmission service actually used by the customer less the amount of transmission service the customer has reserved. The customer will incur the charge for an overrun during the calendar month or for the period of transmission service if such service is for a term of less than one month.
The first day of the first full billing period beginning on or after October 1, 2008, through September 30, 2013, or until superseded, whichever occurs earlier. [Note: This rate schedule was extended by Rate Order No. WAPA-162 through September 30, 2018, by Rate Order No. WAPA-184 through September 30, 2023, and by Rate Order No. WAPA-210 through September 30, 2024.]
In the area served by the Parker-Davis Project (P-DP).
To firm point-to-point transmission service customers where capacity and energy are supplied to the P-DP system at points of interconnection with other systems and transmitted and delivered, less losses, to points of delivery on the P-DP system.
Alternating current at 60 hertz, three-phase, delivered and metered at the voltages and points of delivery established by service agreement or contract.
For transmission service one year or longer, the annual rate for each kilowatt per year is equal to the annual transmission revenue requirement divided by the estimated transmission delivery commitments, rounded to the nearest 12 cent increment. The annual rate for long-term service is payable monthly at a rate for each kilowatt per month equal to the annual rate for long-term service divided by 12.
For transmission service up to one year, the maximum rate for each kW is as follows:
Discounts may be offered from time to time in accordance with Western's Open Access Transmission Tariff.
Western will bill firm point-to-point transmission service customers monthly by applying the rates under this rate schedule to the amount of capacity reserved. Payment for service will be required one month in advance of service.
There shall be no entitlement to transfer of reactive kilovolt-amperes at delivery points, except when such transfers may be mutually agreed upon by the customer and Western or their authorized representatives.
Capacity and energy losses incurred in connection with the transmission and delivery of capacity and energy under this rate schedule shall be supplied by the customer in accordance with the service agreement or contract.
Western will assess a charge for unauthorized use of transmission service at a rate equal to two times the applicable rate for the service at issue. The charge will be applied to use in excess of the reservation amount, which shall be the difference between the amount of transmission service actually used by the customer less the amount of transmission service the customer has reserved. The customer will incur the charge for an overrun during the calendar month or for the period of transmission service if such service is for a term of less than one month.
The first day of the first full billing period beginning on or after October 1, 2008, through September 30, 2013, or until superseded, whichever occurs earlier. [Note: This rate schedule was extended by Rate Order No. WAPA-162 through September 30, 2018, and by Rate Order No. WAPA-184 through September 30, 2023, and by Rate Order No. WAPA-210 through September 30, 2024.]
In the area served by the Parker-Davis Project (P-DP).
To nonfirm transmission service customers where capacity and energy are supplied to the P-DP system at points of interconnection with other systems and transmitted and delivered, less losses, to points of delivery on the P-DP system.
Alternating current at 60 hertz, three-phase, delivered and metered at the voltages and points of delivery established by service agreement or contract.
The nonfirm transmission service rate for each kilowatt per hour is equal to the annual transmission revenue requirement divided by the estimated transmission delivery commitments, divided by 8,760 and rounded to five decimal places. Discounts may be offered from time to time in accordance with Western's Open Access Transmission Tariff.
Western will bill nonfirm transmission customers monthly by applying the nonfirm rate under this rate schedule to the amount of capacity reserved.
There shall be no entitlement to transfer of reactive kilovolt-amperes at delivery points, except when such transfers may be mutually agreed upon by the customer and Western or their authorized representatives.
Capacity and energy losses incurred in connection with the transmission and delivery of capacity and energy under this rate schedule shall be supplied by the customer in accordance with the service agreement or contract.
Western Area Power Administration, DOE.
Notice of proposed power, transmission, and ancillary services formula rates.
The Sierra Nevada Region (SN) of the Western Area Power Administration (WAPA) proposes new formula rates for the Central Valley Project (CVP) power, transmission, and ancillary services; and California-Oregon Transmission Project (COTP) transmission service. The existing formula rates for these services expire on September 24, 2024, and December 31, 2024. SN proposes to keep the same formula rates, without adjustments, for these services. SN proposes no material changes aside from updating the effective dates.
A consultation and comment period will begin August 30, 2023 and end November 28, 2023. SN will present a detailed explanation of the proposed formula rates at a public information forum that will be held on November
Written comments and requests to be informed of Federal Energy Regulatory Commission (FERC) actions concerning the proposed formula rates submitted by SN to FERC for approval should be sent to Bryan W. Griess, Acting Regional Manager, Sierra Nevada Region, Western Area Power Administration, 114 Parkshore Drive, Folsom, CA 95630, or email:
Autumn Wolfe, Rates Manager, Sierra Nevada Region, Western Area Power Administration, (916) 353-4686 or email:
On December 2, 2011, FERC approved and confirmed Rate Schedules for CVP power, transmission, and ancillary services; COTP transmission; and Pacific Alternating Current Intertie (PACI) transmission under Rate Order No. WAPA-156. That rate order was extended by Rate Order Nos. WAPA-173 and WAPA-185. These rates are set to expire on September 30, 2024.
On April 27, 2021, the FERC confirmed and approved Rate Order No. WAPA-194, which placed into effect formula rates for the Energy Imbalance Market (EIM) services, Sale of Surplus Products, and revisions to existing rate schedules for Energy Imbalance and Generator Imbalance services. These rates are set to expire on December 31, 2024.
The proposed rates continue the formula-based methodology that includes an annual update to the financial, load, and other data in the rate formulas. SN intends the proposed formula-based rates to go into effect October 1, 2024. The proposed formula rates would remain in effect until September 30, 2029, or until WAPA supersedes or changes the formula rates through another public rate process pursuant to 10 CFR part 903, whichever occurs first.
The proposed formula rates would provide sufficient revenue to recover annual costs within the cost recovery criteria set forth in Department of Energy (DOE) Order RA 6120.2. SN proposed rate schedules are located on our website at:
Before the start of each Fiscal Year (FY), SN would continue to calculate and publish an annual Power Revenue Requirement (PRR) to determine the total cost of power. The total cost of power is allocated to SN's preference customers, namely, First Preference (FP) customers based on their FP percentages, and the remaining amount to Base Resource (BR) customers based on their BR allocation, adjusted for programs, such as hourly exchange. The Trinity River Division Act of 1955 (69 Stat. 719) and the Flood Control Act of 1962 (76 Stat. 1173, 1191-1192) accorded first preference to CVP power to customers in Trinity, Tuolumne, and Calaveras Counties. A BR customer, under the 2004 and 2025 Marketing Plans, is an entity that has executed a BR contract and is allocated a percentage of the BR.
SN prepares a Power Repayment Study (PRS) each FY to determine if revenue will be sufficient to repay, within the required periods, all costs assigned to the commercial power function. Generally, the PRR includes Operation and Maintenance (O&M) expenses, purchased power for Project Use and FP customers' loads, interest, and other expenses (including any other statutorily required costs or charges), investment repayment, and the Washoe Project annual PRR. Revenues from Project Use, transmission, ancillary services, and other services offset expenses in the PRR; and the remainder is collected from BR and FP customers. The PRR is reviewed during March of each year; and if such review results in a change of $5 million or more to the annual PRR, collections are adjusted over the remaining 6-month period. The PRR is an estimate of revenues and expenses including investment and repayment projections from the PRS. Any variance from estimate to actual will increase or decrease annual project repayment. Project repayment is measured over the long term to ensure repayment is met and to maintain rate stability.
For SN to meet the load requirements beyond delivered BR for Full Load Service (FLS) customers and Variable Resource (VR) customers, SN may make Supplemental Power (SP) purchases pursuant to the Custom Product Power (CPP) rate schedule. FLS and VR customers who contract with SN for such service will pay all SP costs. FLS customers pay a portfolio management charge according to their contract, whereas VR customers pay a scheduling charge per the rate schedule.
At least annually, SN will publish the CVP transmission rates for Point-to-Point and Network Integration Transmission Service (NITS), the COTP transmission rates, and CVP regulation and frequency response service rates. SN prepares a detailed cost-of-service study to determine the costs, by project,
SN proposes the Unreserved Use Penalties continue to be assessed at 200 percent of the effective point-to-point transmission rate when transmission service is used and not reserved or when used in excess of the reservation. The required spinning and supplemental reserves charges are based on a price consistent with the California Independent System Operator's (CAISO) market price plus all costs incurred for the sale of these reserves. Customers who have a contractual obligation to provide spinning and supplemental reserves and do not fulfill their obligation will be assessed a penalty equal to the greater of SN's actual cost or 150 percent of the market price.
For Energy Imbalance (EI) service, when the EIM is suspended, customers outside of their contractual bandwidth (under delivery) will pay the greater of 150 percent of the market price or SN's actual cost. Given SN's EI customers are and will continue to operate under existing agreements, SN will continue its existing rate methodology for EI. SN proposes the GI rate use the same tiered methodology as SN's proposed EI service rate.
The proposed rates would be for the sale of surplus energy and/or capacity products. This includes Energy, Frequency Response Reserve, Regulation, Reserves, and Resource Sufficiency. If CVP surplus products are available, SN could make the product(s) available for sale, provided entities enter into separate agreement(s) which would specify the terms of sale(s).
SN will continue participation in the EIM as a Transmission Service Provider (TSP) within the Balancing Authority of Northern California (BANC) Balancing Authority Area (BAA). SN is proposing continued formula rate schedules for: (1) EIM Administrative Service, (2) EIM EI Service, and (3) EIM GI Service. In EIM, CAISO economically dispatches energy under its EIM Tariff to meet the imbalances for loads and resources over multiple BAAs. CAISO provides a centralized, automated, and region-wide dispatch for imbalances. The EIM Administrative Services formula rate continues to allow SN to pass through administrative costs incurred by SN resulting from its participation in EIM as a Participating Resource Scheduling Coordinator (PRSC). The formula rates and cost allocation for Administrative, EI, and GI services would be in effect when SN is participating in the EIM, and to the extent SN incurs associated settlements during market suspension or contingency.
Existing DOE procedures for public participation in power and transmission rate adjustments (10 CFR part 903) were published on September 18, 1985, and February 21, 2019.
SN is establishing the formula rates for COTP and CVP transmission, CVP power, and other related services in accordance with section 302 of the DOE Organization Act (42 U.S.C. 7152).
By Delegation Order No. S1-DEL-RATES-2016, effective November 19, 2016, the Secretary of Energy delegated: (1) the authority to develop power and transmission rates to the WAPA Administrator; (2) the authority to confirm, approve, and place such rates into effect on an interim basis to the Deputy Secretary of Energy; and (3) the authority to confirm, approve, and place into effect on a final basis, or to remand or disapprove such rates, to FERC. By Delegation Order No. S1-DEL-S3-2023, effective April 10, 2023, the Secretary of Energy also delegated the authority to confirm, approve, and place such rates into effect on an interim basis to the Under Secretary for Infrastructure. By Redelegation Order No. S3-DEL-WAPA1-2023, effective April 10, 2023, the Under Secretary for Infrastructure further redelegated the authority to confirm, approve, and place such rates into effect on an interim basis to WAPA's Administrator.
All brochures, studies, comments, letters, memorandums, or other documents that SN initiates or uses to develop the proposed formula rates are available for inspection and copying at the Sierra Nevada Region, located at 114 Parkshore Drive, Folsom, California. Many of these documents and supporting information are also available on SN's website at:
SN is in the process of determining whether an environmental assessment or an environmental impact statement should be prepared or if this action can be categorically excluded from those requirements.
WAPA has an exemption from centralized regulatory review under Executive Order 12866; accordingly, no clearance of this notice by the Office of Management and Budget is required.
This document of the Department of Energy was signed on August 24, 2023, by Tracey A. LeBeau, Administrator, Western Area Power Administration, pursuant to delegated authority from the Secretary of Energy. That document, with the original signature and date, is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the
Environmental Protection Agency (EPA).
Notice of request for nominations.
The U.S. Environmental Protection Agency (EPA) invites nominations from a diverse range of qualified candidates to be considered for appointment to its Local Government Advisory Committee (LGAC). Qualified nominees for the LGAC hold elected positions with local, Tribal, State, or Territorial governments, or serve in a full-time government position appointed by an elected official. EPA is seeking up to 5 individuals to serve one-year terms beginning in January 2024. For more information on the LGAC, including member bios, recent meeting summaries and recommendations, visit:
To be considered for 2024 appointments, nominations should be submitted by September 30, 2023.
Paige Lieberman, the LGAC Designated Federal Officer at (202) 564-9957/
The Local Government Advisory Committee (LGAC) is chartered under the Federal Advisory Committee Act (FACA), Public Law 92-463, to advise the EPA Administrator on environmental issues impacting local governments. Members of LGAC will provide advice and recommendations on a broad range of issues related to promoting and protecting public health and the environment. For 2024 the topics addressed will include but not be limited to:
• Advancing environmental justice;
• Developing capacity for technical assistance at the local level;
• Reducing greenhouse gas emissions;
• Bolstering resilience to the impacts of climate change;
• Supporting local governments in the assessment and remediation of PFAS chemicals.
Viable candidates must be current elected officials representing local, State, Tribal, or Territorial governments. Officials working full-time for a local, State, Tribal, or Territorial government who have been appointed directly by an elected official will also be considered. Preference will be given to qualified candidates who demonstrate experience developing and implementing environmental programs consistent with the 2024 topics listed above. To maintain geographical diversity of the Committee, preference for LGAC membership may also be given to qualified candidates from Tribal or Territorial governments, and candidates from the Southwest U.S.
Additional criteria to be considered may include: experience with multi-sector partnerships; coalition-building and grassroots involvement; involvement and leadership in national, State or regional intergovernmental associations; and diversity in vocational/career/volunteer background.
New LGAC members are appointed for 1-year terms and are eligible for reappointment for up to 6 years. In 2024, the Committee plans to hold two or three full-day, public meetings, where both in-person and online participation options will be available.
In addition to public meetings, Workgroups will be created to address the 2024 topics noted above, as well as any emerging issues. Members will be encouraged to serve on one or more Workgroups, where they will be asked to share their experiences working on an issue, recommend experts on an issue for the Committee to consult with, debate the nuances of policy implementation, and review written recommendations before they are shared with the full Committee. Applicants should plan to spend an average of three hours per month on Committee work. While EPA is unable to provide compensation for services, official Committee travel and related expenses (lodging, etc.) will be fully reimbursed.
Nominations must be submitted in electronic format. To be considered, all nominations should complete the application at this link:
Other sources, in addition to this
Environmental Protection Agency (EPA).
Notice of approval.
Notice is hereby given that Guam revised its approved primacy program under the federal Safe Drinking Water Act (SDWA) by adopting regulations that effectuate the federal Revised Total Coliform Rule (RTCR). The Environmental Protection Agency (EPA) has determined that Guam's revision request meets the applicable SDWA program revision requirements and the regulations adopted by Guam are no less stringent than the corresponding federal regulations. Therefore, EPA approves this revision to Guam's approved primacy program. However, this determination on Guam's request for approval of a program revision shall take effect in accordance with the procedures described below in the
A request for a public hearing must be received or postmarked before September 29, 2023.
Documents relating to this determination that were submitted by Guam as part of its program revision request are available for public inspection online at
Jake Jenzen, EPA Region 9, Drinking Water Section; via telephone at (415) 927-3570 or via email address at
If EPA Region 9 does not receive a timely request for a hearing or a request for a hearing was denied by the Regional Administrator for being frivolous or insubstantial, and the Regional Administrator does not elect to hold a hearing on their own motion, EPA's approval shall become final and effective on September 29, 2023, and no further public notice will be issued.
Environmental Protection Agency (EPA).
Notice of final Order on Petition for objection to Clean Air Act title V operating permit.
The Environmental Protection Agency (EPA) Administrator signed an Order dated August 7, 2023, granting in part and denying in part a Petition from the WildEarth Guardians dated March 1, 2023. The Petition requested that the EPA object to the Clean Air Act (CAA) title V operating permit issued by the New Mexico Environment Department (NMED) to XTO Energy Inc., Wildcat Compressor Station, located in Lea County, New Mexico.
The EPA requests that you contact the individual listed in the
Elizabeth Layton, EPA Region 6 Office, Air Permits Section, (214) 665-2165,
The CAA affords the EPA a 45-day period to review and object to, as appropriate, operating permits proposed by state permitting authorities under title V of the CAA. Section 505(b)(2) of the CAA authorizes any person to petition the EPA Administrator to object to a title V operating permit within 60 days after the expiration of the EPA's 45-day review period if the EPA has not objected on its own initiative. Petitions must be based only on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or unless the grounds for the issue arose after this period.
The Petitioner claims that the Proposed Permit fails to ensure the facility operates in compliance with the New Mexico State Implementation Plan (SIP) by lacking a reasoned explanation, basis, or analysis demonstrating how the Proposed Permit will ensure the facility's operation will not cause or contribute to an exceedance in the National Ambient Air Quality Standard (NAAQS) for ozone, fails to include emission limitations and standards necessary to assure compliance with applicable requirements, and fails to include sufficient periodic monitoring
On August 7, 2023, the EPA Administrator issued an Order granting in part and denying in part the Petition. The Order explains the basis for the EPA's decision.
Sections 307(b) and 505(b)(2) of the CAA provide that a petitioner may request judicial review of those portions of an order that deny issues in a petition. Any petition for review shall file in the United States Court of Appeals for the appropriate circuit no later than October 30, 2023.
Environmental Protection Agency (EPA).
Notice of public meeting for Great Lakes Advisory Board.
Pursuant to the Federal Advisory Committee Act (FACA), the Environmental Protection Agency (EPA) provides notice of a public meeting for the Great Lakes Advisory Board (GLAB). Pre-registration is required.
This virtual public meeting will be held on September 18, 2023, from 12 p.m. to 3 p.m. Central Daylight Time. Members of the public seeking to view the meeting must register by 2 p.m. Central Daylight Time on September 15, 2023. Members of the public seeking to make comments relevant to issues discussed at the virtual meeting must register and indicate a request to make oral and/or written public comments in advance of the meeting. For information on how to register, please see How do I participate in the remote public meeting below.
Todd Nettesheim, Acting Designated Federal Officer (DFO), at
The GLAB is chartered in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C. appendix 2, as amended) and 41 CFR 102-3.50(d). The Advisory Board provides advice and recommendations on matters related to the Great Lakes Restoration Initiative. The Advisory Board also advises on domestic matters related to implementation of the Great Lakes Water Quality Agreement between the U.S. and Canada. The major objectives are to provide advice and recommendations on: Great Lakes protection and restoration activities; long-term goals, objectives, and priorities for Great Lakes protection and restoration; and other issues identified by the Great Lakes Interagency Task Force/Regional Working Group.
This meeting will be conducted as a virtual meeting on September 18, 2023, from 12 p.m. to 3 p.m. Central Daylight Time. You must register by 2 p.m. Central Daylight Time on September 15, 2023, to receive information on how to participate. You may also submit written or oral comments for the committee by following the processes outlined below.
Individual registration is required for participation in this meeting. Information on registration for this meeting can be found at
The meeting agenda and other materials for the virtual conference will be posted on the GLAB website at
Persons with disabilities who wish to request reasonable accommodations to participate in this event may contact the Acting DFO at
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's order for the cancellations and amendments to terminate uses, voluntarily requested by the registrants, and accepted by the Agency, pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). This cancellation order follows a March 10, 2023,
The cancellations and amendments are effective August 30, 2023.
Christopher Green, Registration Division (7505T), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: (202) 566-2707; email address:
This action is directed to the public in general and may be of interest to a wide range of stakeholders including environmental, human health, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2023-0074, is available at
This notice announces the cancellations and amendments to terminate uses, as requested by registrants, of products registered under FIFRA section 3 (7 U.S.C. 136a). These registrations are listed in sequence by registration number in Tables 1 and 2 of this unit.
Table 3 of this unit includes the names and addresses of record for all registrants of the products in Tables 1 and 2 of this unit, in sequence by EPA company number. This number corresponds to the first part of the EPA registration numbers of the products listed above.
The agency received one comment from American Bird Conservancy agreeing with the cancellations in the notice of March 10, 2023: For this reason, the Agency does not believe that the comment submitted during the comment period merits further review or a denial of the requests for voluntary cancellation and use termination.
Pursuant to FIFRA section 6(f) (7 U.S.C. 136d(f)(1)), EPA hereby approves the requested cancellations and amendments to terminate uses of certain pesticide registrations identified in Tables 1 and 2 of Unit II. Accordingly, the Agency hereby orders that the product registrations identified in Tables 1 and 2 of Unit II, are canceled and amended to terminate the affected uses. The effective date of the cancellations that are subject of this notice is August 30, 2023. Any distribution, sale, or use of existing stocks of the products identified in Tables 1 and 2 of Unit II, in a manner inconsistent with any of the provisions for disposition of existing stocks set forth in Unit VI, will be a violation of FIFRA.
Section 6(f)(1) of FIFRA (7 U.S.C. 136d(f)(1)) provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be canceled or amended to terminate one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Existing stocks are those stocks of registered pesticide products which are currently in the United States, and which were packaged, labeled, and released for shipment prior to the effective date of the action. The existing stocks provision for the products subject to this order is as follows.
For voluntary cancellations, the registrants may continue to sell and distribute existing stocks of products listed in Table 1 until August 30, 2024, which is 1 year after publication of this cancellation order in the
Now that EPA has approved product labels reflecting the requested amendments to terminate uses, registrants are permitted to sell or distribute products listed in Table 2 of Unit II, under the previously approved labeling until March 3, 2025, a period of 18 months after publication of the cancellation order in this
Persons other than the registrant may sell, distribute, or use existing stocks of canceled products and products whose labels include the terminated uses until supplies are exhausted, provided that such sale, distribution, or use is consistent with the terms of the previously approved labeling on, or that accompanied, the canceled products and terminated uses.
Environmental Protection Agency (EPA).
Notice of charter renewal.
Notice is hereby given that the Environmental Protection Agency (EPA)
Environmental Protection Agency (EPA).
Notice of approval.
Notice is hereby given that the Navajo Nation revised its approved primacy program under the federal Safe Drinking Water Act (SDWA) by adopting regulations that effectuate the Federal Stage 2 Disinfectants and Disinfection Byproducts Rule (S2 DBPR) and the Ground Water Rule (GWR). The Environmental Protection Agency (EPA) has determined that Navajo Nation's revision request meets the applicable SDWA program revision requirements and the regulations adopted by the Navajo Nation are no less stringent than the corresponding federal regulations. Therefore, EPA approves this revision to Navajo Nation's approved primacy program. However, this determination on the Navajo Nation's request for approval of a program revision shall take effect in accordance with the procedures described below in the
A request for a public hearing must be received or postmarked before September 29, 2023.
Documents relating to this determination that were submitted by the Navajo Nation as part of its program revision request are available for public inspection online at
Nnana Edmund, EPA Region 9, Drinking Water Section; via telephone at (415) 972-3996 or via email address at
If EPA Region 9 does not receive a timely request for a hearing or a request for a hearing was denied by the Regional Administrator for being frivolous or insubstantial, and the Regional Administrator does not elect to hold a hearing on their own motion, EPA's approval shall become final and effective on September 29, 2023, and no further public notice will be issued.
Federal Accounting Standards Advisory Board.
Notice.
Notice is hereby given that the Federal Accounting Standards Advisory Board (FASAB) has released an exposure draft titled
Written comments are requested by November 27, 2023.
Written comments should be submitted via
Ms. Monica R. Valentine, Executive Director, 441 G Street NW, Suite 1155, Washington, DC 20548, or call (202) 512-7350.
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments and recommendations for the proposed information collection should be submitted on or before September 29, 2023.
Comments should be sent to
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) go to the web page
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
On April 21, 2023, the Commission released the
The revisions to this collection primarily reflect the conclusion of the rate transition(s) adopted in the
The Commission hereby gives notice of filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments, relevant information, or documents regarding the agreements to the Secretary by email at
Location:
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
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 September 29, 2023.
1.
Board of Governors of the Federal Reserve System.
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 September 14, 2023.
1.
Board of Governors of the Federal Reserve System.
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
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 September 14, 2023.
1.
1.
Board of Governors of the Federal Reserve System.
Federal Trade Commission.
Notice.
The Federal Trade Commission (“FTC” or “Commission”) is seeking public comments on its proposal to extend for an additional three years the current Paperwork Reduction Act (“PRA”) clearance for information collection requirements contained in the FTC's trade regulation rule entitled “Use of Prenotification Negative Option Plans” (“Negative Option Rule” or “Rule”). That clearance expires on January 31, 2024.
Comments must be filed by October 30, 2023.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Katherine Johnson, Attorney, Division of Enforcement, Federal Trade Commission, Room CC-9528, 600 Pennsylvania Avenue NW, Washington, DC 20580, (202) 326-2185.
As required by section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), the FTC is providing this opportunity for public comment before requesting that OMB extend the existing clearance for the information collection requirements contained in the Rule.
Based on industry input, FTC staff estimates that approximately 25 clubs are subject to the disclosure requirements contained in the Rule.
Based on recent data from the Bureau of Labor Statistics, the mean hourly wage for advertising and promotion managers is approximately $70.70 per hour;
Because the Rule has been in effect since 1974, the vast majority of the negative option clubs have no current start-up costs. For new clubs entering the market, the costs associated with the Rule's disclosure requirements, beyond the additional labor costs discussed above, are
Pursuant to section 3506(c)(2)(A) of the PRA, the FTC invites comments on: (1) whether the disclosure and recordkeeping requirements are necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information.
For the FTC to consider a comment, we must receive it on or before October 30, 2023. Your comment, including your name and your state, will be placed on the public record of this proceeding, including the
You can file a comment online or on paper. Due to heightened security screening, postal mail addressed to the Commission will be subject to delay. We encourage you to submit your comments online through the
If you file your comment on paper, write “Negative Option Rule; PRA Comment: FTC File No. P072108” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J), Washington, DC 20580.
Because your comment will become publicly available at
Comments containing material for which confidential treatment is requested must (1) be filed in paper form, (2) be clearly labeled “Confidential,” and (3) comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record.
The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before October 30, 2023. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
Federal Trade Commission.
Notice.
In accordance with the Paperwork Reduction Act of 1995 (“PRA”), the Federal Trade Commission (“FTC” or “Commission”) is seeking public comment on its proposal to extend for an additional three years the Office of Management and Budget clearance for information collection requirements in the Trade Regulation Rule entitled Labeling and Advertising of Home Insulation (“R-value Rule” or “Rule”). That clearance expires on March 31, 2024.
Comments must be filed by October 30, 2023.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Hampton Newsome, Attorney, Division of Enforcement, Federal Trade Commission, Room CC-9528, 600 Pennsylvania Avenue NW, Washington, DC 20580, (202) 326-2889.
As required by section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), the FTC is providing this opportunity for public comment before requesting that OMB extend the existing clearance for the information collection requirements contained in the R-value Rule.
The Rule's requirements include product testing, recordkeeping, and third-party disclosures on labels, fact sheets, advertisements, and other promotional materials. Based on information provided by industry and government sources, FTC staff estimates that the Rule affects: (1) 150 Insulation manufacturers and their testing laboratories; (2) 1,615 installers who sell home insulation; (3) 1,670,00 new home sales; and (4) 7,500 retail sellers who sell home insulation for installation by consumers.
Under the Rule's testing requirements, manufacturers must test each insulation product for its R-value. Based on past industry input, FTC staff estimates that the test takes approximately two hours. Approximately 15 of the 150 insulation manufacturers in existence introduce one new product each year. Their total annual testing burden is therefore approximately 30 hours.
FTC staff further estimates that most manufacturers require an average of approximately 20 hours per year regarding third-party disclosure requirements in advertising and other promotional materials. Only the five or six largest manufacturers require additional time, approximately 80 hours each. Thus, the annual third-party disclosure burden for manufacturers is approximately 3,360 hours [(144 manufacturers × 20 hours) + (6 manufacturers × 80 hours)].
While the Rule imposes recordkeeping requirements, most manufacturers and their testing laboratories keep their testing-related records in the ordinary course of business. FTC staff estimates that no more than one additional hour per year per manufacturer is necessary to comply with this requirement, for an annual recordkeeping burden of approximately 150 hours (150 manufacturers × 1 hour).
This yields a total annual burden of 3,540 hours (30 hours for testing + 3,360 hours for third-party disclosures + 150 hours for recordkeeping) for manufacturers.
Installers are required to show the manufacturers' insulation fact sheet to retail consumers before purchase. They must also disclose information in contracts or receipts concerning the R-value and the amount of insulation to install. FTC staff estimates that two minutes per sales transaction is sufficient to comply with these requirements. Approximately 2,000,000 retrofit insulations (an industry source's estimate) are installed by approximately 1,615 installers per year, and, thus, the related annual burden total is approximately 66,667 hours (2,000,000 sales transactions × 2 minutes). FTC staff anticipates that one hour per year per installer is sufficient to cover required disclosures in advertisements and other promotional materials. Thus, the burden for this requirement is approximately 1,615 hours per year. In addition, installers must keep records that indicate the substantiation relied upon for savings claims. The additional time to comply with this requirement is minimal—approximately 5 minutes per year per installer—for a total of approximately 135 hours.
This yields a total annual burden of 68,417 hours (66,667 hours for contract disclosures + 1,615 hours for promotional material disclosures + 135 hours for recordkeeping) for installers.
New home sellers must make contract disclosures concerning the type, thickness, and R-value of the insulation they install in each part of a new home. FTC staff estimates that not more than 30 seconds per sales transaction are required to comply with this requirement, for a total annual burden of approximately 13,917 hours (an estimated 1,670,000 new home sales per year
This yields a total annual burden of 13,917 hours (for disclosures) for new home sellers.
The Rule requires that the approximately 7,500 retailers who sell home insulation make fact sheets available to consumers before purchase. This can be accomplished by, for example, placing copies in a display rack or keeping copies in a binder on a service desk with an appropriate notice. Replenishing or replacing fact sheets should require no more than approximately one hour per year per retailer, for a total of 7,500 annual hours, industry-wide.
The Rule also requires specific disclosures in advertisements or other promotional materials to ensure that the claims are fair and not deceptive. This burden is very minimal because retailers typically use advertising copy provided by the insulation manufacturer, and even when retailers prepare their own advertising copy, the Rule provides some of the language to be used. Accordingly, approximately one hour per year per retailer should suffice to meet this requirement, for a total annual burden of approximately 7,500 hours.
Retailers who make energy savings claims in advertisements or other promotional materials must keep records that indicate the substantiation they are relying upon. Because few retailers make these types of promotional claims and because the Rule permits retailers to rely on the insulation manufacturer's substantiation data for any claims that are made, the additional recordkeeping burden is de minimis. The time calculated for disclosures, above, would be more than adequate to cover any burden imposed by this recordkeeping requirement.
This yields a total annual burden of 15,000 hours (for fact sheet and other disclosures) for retail sellers.
The total annual labor cost for the Rule's information collection requirements is approximately $2,424,450.68, derived as follows: approximately $963 for testing, based on 30 hours for manufacturers (30 hours × $32.10 per hour for skilled technical personnel); $5,420.70 for manufacturers' and installers' compliance with the Rule's recordkeeping requirements, based on 285 hours (285 hours × $19.02 per hour for clerical personnel); $63,907.20 for manufacturers'
There are no significant current capital or other non-labor costs associated with this Rule. Because the Rule has been in effect since 1980, members of the industry are familiar with its requirements and already have in place the equipment for conducting tests and storing records. New products are introduced infrequently. Because the required disclosures are placed on packaging or on the product itself, the Rule's additional disclosure requirements do not cause industry members to incur any significant additional non-labor associated costs.
Pursuant to Section 3506(c)(2)(A) of the PRA, the FTC invites comments on: (1) whether the disclosure and recordkeeping requirements are necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information.
For the FTC to consider a comment, we must receive it on or before October 30, 2023. Your comment, including your name and your state, will be placed on the public record of this proceeding, including the
You can file a comment online or on paper. Due to heightened security screening, postal mail addressed to the Commission will be subject to delay. We encourage you to submit your comments online through the
If you file your comment on paper, write “R-value Rule; PRA Comment: FTC File No. P072108,” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J), Washington, DC 20580.
Because your comment will become publicly available at
Comments containing material for which confidential treatment is requested must (1) be filed in paper form, (2) be clearly labeled “Confidential,” and (3) comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record.
The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before October 30, 2023. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
Federal Trade Commission.
Notice.
The Federal Trade Commission (“FTC” or “Commission”) is seeking public comments on its proposal to extend for an additional three years the current Paperwork Reduction Act (“PRA”) clearance for information collection requirements contained in the Fair Packaging and Labeling Act regulations (“FPLA Rules”). That clearance expires on March 31, 2024.
Comments must be filed by October 30, 2023.
Interested parties may file a comment online or on paper, by following the instructions in the Request for Comment part of the
Jock Chung, Attorney, Division of Enforcement, Bureau of Consumer Protection, Federal Trade Commission, Room CC-9543, 600 Pennsylvania Avenue NW, Washington, DC 20580, (202) 326-2984.
As required by section 3506(c)(2)(A) of the PRA, 44 U.S.C. 3506(c)(2)(A), the FTC is providing this opportunity for public comment before requesting that OMB extend the existing clearance for the information collection requirements contained in the FPLA Rules.
FTC staff estimates there are approximately 743,658 retailers, wholesalers, and manufacturers that sell consumer commodities that are subject to the FPLA Rules' labeling requirements.
FTC staff estimates that covered entities spend approximately 10 hours per year to comply with the FPLA Rule's labeling requirements. As a result, the FTC estimates that the total burden hours attributable to FTC requirements is 7,436,580 hours (743,658 respondents × 10 hours).
FTC staff derives labor costs by applying estimated hourly cost figures to the burden hours described above. Commission staff estimates the hours spent to comply with the FPLA Rules' labeling requirements will break down as follows: 1 hour of managerial and/or professional time per covered entity, at an hourly wage of $59.07,
Commission staff believes that the FPLA Rules impose negligible capital or other non-labor costs, as the affected entities are likely to have the necessary supplies and/or equipment already (
Pursuant to Section 3506(c)(2)(A) of the PRA, the FTC invites comments on: (1) whether the disclosure and recordkeeping requirements are necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information.
For the FTC to consider a comment, we must receive it on or before October 30, 2023. Your comment, including your name and your state, will be placed on the public record of this proceeding, including the
You can file a comment online or on paper. Due to heightened security screening, postal mail addressed to the Commission will be subject to delay. We encourage you to submit your comments online through the
If you file your comment on paper, write “FPLA Rules, PRA Comment, P074200” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex J), Washington, DC 20580.
Because your comment will become publicly available at
Comments containing material for which confidential treatment is requested must (1) be filed in paper form, (2) be clearly labeled “Confidential,” and (3) comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record.
The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before October 30, 2023. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see
Agency for Toxic Substances and Disease Registry (ATSDR), Department of Health and Human Services (HHS).
Notice with comment period.
The Agency for Toxic Substances and Disease Registry (ATSDR), within the Department of Health and Human Services (HHS), announces the opening of a docket to obtain comments on drafts of five updated toxicological profiles, and one draft interaction profile: Creosote, Nickel, 1,2-Dichloroethene, Vinyl acetate, Acrylonitrile, and the Interaction Profile for Selected Metallic Ions. This action is necessary as this is the opportunity for members of the public and organizations to submit comments on drafts of the profiles. The intended effect of this action is to ensure that the public can note any pertinent additional information or reports on studies about the health effects of these six profiles for review.
Written comments must be received on or before November 28, 2023.
You may submit comments, identified by Docket No. ATSDR-2023-0004 by either of the methods listed below. Do not submit comments by email. ATSDR does not accept comments by email.
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Farhana Rahman, Agency for Toxic Substances and Disease Registry, Office of Innovation and Analytics, 1600 Clifton Rd. NE, Mail Stop S106-5, Atlanta, GA 30329-4027; Email:
ATSDR has prepared drafts of five updated toxicological profiles and one interaction profile based on current understanding of the health effects and availability of new studies and other information since their initial release. All toxicological profiles issued as “Drafts for Public Comment” represent the result of ATSDR's evidence-based evaluations to provide important toxicological information on priority hazardous substances to the public and health professionals. ATSDR considers key studies for these substances during the profile development process, using a systematic review approach. To that end, ATSDR is seeking public comments and additional information or reports on studies about the health effects of these substances for review and potential inclusion in the profiles. ATSDR will evaluate the quality and relevance of such data or studies for possible inclusion in the profile.
The Superfund Amendments and Reauthorization Act of 1986 (SARA) [42 U.S.C. 9601
In addition, CERCLA provides ATSDR with the authority to prepare toxicological profiles for substances not found on the SPL. CERCLA authorizes ATSDR to establish and maintain an inventory of literature, research, and studies on the health effects of toxic substances (CERCLA Section 104(i)(1)(B); 42 U.S.C. 9604(i)(1)(B)); to respond to requests for health consultations (CERCLA Section 104(i)(4); 42 U.S.C. 9604(i)(4)); and to support the site-specific response actions conducted by the agency (CERCLA Section 104(i)(6); 42 U.S.C. 9604(i)(6)).
ATSDR has now prepared drafts of five updated toxicological profiles, and one interaction profile based on current understanding of the health effects and availability of new studies and other information since their initial release.
The draft toxicological profiles and interaction profile are available online at
Interested persons or organizations are invited to participate by submitting written views, recommendations, and data. Please note that comments received, including attachments and other supporting materials, are part of the public record and are subject to public disclosure. Comments will be posted on
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) 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 September 29, 2023.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
JonnaLynn Capezzuto, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-3794,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Under section 1003 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 393), FDA is authorized to conduct research and public information programs about regulated products and responsibilities of the Agency. Executive Order 12862, entitled “Setting Customer Service Standard,” directs Federal Agencies that “provide significant services directly to the public” to “survey customers to determine the kind and quality of services they want and their level of satisfaction with existing services.” FDA is seeking to extend OMB approval to conduct customer service satisfaction surveys to implement Executive Order 12862. Participation in the surveys is voluntary. This request covers customer/partner (including State and local governments) service satisfaction surveys of regulated entities, such as food processors; cosmetic, drug, biologic, and medical device manufacturers; animal drugs, animal food and feed; tobacco products; and consumers and health professionals.
FDA will use the information from these surveys to identify strengths and weaknesses in service to customers/partners and to make improvements. The surveys will measure timeliness, appropriateness, clarity, and accuracy of information, courtesy, and problem resolution in the context of individual programs.
FDA estimates conducting approximately 20 customer/partner service satisfaction surveys per year, each requiring an average of 25 minutes for review and completion. We estimate respondents to these surveys to be between 100 and 20,000 customers/partners. Some of these surveys will be repeats of earlier surveys for purposes of monitoring customer/partner service and developing long-term data. Respondents to this collection of information cover a broad range of stakeholders who have experience with certain products regulated by or services provided by FDA.
In the
FDA estimates the burden of this collection of information as follows:
Since the last OMB approval of this information collection request, FDA submitted three requests to increase the total burden hours. Therefore, this request for extension of OMB approval adjusts the number of respondents by an increase of 30,000 and the total burden hours by an increase of 21,950.
Health Resources and Services Administration (HRSA), Department of Health and Human Services.
Notice.
In accordance with the Federal Advisory Committee Act, this notice announces that the National Advisory Council on Migrant Health (NACMH) has scheduled a public meeting. Information about NACMH and the agenda for this meeting can be found on NACMH's website at
November 1-2, 2023, 9:00 a.m.-5:00 p.m. Eastern Standard Time.
This meeting will be held in-person at 5600 Fishers Lane,
Esther Paul, NACMH, Designated Federal Official, Strategic Initiatives Division, Office of Policy and Program Development, Bureau of Primary Health Care, HRSA, 5600 Fishers Lane, Rockville, MD 20857; 301-594-4300; or
NACMH provides advice and recommendations to the Secretary of Health and Human Services on policy, program development, and other matters of significance concerning the activities under section 217 of the Public Health Service Act, as amended (42 U.S.C. 218). Specifically, NACMH provides recommendations concerning the organization, operation, selection, and funding of migrant health centers, and other entities under grants and contracts under section 330 of the Public Health Service Act (42 U.S.C. 254b). NACMH meets twice each calendar year, or at the discretion of the Designated Federal Official in consultation with the NACMH Chair.
During the November 1-2, 2023, meeting, NACMH will discuss issues related to migratory and seasonal agricultural worker health. Agenda items are subject to change as priorities dictate. Refer to the NACMH website for any updated information concerning the meeting.
Members of the public will have the opportunity to provide comments. Public participants may submit written statements in advance of the scheduled meeting. Oral comments will be honored in the order they are requested and may be limited as time allows. Requests to submit a written statement or make oral comments to NACMH should be sent to Esther Paul, Designated Federal Official, using the contact information above at least 3 business days prior to the meeting.
Individuals who plan to attend and need special assistance or another reasonable accommodation should notify Esther Paul at the address and phone number listed above at least 10 business days prior to the meeting. Since this meeting occurs in a federal government building, attendees must go through a security check to enter the building. Non-U.S. Citizen attendees must notify HRSA of their planned attendance at least 20 business days prior to the meeting to facilitate their entry into the building. All attendees are required to present government-issued identification prior to entry.
Indian Health Service, HHS.
Notice and request for comments; request for extension of approval.
In compliance the Paperwork Reduction Act of 1995, the Indian Health Service (IHS) invites the general public to comment on the information collection titled, “Application for Participation in the IHS Scholarship Program,” Office of Management and Budget (OMB) Control No. 0917-0006. The IHS is requesting OMB to approve an extension for this collection, which expires on October 31, 2023.
Send your written comments, requests for more information on the collection, or requests to obtain a copy of the data collection instrument and instructions by one of the following methods:
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This previously approved information collection project was last published in the
There are no direct costs to respondents other than their time to voluntarily complete the forms and submit them for consideration. The estimated cost for the Federal Government is $145,223.00 (contractor) to work on the program with IHS program staff.
There are no capital costs, operating costs and/or maintenance costs to respondents.
(a) Whether the information collection activity is necessary to carry out an agency function;
(b) Whether the agency processes the information collected in a useful and timely fashion;
(c) The accuracy of the public burden estimate (the estimated amount of time needed for individual respondents to provide the requested information);
(d) Whether the methodology and assumptions used to determine the estimates are logical;
(e) Ways to enhance the quality, utility, and clarity of the information being collected; and
(f) Ways to minimize the public burden through the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
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.
Pursuant to section 1009 of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications/contract proposals and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications/contract proposals, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-day notice and request for comments; extension of an existing collection of information.
The Department of Homeland Security, U.S. Customs and Border Protection (CBP) 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 October 30, 2023) to be assured of consideration.
Written comments and/or suggestions regarding the item(s) contained in this notice must include the OMB Control Number 1651-0019 in the subject line and the agency name. Please use the following method to submit comments: Email. Submit comments 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
This form is currently submitted in paper format and is anticipated to be submitted electronically as part of CBP's efforts to automate maritime forms through the Vessel Entrance and Clearance System (VECS), which will reduce the need for paper submission of any vessel entrance or clearance requirements under the above referenced statutes and regulations. VECS will still collect and maintain the same data as CBP Form 1300 but will automate the capture of data to reduce or eliminate redundancy with other data collected by CBP.
Respondents are enabled to create a new ACE Account type for Vessel Agencies through the ACE Portal. The new account type within ACE will operate as a portal that leads to the Vessel Entrance and Clearance System (VECS), which will run as its own independent system.
Vessel Agents will be required to provide identifying information such as; their name, their employer identification number (EIN), company address, and their phone numbers, which will be requested at the time Vessel Agents apply for the new ACE account type.
After creating an ACE account, Vessel Agencies, Vessel Operating Common Carriers (VOCCs), and their designees are able to use the new Vessel Entrance and Clearance System (VECS) as part of the ongoing pilot program to test the functionality of VECS, and will be able to file vessel entrance, clearance, and related data to CBP electronically.
CBP is currently running a small public VECS Pilot on several ports. VECS will automate and digitize the collection and processing of the data and filing requirements for which the CBP Form 1300 is used. CBP plans to run an initial public pilot to test the system. All users who obtained a Vessel Agency Account through the ACE Portal will be automatically enrolled into the VECS public pilot. Initially, the pilot began at one of eleven ports where VECS was previously internally tested. CBP is providing training to each CBP port and the Vessel Agency personnel at each port, prior to beginning/expanding the public pilot in another port.
The VECS public pilot will continue to expand to additional ports, in an effort to progressively test and implement the system nationwide. There will be no change to the paper format of CBP Form 1300, and CBP Form 1300 in paper format will continue to be accepted.
The VECS Pilot will be live for 51 port codes as of August 2023 enabling fully electronic processing of vessel entrance and clearance. The public pilot has allowed CBP to identify areas for additional enhancement and automation, fix minor errors with the system's operation, and simultaneously deploy to new locations while continuing to test fixes and new capabilities. VECS pilot will continue to expand to other port codes while implementing training for port staff.
U.S. Customs and Border Protection (CBP), Department of Homeland Security (DHS).
Committee management; notice of Federal advisory committee meeting.
The Commercial Customs Operations Advisory Committee (COAC) will hold its quarterly meeting on Wednesday, September 20, 2023. The meeting will be open to the public via webinar only. There is no on-site, in-person option for the public to attend this quarterly meeting.
The COAC will meet on Wednesday, September 20, 2023, from 1:00 p.m. to 5:00 p.m. EDT. Please note that the meeting may close early if the committee has completed its business. Comments must be submitted in writing no later than September 15, 2023.
The meeting will be open to the public via webinar only. The webinar link and conference number will be posted by 5:00 p.m. EDT on September 19, 2023, at
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Comments must be submitted in writing no later than September 15, 2023, and must be identified by Docket No. USCBP-2023-0021. All submissions received must also include the words “Department of Homeland Security.” All comments received will be posted without change to
Ms. Latoria Martin, Office of Trade Relations, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW, Room 3.5A, Washington, DC 20229, (202) 344-1440; or Ms. Felicia M. Pullam, Designated Federal Officer, at (202) 344-1440 or via email at
Notice of this meeting is given under the authority of the Federal Advisory Committee Act, title 5 U.S.C. ch. 10. The Commercial Customs Operations Advisory Committee (COAC) provides advice to the Secretary of the Department of Homeland Security, the Secretary of the Department of the Treasury, and the Commissioner of U.S. Customs and Border Protection (CBP) on matters pertaining to the commercial operations of CBP and related functions within the Department of Homeland Security and the Department of the Treasury.
The COAC is committed to ensuring that all participants have equal access regardless of disability status. If you require a reasonable accommodation due to a disability to fully participate, please contact Ms. Latoria Martin at (202) 344-1440 as soon as possible.
Please feel free to share this information with other interested members of your organization or association.
To facilitate public participation, we are inviting public comment on the issues the committee will consider prior to the formulation of recommendations as listed in the AGENDA section below.
There will be multiple public comment periods held during the meeting on September 20, 2023. Speakers are requested to limit their comments to two minutes or less to facilitate greater participation. Please note that the public comment period for speakers may end before the time indicated on the schedule that is posted on the CBP web page:
The COAC will hear from the current subcommittees on the topics listed below:
1. The Intelligent Enforcement Subcommittee will provide updates on the work completed and topics discussed in its working groups. The Antidumping/Countervailing Duty (AD/CVD) Working Group will provide updates regarding its work and discussions on importer compliance with AD/CVD requirements. The Intellectual Property Rights (IPR) Process Modernization Working Group will report on, and anticipates providing recommendations for the committee's consideration relating to, the development of a portal on the CBP IPR web page and other enhancements in communications between CBP, rights holders, and the trade community regarding enforcement actions. The Bond Working Group will report on the ongoing discussions and status updates for eBond requirements. The Forced Labor Working Group (FLWG) has been working on the implementation of recommendations and updates, as well as revisions to its statement of work. The FLWG will also provide updates and anticipates making recommendations for the committee's consideration at the September public meeting.
2. The Next Generation Facilitation Subcommittee will provide updates on its working groups. There will be an update and potential recommendations for the committee's consideration from the Automated Commercial Environment (ACE) 2.0 Working Group regarding progress on the ACE 2.0 initiative resulting from the working group's recent in-person sessions held to review the CBP ACE 2.0 Concept of Operations processes. The Customs Interagency Industry Working Group (CII) (formerly the One U.S. Government Working Group) will provide an update on the work accomplished this quarter, which includes discussions with Partner Government Agencies and an update on ACE 2.0. The Passenger Air Operations (PAO) Working Group has been focusing its discussions on CBP security seal processing and access to international aircraft and passengers, landing rights, and elimination of outdated or obsolete forms, and will provide an update on those discussions.
3. The Rapid Response Subcommittee will provide updates from the Broker Modernization Working Group and the United States-Mexico-Canada Agreement (USMCA) Chapter 7 Working Group. The Broker Modernization Working Group currently meets monthly and continues to focus on the 19 CFR part 111 final rules relating to Modernization of the Customs Broker Regulations and Continuing Education for Licensed Customs Brokers, as well as Customs Broker Licensing Exams matters. The subcommittee anticipates the Broker Modernization Working Group will provide one recommendation for the committee's consideration. The USMCA Chapter 7 Working Group meets bi-weekly with the expectation that recommendations will be developed and submitted for consideration at an upcoming COAC public meeting. The current focus of this working group is to review the Chapter 7 articles of the USMCA and identify gaps in implementation between the United States, Mexico, and Canada.
4. The Secure Trade Lanes Subcommittee will provide updates on its five active working groups: the Export Modernization Working Group, the In-Bond Working Group, the Trade Partnership and Engagement Working Group, the Pipeline Working Group, and the Cross-Border Recognition Working Group. The Export Modernization Working Group has continued its work on the electronic export manifest pilot program. The In-Bond Working Group has continued its focus on the implementation of previously submitted recommendations. The Trade Partnership and Engagement Working Group has focused its work on implementing previous recommendations for Customs Trade Partnership Against Terrorism (CTPAT) Trade Compliance partners and is working to update its statement of work to include CTPAT security. The Pipeline Working Group expects to submit a recommendation for the committee's consideration that CBP develop a pilot to use Distributed Ledger Technology to enhance transparency in supply chains for pipeline-borne goods. Although the Cross-Border Recognition Working Group did not meet this quarter, it remains an active working group within the subcommittee and will resume meetings next quarter.
Meeting materials will be available by September 11, 2023, at:
Office of Partnership and Engagement (OPE), Department of Homeland Security (DHS).
Notice of open Federal advisory committee meeting.
The Homeland Security Advisory Council (HSAC) will hold a public in-person meeting on Thursday, September 14, 2023. The meeting will be open to the public via teleconference.
The meeting will take place from 02 p.m. ET to 04:30 p.m. ET on Thursday, September 14, 2023. Please note that the meeting may end early if the Council has completed its business.
The HSAC meeting will be held at DHS St. Elizabeths Campus in Washington, DC Members of the public interested in participating may do so via teleconference by following the process outlined below. The public will be in listen-only mode except for the public comment portion of the meeting. Written comments must be submitted by 05 p.m. ET on September 13, 2023. Comments must be identified by Docket No. DHS-2023-0024 and may be submitted by one of the following methods:
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Rebecca Sternhell, Acting Executive Director, Homeland Security Advisory Council at 202-891-2876 or
Notice of this meeting is given pursuant to the Federal Advisory Committee Act (FACA), 5 U.S.C. 1009, which requires each FACA committee meeting to be open to the public unless the President, or the head of the agency to which the advisory committee reports, determines that a portion of the meeting may be closed to the public in accordance with 5 U.S.C. 552b(c).
The HSAC provides organizationally independent, strategic, timely, specific, actionable advice, and recommendations to the Secretary of Homeland Security on matters related to homeland security. The Council consists of senior executives from government, the private sector, academia, law enforcement, and non-governmental organizations. The open session will include: (1) Remarks from Senior DHS leaders, (2) Introduction and swearing in of a new member, (3) briefings, public comment, HSAC member deliberation, and voting on the the four draft reports from the DHS Workforce; Alternatives to Detention; Homeland Security Grant Program Review; and the Artificial Intelligence—Mission Focused subcommittees. The Council was tasked to create these subcommittees on March 27, 2023. The taskings can be found on the HSAC website at
Members of the public will be in listen-only mode except during the public comment session. Members of the public may register to participate in this Council meeting via teleconference under the following procedures. Each individual must provide their full legal name and email address no later than 5:00 p.m. ET on Wednesday, September 13, 2023, to Rebecca Sternhell, Acting Executive Director of the Homeland Security Advisory Council via email to
For information on services for individuals with disabilities, or to request special assistance, please email
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection can be submitted within 60 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email;
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This review is necessary to support HUD participating agencies who are seeking to increase the homeownership rate among historically underserved communities and stop or reverse the increasing homeownership gap resulting from the effects of the COVID-19 pandemic and resulting shortage of affordable homes within those communities. These agencies will provide targeted counseling, outreach to members of their communities as well as seek partnerships with other agencies to help individuals and families achieve sustainable homeownership, no matter their race, ethnicity, disability status, or other protected class.
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 respondents, including through the use of appropriate 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. 3507).
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection can be submitted within 60 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Assistant Secretary for Housing- Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection can be submitted within 60 days of publication of this notice to
Colette Pollard, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Room 8210, Washington, DC 20410-5000; email
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Written comments and recommendations for the proposed information collection can be submitted within 60 days of publication of this notice to
Colette Pollard, Reports Management Officer, Reports Management Officer, REE, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Bureau of Indian Affairs, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Indian Affairs are proposing to renew an information collection.
Interested persons are invited to submit comments on or before October 30, 2023.
Send your comments on this information collection request (ICR) by mail to Nina Alexander, 4400 Masthead NE, Albuquerque, NM 87109; or by email to
To request additional information about this ICR, contact Nina Alexander by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) is the collection necessary to the proper functions of the BTFA; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BTFA enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BTFA minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
An agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
The authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of full reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping and countervailing duty orders on fine denier polyester staple fiber (PSF) from China, India, South Korea, and Taiwan would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time. The Commission has determined to exercise its authority to extend the review period by up to 90 days.
August 24, 2023.
Kristina Lara ((202) 205-3386), Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
Please note the Secretary's Office will accept only electronic filings during this time. Filings must be made through the Commission's Electronic Document Information System (EDIS,
A nonparty who has testimony that may aid the Commission's deliberations may request permission to present a short statement at the hearing. All parties and nonparties desiring to appear at the hearing and make oral presentations should attend a prehearing conference, if deemed necessary, to be held at 9:30 a.m. on Thursday, January 18, 2024. Parties shall file and serve written testimony and presentation slides in connection with their presentation at the hearing by no later than 4:00 p.m. on January 22, 2024. Oral testimony and written materials to be submitted at the public hearing are governed by sections 201.6(b)(2), 201.13(f), and 207.24 of the Commission's rules. Parties must submit any request to present a portion of their hearing testimony
Additional written submissions to the Commission, including requests pursuant to section 201.12 of the Commission's rules, shall not be accepted unless good cause is shown for accepting such submissions, or unless the submission is pursuant to a specific request by a Commissioner or Commission staff.
In accordance with sections 201.16(c) and 207.3 of the Commission's rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
The Commission has determined that these reviews are extraordinarily complicated and therefore has determined to exercise its authority to extend the review period by up to 90 days pursuant to 19 U.S.C.1675(c)(5)(B).
By order of the Commission.
On August 22, 2023, the Department of Justice lodged a proposed consent decree agreed to with defendants Atlantic Richfield Company and ARCO Environmental Remediation, LLC, in the United States District Court for the District of Montana in the lawsuit entitled
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 $269 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $7.25.
Office of Workers' Compensation, Division of Federal Employees' Longshore and Harbor Workers' Compensation, (OWCP/DFELHWC), Labor.
Request for public comments.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden, conducts a pre-clearance request for comment to provide the general public and Federal agencies with an opportunity to comment on proposed collections of information in accordance with the Paperwork Reduction Act of 1995. This request helps to ensure that: requested data can be provided in the desired format; reporting burden (time and financial resources) is minimized; collection instruments are clearly understood; and the impact of collection requirements on respondents can be properly assessed. Currently, OWCP/DFELHWC is soliciting comments on the information collection for Rehabilitation Plan and Award, (OWCP-16).
All comments must be received on or before October 30, 2023.
You may submit comment as follows. Please note that late, untimely filed comments will not be considered.
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Anjanette Suggs, Office of Workers' Compensation Programs, Division of Federal Employees Longshore, and Harbor Workers' Compensation, OWCP/DFELHWC, at
The Office of Workers' Compensation Programs (OWCP) is the agency responsible for administration of the Longshore and Harbor Workers' Compensation Act (LHWCA), and the Federal Employees' Compensation Act (FECA). 33 U.S.C. 939 (LHWCA) and 5 U.S.C. 8104 and 8111 (FECA) authorizes OWCP to pay for approved vocational rehabilitation services to eligible workers with work-related disabilities. In order to decide whether to approve a rehabilitation plan, OWCP must receive a copy of the plan, supporting vocational testing materials and the estimated cost to implement the plan, broken down to show the fees, supplies, tuition and worker maintenance payments that are contemplated. OWCP also must receive the signatures of the worker and the rehabilitation counselor to show that the worker agrees to follow the proposed plan, and that the proposed plan is appropriate. Form OWCP-16 is the standard format for the collection of this information. The regulations implementing these statutes allow for the collection of information needed for OWCP to determine if a rehabilitation plan should be approved and payment of any related expenses should be authorized. (LHWCA, 702.506 and 702.507, (FECA, 20 CFR 10.518, 10.519)
OWCP is soliciting comments concerning the proposed information collection (ICR) titled, “Rehabilitation Plan and Award”, OWCP-16. OWCP/DFELHWC is particularly interested in comments that:
• Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information has practical utility;
• Evaluate the accuracy of OWCP/DFELHWC's estimate of the burden related to the information collection, including the validity of the methodology and assumptions used in the estimate;
• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the information collection 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,
Background documents related to this information collection request are available at
This information collection request concerns the Rehabilitation Plan and Award, OWCP-16. OWCP/DFELHWC has updated the data with respect to the number of respondents, responses, burden hours, and burden costs supporting this information collection request from the previous information collection request.
Comments submitted in response to this notice will be summarized in the request for Office of Management and Budget approval of the proposed information collection request; they will become a matter of public record and will be available at
U.S. Copyright Office, Library of Congress.
Notice of inquiry and request for comments.
The United States Copyright Office is undertaking a study of the copyright law and policy issues raised by artificial intelligence (“AI”) systems. To inform the Office's study and help assess whether legislative or regulatory steps in this area are warranted, the Office seeks comment on these issues, including those involved in the use of copyrighted works to train AI models, the appropriate levels of transparency and disclosure with respect to the use of copyrighted works, and the legal status of AI-generated outputs.
Written comments are due no later than 11:59 p.m. Eastern Time on Wednesday, October 18, 2023. Written reply comments are due no later than 11:59 p.m. Eastern Time on Wednesday, November 15, 2023.
For reasons of governmental efficiency, the Copyright Office is using the
Rhea Efthimiadis, Assistant to the General Counsel, by email at
Over the last year, artificial intelligence (“AI”) systems and the rapid growth of their capabilities have attracted significant media and public attention. One type of AI, “generative AI” technology, is capable of producing outputs such as text, images, video, or audio (including emulating a human voice) that would be considered copyrightable if created by a human author.
Some of these questions relate to the scope and level of human authorship, if any, in copyright claims for material produced in whole or in part by generative AI. Over the past several years, the Office has begun to receive applications to register works containing AI-generated material, some of which name AI systems as an author or co-author.
The Copyright Office has long been engaged in questions involving machine learning and copyright. In 1965, the Office's annual report noted that developments in computer technology had begun to raise “difficult questions of authorship”—namely the question of the authorship of works “`written' by computers.”
The crucial question appears to be whether the “work” is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.
Because the answer depends on the circumstances of a work's creation, the head of the Office's Examining Division (and future Register) Barbara Ringer warned that the Office could not “take the categorical position that registration will be denied merely because a computer may have been used in some manner in creating the work.”
Last year, in two separate copyright registration matters, the Office publicly addressed the question of copyright in AI-generated material. In the first instance, the Office refused to register a claim for two-dimensional artwork described as “autonomously created by a computer algorithm running on a machine.”
A second registration application, submitted in 2022, involved a work containing both human authorship and generative AI material. The work was a graphic novel with text written by the human applicant and illustrations created through the use of Midjourney, a generative AI system. After soliciting information from the applicant about the process of the work's creation, the Office determined that copyright protected both the human-authored text and human selection and arrangement of the text and images, but not the AI-generated images themselves.
In response to growing Congressional
At the outset of the Initiative, the Office issued a statement of policy providing registration guidance on works containing AI-generated material (“AI Registration Guidance”).
In April and May 2023, the Office held four public listening sessions to gather input on the copyright issues raised by generative AI. Each session focused on a different category of creative work: literary works, including print journalism and software; works of visual art; audiovisual works, including video games; and musical works and sound recordings. Over the four listening sessions, nearly 90 participants representing individual artists, academic experts, legal practitioners, technology companies, and industry associations shared their views with the Office. Transcripts, videos recordings, and agendas for each session are available on the Office's website.
In June and July 2023, the Office held two public webinars on generative AI, each of which drew an audience of nearly 2,000. The first webinar focused on registration of works containing AI-generated material. It included an overview of the Office's general rules on how to register works containing material created or owned by someone other than the applicant, followed by examples illustrating how those rules apply to works that incorporate AI-generated material.
In addition to the public events described above, the Office has spoken with a broad spectrum of stakeholders, participating in dozens of meetings with academics, trade groups, individual creators, technology companies, and creative industries.
Drawing on our prior AI Initiative work, including discussions with stakeholders, the Office has identified a wide range of copyright policy issues arising from the development and use of AI. These relate to: (1) the use of copyrighted works to train AI models; (2) the copyrightability of material generated using AI systems; (3) potential liability for infringing works generated using AI systems; and (4) the treatment of generative AI outputs that imitate the identity or style of human artists. The Office seeks public comments on these and related issues.
As to the first issue, the Office is aware that there is disagreement about whether or when the use of copyrighted works to develop datasets for training AI models (in both generative and non-generative systems) is infringing.
On the second issue, the Office seeks comment on the proper scope of copyright protection for material created using generative AI. Although we believe the law is clear that copyright protection in the United States is limited to works of human authorship,
On the third question, the Office is interested in how copyright liability principles could apply to material created by generative AI systems.
Lastly, in both our listening sessions and other outreach, the Office heard from artists and performers concerned about generative AI systems' ability to mimic their voices, likenesses, or styles. Although these personal attributes are not generally protected by copyright law, their copying may implicate varying state rights of publicity and unfair competition law, as well as have relevance to various international treaty obligations.
The purpose of this Notice is to collect factual information and views relevant to the copyright law and policy issues raised by recent advances in generative AI. The Office undertakes this study pursuant to its statutory mandate in title 17 to “[c]onduct studies” and “[a]dvise Congress on national and international issues relating to copyright, other matters arising under this title, and related matters.”
The questions are grouped into several categories. This Notice begins with several general high-level questions and then inquires about AI training, including questions of transparency and accountability; generative AI outputs, including questions of copyrightability, infringement, and labeling or identification of such outputs; and other issues related to copyright. Because of the importance of using shared language in discussing these issues, the questions are followed by a glossary of key terms for the purposes of this Notice. The Office welcomes input from commenters on the definitions.
The Office does not expect that every party choosing to respond to this Notice will address every question raised below. The questions are designed to gather views from a broad range of parties. The Office does request that, when responding to a question, commenters clearly identify each
1. As described above, generative AI systems have the ability to produce material that would be copyrightable if it were created by a human author. What are your views on the potential benefits and risks of this technology? How is the use of this technology currently affecting or likely to affect creators, copyright owners, technology developers, researchers, and the public?
2. Does the increasing use or distribution of AI-generated material raise any unique issues for your sector or industry as compared to other copyright stakeholders?
3. Please identify any papers or studies that you believe are relevant to this Notice. These may address, for example, the economic effects of generative AI on the creative industries or how different licensing regimes do or could operate to remunerate copyright owners and/or creators for the use of their works in training AI models. The Office requests that commenters provide a hyperlink to the identified papers.
4. Are there any statutory or regulatory approaches that have been adopted or are under consideration in other countries that relate to copyright and AI that should be considered or avoided in the United States?
5. Is new legislation warranted to address copyright or related issues with generative AI? If so, what should it entail? Specific proposals and legislative text are not necessary, but the Office welcomes any proposals or text for review.
6. What kinds of copyright-protected training materials are used to train AI models, and how are those materials collected and curated?
6.1. How or where do developers of AI models acquire the materials or datasets that their models are trained on? To what extent is training material first collected by third-party entities (such as academic researchers or private companies)?
6.2. To what extent are copyrighted works licensed from copyright owners for use as training materials? To your knowledge, what licensing models are currently being offered and used?
6.3. To what extent is non-copyrighted material (such as public domain works) used for AI training? Alternatively, to what extent is training material created or commissioned by developers of AI models?
6.4. Are some or all training materials retained by developers of AI models after training is complete, and for what purpose(s)? Please describe any relevant storage and retention practices.
7. To the extent that it informs your views, please briefly describe your personal knowledge of the process by which AI models are trained. The Office is particularly interested in:
7.1. How are training materials used and/or reproduced when training an AI model? Please include your understanding of the nature and duration of any reproduction of works that occur during the training process, as well as your views on the extent to which these activities implicate the exclusive rights of copyright owners.
7.2. How are inferences gained from the training process stored or represented within an AI model?
7.3. Is it possible for an AI model to “unlearn” inferences it gained from training on a particular piece of training material? If so, is it economically feasible? In addition to retraining a model, are there other ways to “unlearn” inferences from training?
7.4. Absent access to the underlying dataset, is it possible to identify whether an AI model was trained on a particular piece of training material?
8. Under what circumstances would the unauthorized use of copyrighted works to train AI models constitute fair use? Please discuss any case law you believe relevant to this question.
8.1. In light of the Supreme Court's recent decisions in
8.2. How should the analysis apply to entities that collect and distribute copyrighted material for training but may not themselves engage in the training?
8.3. The use of copyrighted materials in a training dataset or to train generative AI models may be done for noncommercial or research purposes.
8.4. What quantity of training materials do developers of generative AI models use for training? Does the volume of material used to train an AI model affect the fair use analysis? If so, how?
8.5. Under the fourth factor of the fair use analysis, how should the effect on the potential market for or value of a copyrighted work used to train an AI
9. Should copyright owners have to affirmatively consent (opt in) to the use of their works for training materials, or should they be provided with the means to object (opt out)?
9.1. Should consent of the copyright owner be required for all uses of copyrighted works to train AI models or only commercial uses?
9.2. If an “opt out” approach were adopted, how would that process work for a copyright owner who objected to the use of their works for training? Are there technical tools that might facilitate this process, such as a technical flag or metadata indicating that an automated service should not collect and store a work for AI training uses?
9.3. What legal, technical, or practical obstacles are there to establishing or using such a process? Given the volume of works used in training, is it feasible to get consent in advance from copyright owners?
9.4. If an objection is not honored, what remedies should be available? Are existing remedies for infringement appropriate or should there be a separate cause of action?
9.5. In cases where the human creator does not own the copyright—for example, because they have assigned it or because the work was made for hire—should they have a right to object to an AI model being trained on their work? If so, how would such a system work?
10. If copyright owners' consent is required to train generative AI models, how can or should licenses be obtained?
10.1. Is direct voluntary licensing feasible in some or all creative sectors?
10.2. Is a voluntary collective licensing scheme a feasible or desirable approach?
10.3. Should Congress consider establishing a compulsory licensing regime?
10.4. Is an extended collective licensing scheme
10.5. Should licensing regimes vary based on the type of work at issue?
11. What legal, technical or practical issues might there be with respect to obtaining appropriate licenses for training? Who, if anyone, should be responsible for securing them (for example when the curator of a training dataset, the developer who trains an AI model, and the company employing that model in an AI system are different entities and may have different commercial or noncommercial roles)?
12. Is it possible or feasible to identify the degree to which a particular work contributes to a particular output from a generative AI system? Please explain.
13. What would be the economic impacts of a licensing requirement on the development and adoption of generative AI systems?
14. Please describe any other factors you believe are relevant with respect to potential copyright liability for training AI models.
15. In order to allow copyright owners to determine whether their works have been used, should developers of AI models be required to collect, retain, and disclose records regarding the materials used to train their models? Should creators of training datasets have a similar obligation?
15.1. What level of specificity should be required?
15.2. To whom should disclosures be made?
15.3. What obligations, if any, should be placed on developers of AI systems that incorporate models from third parties?
15.4. What would be the cost or other impact of such a recordkeeping system for developers of AI models or systems, creators, consumers, or other relevant parties?
16. What obligations, if any, should there be to notify copyright owners that their works have been used to train an AI model?
17. Outside of copyright law, are there existing U.S. laws that could require developers of AI models or systems to retain or disclose records about the materials they used for training?
18. Under copyright law, are there circumstances when a human using a generative AI system should be considered the “author” of material produced by the system? If so, what factors are relevant to that determination? For example, is selecting what material an AI model is trained on and/or providing an iterative series of
19. Are any revisions to the Copyright Act necessary to clarify the human authorship requirement or to provide additional standards to determine when content including AI-generated material is subject to copyright protection?
20. Is legal protection for AI-generated material desirable as a policy matter? Is legal protection for AI-generated material necessary to encourage development of generative AI technologies and systems? Does existing copyright protection for computer code that operates a generative AI system provide sufficient incentives?
20.1. If you believe protection is desirable, should it be a form of copyright or a separate
21. Does the Copyright Clause in the U.S. Constitution permit copyright protection for AI-generated material? Would such protection “promote the progress of science and useful arts”?
22. Can AI-generated outputs implicate the exclusive rights of preexisting copyrighted works, such as the right of reproduction or the derivative work right? If so, in what circumstances?
23. Is the substantial similarity test adequate to address claims of infringement based on outputs from a generative AI system, or is some other standard appropriate or necessary?
24. How can copyright owners prove the element of copying (such as by demonstrating access to a copyrighted work) if the developer of the AI model does not maintain or make available records of what training material it used? Are existing civil discovery rules sufficient to address this situation?
25. If AI-generated material is found to infringe a copyrighted work, who should be directly or secondarily liable—the developer of a generative AI model, the developer of the system incorporating that model, end users of the system, or other parties?
25.1. Do “open-source” AI models raise unique considerations with respect to infringement based on their outputs?
26. If a generative AI system is trained on copyrighted works containing copyright management information, how does 17 U.S.C. 1202(b) apply to the treatment of that information in outputs of the system?
27. Please describe any other issues that you believe policymakers should consider with respect to potential copyright liability based on AI-generated output.
28. Should the law require AI-generated material to be labeled or otherwise publicly identified as being generated by AI? If so, in what context should the requirement apply and how should it work?
28.1. Who should be responsible for identifying a work as AI-generated?
28.2. Are there technical or practical barriers to labeling or identification requirements?
28.3. If a notification or labeling requirement is adopted, what should be the consequences of the failure to label a particular work or the removal of a label?
29. What tools exist or are in development to identify AI-generated material, including by standard-setting bodies? How accurate are these tools? What are their limitations?
30. What legal rights, if any, currently apply to AI-generated material that features the name or likeness, including vocal likeness, of a particular person?
31. Should Congress establish a new federal right, similar to state law rights of publicity, that would apply to AI-generated material? If so, should it preempt state laws or set a ceiling or floor for state law protections? What should be the contours of such a right?
32. Are there or should there be protections against an AI system generating outputs that imitate the artistic style of a human creator (such as an AI system producing visual works “in the style of” a specific artist)? Who should be eligible for such protection? What form should it take?
33. With respect to sound recordings, how does section 114(b) of the Copyright Act relate to state law, such as state right of publicity laws?
34. Please identify any issues not mentioned above that the Copyright Office should consider in conducting this study.
The Office has included definitions of key terms as they are used in this Notice to clarify the technical processes involved in generative AI systems. The following definitions are used for purposes of this Notice only; they do not necessarily reflect the government's legal position with respect to any particular term.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “NRC Form 5, Occupational Dose Record for a Monitoring Period.”
Submit comments by October 30, 2023. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David C. Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2022-0212 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility? Please explain your answer.
2. Is the estimate of the burden of the information collection accurate? Please explain your answer.
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Proposed information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on this proposed information collection. The information collection is entitled, “Codes and Standards.”
Submit comments by October 30, 2023. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2023-0060 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility? Please explain your answer.
2. Is the estimate of the burden of the information collection accurate? Please explain your answer.
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Renewal of existing information collection; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) invites public comment on the renewal of Office of Management and Budget (OMB) approval for an existing collection of information. The information collection is entitled, “NRC Form 4, Cumulative Occupational Dose History.”
Submit comments by October 30, 2023. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
David C. Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2022-0211 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:
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The NRC encourages electronic comment submission through the Federal rulemaking website (
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC is requesting public comment on its intention to request the OMB's approval for the information collection summarized below.
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The NRC is seeking comments that address the following questions:
1. Is the proposed collection of information necessary for the NRC to properly perform its functions? Does the information have practical utility? Please explain your answer.
2. Is the estimate of the burden of the information collection accurate? Please explain your answer.
3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?
4. How can the burden of the information collection on respondents be minimized, including the use of automated collection techniques or other forms of information technology?
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the Market Dominant or the Competitive product list, or the modification of an existing product currently appearing on the Market Dominant or the Competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern Market Dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3030, and 39 CFR part 3040, subpart B. For request(s) that the Postal Service states concern Competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3035, and 39 CFR part 3040, subpart B. Comment deadline(s) for each request appear in section II.
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This Notice will be published in the
The Commission collects fees under various provisions of the securities laws. Section 6(b) of the Securities Act of 1933 (“Securities Act”) requires the Commission to collect fees from issuers on the registration of securities.
Section 6(b)(2) of the Securities Act requires the Commission to make an annual adjustment to the fee rate applicable under Section 6(b).
Section 6(b)(2) sets forth the method for determining the annual adjustment to the fee rate under Section 6(b) for fiscal year 2024. Specifically, the Commission must adjust the fee rate under Section 6(b) to a “rate that, when applied to the baseline estimate of the aggregate maximum offering prices for [fiscal year 2024], is reasonably likely to produce aggregate fee collections under [Section 6(b)] that are equal to the target fee collection amount for [fiscal year 2024].” That is, the adjusted rate is determined by dividing the “target fee collection amount” for fiscal year 2024 by the “baseline estimate of the aggregate maximum offering prices” for fiscal year 2024.
The statutory “target fee collection amount” for fiscal year 2021 and “each fiscal year thereafter” is “an amount that is equal to the target fee collection amount for the prior fiscal year, adjusted by the rate of inflation.”
The most recent CPI-U index value, not seasonally adjusted, available for use by the Commission at the time this fee rate update was prepared was for June 2023. This value is 305.109.
Section 6(b)(6)(B) defines the “baseline estimate of the aggregate maximum offering prices” for fiscal year 2024 as “the baseline estimate of the aggregate maximum offering price at which securities are proposed to be offered pursuant to registration statements filed with the Commission during [fiscal year 2024] as determined by the Commission, after consultation with the Congressional Budget Office and the Office of Management and Budget . . . .”
To make the baseline estimate of the aggregate maximum offering prices for fiscal year 2024, the Commission is using the methodology it has used in prior fiscal years and that was developed in consultation with the Congressional Budget Office and OMB.
The fiscal year 2024 annual adjustments to the fee rates applicable under Section 6(b) of the Securities Act and Sections 13(e) and 14(g) of the Exchange Act will be effective on October 1, 2023.
Accordingly, pursuant to Section 6(b) of the Securities Act and Sections 13(e) and 14(g) of the Exchange Act,
By the Commission.
Congress has established a target amount of monies to be collected from fees charged to issuers based on the value of their registrations. This appendix provides the formula for determining such fees, which the Commission adjusts annually. Congress has mandated that the Commission determine these fees based on the “aggregate maximum offering prices,” which measures the aggregate dollar amount of securities registered with the Commission over the course of the year (hereafter, “registrations”). In order to maximize the likelihood that the amount of monies targeted by Congress will be collected, the fee rate must be set to reflect projected aggregate maximum offering prices. As a percentage, the fee rate equals the ratio of the target amounts of monies to the projected aggregate maximum offering prices.
For 2024, the Commission has estimated the aggregate maximum offering prices by projecting forward the trend established in the previous decade. More specifically, an auto-regressive integrated moving average (“ARIMA”) model was used to forecast the value of the aggregate maximum offering prices for months subsequent to July 2023, the last month for which the Commission has data on the aggregate maximum offering prices.
The following sections describe this process in detail.
First, calculate the aggregate maximum offering prices (AMOP) for each month in the sample (July 2013 through July 2023). Next, calculate the percentage change in the AMOP from month to month.
Model the monthly percentage change in AMOP as a first order moving average process. The moving average approach allows one to model the effect that an exceptionally high (or low) observation of AMOP tends to be followed by a more “typical” value of AMOP.
Use the [estimated moving average] [ARIMA] model to forecast the monthly percent change in AMOP. These percent changes can then be applied to obtain forecasts of the total dollar value of registrations. The following is a more formal (mathematical) description of the procedure:
1. Begin with the monthly data for AMOP. The sample spans ten years, from July 2013 to July 2023.
2. Divide each month's AMOP (column C) by the number of trading days in that month (column B) to obtain the average daily AMOP (AAMOP, column D).
3. For each month t, the natural logarithm of AAMOP is reported in column E.
4. Calculate the change in log(AAMOP) from the previous month as Δ
5. Estimate the first order moving average model Δ
6. For the month of August 2023 forecast Δ
7. Calculate forecasts of log(AAMOP). For example, the forecast of log(AAMOP) for October 2023 is given by FLAAMOP
8. Under the assumption that e
9. For October 2023, this gives a forecast AAMOP of $22,085 million (Column I), and a forecast AMOP of $485,871 million (Column J).
10. Iterate this process through September 2024 to obtain a baseline estimate of the aggregate maximum offering prices for fiscal year 2024 of $5,690,702,748,940.
1. Using the data from Table A, estimate the aggregate maximum offering prices between 10/01/23 and 9/30/24 to be $5,690,702,748,940.
2. The rate necessary to collect the target $839,771,535 in fee revenues required by Section 6(b) of the Securities Act is then calculated as: $839,771,535 ÷ $5,690,702,748,940 = 0.0001475690.
3. Round the result to the seventh decimal point, yielding a rate of 0.0001476 (or $147.60 per million).
On December 16, 2022, the Financial Industry Regulatory Authority, Inc. (“FINRA”) filed with the Securities and Exchange Commission (“Commission” or “SEC”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Exchange Act”)
The ADF is a quotation collection and trade reporting facility that provides ADF participants (
In particular, Regulation NMS includes an order protection rule that provides that a trading center “shall establish, maintain, and enforce written policies and procedures that are reasonably designed to prevent trade-throughs on that trading center of protected quotations in NMS stocks” that do not fall within one of the exceptions set forth in the rule.
In addition, Rule 610 of Regulation NMS requires that a trading center displaying quotations in an NMS stock through a self-regulatory organization (“SRO”) display-only facility (such as the ADF) “provide a level and cost of access to such quotations that is substantially equivalent to the level and cost of access to quotations displayed by SRO trading facilities in that stock.”
In evaluating whether a prospective ADF participant meets the access standards under Rule 610, Regulation NMS requires FINRA to submit a proposed rule change under Section 19(b) of the Exchange Act in order to add the new ADF participant.
IntelligentCross provided FINRA with a summary of its policies and procedures regarding access to its quotations in an NMS stock displayed on the ADF, and a summary of its proposed fees for such access.
In particular, FINRA states that IntelligentCross only permits registered broker-dealers to be subscribers to IntelligentCross, and subscribers can interact with the ASPEN Fee/Fee book using conventional order types.
FINRA states that the ASPEN Fee/Fee book establishes a matching schedule
IntelligentCross has represented to FINRA that, in the following cases, an incoming order on ASPEN Fee/Fee book may not execute against a resting order at match event time when: (i) an existing resting order cancels prior to the next match event; (ii) an incoming order is cancelled prior to the next match event; (iii) the NBBO moves between the time an order is received and the next match event takes place, making either the incoming order or the resting order non-marketable; or (iv) the NBBO changed before the next match event and pegged orders were repriced to the new NBBO, making the incoming order or the resting pegged order non-marketable.
FINRA states that the ASPEN Fee/Fee book's matching engine operates near-continuously and that, when a new order arrives in the ASPEN Fee/Fee book, it would participate in the next scheduled match event by interacting with existing orders in the order book within a maximum time capped at 900 microseconds.
FINRA states that for each match event time, the ASPEN Fee/Fee book retrieves the NBBO and processes all the orders that have arrived and have not been cancelled in price-time priority.
FINRA further states that IntelligentCross utilizes a fee/fee pricing model for activity on the ASPEN Fee/Fee book where both sides are charged the same fee
Additionally, FINRA states that IntelligentCross has established and maintains policies and procedures related to periodic system capacity reviews and tests to ensure future capacity, as well as policies and procedures to identify potential weaknesses and reduce the risks of system failures and threats to system integrity.
In the event that IntelligentCross makes a material change to the policies and procedures governing access to IntelligentCross, including a change to its fees, IntelligentCross has represented to FINRA that it will submit the changes made to FINRA, and acknowledges that FINRA will post on its website an amended description of IntelligentCross' policies, procedures and fees governing access.
Finally, FINRA states that all members in good standing of an SRO would be eligible to become a subscriber to the ASPEN Fee/Fee book and would be subject to eligibility requirements set by IntelligentCross.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a national securities association.
The Commission received several comment letters opposing the Proposal,
As discussed above, FINRA believes that the quotations displayed on the ASPEN Fee/Fee book would meet the definition of an “automated quotation” under Regulation NMS,
Some commenters raise concern that IntelligentCross' displayed quotations do not meet the Commission's definition of “automated quotations” due to the intentional delay built into IntelligentCross' delayed matching process.
In response, IntelligentCross states that its matching process is consistent with the Commission Interpretation of Automated Quotations.
One commenter states that the “novel features” of the Proposal have not been adequately assessed to provide the Commission with sufficient basis to make an affirmative finding that the Proposal is consistent with the Exchange Act.
One commenter raises concerns about the relative ability of different market participants to react to market price movements in deciding whether to cancel after their orders have been accepted by the IntelligentCross system and during the delay before execution.
Some commenters state that the ability for liquidity providers to cancel displayed ADF orders through IntelligentCross' functionality at any time raises questions about whether its functionality is consistent with Regulation NMS and prior Commission guidance.
In its response letters, IntelligentCross states that it disagrees with the characterizations made by commenters of the IntelligentCross matching process.
IntelligentCross also disagrees with commenters
With respect to commenter concerns regarding “speed” in the markets related to the ability to cancel on IntelligentCross,
With respect to commenter concerns regarding “predictability” and the ability for market participants to “replicate” the matching process due to the randomization of the matching delay,
In addressing commenter concerns regarding any difficulties for market participants to adapt to an IntelligentCross protected quote,
In response to questions regarding how IntelligentCross protected quotes would be reflected in consolidated market data feeds,
The other concerns related to the IntelligentCross matching process and the qualification of its displayed quotes as a protected quotation, have been adequately addressed in the response letters by IntelligentCross and FINRA, as well as in the Proposal, such that the Proposal is consistent with the requirements of the Exchange Act and the rules and regulations applicable to a national securities association. Specifically, with respect to requests for more transparency and detail on access to its displayed quotations and the differential treatment of market participants,
With respect to more information on “fill rates and execution quality” on IntelligentCross in assessing protected quotation status to the market, IntelligentCross provided additional data highlighting execution quality metrics for the first six months of 2023.
The Commission also agrees with IntelligentCross that the regulatory obligations associated with protected quotations under Regulation NMS do not provide a guarantee of an execution, which commenters appear to suppose when highlighting non-match events or cancellation rates.
The Commission is also unpersuaded by comments regarding the difficulties for market participants to adapt to an IntelligentCross protected quote.
As discussed above, FINRA believes that IntelligentCross' proposed level and cost of access to quotations on the ASPEN Fee/Fee book is substantially equivalent to the level and cost of access to quotations displayed by an SRO trading facility, both in absolute and relative terms.
One commenter states that if the Commission chooses to permit any trading center to disseminate quotations using the ADF, it must condition approval with limitations that are consistent with limitations imposed upon other trading venues (
In its response letters, IntelligentCross points to its current regulatory responsibilities associated with being a registered broker-dealer and an ATS, as well as the Regulation NMS obligations attached to being an ADF participant.
IntelligentCross also states that, while an ATS is not subject to the same regulatory requirements as exchanges, it also does not share the same benefits as exchanges.
FINRA, as the SRO responsible for enforcing compliance by ADF participants with the requirements of the Exchange Act, must act as the “gatekeeper” for the ADF, and, as such, is required to closely evaluate the extent to which ADF participants, including IntelligentCross and any future ADF participants, meet the access standards of Rule 610.
The fees and the policies and procedures governing access to protected quotations displayed on the ADF by IntelligentCross as described above would provide market participants with fair and efficient access and are not unfairly discriminatory such that they would prevent a market participant from obtaining efficient access to such quotations. All members in good standing of an SRO are eligible to become IntelligentCross subscribers, and both subscribers and non-subscribers may access IntelligentCross liquidity. IntelligentCross offers both subscribers and non-subscribers multiple options to access its liquidity. In addition, IntelligentCross has policies and procedures that require it to respond to orders by non-subscribers as promptly as it responds to orders by subscribers and allow for non-subscribers to be able to automatically execute against quotations displayed by the system. IntelligentCross does not assess charges that may be assessed by exchanges, such as membership fees, trading rights fees, risk gateway fees, and other miscellaneous fees. IntelligentCross' proposed level and cost of access to quotations on the ASPEN Fee/Fee book is substantially equivalent to the level and cost of access to quotations displayed by an SRO trading facility, both in absolute terms and relative to its trading volume.
Further, as discussed above, in the event that IntelligentCross intends to make a material change to the policies and procedures governing access to IntelligentCross, including a change to its fees, it has represented that it will submit the changes made to FINRA, and acknowledges that FINRA will post on its website an amended description of IntelligentCross' policies, procedures, and fees governing access.
Finally, in response to one commenter's recommendation that approval of the Proposal be conditioned on IntelligentCross “continuing to not charge for market data or connectivity,”
FINRA states that the “effective date” of the Proposal would be the date of the Commission's approval.
Two commenters suggest that the proposed implementation period for the Proposal is too short given the connectivity arrangements that the industry would need time to establish.
Following the issuance of this order and IntelligentCross having met the conditions to begin operating as an ADF participant, market participants will be required to have reasonably designed policies and procedures to treat IntelligentCross' best bid and best offer as a protected quotation.
One commenter states that the Commission and FINRA should consider whether to “wind down” the ADF due to concerns regarding the latency and technological infrastructure of the ADF.
In its response letter, FINRA states that it has made technological updates to the ADF infrastructure that make it “well-equipped to support use of the ADF by multiple market participants for
The Commission believes that FINRA has demonstrated that, with the recent technological updates to address latency in the ADF's system capabilities,
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 proposed rule change consists of amendments to (1) modify the Amended and Restated Stock Options and Futures Settlement Agreement dated August 5, 2017 between NSCC and The Options Clearing Corporation (“OCC,” and together with NSCC, the “Clearing Agencies”) (“Existing Accord”)
In its filing with the Commission, the clearing agency 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 clearing agency has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
NSCC is a clearing agency that provides clearing, settlement, risk management, and central counterparty services for trades involving equity securities. OCC is the sole clearing agency for standardized equity options listed on national securities exchanges registered with the Commission, including options that contemplate the physical delivery of equities cleared by NSCC in exchange for cash (“physically settled” options).
The Existing Accord establishes terms under which NSCC accepts for clearing certain securities transactions that result from the exercise and assignment of relevant options contracts and the maturity of futures contracts that are cleared and settled by OCC.
The Existing Accord allows for a scenario in which NSCC could choose not to guarantee the settlement of such securities arising out of transactions. Specifically, NSCC is not obligated to guarantee settlement until its member has met its collateral requirements at NSCC. If NSCC chooses not to guarantee settlement, OCC would engage in an alternate method of settlement outside of NSCC. This scenario presents two primary problems. First, the cash required for OCC and its Clearing Members in certain market conditions to facilitate settlement outside of NSCC could be significantly more than the amount required if NSCC were to guarantee the relevant transactions. This is because settlement of the transactions in the underlying equity securities outside of NSCC would mean that they would no longer receive the benefit of netting through the facilities of NSCC. In such a scenario, the additional collateral required from Clearing Members to support OCC's continuing settlement guarantee would also have to be sufficiently liquid to properly manage the risks associated with those transactions being due on the second business day following the option exercise, or the relevant futures contract maturity date.
Based on an analysis of scenarios using historical data where it was assumed that OCC could not settle transactions through the facilities of NSCC, the worst-case outcome resulted in extreme liquidity demands—of over $300 billion—for OCC to effect settlement via an alternative method,
The second primary problem relates to the significant operational complexities if settlement occurs outside of NSCC. More specifically, netting through NSCC reduces the volume and value of settlement obligations. For example, in 2022 it is estimated that netting through NSCC's continuous net settlement (“CNS”) accounting system
To address these problems, the Clearing Agencies are proposing to amend and restate the Existing Accord and make related changes to their respective rules that would allow OCC to elect to make a cash payment to NSCC following the default of a Common Member
OCC acts as a central counterparty clearing agency for U.S.-listed options and futures on a number of underlying financial assets including common stocks, currencies and stock indices. In connection with these services, OCC provides the OCC Guaranty pursuant to its By-Laws and Rules. NSCC acts as a central counterparty clearing agency for certain equity securities, corporate and municipal debt, exchange traded funds and unit investment trusts that are eligible for its services. Eligible trading activity may be processed through NSCC's CNS system or Balance Order Account system,
OCC's Rules provide that delivery of, and payment for, securities underlying certain exercised stock options and matured single stock futures that are physically settled are generally effected through the facilities of NSCC and are
The Existing Accord governs the transfer between OCC and NSCC of responsibility for settlement obligations that involve a delivery and receipt of stock in the settlement of physically settled options and futures that are cleared and settled by OCC and for which the underlying securities are eligible for clearing through the facilities of NSCC (“E&A/Delivery Transactions”). It also establishes the time when OCC's settlement guarantee (the “OCC Guaranty”) ends and NSCC's settlement guarantee (the “NSCC Guaranty”)
Pursuant to the Existing Accord, on each trading day NSCC delivers to OCC a file that identifies the securities, including stocks, exchange-traded funds and exchange-traded notes, that are eligible (1) to settle through NSCC and (2) to be delivered in settlement of (i) exercises and assignments of stock options cleared and settled by OCC or (ii) delivery obligations from maturing stock futures cleared and settled by OCC. OCC, in turn, delivers to NSCC a file identifying securities to be delivered, or received, for physical settlement in connection with OCC transactions.
After NSCC receives the list of eligible transactions from OCC and NSCC has received all required deposits to the NSCC Clearing Fund from all Common Members taking into consideration amounts required to physically settle the OCC transactions, the OCC Guaranty would end and the NSCC Guaranty would begin with respect to physical settlement of the eligible OCC-related transactions.
Each day, NSCC is required to promptly notify OCC at the time the NSCC Guaranty takes effect. If NSCC rejects OCC's transactions due to an improper submission
NSCC is required to promptly notify OCC if it ceases to act for a Common Member. Upon receiving such a notice, OCC would not continue to submit to NSCC any further unsettled transactions that involve such Common Member, unless authorized representatives of both OCC and NSCC otherwise consent. OCC would, however, deliver to NSCC a list of all transactions that have already been submitted to NSCC and that involve such Common Member. The NSCC Guaranty ordinarily would not take effect with respect to transactions for a Common Member for which NSCC has ceased to act, unless both Clearing Agencies agree otherwise. As such, NSCC does not have any existing contractual obligation to guarantee such Common Member's transactions. To the extent the NSCC Guaranty does not take effect, OCC's Guaranty would continue to apply, and, as described above, OCC would remain responsible for effecting the settlement
As noted above, the Existing Accord does provide that the Clearing Agencies may agree to permit additional transactions for a Common Member default (“Defaulted NSCC Member Transactions”) to be processed by NSCC while subject to the NSCC Guaranty. This optional feature, however, creates uncertainty for the Clearing Agencies and market participants about how Defaulted NSCC Member Transactions may be processed following a Common Member default and also does not provide NSCC with the ability to collect collateral from OCC that it may need to close out these additional transactions. While the optional feature would remain in the agreement as part of this proposal, the proposed changes to the Existing Accord, as described below, could significantly reduce the likelihood that it would be utilized.
The proposed changes to the Existing Accord would permit OCC to make a cash payment, referred to as the “Guaranty Substitution Payment” or “GSP,” to NSCC. This cash payment could occur on either or both of the day that the Common Clearing Member becomes a Mutually Suspended Member and on the next business day. Upon NSCC's receipt of the Guaranty Substitution Payment from OCC, the NSCC Guaranty would take effect for the Common Member's transactions, and they would be accepted by NSCC for clearance and settlement.
NSCC would calculate the Guaranty Substitution Payment as the sum of the Mutually Suspended Member's unpaid required deposit to the NSCC Clearing Fund (“Required Fund Deposit”)
More specifically, NSCC would first determine how much of the member's unpaid Clearing Fund requirement would be included in the GSP. NSCC would look at the day-over-day change in gross market value of the Mutually Suspended Member's positions as well as day-over-day change in the member's NSCC Clearing Fund requirements. Based on such changes, NSCC would identify how much of the change in the Clearing Fund requirement was attributable to E&A/Delivery Transactions coming from OCC. If 100 percent of the day-over-day change in the NSCC Clearing Fund requirement is attributable to activity coming from OCC, then the GSP would include 100 percent of the member's NSCC Clearing Fund requirement. If less than 100 percent of the change is attributable to activity coming from OCC, then the GSP would include that percent of the member's unpaid NSCC Clearing Fund requirement attributable to activity coming from OCC. NSCC would then determine the portion of the member's unpaid SLD obligation that is attributable to E&A/Delivery Transactions. As noted above, the GSP would be the sum of these two amounts. A member's NSCC Clearing Fund requirement and SLD obligation at NSCC are designed to address the credit and liquidity risks that a member poses to NSCC. The GSP calculation is intended to assess how much of a member's obligations arise out of activity coming from OCC so that the amount paid by OCC is commensurate with the risk to NSCC of guarantying such activity.
To permit OCC to anticipate the potential resources it would need to pay the GSP for a Mutually Suspended Member, each business day NSCC would provide OCC with (1) Required Fund Deposit and Supplemental Liquidity Deposit obligations, as calculated pursuant to the NSCC Rules, and (2) the gross market value of the E&A/Delivery Transactions and the gross market value of total Net Unsettled Positions (as such term is defined in the NSCC Rules). On options expiry days that fall on a Friday, NSCC would also provide OCC with information regarding liquidity needs and resources, and any intraday SLD requirements of Common Members. Such information would be delivered pursuant to the ongoing information sharing obligations under the Existing Accord (as proposed to be amended) and the Service Level Agreement (“SLA”) to which both NSCC and OCC are a party pursuant to Section 2 of the Existing Accord.
NSCC and OCC believe the proposed calculation of the Required Fund Deposit portion of the GSP is appropriate because it is designed to provide a reasonable proxy for the impact of the Mutually Suspended Member's E&A/Delivery Transactions on its Required Fund Deposit. While impact study data did show that the proposed calculation could result in a GSP that overestimates or underestimates the Required Fund Deposit attributable to the Mutually Suspended Member's E&A/Delivery Transactions,
Implementing the ability for OCC to make the GSP and cause the E&A/Delivery Transactions to be cleared and settled through NSCC would promote the ability of OCC and NSCC to be efficient and effective in meeting the requirements of the markets they serve. This is because data demonstrates that the expected size of the GSP would be smaller than the amount of cash that would otherwise be needed by OCC and its Clearing Members to facilitate settlement outside of NSCC. More specifically, based on a historical study
To help address the current technology constraint that prohibits NSCC from performing a precise calculation of the GSP on a daily basis for every Common Member, proposed Section 6(b)(i) of the Existing Accord and related Section 7(d) of the SLA would provide that, with respect to a Mutually Suspended Member, either NSCC or OCC may require that the Required Fund Deposit portion of the GSP be re-calculated by calculating the Required Fund Deposit for the Mutually Suspended Member both before and after the delivery of the E&A/Delivery Transactions and utilize the precise amount that is attributable to that activity in the final GSP. If such a recalculation is required, the result would replace the Required Fund Deposit component of the GSP that was initially calculated. The SLD component of the GSP would be unchanged by such recalculation.
As the above demonstrates, the GSP is intended to address the significant collateral and liquidity requirements that could be required of OCC Clearing Members in the event of a Common Member default.
Allowing OCC to make a GSP payment also is intended to allow for settlement processing to take place through the facilities of NSCC to retain operational efficiencies associated with the settlement process. Alternative settlement means such as broker-to broker settlement add operational burdens because transactions would need to be settled individually on one-off bases. In contrast, NSCC's netting reduces the volume and value of settlement obligations that would need to be closed out in the market.
Amending the Existing Accord to define the terms and conditions under which Guaranty Substitution may occur, at OCC's election, with respect to Defaulted NSCC Member Transactions
NSCC and OCC have agreed it is appropriate to limit the availability of the proposed provision to the day of the Common Member default and the next business day because, based on historical cease to act events and simulations of cease to act events involving Common Members, most activity of a Mutually Suspended Member is closed out on those days.
To implement these proposed changes to the Existing Accord, OCC and NSCC propose to make the following changes.
First, new definitions would be added, and existing definitions would be amended in Section 1, which is the Definitions section.
The new defined terms would be as follows.
• The term “Close Out Transaction” would be defined to mean “the liquidation, termination or acceleration of one or more exercised or matured Stock Options
• The term “Guaranty Substitution Payment” would be defined to mean “an amount calculated by NSCC in accordance with the calculations set forth in Appendix A [to the Existing Accord (as proposed to be amended)], to include two components: (i) a portion of the Mutually Suspended Member's Required Fund Deposit deficit to NSCC at the time of the cease to act and (ii) a portion of the Mutually Suspended Member's unpaid Supplemental Liquidity Deposit obligation at the time of the cease to act.”
• The term “Mutually Suspended Member” would mean “any OCC Participating Member
• The term “Required Fund Deposit” would have the meaning “provided in Rule 4 of NSCC's Rules and Procedures (or any replacement or substitute rule), the version of which, with respect to any transaction or obligation incurred that is the subject of this Agreement, is in effect at the time of such transaction or incurrence of obligation.”
• The term “Supplemental Liquidity Deposit” would have the meaning “provided in Rule 4A of NSCC's Rules and Procedures (or any replacement or substitute rule), the version of which, with respect to any transaction or obligation incurred that is the subject of this Agreement, is in effect at the time of such transaction or incurrence of obligation.”
The defined terms that would be amended in Section 1 of the Existing Accord are as follows.
• The definition for the term “E&A/Delivery Transaction” generally contemplates a transaction that involves a delivery and receipt of stock in the settlement of physically settled options and futures that are cleared and settled by OCC and for which the underlying securities are eligible for clearing through the facilities of NSCC. The definition would be amended to make clear that it would apply in respect of a “Close Out Transaction” of a “Mutually Suspended Member” as those terms are proposed to be defined (described above).
• The definition for the term “Eligible Securities” generally contemplates the securities that are eligible to be used for physical settlement under the Existing Accord. The term would be modified to clarify that this may include, for example, equities, exchange-traded funds and exchange-traded notes that are underlying securities for options issued by OCC.
Section 6 of the Existing Accord provides that NSCC is required to provide certain notice to OCC in circumstances in which NSCC has ceased to act for a Common Member. Currently, Section 6(A)(ii) of the Existing Accord also requires NSCC to notify OCC if a Common Member has failed to satisfy its Clearing Fund obligations to NSCC, but for which NSCC has not yet ceased to act. In practice, this provision would trigger a number of obligations (described below) when a Common Member fails to satisfy its NSCC Clearing Fund obligations for any reason, including those due to an operational delay. Therefore, OCC and NSCC are proposing to remove the notification requirement under Section 6(A)(ii) from the Existing Accord. Under Section 7(d) of the Existing Accord, NSCC and OCC are required to provide each other with general surveillance information regarding Common Members, which includes information regarding any Common Member that is considered by the other party to be in distress. Therefore, if a Common Member has failed to satisfy its NSCC Clearing Fund obligations and NSCC believes this failure is due to, for example, financial distress and not, for example, due to a known operational delay, and NSCC has not yet ceased to act for that Common Member, such notification to OCC would still occur but would be done pursuant to Section 7(d) of the Existing Accord (as proposed to be amended), and not Section 6(A)(ii). Notifications under Section 6 of the Existing Accord (as proposed to be amended) would be limited to instances when NSCC has actually ceased to act for a Common Member pursuant to the NSCC Rules.
Following notice by NSCC that it has ceased to act for a Common Member, OCC is obligated in turn to deliver to NSCC a list of all E&A/Delivery Transactions (excluding certain transactions for which Guaranty Substitution does not occur) involving the Common Member.
As described above in the summary of the Existing Accord, where NSCC has ceased to act for a Common Member, the Existing Accord refers to the Common Member as the Defaulting NSCC Member and also refers to the relevant E&A/Delivery Transactions in connection with that Defaulting NSCC Member for which a Guaranty Substitution has not yet occurred as Defaulted NSCC Member Transactions.
If the Defaulting NSCC Member is also suspended by OCC, it would be covered by the proposed definition that is described above for a Mutually Suspended Member. For such a Mutually Suspended Member, the proposed changes in Section 6(b) would provide that NSCC, by a time agreed upon by the parties, would provide OCC with the amount of the Guaranty Substitution Payment as calculated by NSCC and related documentation regarding the calculation. The Guaranty Substitution Payment would be calculated pursuant to NSCC's Rules as that portion of the unmet Required Fund Deposit
The proposed changes would further provide that if OCC does not suspend the Common Member (such that the Common Member would therefore not meet the proposed definition of a Mutually Suspended Member) or if OCC elects to not make the full amount of the Guaranty Substitution Payment to NSCC, then all of the Defaulted NSCC Member Transactions would be exited from NSCC's CNS Accounting Operation and/or NSCC's Balance Order Accounting Operation, as applicable, and Guaranty Substitution would not occur in respect thereof. Therefore, NSCC would continue to have no obligation to guarantee or settle the Defaulted NSCC Member Transactions, and the OCC Guaranty would continue
Proposed changes to the Existing Accord would also address the application of any Guaranty Substitution Payment by NSCC. Specifically, new Section 6(d) would provide that any Guaranty Substitution Payment made by OCC may be used by NSCC to satisfy any liability or obligation of the Mutually Suspended Clearing Member to NSCC on account of transactions involving the Mutually Suspended Clearing Member for which the NSCC Guaranty applies and to the extent that any amount of assets otherwise held by NSCC for the account of the Mutually Suspended Member (including any Required Fund Deposit or Supplemental Liquidity Deposit) are insufficient to satisfy its obligations related to transactions for which the NSCC Guaranty applies. Proposed changes to Section 6(d) would further provide for the return to OCC of any unused portion of the GSP. With regard to the portion of the Guaranty Substitution Payment that corresponds to a member's Supplemental Liquidity Deposit obligation, NSCC must return any unused amount to OCC within fourteen (14) days following the conclusion of NSCC's settlement, close-out and/or liquidation. With regard to the portion of the Guaranty Substitution Payment that corresponds to a Required Fund Deposit, NSCC must return any unused amount to OCC under terms agreed to by the parties.
Certain other technical changes are also proposed to the Existing Accord to conform it to the proposed changes described above. For example, the preamble and the “
Technical changes would be made to Sections 3(d) and (e) of the Existing Accord to provide that those provisions would not apply in the event new Section 6(b) described above, is triggered. Section 3(d) generally provides that OCC would no longer submit E&A/Delivery Transactions to NSCC involving a suspended OCC Participating Member. Similarly, Section 3(e) generally provides that OCC would no longer submit E&A/Delivery Transactions to NSCC involving an NSCC Participating Member for which NSCC has ceased to act. A proposed change would also be made to Section 5 of the Existing Accord to modify a reference to Section 5 of Article VI of OCC's By-Laws to instead provide that the updated cross-reference should be to Chapter IV of OCC's Rules.
Section 5 would also be amended to clarify that Guaranty Substitution occurs when NSCC has received both the Required Fund Deposit and Supplemental Liquidity Deposit, as calculated by NSCC in its sole discretion, from Common Members. The addition of the collection of the Supplemental Liquidity Deposit to the definition of the Guaranty Substitution Time in this Section 5 would reflect OCC and NSCC's agreement that both amounts are components of the Guaranty Substitution Payment (as described above) and would make this definition consistent with that agreement.
In Section 7 of the Existing Accord, proposed changes would be made to provide that NSCC would provide to OCC information regarding a Common Member's Required Fund Deposit and Supplemental Liquidity Deposit obligations, to include the Supplemental Liquidity Deposit obligation in this notice requirement, and additionally that NSCC would provide OCC with information regarding the potential Guaranty Substitution Payment for the Common Member. On an options expiration date that is a Friday, NSCC would, by close of business on that day, also provide to OCC information regarding the intra-day liquidity requirement, intra-day liquidity resources and intra-day calls for a Common Member that is subject to a Supplemental Liquidity Deposit at NSCC.
Finally, Section 14 of the Existing Accord would be modernized to provide that notices between the parties would be provided by email rather than by hand, overnight delivery service or first-class mail.
In connection with the proposed changes to the Existing Accord, NSCC is also proposing changes to its Rules, described below.
First, NSCC would amend Rule 18 (Procedures for When the Corporation Ceases to Act), which describes the actions NSCC would take with respect to the transactions of a Member after NSCC has ceased to act for that Member.
NSCC would also propose clarifications to Sections 4, 6(b)(iii)(B) and 8 to use more precise references to the legal entity described in those sections of this Rule.
Second, NSCC would amend Section B of Procedure III and Addendum K of the NSCC Rules
Collectively, these proposed changes would establish and clarify the rights of both NSCC and a Member for which NSCC has ceased to act with respect to property held by NSCC and the operation and applicability of any Close-Out Agreement, and would make it clear that any payments received pursuant to a Close-Out Agreement and NSCC's acceptance of a Mutually Suspended Member's transactions for clearance and settlement pursuant to a Close-Out Agreement are intended to fall within the Bankruptcy Code and Securities Investor Protection Act “safe harbors.”
NSCC believes the proposed changes to the Existing Accord and its Rules are consistent with the requirements of the Exchange Act and the rules and regulations thereunder applicable to a registered clearing agency. In particular, NSCC believes the proposed change is consistent with Section 17A(b)(3)(F) of the Act
Section 17A(b)(3)(F) of the Exchange Act requires, among other things, that the rules of a clearing agency be designed, in general, to protect investors and the public interest.
Rule 17Ad-22(e)(7) requires NSCC, in relevant part, to establish, implement, maintain and enforce written policies and procedures reasonably designed to effectively measure, monitor and manage the liquidity risk that arises in or is borne by NSCC and to, among other things, address foreseeable liquidity shortfalls that would not be covered by NSCC's liquid resources.
Finally, Rule 17Ad-22(e)(20) requires NSCC to establish, implement, maintain and enforce written policies and procedures reasonably designed to identify, monitor and manage risks related to any link that NSCC establishes with one or more other clearing agencies, financial market utilities, or trading markets.
Section 17A(b)(3)(I) of the Act
NSCC has not received or solicited any written comments relating to this proposal. If any written comments are received, they will be publicly filed as an Exhibit 2 to this filing, as required by Form 19b-4 and the General Instructions thereto.
Persons submitting comments are cautioned that, according to Section IV (Solicitation of Comments) of the Exhibit 1A in the General Instructions to Form 19b-4, the Commission does not edit personal identifying information from comment submissions. Commenters should submit only information that they wish to make available publicly, including their name, email address, and any other identifying information.
All prospective commenters should follow the Commission's instructions on how to submit comments,
NSCC reserves the right not to respond to any comments received.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to File Number SR-NSCC-2023-007 and should be submitted on or before September 20, 2023.
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 (“Exchange Act” or “Act”),
This proposed rule change would (1) modify the Amended and Restated Stock Options and Futures Settlement Agreement dated August 5, 2017 between OCC and National Securities Clearing Corporation (“NSCC,” and together with OCC, the “Clearing Agencies”) (“Existing Accord”)
The proposed changes would permit OCC to elect to make a cash payment to NSCC following the default of a common clearing participant that would cause NSCC's central counterparty trade guaranty to attach to certain obligations of that participant, as described in greater detail below.
The proposed changes are included in Exhibits 5A and 5B and confidential Exhibits 5C, 5D, and 5E to File No. SR-OCC-2023-007. Material proposed to be added is underlined and material proposed to be deleted is marked in strikethrough text.
In its filing with the Commission, OCC 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. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
NSCC is a clearing agency that provides clearing, settlement, risk management, and central counterparty services for trades involving equity securities. OCC is the sole clearing agency for standardized equity options listed on national securities exchanges registered with the Commission, including options that contemplate the
The Existing Accord allows for a scenario in which NSCC could choose not to guarantee the settlement of such securities arising out of transactions. Specifically, NSCC is not obligated to guarantee settlement until its member has met its collateral requirements at NSCC. If NSCC chooses not to guarantee settlement, OCC would engage in an alternate method of settlement outside of NSCC. This scenario presents two primary problems. First, the cash required for OCC and its Clearing Members in certain market conditions to facilitate settlement outside of NSCC could be significantly more than the amount required if NSCC were to guarantee the relevant transactions. This is because settlement of the transactions in the underlying equity securities outside of NSCC would mean that they would no longer receive the benefit of netting through the facilities of NSCC. In such a scenario, the additional collateral required from Clearing Members to support OCC's continuing settlement guarantee would also have to be sufficiently liquid to properly manage the risks associated with those transactions being due on the second business day following the option exercise or the relevant futures contract maturity date. Based on an analysis of scenarios using historical data where it was assumed that OCC could not settle transactions through the facilities of NSCC, the worst-case outcome resulted in extreme liquidity demands of over $300 billion for OCC to effect settlement via an alternative method,
The second primary problem relates to the significant operational complexities if settlement occurs outside of NSCC. More specifically, netting through NSCC reduces the volume and value of settlement obligations. For example, in 2022 it is estimated that netting through NSCC's continuous net settlement (“CNS”) accounting system
To address these problems, the Clearing Agencies are proposing to amend and restate the Existing Accord and make related changes to their respective rules that would allow OCC to elect to make a cash payment to NSCC following the default of a Common Member
OCC acts as a central counterparty clearing agency for U.S.-listed options and futures on a number of underlying financial assets including common stocks, currencies, and stock indices. In connection with these services, OCC provides the OCC Guaranty pursuant to its By-Laws and Rules. NSCC acts as a central counterparty clearing agency for certain equity securities, corporate and municipal debt, exchange traded funds and unit investment trusts that are eligible for its services. Eligible trading
OCC's Rules provide that delivery of, and payment for, securities underlying certain exercised stock options and matured single stock futures that are physically settled are generally effected through the facilities of NSCC and are not settled through OCC's facilities.
The Existing Accord governs the transfer between OCC and NSCC of responsibility for settlement obligations that involve a delivery and receipt of stock in the settlement of physically settled options and futures that are cleared and settled by OCC and for which the underlying securities are eligible for clearing through the facilities of NSCC (“E&A/Delivery Transactions”). It also establishes the time when OCC's settlement guarantee (the “OCC Guaranty”) ends and NSCC's settlement guarantee (the “NSCC Guaranty”)
Pursuant to the Existing Accord, on each trading day NSCC delivers to OCC a file that identifies the securities, including stocks, exchange-traded funds and exchange-traded notes, that are eligible (1) to settle through NSCC and (2) to be delivered in settlement of (i) exercises and assignments of stock options cleared and settled by OCC or (ii) delivery obligations from maturing stock futures cleared and settled by OCC. OCC, in turn, delivers to NSCC a file identifying securities to be delivered, or received, for physical settlement in connection with OCC transactions.
After NSCC receives the list of eligible transactions from OCC and NSCC has received all required deposits to the NSCC Clearing Fund from all Common Members taking into consideration amounts required to physically settle the OCC transactions, the OCC Guaranty would end and the NSCC Guaranty would begin with respect to physical settlement of the eligible OCC-related transactions.
Each day, NSCC is required to promptly notify OCC at the time the NSCC Guaranty takes effect. If NSCC rejects OCC's transactions due to an improper submission
NSCC is required to promptly notify OCC if it ceases to act for a Common Member. Upon receiving such a notice, OCC would not continue to submit to NSCC any further unsettled transactions that involve such Common Member, unless authorized representatives of both OCC and NSCC otherwise consent. OCC would, however, deliver to NSCC a list of all transactions that have already been submitted to NSCC and that involve such Common Member. The NSCC Guaranty ordinarily would not take effect with respect to transactions for a Common Member for which NSCC has ceased to act, unless both Clearing Agencies agree otherwise. As such, NSCC does not have any existing contractual obligation to guarantee such Common Member's transactions. To the extent the NSCC Guaranty does not take effect, OCC's Guaranty would continue to apply, and, as described above, OCC would remain responsible for effecting the settlement of such Common Member's transactions pursuant to OCC's By-Laws and Rules.
As noted above, the Existing Accord does provide that the Clearing Agencies may agree to permit additional transactions for a Common Member default (“Defaulted NSCC Member Transactions”) to be processed by NSCC while subject to the NSCC Guaranty. This optional feature, however, creates uncertainty for the Clearing Agencies and market participants about how Defaulted NSCC Member Transactions may be processed following a Common Member default, and also does not provide NSCC with the ability to collect collateral from OCC that it may need to close out these additional transactions. While the optional feature would remain in the agreement as part of this proposal, the proposed changes to the Existing Accord, as described below, could significantly reduce the likelihood that it would be utilized.
The proposed changes to the Existing Accord would permit OCC to make a cash payment, referred to as the “Guaranty Substitution Payment” or “GSP,” to NSCC. This cash payment could occur on either or both of the day that the Common Clearing Member becomes a Mutually Suspended Member and on the next business day. Upon NSCC's receipt of the Guaranty Substitution Payment from OCC, the NSCC Guaranty would take effect for the Common Member's transactions, and they would be accepted by NSCC for clearance and settlement.
NSCC would calculate the Guaranty Substitution Payment as the sum of the Mutually Suspended Member's unpaid required deposit to the NSCC Clearing Fund (“Required Fund Deposit”)
More specifically, NSCC would first determine how much of the member's unpaid Clearing Fund requirement would be included in the GSP. NSCC would look at the day-over-day change in gross market value of the Mutually Suspended Member's positions as well as day-over-day change in the member's NSCC Clearing Fund requirements. Based on such changes, NSCC would identify how much of the change in the Clearing Fund requirement was attributable to E&A/Delivery Transactions coming from OCC. If 100 percent of the day-over-day change in the NSCC Clearing Fund requirement is attributable to activity coming from OCC, then the GSP would include 100 percent of the member's NSCC Clearing Fund requirement. If less than 100 percent of the change is attributable to activity coming from OCC, then the GSP would include that percent of the member's unpaid NSCC Clearing Fund requirement attributable to activity coming from OCC. NSCC would then determine the portion of the member's unpaid SLD obligation that is attributable to E&A/Delivery Transactions. As noted above, the GSP would be the sum of these two amounts. A member's NSCC Clearing Fund requirement and SLD obligation at NSCC are designed to address the credit and liquidity risks that a member poses to NSCC. The GSP calculation is intended to assess how much of a member's obligations arise out of activity coming from OCC so that the amount paid by OCC is commensurate with the risk to NSCC of guarantying such activity.
To permit OCC to anticipate the potential resources it would need to pay the GSP for a Mutually Suspended Member, each business day, NSCC would provide OCC with (1) Required Fund Deposit and Supplemental Liquidity Deposit obligations, as calculated pursuant to the NSCC Rules, and (2) the gross market value of the E&A/Delivery Transactions and the gross market value of total Net Unsettled Positions (as such term is defined in the NSCC Rules). On options expiry days that fall on a Friday, NSCC would also provide OCC with information regarding liquidity needs and resources, and any intraday SLD requirements of Common Members. Such information would be delivered pursuant to the ongoing information sharing obligations under the Existing Accord (as proposed to be amended) and the Service Level Agreement (“SLA”) to which both NSCC and OCC are a party pursuant to Section 2 of the Existing Accord.
NSCC and OCC believe the proposed calculation of the Required Fund Deposit portion of the GSP is appropriate because it is designed to provide a reasonable proxy for the impact of the Mutually Suspended Member's E&A/Delivery Transactions on its Required Fund Deposit. While impact study data did show that the proposed calculation could result in a GSP that overestimates or underestimates the Required Fund Deposit attributable to the Mutually Suspended Member's E&A/Delivery Transactions,
Implementing the ability for OCC to make the GSP and cause the E&A/Delivery Transactions to be cleared and settled through NSCC would promote the ability of OCC and NSCC to be efficient and effective in meeting the requirements of the markets they serve. This is because data demonstrates that the expected size of the GSP would be smaller than the amount of cash that would otherwise be needed by OCC and its Clearing Members to facilitate settlement outside of NSCC. More specifically, based on a historical study of alternate means of settlement available to OCC from September 2021 through September 2022, in the event that NSCC did not accept E&A/Delivery Transactions, the worst-case scenario peak liquidity need OCC identified was $384,635,833,942 for settlement to occur on a gross broker-to-broker basis. OCC estimates that the corresponding GSP in this scenario would have been $863,619,056. OCC also analyzed several other large liquidity demand amounts that were identified during the study if OCC effected settlement on a gross broker-to-broker basis.
To help address the current technology constraint that prohibits NSCC from performing a precise calculation of the GSP on a daily basis for every Common Member, proposed Section 6(b)(i) of the Existing Accord and related Section 7(d) of the SLA would provide that with respect to a Mutually Suspended Member, either NSCC or OCC may require that the Required Fund Deposit portion of the GSP be re-calculated by calculating the Required Fund Deposit for the Mutually Suspended Member both before and after the delivery of the E&A/Delivery Transactions and utilize the precise amount that is attributable to that activity in the final GSP. If such a recalculation is required, the result would replace the Required Fund Deposit component of the GSP that was initially calculated. The SLD component of the GSP would be unchanged by such recalculation.
As the above demonstrates, the GSP is intended to address the significant collateral and liquidity requirements that could be required of OCC Clearing Members in the event of a Common Member default.
Allowing OCC to make a GSP payment also is intended to allow for settlement processing to take place through the facilities of NSCC to retain operational efficiencies associated with the settlement process. Alternative settlement means such as broker-to-broker settlement add operational burdens because transactions would need to be settled individually on one-off bases. In contrast, NSCC's netting reduces the volume and value of settlement obligations that would need to be closed out in the market.
Amending the Existing Accord to define the terms and conditions under which Guaranty Substitution may occur, at OCC's election, with respect to Defaulted NSCC Member Transactions
NSCC and OCC have agreed it is appropriate to limit the availability of the proposed provision to the day of the Common Member default and the next business day because, based on historical simulations of cease to act events involving Common Members, most activity of a Mutually Suspended Member is closed out on those days.
To implement these proposed changes to the Existing Accord, OCC and NSCC propose to make the following changes.
First, new definitions would be added, and existing definitions would be amended in Section 1, which is the Definitions section.
The new defined terms would be as follows.
• The term “Close Out Transaction” would be defined to mean “the liquidation, termination or acceleration of one or more exercised or matured Stock Options
• The term “Guaranty Substitution Payment” would be defined to mean “an amount calculated by NSCC in accordance with the calculations set forth in Appendix A [to the Existing Accord (as proposed to be amended)], to include two components: (i) a portion of the Mutually Suspended Member's Required Fund Deposit deficit to NSCC at the time of the cease to act; and (ii) a portion of the Mutually Suspended Member's unpaid Supplemental Liquidity Deposit obligation at the time of the cease to act.”
• The term “Mutually Suspended Member” would mean “any OCC Participating Member
• The term “Required Fund Deposit” would have the meaning “provided in Rule 4 of NSCC's Rules and Procedures (or any replacement or substitute rule), the version of which, with respect to any transaction or obligation incurred that is the subject of this Agreement, is in effect at the time of such transaction or incurrence of obligation.”
• The term “Supplemental Liquidity Deposit” would have the meaning “provided in Rule 4A of NSCC's Rules and Procedures (or any replacement or substitute rule), the version of which, with respect to any transaction or obligation incurred that is the subject of this Agreement, is in effect at the time of such transaction or incurrence of obligation.”
The defined terms that would be amended in Section 1 of the Existing Accord are as follows.
• The definition for the term “E&A/Delivery Transaction” generally contemplates a transaction that involves a delivery and receipt of stock in the settlement of physically settled options and futures that are cleared and settled by OCC and for which the underlying securities are eligible for clearing through the facilities of NSCC. The definition would be amended to make clear that it would apply in respect of a “Close Out Transaction” of a “Mutually Suspended Member” as those terms are proposed to be defined (described above).
• The definition for the term “Eligible Securities” generally contemplates the securities that are eligible to be used for physical settlement under the Existing Accord. The term would be modified to clarify that this may include, for example, equities, exchange-traded funds and exchange-traded notes that are underlying securities for options issued by OCC.
Section 6 of the Existing Accord provides that NSCC is required to provide certain notice to OCC in circumstances in which NSCC has ceased to act for a Common Member. Currently, Section 6(A)(ii) of the Existing Accord also requires NSCC to notify OCC if a Common Member has failed to satisfy its Clearing Fund obligations to NSCC, but for which NSCC has not yet ceased to act. In practice, this provision would trigger a number of obligations (described below) when a Common Member fails to satisfy its NSCC Clearing Fund obligations for any reason, including those due to an operational delay. Therefore, OCC and NSCC are proposing to remove the notification requirement under Section 6(A)(ii) from the Existing Accord. Under Section 7(d) of the Existing Accord, NSCC and OCC are required to provide each other with general surveillance information regarding Common Members, which includes information regarding any Common Member that is considered by the other party to be in distress. Therefore, if a Common Member has failed to satisfy its NSCC Clearing Fund obligations and NSCC believes this failure is due to, for example, financial distress and not, for example, due to a known operational delay, and NSCC has not yet ceased to act for that Common Member, such notification to OCC would still occur but would be done pursuant to Section 7(d) of the Existing Accord (as proposed to be amended), and not Section 6(A)(ii). Notifications under Section 6 of the Existing Accord (as proposed to be amended) would be limited to instances when NSCC has actually ceased to act for a Common Member pursuant to the NSCC Rules.
Following notice by NSCC that it has ceased to act for a Common Member, OCC is obligated in turn to deliver to NSCC a list of all E&A/Delivery Transactions (excluding certain transactions for which Guaranty Substitution does not occur) involving the Common Member.
As described above in the summary of the Existing Accord, where NSCC has ceased to act for a Common Member, the Existing Accord refers to the Common Member as the Defaulting NSCC Member and also refers to the relevant E&A/Delivery Transactions in connection with that Defaulting NSCC Member for which a Guaranty Substitution has not yet occurred as Defaulted NSCC Member Transactions.
If the Defaulting NSCC Member is also suspended by OCC, it would be covered by the proposed definition that is described above for a Mutually Suspended Member. For such a Mutually Suspended Member, the proposed changes in Section 6(b) would provide that NSCC, by a time agreed upon by the parties, would provide OCC with the amount of the Guaranty Substitution Payment as calculated by NSCC and related documentation regarding the calculation. The Guaranty Substitution Payment would be calculated pursuant to NSCC's Rules as that portion of the unmet Required Fund Deposit
The proposed changes would further provide that if OCC does not suspend the Common Member (such that the Common Member would therefore not meet the proposed definition of a Mutually Suspended Member) or if OCC elects to not make the full amount of the Guaranty Substitution Payment to NSCC, then all of the Defaulted NSCC Member Transactions would be exited from NSCC's CNS Accounting Operation and/or NSCC's Balance Order Accounting Operation, as applicable, and Guaranty Substitution would not occur in respect thereof. Therefore, NSCC would continue to have no obligation to guarantee or settle the Defaulted NSCC Member Transactions, and the OCC Guaranty would continue to apply to them pursuant to OCC's By-Laws and Rules.
Proposed changes to the Existing Accord would also address the application of any Guaranty Substitution Payment by NSCC. Specifically, new Section 6(d) would provide that any Guaranty Substitution Payment made by OCC may be used by NSCC to satisfy any liability or obligation of the Mutually Suspended Clearing Member to NSCC on account of transactions involving the Mutually Suspended Clearing Member for which the NSCC Guaranty applies and to the extent that any amount of assets otherwise held by NSCC for the account of the Mutually Suspended Member (including any Required Fund Deposit or Supplemental Liquidity Deposit) are insufficient to satisfy its obligations related to transactions for which the NSCC Guaranty applies. Proposed changes to Section 6(d) would further provide for the return to OCC of any unused portion of the GSP. With regard to the portion of the Guaranty Substitution Payment that corresponds to a member's Supplemental Liquidity Deposit obligation, NSCC must return any unused amount to OCC within fourteen (14) days following the conclusion of NSCC's settlement, close-out and/or liquidation. With regard to the portion of the Guaranty Substitution Payment that corresponds to a Required Fund Deposit, NSCC must return any unused amount to OCC under terms agreed to by the parties.
Certain other technical changes are also proposed to the Existing Accord to conform it to the proposed changes described above. For example, the preamble and the “whereas” clauses in the Preliminary Statement would be amended to clarify that the agreement is an amended and restated agreement and to summarize that the agreement would be modified to contemplate the Guaranty Substitution Payment structure. Section 1(c), which addresses the terms in the Existing Accord that are defined by reference to NSCC's Rules and Procedures and OCC's By-Laws and Rules would be modified to state that such terms would have the meaning then in effect at the time of any transaction or obligation that is covered by the agreement rather than stating that such terms have the meaning given to them as of the effective date of the agreement. This change is proposed to help ensure that the meaning of such terms in the agreement will not become inconsistent with the meaning in the NSCC Rules and/or OCC By-Laws and Rules, as they may be modified through proposed rule changes with the Commission.
Technical changes would be made to Sections 3(d) and (e) of the Existing Accord to provide that those provisions would not apply in the event new Section 6(b) described above, is triggered. Section 3(d) generally provides that OCC will no longer submit E&A/Delivery Transactions to NSCC involving a suspended OCC Participating Member.
Section 5 would also be amended to clarify that Guaranty Substitution occurs when NSCC has received both the Required Fund Deposit and Supplemental Liquidity Deposit, as calculated by NSCC in its sole discretion, from Common Members. The addition of the collection of the Supplemental Liquidity Deposit to the definition of the Guaranty Substitution Time in this Section 5 would reflect OCC and NSCC's agreement that both amounts are components of the Guaranty Substitution Payment (as described above) and would make this definition consistent with that agreement.
In Section 7 of the Existing Accord, proposed changes would be made to provide that NSCC would provide to OCC information regarding a Common Member's Required Fund Deposit and Supplemental Liquidity Deposit obligations, to include the Supplemental Liquidity Deposit obligation in this notice requirement, and additionally that NSCC would provide OCC with information regarding the potential Guaranty Substitution Payment for the Common Member. On an options expiration date that is a Friday, NSCC would, by close of business on that day, also provide to OCC information regarding the intra-day liquidity requirement, intra-day liquidity resources and intra-day calls for a Common Member that is subject to a Supplemental Liquidity Deposit at NSCC.
Finally, Section 14 of the Existing Accord would be modernized to provide that notices between the parties would be provided by email rather than by hand, overnight delivery service or first-class mail.
OCC is also proposing certain changes to its By-Laws and Rules that are designed to complement the proposed changes described above regarding the Existing Accord. These proposed changes to the By-Laws and Rules are described below, and they generally cover the following four areas. First, the proposed changes would define Guaranty Substitution Payment. Second, the proposed changes would describe the circumstances under which OCC could make a Guaranty Substitution Payment to NSCC. Third, the proposed changes would specify what financial
OCC proposes to add “Guaranty Substitution Payment” as a new defined term under Article I of OCC's By-Laws, which is the Definitions section. The term “Guaranty Substitution Payment” would be defined to mean: “a payment that may be made by [OCC] to [NSCC] under the terms of an agreement between them, as described in Rule 901, so that [NSCC] will not reject settlement obligations for CCC-eligible
Certain changes are also proposed to Chapter IX of OCC's Rules. OCC proposes to add parenthetical language to the Introduction section of Chapter IX of OCC's Rules. It would specify that a Guaranty Substitution Payment could be made by OCC to NSCC in connection with OCC's general policy that to the extent a security to be delivered and received is CCC-eligible, OCC will direct the delivery and payment obligations to be settled through the facilities of NSCC where the obligations are physically-settled and arise out of the exercise of stock option contracts or the maturity of stock futures contracts.
Next, OCC proposes to delete certain provisions from Rule 901(b) regarding when a Guaranty Substitution occurs. Specifically, Rule 901(b) currently provides that unless otherwise agreed between OCC and NSCC, a Guaranty Substitution with respect to settlement obligations for CCC-eligible securities that settle “regular way” under NSCC's Rules and Procedures will occur if: (i) the applicable settlement obligations are reported to and are not rejected by NSCC; (ii) NSCC has not notified OCC that it has ceased to act for the relevant Clearing Member or Appointed Clearing Member; and (iii) the NSCC Clearing Fund requirements of the relevant Clearing Member or Appointed Clearing Member owing to NSCC, as determined in accordance with NSCC's Rules and Procedures, are received by NSCC. These considerations regarding when a Guaranty Substitution occurs are addressed under the terms of the Existing Accord, and they would continue to be relevant considerations regarding when a Guaranty Substitution occurs under the changes that OCC and NSCC are proposing to the Existing Accord. However, because additional considerations would be added to the Guaranty Substitution process in connection with the proposed ability for OCC in certain circumstances to make a Guaranty Substitution Payment to NSCC and also to eliminate the potential for a description of the Guaranty Substitution process in OCC's Rules to become inconsistent with the process that OCC and NSCC have agreed to in the Existing Accord, as it would be amended, OCC is proposing to delete the discussion of these considerations in Rule 901(b) in favor of instead simply cross referencing the terms of the agreement.
In addition, OCC proposes to add a new paragraph to the end of Rule 901(b) to provide that pursuant to the proposed changes to the Existing Accord, OCC would be permitted to make a Guaranty Substitution Payment to NSCC. The proposed changes would also describe the circumstances in which OCC may make a Guaranty Substitution Payment in connection with settlement obligations of a suspended Clearing Member, and that the amount of the Guaranty Substitution Payment under the terms of the Existing Accord, as amended, would be the amount required by NSCC to satisfy its deficit(s) regarding such Clearing Member's “Required Fund Deposit” and “Supplemental Liquidity Deposit” as those terms are defined in NSCC's Rules and Procedures.
As generally described above, the proposed changes would also provide that OCC would be permitted to borrow from the OCC Clearing Fund, and also against certain Margin Assets, of a Clearing Member that has been suspended by OCC where that Clearing Member is a Mutually Suspended Member. To implement these changes, OCC is proposing the following amendments to OCC Rule 1006 and Rule 1104.
OCC Rule 1006 addresses the purpose and permitted uses of the OCC Clearing Fund. OCC proposes to make amendments to paragraphs (a) and (f) to permit OCC to utilize assets in the Clearing Fund as a liquidity resource in connection with making a Guaranty Substitution Payment. Currently, OCC Rule 1006(a) states the conditions for use of the OCC Clearing Fund. These provide that the OCC Clearing Fund may be used for borrowings pursuant to OCC Rule 1006(f) or to make good losses or expenses suffered by OCC including: (i) as a result of the failure of any Clearing Member to discharge duly any obligation on or arising from any confirmed trade accepted by OCC, (ii) as a result of the failure of any Clearing Member (including any Appointed Clearing Member) or of CDS (Canada's national securities depository) to perform its obligations under any
OCC proposes to renumber clauses (iii) through (vii) in paragraph (a) as (iv) through (viii), and to insert as new clause (iii) a provision that the OCC Clearing Fund may be used “regarding any Guaranty Substitution Payment that [OCC] may make to [NSCC] under an agreement between them, as described in [OCC] Rule 901, so that [NSCC] will not reject settlement obligations for CCC-eligible securities involving a Clearing Member for which [NSCC] has ceased to act and that [OCC] directs to [NSCC] for settlement through its facilities.”
Consistent with these changes to permit OCC to use the OCC Clearing Fund as a borrowing resource to make a Guaranty Substitution Payment to NSCC, OCC is also proposing similar changes to OCC Rule 1104 that would permit OCC to borrow certain Margin Assets of a Clearing Member that has been suspended by OCC where that Clearing Member is a Mutually Suspended Member and OCC has a general lien
Specifically, OCC proposes to add a new paragraph (g) to OCC Rule 1104 that would provide that OCC may use specified Margin Assets of a suspended Clearing Member as a borrowing in order to use such borrowed Margin Assets to make a Guaranty Substitution Payment to NSCC. OCC would be permitted to use Margin Assets from the following accounts of a suspended Common Member: firm lien account and firm non-lien account; separate Market-Maker's account; combined Market-Maker's account; and JBO Participants' account.
As with the terms that currently apply to any borrowing from the OCC Clearing Fund pursuant to OCC Rule 1006(f), new paragraph (g) in OCC Rule 1104 would further provide that Margin Assets borrowed by OCC to make a Guaranty Substitution Payment to NSCC would not be deemed to be charges against the margin assets for the relevant account(s) for up to thirty (30) days; however, if all or a part of such borrowing were to be determined by OCC, in its discretion, to represent an actual loss, or if all or a part of the borrowing were to remain outstanding after such thirty (30)-day period, OCC would consider the amount of margin assets used to support OCC's obligations under the outstanding borrowing or transaction as an actual loss and immediately allocate the loss in accordance with OCC's By-Laws and Rules.
OCC anticipates that in a scenario in which it would be permitted make a Guaranty Substitution Payment to NSCC under the proposed changes to the Existing Accord and OCC's By-Laws and Rules, OCC would generally expect to borrow from the Clearing Fund as a primary liquidity resource. OCC could also borrow Margin Assets of the suspended Clearing Member that is a
In addition, OCC proposes to specify in OCC Rule 1107(a)(1) that exercised option contracts and matured, physically-settled stock futures to which the suspended Clearing Member is a party may be settled in accordance with the terms of any agreement between OCC and NSCC governing the settlement of exercised option contracts and matured, physically-settled stock futures of a suspended Clearing Member. In such an event, settlement will be governed by and subject to the agreement between OCC and NSCC and the rules of NSCC.
The purpose of the proposed changes to create the Guaranty Substitution Payment mechanism is to provide OCC and NSCC with an additional default management tool to help manage liquidity and settlement risks that OCC believes would be presented to each covered clearing agency in connection with a Mutually Suspended Member. OCC believes that having the ability to make a Guaranty Substitution Payment to NSCC in regard to any unmet Required Fund Deposit or Supplemental Liquidity Deposit obligations of a Mutually Suspended Member would promote prompt and accurate clearance and settlement in the national system for the settlement of securities transactions by causing NSCC to guarantee certain securities settlement obligations that result from exercised options and matured futures contracts that are cleared and settled by OCC. In the following ways, OCC believes that this would be beneficial to and protective of OCC, NSCC, their participants, and the markets they serve.
First, OCC's ability to make the Guaranty Substitution Payment would ensure that the relevant securities settlement obligations would be accepted by NSCC for clearance and settlement and therefore the size of the related settlement obligations could be decreased from netting through NSCC's CNS Accounting Operation and/or NSCC's Balance Order Accounting Operation. Second, this outcome would avoid a scenario in which OCC's Guaranty would continue to apply and the settlement obligations would be settled on a broker-to-broker basis between OCC Clearing Members pursuant to the applicable provisions in Chapter IX of OCC's Rules. As noted above, OCC believes that such a broker-to-broker settlement scenario could result in substantial collateral and liquidity requirements for OCC Clearing Members. OCC believes that these potential collateral and liquidity consequences would be due to the lost benefit of netting of the settlement obligations through NSCC's facilities and also due to the short time (
OCC proposes to revise the OCC Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity Risk Management Description to include the GSP in its liquidity risk management practices. Overall, the proposed changes would reflect that the GSP functions as an additional liquidity demand type at the Clearing Member Organization (“CMO”) Group level.
OCC would include additional specifics to address the potential increased demand that the inclusion of the GSP may cause in its liquidity risk management practices in the Liquidity Risk Management section of the Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity Risk Management Description. Specifically, OCC proposes to amend the Liquidity Demand for Positions Rejected by NSCC subsection, which describes the Existing Accord, including the scenario in which NSCC could choose not to guaranty certain securities settlement obligations arising out of transactions cleared by OCC. This subsection would be retitled as the Liquidity Demand Associated with NSCC Performance of Physical Settlement Activities subsection to more clearly describe its content and incorporate the GSP, as further detailed below. Consistent with the changes to the Existing Accord described above, OCC proposes to clarify that the Accord allows NSCC to reject such obligations if OCC elects to not make a GSP.
OCC proposes a new subsection, titled the Liquidity Demand GSP, to describe the GSP, which NSCC would calculate as defined in the proposed amendments to the Existing Accord. OCC would describe a GSP as a firm specific liquidity demand (
OCC would use the total amount of Clearing Fund and SLD deficits at NSCC in its calculation to account for its obligation. However, in the event of a default, OCC would be responsible for a proportionate share of both NSCC Clearing Fund deficits (which are analogous to OCC margin deficits) and SLDs that are attributable to OCC E&A activity transmitted to NSCC for settlement, whereas NSCC will be responsible for the portion of the Clearing Fund and SLD deficits associated with activity that NSCC clears that is not transmitted by OCC.
The amount of notional activity sent by OCC to NSCC informs the likelihood of a GSP. Namely, the potential amount of NSCC Clearing Fund and SLD deficits that are allocable to OCC increases as the amount of activity OCC sends to NSCC increases. Since not all types of expirations are the same with respect to the notional amount of activity sent by OCC to NSCC, OCC proposes to use five separate categories of expirations with potentially different GSP amounts to apply. Each day on which expirations occur would fall into one of five categories as follows:
• Standard Monthly Expiration: typically the third Friday of each month from the previous twelve months;
• Non-Standard Monthly Expiration Fridays (“End of Week Expirations”): the last business day of every week, typically a Friday, excluding the third Friday of each month from the previous twelve months;
• End of Month Expirations: the last trading day of every month from the previous twelve months;
• Expirations falling on Bank Holidays where Markets Are Open (“Bank Holiday Expirations”): days where banks are closed but the markets are open from the previous twelve months;
• Remaining Expiration Days (“Daily Expirations”): All other days with an expiration from the previous twelve months that do not fall into any of the categories above (typically most Mondays through Thursdays) from the previous twelve months.
OCC believes these five categories are appropriate after an analysis of notional activity sent to NSCC by OCC.
OCC would apply the peak GSP amounts from the prior twelve months in a given expiration category for the specific CMO Group for each forecasted liquidity demand calculation by adding the GSP amounts to the CMO Group's other forecasted liquidity demands for the relevant expiration day.
Furthermore, as stated in the new Liquidity Demand GSP subsection, OCC would apply a floor to certain expirations. At a minimum, the GSPs applied to the End of Week, End of Month, and Bank Holiday Expirations will be no lower than the peak of the Daily Expirations category. If a GSP pertaining to the End of Week, End of Month, and Bank Holiday Expiration category is higher than the peak of the Daily Expirations category, then OCC will apply that higher GSP. Standard Monthly Expirations will be floored by End of Week, End of Month, and Daily Expirations. If a GSP pertaining to any of these categories is higher than the Standard Monthly Expiration category, then OCC will apply that higher GSP. OCC would set out formulas representing the floors for the Standard Monthly, End of Week, End of Month, and Bank Holiday Expirations. Finally, OCC also proposes a minor change to clarify that it would attempt to effect alternative settlement if OCC elected not to make a GSP.
OCC proposes changes to the Liquidity Risk Management Framework to incorporate the GSP. In the Liquidity Risk Identification section, OCC would specify that, in the situation where a member defaults immediately preceding, or during the expiration, of physically-settled E&A activity, OCC may elect to make a GSP to NSCC to compel NSCC to accept and process the E&A activity. If OCC elects to not make a GSP, OCC would complete settlement of the defaulted Clearing Member's E&A transactions through its current process. Relatedly, OCC would include a minor clarification to a footnote in this section to note that NSCC is not acting on behalf of a defaulting Clearing Member “in this situation.”
OCC believes the proposed changes are consistent with the requirements of the Act and the rules and regulations thereunder applicable to a registered clearing agency. In particular, OCC believes the proposed changes are consistent with Section 17A(b)(3)(F) of the Act.
OCC believes that the proposed changes are also consistent with the SEC rules that apply to OCC as a covered clearing agency.
For this same reason, OCC also believes that the proposed changes are consistent with the requirements of SEC Rules 17Ad-22(e)(3) and (7).
Section 17A(b)(3)(I) of the Act
Written comments were not and are not intended to be solicited with respect to the proposed rule change, and none have been received.
Within 45 days of the date of publication of this notice in the
(A) by order approve or disapprove such proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
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.
Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to File Number SR-OCC-2023-007 and should be submitted on or before September 20, 2023.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 806(e)(1) of Title VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, entitled Payment, Clearing and Settlement Supervision Act of 2010 (“Clearing Supervision Act”)
This advance notice is submitted by OCC in connection with a prosed change to its operations to (1) modify the Amended and Restated Stock Options and Futures Settlement Agreement dated August 5, 2017 between OCC and National Securities Clearing Corporation (“NSCC,” and together with OCC, the “Clearing Agencies”) (“Existing Accord”)
The proposed changes would permit OCC to elect to make a cash payment to NSCC following the default of a common clearing participant that would cause NSCC's central counterparty trade guaranty to attach to certain obligations of that participant, as described in greater detail below.
The proposed changes are included in Exhibits 5A and 5B and confidential Exhibits 5C, 5D, and 5E to File No. SR-OCC-2023-801. Material proposed to be added is underlined and material proposed to be deleted is marked in strikethrough text.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the advance notice and discussed any comments it received on the advance notice. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A) and (B) below, of the most significant aspects of these statements.
Written comments were not and are not intended to be solicited with respect to the proposed changes, and none have been received.
OCC is filing this advance notice to (1) modify the Existing Accord between OCC and NSCC and (2) make certain revisions to OCC By-Laws, OCC Rules, OCC's Comprehensive Stress Testing & Clearing Fund Methodology, and
NSCC is a clearing agency that provides clearing, settlement, risk management, and central counterparty services for trades involving equity securities. OCC is the sole clearing agency for standardized equity options listed on national securities exchanges registered with the Commission, including options that contemplate the physical delivery of equities cleared by NSCC in exchange for cash (“physically settled” options).
The Existing Accord allows for a scenario in which NSCC could choose not to guarantee the settlement of such securities arising out of transactions. Specifically, NSCC is not obligated to guarantee settlement until its member has met its collateral requirements at NSCC. If NSCC chooses not to guarantee settlement, OCC would engage in an alternate method of settlement outside of NSCC. This scenario presents two primary problems. First, the cash required for OCC and its Clearing Members in certain market conditions to facilitate settlement outside of NSCC could be significantly more than the amount required if NSCC were to guarantee the relevant transactions. This is because settlement of the transactions in the underlying equity securities outside of NSCC would mean that they would no longer receive the benefit of netting through the facilities of NSCC. In such a scenario, the additional collateral required from Clearing Members to support OCC's continuing settlement guarantee would also have to be sufficiently liquid to properly manage the risks associated with those transactions being due on the second business day following the option exercise or the relevant futures contract maturity date.
Based on an analysis of scenarios using historical data where it was assumed that OCC could not settle transactions through the facilities of NSCC, the worst-case outcome resulted in extreme liquidity demands of over $300 billion for OCC to effect settlement via an alternative method,
The second primary problem relates to the significant operational complexities if settlement occurs outside of NSCC. More specifically, netting through NSCC reduces the volume and value of settlement obligations. For example, in 2022 it is estimated that netting through NSCC's continuous net settlement (“CNS”) accounting system
To address these problems, the Clearing Agencies are proposing to amend and restate the Existing Accord and make related changes to their respective rules that would allow OCC to elect to make a cash payment to NSCC following the default of a Common Member
OCC acts as a central counterparty clearing agency for U.S.-listed options and futures on a number of underlying financial assets including common stocks, currencies and stock indices. In connection with these services, OCC provides the OCC Guaranty pursuant to its By-Laws and Rules. NSCC acts as a central counterparty clearing agency for certain equity securities, corporate and municipal debt, exchange traded funds and unit investment trusts that are eligible for its services. Eligible trading activity may be processed through NSCC's CNS system
OCC's Rules provide that delivery of, and payment for, securities underlying certain exercised stock options and matured single stock futures that are physically settled are generally effected through the facilities of NSCC and are not settled through OCC's facilities.
The Existing Accord governs the transfer between OCC and NSCC of responsibility for settlement obligations that involve a delivery and receipt of stock in the settlement of physically settled options and futures that are cleared and settled by OCC and for which the underlying securities are eligible for clearing through the facilities of NSCC (“E&A/Delivery Transactions”). It also establishes the time when OCC's settlement guarantee (the “OCC Guaranty”) ends and NSCC's settlement guarantee (the “NSCC Guaranty”)
Pursuant to the Existing Accord, on each trading day NSCC delivers to OCC a file that identifies the securities, including stocks, exchange-traded funds and exchange-traded notes, that are eligible (1) to settle through NSCC and (2) to be delivered in settlement of (i) exercises and assignments of stock options cleared and settled by OCC or (ii) delivery obligations from maturing stock futures cleared and settled by OCC. OCC, in turn, delivers to NSCC a file identifying securities to be delivered, or received, for physical settlement in connection with OCC transactions.
After NSCC, receives the list of eligible transactions from OCC, and NSCC has received all required deposits to the NSCC Clearing Fund from all Common Members taking into consideration amounts required to physically settle the OCC transactions, the OCC Guaranty would end and the NSCC Guaranty would begin with respect to physical settlement of the eligible OCC-related transactions. At this point, NSCC is solely responsible for settling the transactions.
Each day, NSCC is required to promptly notify OCC at the time the NSCC Guaranty takes effect. If NSCC rejects OCC's transactions due to an improper submission
NSCC is required to promptly notify OCC if it ceases to act for a Common Member. Upon receiving such a notice, OCC would not continue to submit to NSCC any further unsettled transactions that involve such Common Member, unless authorized representatives of both OCC and NSCC otherwise consent. OCC would, however, deliver to NSCC a list of all transactions that have already been submitted to NSCC and that involve such Common Member. The NSCC Guaranty ordinarily would not take effect with respect to transactions for a Common Member for which NSCC has ceased to act, unless both Clearing Agencies agree otherwise. As such, NSCC does not have any existing contractual obligation to guarantee such Common Member's transactions. To the extent the NSCC Guaranty does not take effect, OCC's Guaranty would continue to apply, and, as described above, OCC would remain responsible for effecting the settlement of such Common Member's transactions pursuant to OCC's By-Laws and Rules.
As noted above, the Existing Accord does provide that the Clearing Agencies may agree to permit additional transactions for a Common Member default (“Defaulted NSCC Member Transactions”) to be processed by NSCC while subject to the NSCC Guaranty. This optional feature, however, creates uncertainty for the Clearing Agencies and market participants about how Defaulted NSCC Member Transactions may be processed following a Common Member default and also does not provide NSCC with the ability to collect collateral from OCC that it may need to close out these additional transactions. While the optional feature would remain in the agreement as part of this proposal, the proposed changes to the Existing Accord, as described below, could significantly reduce the likelihood that it would be utilized.
The proposed changes to the Existing Accord would permit OCC to make a cash payment, referred to as the “Guaranty Substitution Payment” or “GSP,” to NSCC. This cash payment could occur on either or both of the day that the Common Clearing Member becomes a Mutually Suspended Member and on the next business day. Upon NSCC's receipt of the Guaranty Substitution Payment from OCC, the NSCC Guaranty would take effect for the Common Member's transactions, and they would be accepted by NSCC for clearance and settlement.
NSCC would calculate the Guaranty Substitution Payment as the sum of the Mutually Suspended Member's unpaid required deposit to the NSCC Clearing Fund (“Required Fund Deposit”)
More specifically, NSCC would first determine how much of the member's unpaid Clearing Fund requirement would be included in the GSP. NSCC would look at the day-over-day change in gross market value of the Mutually Suspended Member's positions as well as day-over-day change in the member's NSCC Clearing Fund requirements. Based on such changes, NSCC would identify how much of the change in the Clearing Fund requirement was attributable to E&A/Delivery Transactions coming from OCC. If 100 percent of the day-over-day change in the NSCC Clearing Fund requirement is attributable to activity coming from OCC, then the GSP would include 100 percent of the member's NSCC Clearing Fund requirement. If less than 100 percent of the change is attributable to activity coming from OCC, then the GSP would include that percent of the member's unpaid NSCC Clearing Fund requirement attributable to activity coming from OCC. NSCC would then determine the portion of the member's unpaid SLD obligation that is attributable to E&A/Delivery Transactions. As noted above, the GSP would be the sum of these two amounts. A member's NSCC Clearing Fund requirement and SLD obligation at NSCC are designed to address the credit and liquidity risks that a member poses to NSCC. The GSP calculation is intended to assess how much of a member's obligations arise out of activity coming from OCC so that the amount paid by OCC is commensurate with the risk to NSCC of guarantying such activity.
To permit OCC to anticipate the potential resources it would need to pay the GSP for a Mutually Suspended Member, each business day, NSCC would provide OCC with (1) Required Fund Deposit and Supplemental Liquidity Deposit obligations, as calculated pursuant to the NSCC Rules, and (2) the gross market value of the E&A/Delivery Transactions and the gross market value of total Net Unsettled Positions (as such term is defined in the NSCC Rules). On options expiry days that fall on a Friday, NSCC would also provide OCC with information regarding liquidity needs and resources, and any intraday SLD requirements of Common Members. Such information would be delivered pursuant to the ongoing information sharing obligations under the Existing Accord (as proposed to be amended) and the Service Level Agreement (“SLA”) to which both NSCC and OCC are a party pursuant to Section 2 of the Existing Accord.
NSCC and OCC believe the proposed calculation of the Required Fund Deposit portion of the GSP is appropriate because it is designed to provide a reasonable proxy for the impact of the Mutually Suspended Member's E&A/Delivery Transactions on its Required Fund Deposit. While impact study data did show that the proposed calculation could result in a GSP that overestimates or underestimates the Required Fund Deposit attributable to the Mutually Suspended Member's E&A/Delivery Transactions,
Implementing the ability for OCC to make the GSP and cause the E&A/Delivery Transactions to be cleared and settled through NSCC would promote the ability of OCC and NSCC to be efficient and effective in meeting the requirements of the markets they serve. This is because data demonstrates that the expected size of the GSP would be smaller than the amount of cash that would otherwise be needed by OCC and its Clearing Members to facilitate settlement outside of NSCC. More specifically, based on a historical study of alternate means of settlement available to OCC from September 2021 through September 2022, in the event that NSCC did not accept E&A/Delivery Transactions, the worst-case scenario peak liquidity need OCC identified was $384,635,833,942 for settlement to occur on a gross broker-to-broker basis. OCC estimates that the corresponding GSP in this scenario would have been $863,619,056. OCC also analyzed several other large liquidity demand amounts that were identified during the study if OCC effected settlement on a gross broker-to-broker basis.
To help address the current technology constraint that prohibits NSCC from performing a precise calculation of the GSP on a daily basis for every Common Member, proposed Section 6(b)(i) of the Existing Accord and related Section 7(d) of the SLA would provide that with respect to a Mutually Suspended Member, either NSCC or OCC may require that the Required Fund Deposit portion of the GSP be re-calculated by calculating the Required Fund Deposit for the Mutually Suspended Member both before and after the delivery of the E&A/Delivery Transactions and utilize the precise amount that is attributable to that activity in the final GSP. If such a recalculation is required, the result would replace the Required Fund Deposit component of the GSP that was initially calculated. The SLD component of the GSP would be unchanged by such recalculation.
As the above demonstrates, the GSP is intended to address the significant collateral and liquidity requirements that could be required of OCC Clearing Members in the event of a Common Member default.
Allowing OCC to make a GSP payment also is intended to allow for settlement processing to take place through the facilities of NSCC to retain operational efficiencies associated with the settlement process. Alternative settlement means such as broker-to-broker settlement add operational burdens, because transactions would need to be settled individually on one-off bases. In contrast, NSCC's netting reduces the volume and value of settlement obligations that would need to be closed out in the market.
Amending the Existing Accord to define the terms and conditions under which Guaranty Substitution may occur, at OCC's election, with respect to Defaulted NSCC Member Transactions after a Common Member becomes a Mutually Suspended Member will also provide more certainty to both the Clearing Agencies and market participants generally about how a Mutually Suspended Member's Defaulted NSCC Member Transactions may be processed.
NSCC and OCC have agreed it is appropriate to limit the availability of the proposed provision to the day of the Common Member default and the next business day because, based on historical simulations of cease to act events involving Common Members, most activity of a Mutually Suspended Member is closed out on those days.
To implement these proposed changes to the Existing Accord, OCC and NSCC propose to make the following changes.
First, new definitions would be added, and existing definitions would be amended in Section 1, which is the Definitions section.
The new defined terms would be as follows.
• The term “Close Out Transaction” would be defined to mean “the liquidation, termination or acceleration
• The term “Guaranty Substitution Payment” would be defined to mean “an amount calculated by NSCC in accordance with the calculations set forth in Appendix A [to the Existing Accord (as proposed to be amended)], to include two components: (i) a portion of the Mutually Suspended Member's Required Fund Deposit deficit to NSCC at the time of the cease to act; and (ii) a portion of the Mutually Suspended Member's unpaid Supplemental Liquidity Deposit obligation at the time of the cease to act.”
• The term “Mutually Suspended Member” would mean “any OCC Participating Member
• The term “Required Fund Deposit” would have the meaning “provided in Rule 4 of NSCC's Rules and Procedures (or any replacement or substitute rule), the version of which, with respect to any transaction or obligation incurred that is the subject of this Agreement, is in effect at the time of such transaction or incurrence of obligation.”
• The term “Supplemental Liquidity Deposit” would have the meaning “provided in Rule 4A of NSCC's Rules and Procedures (or any replacement or substitute rule), the version of which, with respect to any transaction or obligation incurred that is the subject of this Agreement, is in effect at the time of such transaction or incurrence of obligation.”
The defined terms that would be amended in Section 1 of the Existing Accord are as follows.
• The definition for the term “E&A/Delivery Transaction” generally contemplates a transaction that involves a delivery and receipt of stock in the settlement of physically settled options and futures that are cleared and settled by OCC and for which the underlying securities are eligible for clearing through the facilities of NSCC. The definition would be amended to make clear that it would apply in respect of a “Close Out Transaction” of a “Mutually Suspended Member” as those terms are proposed to be defined (described above).
• The definition for the term “Eligible Securities” generally contemplates the securities that are eligible to be used for physical settlement under the Existing Accord. The term would be modified to clarify that this may include, for example, equities, exchange-traded funds and exchange-traded notes that are underlying securities for options issued by OCC.
Section 6 of the Existing Accord provides that NSCC is required to provide certain notice to OCC in circumstances in which NSCC has ceased to act for a Common Member. Currently, Section 6(A)(ii) of the Existing Accord also requires NSCC to notify OCC if a Common Member has failed to satisfy its Clearing Fund obligations to NSCC, but for which NSCC has not yet ceased to act. In practice, this provision would trigger a number of obligations (described below) when a Common Member fails to satisfy its NSCC Clearing Fund obligations for any reason, including those due to an operational delay. Therefore, OCC and NSCC are proposing to remove the notification requirement under Section 6(A)(ii) from the Existing Accord. Under Section 7(d) of the Existing Accord, NSCC and OCC are required to provide each other with general surveillance information regarding Common Members, which includes information regarding any Common Member that is considered by the other party to be in distress. Therefore, if a Common Member has failed to satisfy its NSCC Clearing Fund obligations and NSCC believes this failure is due to, for example, financial distress and not, for example, due to a known operational delay, and NSCC has not yet ceased to act for that Common Member, such notification to OCC would still occur but would be done pursuant to Section 7(d) of the Existing Accord (as proposed to be amended), and not Section 6(A)(ii). Notifications under Section 6 of the Existing Accord (as proposed to be amended) would be limited to instances when NSCC has actually ceased to act for a Common Member pursuant to the NSCC Rules.
Following notice by NSCC that it has ceased to act for a Common Member, OCC is obligated in turn to deliver to NSCC a list of all E&A/Delivery Transactions (excluding certain transactions for which Guaranty Substitution does not occur) involving the Common Member.
As described above in the summary of the Existing Accord, where NSCC has ceased to act for a Common Member, the Existing Accord refers to the Common Member as the Defaulting NSCC Member and also refers to the relevant E&A/Delivery Transactions in connection with that Defaulting NSCC Member for which a Guaranty Substitution has not yet occurred as Defaulted NSCC Member Transactions.
If the Defaulting NSCC Member is also suspended by OCC, it would be covered by the proposed definition that is described above for a Mutually Suspended Member. For such a
The proposed changes would further provide that if OCC does not suspend the Common Member (such that the Common Member would therefore not meet the proposed definition of a Mutually Suspended Member) or if OCC elects to not make the full amount of the Guaranty Substitution Payment to NSCC, then all of the Defaulted NSCC Member Transactions would be exited from NSCC's CNS Accounting Operation and/or NSCC's Balance Order Accounting Operation, as applicable, and Guaranty Substitution would not occur in respect thereof. Therefore, NSCC would continue to have no obligation to guarantee or settle the Defaulted NSCC Member Transactions, and the OCC Guaranty would continue to apply to them pursuant to OCC's By-Laws and Rules.
Proposed changes to the Existing Accord would also address the application of any Guaranty Substitution Payment by NSCC. Specifically, new Section 6(d) would provide that any Guaranty Substitution Payment made by OCC may be used by NSCC to satisfy any liability or obligation of the Mutually Suspended Clearing Member to NSCC on account of transactions involving the Mutually Suspended Clearing Member for which the NSCC Guaranty applies and to the extent that any amount of assets otherwise held by NSCC for the account of the Mutually Suspended Member (including any Required Fund Deposit or Supplemental Liquidity Deposit) are insufficient to satisfy its obligations related to transactions for which the NSCC Guaranty applies. Proposed changes to Section 6(d) would further provide for the return to OCC of any unused portion of the GSP. With regard to the portion of the Guaranty Substitution Payment that corresponds to a member's Supplemental Liquidity Deposit obligation, NSCC must return any unused amount to OCC within fourteen (14) days following the conclusion of NSCC's settlement, close-out and/or liquidation. With regard to the portion of the Guaranty Substitution Payment that corresponds to a Required Fund Deposit, NSCC must return any unused amount to OCC under terms agreed to by the parties.
Certain other technical changes are also proposed to the Existing Accord to conform it to the proposed changes described above. For example, the preamble and the “whereas” clauses in the Preliminary Statement would be amended to clarify that the agreement is an amended and restated agreement and to summarize that the agreement would be modified to contemplate the Guaranty Substitution Payment structure. Section 1(c), which addresses the terms in the Existing Accord that are defined by reference to NSCC's Rules and Procedures and OCC's By-Laws and Rules would be modified to state that such terms would have the meaning then in effect at the time of any transaction or obligation that is covered by the agreement rather than stating that such terms have the meaning given to them as of the effective date of the agreement. This change is proposed to help ensure that the meaning of such terms in the agreement will not become inconsistent with the meaning in the NSCC Rules and/or OCC By-Laws and Rules, as they may be modified through proposed rule changes with the Commission.
Technical changes would be made to Sections 3(d) and (e) of the Existing Accord to provide that those provisions would not apply in the event new Section 6(b) described above, is triggered. Section 3(d) generally provides that OCC will no longer submit E&A/Delivery Transactions to NSCC involving a suspended OCC Participating Member.
Section 5 would also be amended to clarify that Guaranty Substitution occurs when NSCC has received both the Required Fund Deposit and Supplemental Liquidity Deposit, as calculated by NSCC in its sole discretion, from Common Members. The addition of the collection of the Supplemental Liquidity Deposit to the definition of the Guaranty Substitution Time in this Section 5 would reflect OCC and NSCC's agreement that both amounts are components of the Guaranty Substitution Payment (as described above) and would make this definition consistent with that agreement.
In Section 7 of the Existing Accord, proposed changes would be made to provide that NSCC would provide to OCC information regarding a Common Member's Required Fund Deposit and Supplemental Liquidity Deposit obligations, to include the Supplemental Liquidity Deposit obligation in this notice requirement, and additionally that NSCC would provide OCC with information regarding the potential Guaranty Substitution Payment for the Common Member. On an options expiration date that is a Friday, NSCC would, by close of business on that day, also provide to OCC information regarding the intra-day liquidity requirement, intra-day liquidity resources and intra-day calls for a Common Member that is subject to a Supplemental Liquidity Deposit at NSCC.
Finally, Section 14 of the Existing Accord would be modernized to provide
OCC is also proposing certain changes to its By-Laws and Rules that are designed to complement the proposed changes described above regarding the Existing Accord. These proposed changes to the By-Laws and Rules are described below, and they generally cover the following four areas. First, the proposed changes would define Guaranty Substitution Payment. Second, the proposed changes would describe the circumstances under which OCC could make a Guaranty Substitution Payment to NSCC. Third, the proposed changes would specify what financial resources could be used by OCC to make the Guaranty Substitution Payment.
OCC proposes to add “Guaranty Substitution Payment” as a new defined term under Article I of OCC's By-Laws, which is the Definitions section. The term “Guaranty Substitution Payment” would be defined to mean: “a payment that may be made by [OCC] to [NSCC] under the terms of an agreement between them, as described in Rule 901, so that [NSCC] will not reject settlement obligations for CCC-eligible
Certain changes are also proposed to Chapter IX of OCC's Rules. OCC proposes to add parenthetical language to the Introduction section of Chapter IX of OCC's Rules. It would specify that a Guaranty Substitution Payment could be made by OCC to NSCC in connection with OCC's general policy that to the extent a security to be delivered and received is CCC-eligible, OCC will direct the delivery and payment obligations to be settled through the facilities of NSCC where the obligations are physically-settled and arise out of the exercise of stock option contracts or the maturity of stock futures contracts.
Next, OCC proposes to delete certain provisions from Rule 901(b) regarding when a Guaranty Substitution occurs. Specifically, Rule 901(b) currently provides that unless otherwise agreed between OCC and NSCC, a Guaranty Substitution with respect to settlement obligations for CCC-eligible securities that settle “regular way” under NSCC's Rules and Procedures will occur if: (i) the applicable settlement obligations are reported to and are not rejected by NSCC; (ii) NSCC has not notified OCC that it has ceased to act for the relevant Clearing Member or Appointed Clearing Member; and (iii) the NSCC Clearing Fund requirements of the relevant Clearing Member or Appointed Clearing Member owing to NSCC, as determined in accordance with NSCC's Rules and Procedures, are received by NSCC. These considerations regarding when a Guaranty Substitution occurs are addressed under the terms of the Existing Accord, and they would continue to be relevant considerations regarding when a Guaranty Substitution occurs under the changes that OCC and NSCC are proposing to the Existing Accord. However, because additional considerations would be added to the Guaranty Substitution process in connection with the proposed ability for OCC in certain circumstances to make a Guaranty Substitution Payment to NSCC and also to eliminate the potential for a description of the Guaranty Substitution process in OCC's Rules to become inconsistent with the process that OCC and NSCC have agreed to in the Existing Accord, as it would be amended, OCC is proposing to delete the discussion of these considerations in Rule 901(b) in favor of instead simply cross referencing the terms of the agreement.
In addition, OCC proposes to add a new paragraph to the end of Rule 901(b) to provide that pursuant to the proposed changes to the Existing Accord, OCC would be permitted to make a Guaranty Substitution Payment to NSCC. The proposed changes would also describe the circumstances in which OCC may make a Guaranty Substitution Payment in connection with settlement obligations of a suspended Clearing Member, and that the amount of the Guaranty Substitution Payment under the terms of the Existing Accord, as amended, would be the amount required by NSCC to satisfy its deficit(s) regarding such Clearing Member's “Required Fund Deposit” and “Supplemental Liquidity Deposit” as those terms are defined in NSCC's Rules and Procedures.
As generally described above, the proposed changes would also provide that OCC would be permitted to borrow from the OCC Clearing Fund and also against certain Margin Assets of a Clearing Member that has been suspended by OCC where that Clearing Member is a Mutually Suspended Member. To implement these changes, OCC is proposing the following
OCC Rule 1006 addresses the purpose and permitted uses of the OCC Clearing Fund. OCC proposes to make amendments to paragraphs (a) and (f) to permit OCC to utilize assets in the Clearing Fund as a liquidity resource in connection with making a Guaranty Substitution Payment. Currently, OCC Rule 1006(a) states the conditions for use of the OCC Clearing Fund. These provide that the OCC Clearing Fund may be used for borrowings pursuant to OCC Rule 1006(f) or to make good losses or expenses suffered by OCC including: (i) as a result of the failure of any Clearing Member to discharge duly any obligation on or arising from any confirmed trade accepted by OCC, (ii) as a result of the failure of any Clearing Member (including any Appointed Clearing Member) or of CDS (Canada's national securities depository) to perform its obligations under any contract or obligation issued, undertaken, or guaranteed by OCC or in respect of which OCC is otherwise liable, (iii) as a result of the failure of any Clearing Member to perform any of its obligations to OCC in respect of the stock loan and borrow positions of such Clearing Member, (iv) in connection with any liquidation of a Clearing Member's open positions, (v) in connection with protective transactions effected for the account of OCC pursuant to Chapter XI of OCC's Rules (delivery of underlying securities and payment), (vi) as a result of the failure of any Clearing Member to make any other required payment or render any other required performance or (vii) as a result of the failure of any bank, securities or commodities clearing organization, or investment counterparty, to perform its obligations to OCC for certain specified reasons.
OCC proposes to renumber clauses (iii) through (vii) in paragraph (a) as (iv) through (viii), and to insert as new clause (iii) a provision that the OCC Clearing Fund may be used “regarding any Guaranty Substitution Payment that [OCC] may make to [NSCC] under an agreement between them, as described in [OCC] Rule 901, so that [NSCC] will not reject settlement obligations for CCC-eligible securities involving a Clearing Member for which [NSCC] has ceased to act and that [OCC] directs to [NSCC] for settlement through its facilities.”
Consistent with these changes to permit OCC to use the OCC Clearing Fund as a borrowing resource to make a Guaranty Substitution Payment to NSCC, OCC is also proposing similar changes to OCC Rule 1104 that would permit OCC to borrow certain Margin Assets of a Clearing Member that has been suspended by OCC where that Clearing Member is a Mutually Suspended Member and OCC has a general lien
Specifically, OCC proposes to add a new paragraph (g) to OCC Rule 1104 that would provide that OCC may use specified Margin Assets of a suspended Clearing Member as a borrowing in order to use such borrowed Margin Assets to make a Guaranty Substitution Payment to NSCC. OCC would be permitted to use Margin Assets from the following accounts of a suspended Common Member: firm lien account and firm non-lien account; separate Market-Maker's account; combined Market-Maker's account; and JBO Participants' account.
As with the terms that currently apply to any borrowing from the OCC Clearing Fund pursuant to OCC Rule 1006(f), new paragraph (g) in OCC Rule 1104 would further provide that Margin Assets borrowed by OCC to make a Guaranty Substitution Payment to NSCC
OCC anticipates that in a scenario in which it would be permitted make a Guaranty Substitution Payment to NSCC under the proposed changes to the Existing Accord and OCC's By-Laws and Rules, OCC would generally expect to borrow from the Clearing Fund as a primary liquidity resource. OCC could also borrow Margin Assets of the suspended Clearing Member that is a Common Member under the proposed terms described above. OCC is not proposing changes that would require a specific borrowing sequence because OCC believes that it is more appropriate to preserve flexibility to borrow from the available OCC Clearing Fund or Margin Assets as OCC determines appropriate under the circumstances.
In addition, OCC proposes to specify in OCC Rule 1107(a)(1) that exercised option contracts and matured, physically-settled stock futures to which the suspended Clearing Member is a party may be settled in accordance with the terms of any agreement between OCC and NSCC governing the settlement of exercised option contracts and matured, physically-settled stock futures of a suspended Clearing Member. In such an event, settlement will be governed by and subject to the agreement between OCC and NSCC and the rules of NSCC.
The purpose of the proposed changes to create the Guaranty Substitution Payment mechanism is to provide OCC and NSCC with an additional default management tool to help manage liquidity and settlement risks that OCC believes would be presented to each covered clearing agency in connection with a Mutually Suspended Member. OCC believes that having the ability to make a Guaranty Substitution Payment to NSCC in regard to any unmet Required Fund Deposit or Supplemental Liquidity Deposit obligations of a Mutually Suspended Member would promote prompt and accurate clearance and settlement in the national system for the settlement of securities transactions by causing NSCC to guarantee certain securities settlement obligations that result from exercised options and matured futures contracts that are cleared and settled by OCC. In the following ways, OCC believes that this would be beneficial to and protective of OCC, NSCC, their participants, and the markets they serve.
First, OCC's ability to make the Guaranty Substitution Payment would ensure that the relevant securities settlement obligations would be accepted by NSCC for clearance and settlement and therefore the size of the related settlement obligations could be decreased from netting through NSCC's CNS Accounting Operation and/or NSCC's Balance Order Accounting Operation. Second, this outcome would avoid a scenario in which OCC's Guaranty would continue to apply and the settlement obligations would be settled on a broker-to-broker basis between OCC Clearing Members pursuant to the applicable provisions in Chapter IX of OCC's Rules. As noted above, OCC believes that such a broker-to-broker settlement scenario could result in substantial collateral and liquidity requirements for OCC Clearing Members. OCC believes that these potential collateral and liquidity consequences would be due to the lost benefit of netting of the settlement obligations through NSCC's facilities and also due to the short time (
OCC proposes to revise the OCC Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity Risk Management Description to include the GSP in its liquidity risk management practices. Overall, the proposed changes would reflect that the GSP functions as an additional liquidity demand type at the Clearing Member Organization (“CMO”) Group level.
OCC would include additional specifics to address the potential increased demand that the inclusion of the GSP may cause in its liquidity risk management practices in the Liquidity Risk Management section of the Comprehensive Stress Testing & Clearing Fund Methodology, and Liquidity Risk Management Description. Specifically, OCC proposes to amend the Liquidity Demand for Positions Rejected by NSCC subsection, which describes the Existing Accord, including the scenario in which NSCC could choose not to guaranty certain securities settlement obligations arising out of transactions cleared by OCC. This subsection would be retitled as the Liquidity Demand Associated with NSCC Performance of Physical Settlement Activities subsection to more clearly describe its content and incorporate the GSP, as further detailed below. Consistent with the changes to the Existing Accord described above, OCC proposes to clarify that the Accord allows NSCC to reject such obligations if OCC elects to not make a GSP.
OCC proposes a new subsection, titled the Liquidity Demand GSP, to describe the GSP, which NSCC would calculate as defined in the proposed amendments to the Existing Accord. OCC would describe a GSP as a firm specific
OCC would use the total amount of Clearing Fund and SLD deficits at NSCC in its calculation to account for its obligation. However, in the event of a default, OCC would be responsible for a proportionate share of both NSCC Clearing Fund deficits (which are analogous to OCC margin deficits) and SLDs that are attributable to OCC E&A activity transmitted to NSCC for settlement, whereas NSCC will be responsible for the portion of the Clearing Fund and SLD deficits associated with activity that NSCC clears that is not transmitted by OCC.
The amount of notional activity sent by OCC to NSCC informs the likelihood of a GSP. Namely, the potential amount of NSCC Clearing Fund and SLD deficits that are allocable to OCC increases as the amount of activity OCC sends to NSCC increases. Since not all types of expirations are the same with respect to the notional amount of activity sent by OCC to NSCC, OCC proposes to use five separate categories of expirations with potentially different GSP amounts to apply. Each day on which expirations occur would fall into one of five categories as follows:
• Standard Monthly Expiration: typically the third Friday of each month from the previous twelve months;
• Non-Standard Monthly Expiration Fridays (“End of Week Expirations”): the last business day of every week, typically a Friday, excluding the third Friday of each month from the previous twelve months;
• End of Month Expirations: the last trading day of every month from the previous twelve months;
• Expirations falling on Bank Holidays where Markets Are Open (“Bank Holiday Expirations”): days where banks are closed but the markets are open from the previous twelve months;
• Remaining Expiration Days (“Daily Expirations”): All other days with an expiration from the previous twelve months that do not fall into any of the categories above (typically most Mondays through Thursdays) from the previous twelve months.
OCC believes these five categories are appropriate after an analysis of notional activity sent to NSCC by OCC.
OCC would apply the peak GSP amounts from the prior twelve months in a given expiration category for the specific CMO Group for each forecasted liquidity demand calculation by adding the GSP amounts to the CMO Group's other forecasted liquidity demands for the relevant expiration day.
Furthermore, as stated in the new Liquidity Demand GSP subsection, OCC would apply a floor to certain expirations. At a minimum, the GSPs applied to the End of Week, End of Month, and Bank Holiday Expirations will be no lower than the peak of the Daily Expirations category. If a GSP pertaining to the End of Week, End of Month, and Bank Holiday Expiration category is higher than the peak of the Daily Expirations category, then OCC will apply that higher GSP. Standard Monthly Expirations will be floored by End of Week, End of Month, and Daily Expirations. If a GSP pertaining to any of these categories is higher than the Standard Monthly Expiration category, then OCC will apply that higher GSP. OCC would set out formulas representing the floors for the Standard Monthly, End of Week, End of Month, and Bank Holiday Expirations. Finally, OCC also proposes a minor change to clarify that it would attempt to effect alternative settlement if OCC elected not to make a GSP.
OCC proposes changes to the Liquidity Risk Management Framework to incorporate the GSP. In the Liquidity Risk Identification section, OCC would specify that, in the situation where a member defaults immediately preceding, or during the expiration, of physically-settled E&A activity, OCC may elect to make a GSP to NSCC to compel NSCC to accept and process the E&A activity. If OCC elects to not make a GSP, OCC would complete settlement of the defaulted Clearing Member's E&A transactions through its current process. Relatedly, OCC would include a minor clarification to a footnote in this section to note that NSCC is not acting on behalf of a defaulting Clearing Member “in this situation.”
OCC believes that the proposed changes would reduce the nature and level of risk presented by OCC because the purpose of the proposed changes to enhance its stress testing processes and create the Guaranty Substitution Payment mechanism is to provide OCC and NSCC with additional default management tools to help manage liquidity and settlement risks that OCC believes would be presented to each covered clearing agency in connection with a Mutually Suspended Member. OCC believes that having the ability to make a Guaranty Substitution Payment to NSCC in regard to any unmet Required Fund Deposit or Supplemental Liquidity Deposit obligations of a Mutually Suspended Member would promote prompt and accurate clearance and settlement in the national system for the settlement of securities transactions by causing NSCC to guarantee certain securities settlement obligations that result from exercised options and matured futures contracts that are cleared and settled by OCC. OCC further believes that enhancing its stress testing processes will help to ensure that it maintains the resources to make such a payment. In the following ways, OCC believes that this would be beneficial to and protective of OCC, NSCC, their participants, and the markets they serve.
First, OCC's ability to make the Guaranty Substitution Payment would ensure that the relevant securities settlement obligations would be accepted by NSCC for clearance and settlement and therefore the size of the related settlement obligations could be decreased from netting through NSCC's CNS Accounting Operation and/or NSCC's Balance Order Accounting Operation. Second, this outcome would avoid a scenario in which OCC's Guaranty would continue to apply and the settlement obligations would be settled on a broker-to-broker basis between OCC Clearing Members pursuant to the applicable provisions in Chapter IX of OCC's Rules. As noted above, OCC believes that such a broker-to-broker settlement scenario could result in substantial collateral and liquidity requirements for OCC Clearing Members. OCC believes that these potential collateral and liquidity consequences would be due to the lost benefit of netting of the settlement obligations through NSCC's facilities and also due to the short time (
The stated purpose of the Clearing Supervision Act is to mitigate systemic risk in the financial system and promote financial stability by, among other things, promoting uniform risk management standards for systemically important financial market utilities and strengthening the liquidity of systemically important financial market utilities.
• promote robust risk management;
• promote safety and soundness;
• reduce systemic risks; and
• support the stability of the broader financial system.
The Commission has adopted risk management standards under Section 805(a)(2) of the Clearing Supervision Act and the Exchange Act in furtherance of these objectives and principles.
OCC believes the proposed changes are consistent with Section 805(b)(1) of the Clearing Supervision Act
OCC believes that the proposed changes are also consistent with the SEC rules that apply to OCC as a covered clearing agency.
For this same reason, OCC also believes that the proposed changes are consistent with the requirements of SEC Rules 17Ad-22(e)(3) and (7).
The proposed change may be implemented if the Commission does not object to the proposed change within 60 days of the later of (i) the date that the proposed change was filed with the Commission or (ii) the date that any additional information requested by the Commission is received. The clearing agency shall not implement the proposed change if the Commission has any objection to the proposed change.
The Commission may extend the period for review by an additional 60 days if the proposed change raises novel or complex issues, subject to the Commission or the Board of Governors of the Federal Reserve System providing the clearing agency with prompt written notice of the extension. A proposed change may be implemented in less than 60 days from the date the advance notice is filed, or the date further information requested by the Commission is received, if the Commission notifies the clearing agency in writing that it does not object to the proposed change and authorizes the clearing agency to implement the proposed change on an earlier date, subject to any conditions imposed by the Commission. The clearing agency shall post notice on its website of proposed changes that are implemented.
The proposal shall not take effect until all regulatory actions required with respect to the proposal are completed.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the advance notice is consistent with the Clearing Supervision 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.
Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to File Number SR-OCC-2023-801 and should be submitted on or before September 20, 2023.
Section 806(e)(1)(G) of the Clearing Supervision Act provides that OCC may implement the changes if it has not received an objection to the proposed changes within 60 days of the later of (i) the date that the Commission receives an advance notice or (ii) the date that any additional information requested by the Commission is received,
Pursuant to Section 806(e)(1)(H) of the Clearing Supervision Act, the Commission may extend the review period of an advance notice for an additional 60 days, if the changes proposed in the advance notice raise novel or complex issues, subject to the Commission providing the clearing agency with prompt written notice of the extension.
Here, as the Commission has not requested any additional information, the date that is 60 days after OCC filed the advance notice with the Commission is October 9, 2023. However, the Commission finds the issues raised by the advance notice complex because OCC proposes changes that touch on a core aspect of the link between infrastructures supporting the options and spot markets represented in the Accord as well as requiring the estimation of risk arising out of exercise and assignment activity as compared to the risk arising out of other activity cleared by NSCC. Further, the proposal involves changes to OCC's liquidity stress testing framework. The Commission also finds the issues raised by the advance notice novel because the proposal represents a material change to the structure to the default management practices defined in the Accord. Therefore, the Commission finds it appropriate to extend the review period of the advance notice for an additional 60 days under Section 806(e)(1)(H) of the Clearing Supervision Act.
Accordingly, the Commission, pursuant to Section 806(e)(1)(H) of the Clearing Supervision Act,
All submissions should refer to File Number SR-OCC-2023-801 and should be submitted on or before September 20, 2023.
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”),
ICE Clear Europe proposes to amend its Wind Down Framework and Plan (to be renamed the “Wind Down Plan”) (the “Plan”)
In its filing with the Commission, ICE Clear Europe included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. ICE Clear Europe has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of such statements.
ICE Clear Europe is proposing to amend its Wind Down Framework and Plan to make certain updates and enhancements. The proposed changes would rename the plan as the “Wind Down Plan” and make conforming changes throughout. The amendments would remove the Overview section and the Context section as those sections contain background information that is not necessary to the Plan as well as certain unnecessary references to regulatory requirements and particular regulators in certain jurisdictions. A new executive summary section would restate the purposes and objectives of the Plan as setting out relevant information, steps to take and options available with respect to winding down the business and compliance with all relevant regulatory obligations with
The summary of the Plan would be revised to provide that in considering exiting of contractual obligations in the case of wind-down, the Clearing House would also consider other services that it may be providing (including intra-group services). The discussion of the structure of the Plan would remove as unnecessary a statement that the Plan reflects feedback that was received from certain regulators. A reference to consultation with other relevant stakeholders before making final decisions in connection with execution of the Plan would be revised to state that such consultation is likely rather than necessary in all cases, to reflect that different forms and extents of consultation with particular stakeholders may be appropriate for different circumstances and proposed actions. The proposed amendments would move into the summary a section relating to the execution of the plan, which discusses the establishment and responsibilities of the Wind Down Planning Committee. The amendments would describe the potential membership of the committee, which would be considered to include a chair by a non-executive director and senior officers and other advisors as appropriate.
In the discussion of planning options, certain non-substantive clarifications would be made as to the choice between transfer of clearing to another CCP or termination of clearing. References to “Continuing CDS Rule Provisions” applying, including in lieu of Rule 105(c) of the Clearing Rules, in the context of CDS product category termination would be removed as such provisions have been previously deleted from the Rules. The discussion of analysis, consultation and planning would update the composition of the Planning Committee (as discussed above) and clarify that the impact of plans on stakeholders other than members should be considered. The amendments would also clarify that in considering alternative CCPs, the committee would consider such matters as jurisdictional complications, materially differing membership requirements and the factoring of relevant regulatory processes into the proposed timelines. The amendments would remove a consideration as to whether members would accept a particular contract not being available for clearing at the time of transfer, as the Clearing House believes transfer would likely not be feasible in that scenario. Similarly, for the termination option, the amendments would add a reference to consideration of whether regulators would likely accept the termination and the timeline for the related regulatory process.
The amendments would also state that the Clearing House would assess the impact of services received and provided and describe certain of the factors that are relevant, including timing and cost. The amendments would also state an assumption that ICE Clear Europe can continue to call and receive margin and otherwise operate during the wind-down period. However, the amended Plan would acknowledge that in the event of an unplanned disruption from a Clearing Member default, or in the event of a material nondefault event or loss, revised timelines and other actions may be required.
The amendments would make a number of clarifications to the discussion of execution plans in the context of the transfer of F&O clearing. Changes to the list of assumptions and activities of the Execution Plans as well as timelines for transfer would note jurisdictional considerations and the fact that ICE Clear Europe currently clears a diverse profile of products (which may necessitate transfer of different products to different alternative CCPs). In this regard, the amendments would remove an assumption that there would be a maximum of two recipient clearing house for situations. In the situation where the transferee clearing house does not clear a relevant contract, and development of such clearing is not possible within an acceptable timeframe, the amendments would remove a statement suggesting that transfer would be delayed until clearing is available. ICE Clear Europe does not believe such a delay would be feasible, and accordingly the relevant positions in that contract would be terminated. References to the novation agreement to be used in a transfer would be amended to address transfer of related collateral in addition to positions. Similarly, the amended Plan would, in the scenario of a transfer to another clearing house, address the testing of collateral migration (in addition to position migration) and provide for the transfer of all relevant collateral (not only margin) to the recipient clearing house, in addition to the clearing members positions. Additional changes would update references to Clearing House position management and other systems such as FEC and ECS (or successors to such systems). The anticipated timeline for the transfer of F&O markets clearing to recipient clearing houses would be revised to be approximately six months (instead of no more than six months), in recognition of the difficulty of predicting a maximum timeline. In addition, the Clearing House has acknowledged that the timeline may be affected because the diverse product groups currently cleared, may need to involve more than one recipient clearing house in a transfer. Amendments would make other minor non-substantive changes.
In the context of termination, the amendments would clarify certain arrangements around notice to Clearing Members, consistent with the Rules. The amendments would contemplate a Withdrawal Date to be designated by the Clearing House pursuant to the Rules, rather than assuming a period of 5 months, to allow for more flexibility for the timeframe to reflect the particular circumstances of the termination. (In ICE Clear Europe's view, the time period will not necessarily be exactly five months, and that time period would better be described as an approximation.) The proposed amendments would also adopt a revised maturity profile for different product groups based on expiration date. The maturity profile may be materially different between product groups; thus it is appropriate for the Plan to consider the profile based on the relevant group. The amendments would revise percentage of the total open contracts expected to wind down naturally via an expiration date within three months from 35% to 30% based on the revised maturity profile. The changes would also clarify that new trades would be accepted until the Withdrawal Date, with the expectation that they serve to reduce risk and reduce open interest. The amendments would provide additional clarifications about the process of terminating an open position at a Withdrawal Date, in accordance with the Rules. The amendments will also clarify the process by which clearing members can close out open positions themselves prior to the Withdrawal Date, as well as clarify that
Similar clarifications would be made to sections of the Plan relating to transfer and/or termination of the CDS clearing business. These would include references to consideration of jurisdictional issues, recognition that in the case of transfer an alternative CCP may have different membership requirements, recognition of the regulatory and new product approval processes that may apply, clarification that termination through re-bilateralisation may (rather than will) occur if an alternative CCP is not available in an acceptable timeframe, clarification that in certain transfer scenarios backloading of terminated contracts once a new CCP is ready could (rather than would) be done, and clarification that all relevant collateral (and not just margin) will be transferred to recipient clearing house, among others. The amendments would also revise the expected timeline for a transfer to be approximately 6 months, rather than no more than six months, in recognition of the difficulty of predicting a maximum timeline. The amendments would note that the timeline is likely to be affected by whether the open positions can be transferred to a single clearing house, or whether a transfer to multiple clearing houses would be required. In several places, the timeline for termination, wind-down or re-bilateralisation of CDS clearing would similarly be described as approximately five months rather than exactly five months. In the discussion of continuation of CDS clearing services until the time of termination, a clarification would be made that such clearing would continue on the basis of reducing open interest (as opposed to reducing volume).
In the discussion of terminating service arrangements, the notice timeline would be revised to be approximately (rather than exactly) 6 months and also to state that appropriate notice would be given for termination of employee contracts. The amendments would note that the list of relevant services and contracts is a summary, and that the Clearing House maintains a more complete inventory of this service arrangements that should be referenced in wind-down planning. As amended, the Plan would also note that IT services and licenses are largely provided by other ICE Clear Europe affiliates and that IT services provided by third parties generally are not expected to have a material impact to wind-down planning. The changes to the summary table would consolidate the treatment of several clearing services agreements with different affiliated ICE markets into a single category for consistency. The amendments would also clarify that exit provisions regarding the use of buildings and building facilities provided by affiliates are not part of intra-group agreements, but would rather be managed by the relevant boards and management of the entities involved. Other changes would include the addition of the Clearing and Settlement Services Agreement with Intercontinental Exchange Holdings, the replacement of Dutch National Bank with European Central Bank to reflect the use of the latter as a concentration bank, the change in reference to the “relevant ICE Exchanges,” and the change in the Clearing and Settlement Services Agreements notice time period from 12 months to 24 months. Certain non-substantive drafting clarifications would also be made.
ICE Clear Europe has also proposed to update the description of the Clearing House's current liquidity profile in order to be consistent with (and explicitly reference) the Clearing House's current Liquidity and Investment Management Policy. (Relevant sections of the Liquidity and Investment Policy define the objective and key strategy for the investment of Cash. As per the policy, ICE Clear Europe aims to only invest in cash or highly liquid financial instruments with minimal market and credit risk and which are capable of being liquidated quickly and with minimal losses). Among other changes, the amendments would clarify that collateral held as cash from Clearing Members should be immediately accessible or available at short notice, with the vast majority of funds being invested in high-quality short-term instruments in accordance. (Specific references to a maximum maturity and weighted average life would be removed). Outright purchases should be limited to high quality and liquid government debt that can be liquidated on short notice in the secondary market. Amendments would also address availability of non-cash assets for liquidity needs, consistent with liquidity policies, and reference the Clearing House's liquidity stress testing.
Consistent with the changes discussed above, the overall conclusions for the Plan would be revised to reflect that the lengthiest time anticipated for wind-down would be approximately (rather than exactly) six months. Additionally, the proposed amendments would note that this estimate could be affected by various external factors, including the potential need to transfer positions to multiple clearing venues given the Clearing House's product scope, which could be more complicated (and take more time) than a transfer to a single venue. The impact of regulatory approvals and processes could also affect the timeline.
The discussion of governance and oversight in the Plan would be replaced with a new Document Governance and Exception Handling section that is consistent with other Clearing House policies recently adopted or modified.
The proposed changes also make a number of non-substantive changes to the Plan throughout such as formatting and typographical and similar corrections.
ICE Clear Europe believes that the proposed amendments to the Plan are consistent with the requirements of Section 17A of the Securities Exchange Act of 1934
Rule 17Ad-22(e)(2) provides that “[e]ach covered clearing agency shall establish, implement, maintain and enforce written policies and procedures reasonably designed to, as applicable [. . .] provide for governance arrangements that are clear and transparent”
The proposed amendments are also consistent with Rule 17Ad-22(e)(17)(i), which provides that “[e]ach covered clearing agency shall establish, implement, maintain and enforce written policies and procedures reasonably designed to, as applicable [. . .] manage the covered clearing agency's operational risks by identifying the plausible sources of operational risk, both internal and external, and mitigating their impact through the use of appropriate systems, policies, procedures, and controls.”
ICE Clear Europe does not believe the proposed amendments would have any impact, or impose any burden, on competition not necessary or appropriate in furtherance of the purposes of the Act. The proposed amendments are being adopted to update and clarify the Plan, all of which relate to the Clearing House's processes for the wind down of the Clearing House in the unlikely event that the recovery plan does not succeed in restoring normal operations after significant loss events or the Clearing House decides for business reasons it no longer wishes to operate. ICE Clear Europe does not believe the amendments would affect in the ordinary course of business the costs of clearing, the ability of market participants to access clearing, or the market for clearing services generally. Therefore, ICE Clear Europe does not believe the proposed rule change imposes any burden on competition that is inappropriate in furtherance of the purposes of the Act.
Written comments relating to the proposed amendments have not been solicited or received by ICE Clear Europe. ICE Clear Europe will notify the Commission of any written comments received with respect to 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.
Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from
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 amend its Rules in connection with the number of legs of a complex order that may be entered on a single order ticket at the time of systemization. The text of the proposed rule change is provided in Exhibit 5.
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 amend its Rules in connection with the number of legs of a complex order that may be entered on a single order ticket at the time of systemization, for certain complex order types.
Specifically, Rule 5.7(f) currently provides that each order, cancellation of, or change to an order transmitted to the Exchange must be “systematized” in a format approved by the Exchange, either before it is sent to the Exchange or upon receipt on the Exchange's trading floor. An order is systematized if (1) the order is sent electronically to the Exchange or (2) the order that is sent to the Exchange non-electronically (
The Exchange notes that it adopted the 16-leg maximum per order ticket in 2021 as a result of Exchange system limitations.
Pursuant to proposed Rule 5.7(f)(4), complex orders of 100 legs or less (one
Due to Exchange system limitations that may prevent a complex order with more than a certain number of legs from being entered on a single order ticket for representation and execution in open outcry, inefficiencies exist in the processing and tracking of such orders, as they currently must be entered on multiple tickets. The single order ticket leg increase to 100 legs for floor orders is intended to provide consistency in processing and enhance the Exchange's audit trail by reducing the number of tickets required for larger complex orders. Notwithstanding the necessity of order ticket leg maximums given Exchange system limitations, the Exchange notes that splitting an order across multiple order tickets takes additional time, can leave room for error, and requires additional TPH and Exchange regulatory surveillance administrative resources, as a TPH must identify for the Exchange the order tickets that are part of the same complex order (in a form and manner prescribed by the Exchange). The Exchange notes that complex orders with more than 16 legs may be sent to Floor Brokers on the Exchange's trading floor non-electronically (
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 the proposed rule change will allow TPHs to submit order tickets for their open outcry complex orders (including SPX Combo Orders) in a manner that is more compatible with the processing capacity that the Exchange and available order entry systems are able to support, thus reducing the number of complex orders that need to be broken up into multiple order tickets. By allowing TPHs to more effectively and efficiently systematize complex orders with a large amount of legs for execution in open outcry within the processing capacity limits of the order entry systems they use, the Exchange believes the proposed rule change removes impediments to and perfects the mechanism of a free and open market and national market system. The Exchange notes that the proposed rule change does not impact the current manner in which TPHs may represent a complex order in open outcry, nor does it impact the permissible ratios of complex orders. Further, those complex orders designated as Electronic Only will continue to be subject to the current 16 legs requirement.
The Exchange 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 the proposed rule change will impose any burden on intramarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because a maximum number of legs per single order ticket will continue to apply equally to all market participants that systematize complex orders (including SPX Combo Orders) for execution in open outcry. The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed rule change is not competitive in nature nor does it relate to trading on the Exchange. Rather, it relates solely to the manner in which market participants systematize complex orders for trading on the Exchange's trading floor.
The Exchange neither solicited nor received comments on the proposed rule change.
Because the foregoing proposed rule change does not: (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) 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.
All submissions should refer to file number SR-CBOE-2023-041. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Small Business Administration, National Women's Business Council (NWBC).
Notice of open public meeting.
The public meeting will be held on Wednesday, September 13, 2023, from 1:30 p.m. to 3:30 p.m. EDT.
This meeting is in-person. For those attending in-person, the event location will be shared on the Eventbrite.
For more information, please visit the NWBC website at
The meeting is open to the public; however, advance notice of attendance is requested. To RSVP, please visit the NWBC website at
Pursuant to section 10(a)(2) of the Federal Advisory Committee Act, NWBC announces its final public meeting of Fiscal Year 2023. The 1988 Women's Business Ownership Act established NWBC to serve as an independent source of advice and policy recommendations to the President, Congress, and the Administrator of the U.S. Small Business Administration (SBA) on issues of importance to women entrepreneurs. This meeting will allow the Council to recap its activity and engagement over the course of Fiscal Year 2023. Each of the Council's three subcommittees (Access to Capital & Opportunity, Women in STEM, and Inclusive Entrepreneurial Ecosystems) will present their policy recommendations to the full body for
Accommodation for ASL and translation services can be provided during the September Public Meeting if requested prior to August 30, 2023. The Eventbrite registration page will include an opportunity to request such, but individuals may also email
Closed meeting.
The Department of State announces the meeting of the U.S. State Department's Overseas Security Advisory Council on September 20, 2023. Pursuant to section 10(d) of the Federal Advisory Committee Act (5 U.S.C. appendix), 5 U.S.C. 552b(c)(4), and 5 U.S.C. 552b(c)(7)(E), it has been determined that the meeting will be closed to the public. The meeting will focus on an examination of corporate security policies and procedures, will involve extensive discussion of trade secrets and proprietary commercial information that is privileged and confidential, and will discuss law enforcement investigative techniques and procedures. The agenda will include updated committee reports, global threat overviews, and other matters relating to private sector security policies and protective programs and the protection of U.S. business information overseas.
For more information, contact Ellen Tannor, Overseas Security Advisory Council, U.S. Department of State, Washington, DC 20522-2008, phone: 571-345-2223 email:
5 U.S.C. 1009 and 22 U.S.C. 2651a.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Federal Aviation Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion nor omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before September 19, 2023.
Send comments identified by docket number FAA-2023-0775 using any of the following methods:
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Andrew Thai at (202) 267-0175, Office of Rulemaking, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Issued in Washington, DC.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Notice of public meeting.
This notice announces a meeting of the Research, Engineering, and Development Advisory Committee (REDAC).
The meeting occurs on October 4, 2023, from 10 a.m.-5 p.m. EST. Interested parties must request accommodations for a disability by September 18, 2023. Individuals requesting to speak during the meeting must submit a written copy of their remarks to DOT by September 18, 2023. Requests for review of written materials
The meeting format is a hybrid setting to permit virtual participation. Requesting registrants will receive virtual attendance information. The meeting location is the Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591. A detailed agenda is available on the REDAC internet website at
Chinita Roundtree-Coleman, REDAC PM/Lead, FAA/U.S. Department of Transportation, at
The REDAC was created under the Federal Advisory Committee Act, in accordance with Public Law (Pub. L.) 100-591 (1988) and Public Law 101-508 (1990), to provide advice and recommendations to the FAA Administrator in support of the Agency's Research and Development (R&D) portfolio.
At the meeting, the agenda will cover the following topics:
DOT is committed to providing equal access to this meeting for all participants. If you need alternative formats or services because of a disability, such as sign language, interpretation, or other ancillary aids, please contact the person listed in the
Forty-five (45) minutes are allotted for oral comments from members of the public joining the meeting. To accommodate as many speakers as possible, the time for each commenter may be limited. Individuals wishing to reserve speaking time during the meeting must submit a request at the time of registration, as well as the name, address, and organizational affiliation of the proposed speaker. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the FAA may conduct a lottery to determine the speakers. Speakers are asked to submit a written copy of their prepared remarks for inclusion in the meeting records and for circulation to REDAC members before the deadline listed in the
Issued in Washington, DC.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Notice and request for public comment on proposed collection of information.
The National Highway Traffic Safety Administration (NHTSA) invites public comments about our intention to request approval from the Office of Management and Budget (OMB) for a new information collection. Before a Federal agency can collect certain information from the public, it must receive approval from OMB. Under procedures established by the Paperwork Reduction Act of 1995, before seeking OMB approval, Federal agencies must solicit public comment on proposed collections of information, including extensions and reinstatement of previously approved collections. This document describes a collection of information for which NHTSA intends to seek OMB approval regarding prosecution of driving-under-the-influence-of-drugs (DUID) cases.
Comments must be received on or before October 30, 2023.
You may submit comments identified by Docket No. NHTSA-2023-0011 using any of the following methods:
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For additional information or access to background documents, contact Ms. Amy Berning, Contracting Officer's Representative, Office of Behavioral Safety Research (NPD-310), (202) 366-5587, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
NHTSA was established to reduce deaths, injuries, and economic losses resulting from motor vehicle crashes on the Nation's highways. As part of this statutory mandate, NHTSA is authorized to conduct research for the development of traffic safety programs. Title 23, United States Code, chapter 4, section 403 gives the Secretary of Transportation (NHTSA by delegation) authorization to use funds appropriated to conduct research and development activities. The agency develops, promotes, and implements educational, engineering, and enforcement programs with the goal of ending preventable tragedies and reducing economic costs associated with vehicle use and highway travel. Drug-impaired driving is a long-standing highway safety problem. Drug-impaired driving arrests and prosecutions can be complex. The possibility of drug combinations, and evidence from forensic toxicology add to the complexity.
The laws in the States where the offense occurred make a difference in whether, and what offense can be charged by prosecutors. For example, State laws vary on a range of issues such as statutory definitions of being impaired or being under the influence, how control of a vehicle is defined, if there are implied consent laws, the type of testing allowed,
NHTSA will use the information to produce a technical report that presents the results of the study. The technical report will provide aggregate summary identification of challenges prosecutors face in DUID cases and potential solutions including lessons learned. The technical report will not include any personally identifiable information (PII). Possible solutions to prosecutorial challenges that may be identified by State officials include legislation, training, policy, programs, and practices. The technical report will be shared with State highway safety offices, State and local governments, statewide prosecutor organizations, and those who are assigned to DUID cases including prosecutors, law enforcement, toxicologists, defense attorneys, and the judiciary.
This study will examine the range of challenges faced by prosecutors in DUID cases and will explore potential solutions. The resulting outcome will provide prosecutors and others in the criminal justice system improved ability to overcome challenges. With this assistance, the project goal is to enhance the handling of DUID cases, and to reduce drug impaired driving and prevent the loss of life on the nation's roadways due to drug impairment.
Participation in this study is voluntary and there are no costs to respondents beyond the time spent in the interview and reviewing the interview notes. Participants will incur no burden related to annual reporting or record keeping due to the collection of this new information.
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 Specially Designated Nationals and Blocked Persons List (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 Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On August 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.
1. NYAMVUMBA, Andrew (a.k.a. NYAMVUMBA, Andre), Kibagabaga Plot 9917, Nyarutarama, Kigali, Rwanda; DOB 01 Jan 1973; POB Kigali, Rwanda; alt. POB
Designated pursuant to section 1(a)(ii)(E) of Executive Order 13413 of October 27, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” as amended by Executive Order 13671 of July 8, 2014, “Taking Additional Steps To Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo” for being a leader of an entity, including any armed group, that has, or whose members have been responsible for or complicit in, or have engaged in, directly or indirectly, actions or policies that threaten the peace, security or stability of the DRC.
2. PROTOGENE, Ruvugayimikore (a.k.a. MIDENDE, Zorro; a.k.a. RUHINDA, Gaby), Nyiragongo, North Kivu, Congo, Democratic Republic of the; DOB 1970; alt. DOB 1968 to 1969; POB Karandaryi Cell, Mwiyanike Sector, Karago Commune, Gisenyi Prefecture, Rwanda; alt. POB Nyabihu District, Western Province, Rwanda; nationality Rwanda; Gender Male (individual) [DRCONGO] (Linked To: FORCES DEMOCRATIQUES DE LIBERATION DU RWANDA).
Designated pursuant to section 1(a)(ii)(E) of Executive Order 13413 of October 27, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” as amended by Executive Order 13671 of July 8, 2014, “Taking Additional Steps To Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo” for being a leader of an entity whose property and interests in property are blocked pursuant to E.O. 13413, as amended by E.O. 13671.
3. BYAMUNGU, Bernard (a.k.a. MHESHE, Bernard Byamungu), Congo, Democratic Republic of the; DOB 10 Oct 1974; POB Ziralo, Democratic Republic of the Congo; nationality Congo, Democratic Republic of the; Gender Male (individual) [DRCONGO] (Linked To: M23).
Designated pursuant to section 1(a)(ii)(E) of Executive Order 13413 of October 27, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” as amended by Executive Order 13671 of July 8, 2014, “Taking Additional Steps To Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo” for being a leader of an entity whose property and interests in property are blocked pursuant to E.O. 13413, as amended by E.O. 13671.
4. TOKOLONGA, Salomon (a.k.a. BENDET, Salomon Tokolonga), Congo, Democratic Republic of the; DOB 17 Apr 1972; POB Kishandja, Democratic Republic of the Congo; nationality Congo, Democratic Republic of the; Gender Male (individual) [DRCONGO].
Designated pursuant to section 1(a)(ii)(E) of Executive Order 13413 of October 27, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” as amended by Executive Order 13671 of July 8, 2014, “Taking Additional Steps To Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo” for being a leader of an entity, including any armed group, that has, or whose members have been responsible for or complicit in, or have engaged in, directly or indirectly, actions or policies that threaten the peace, security or stability of the DRC.
5. HAKIZIMANA, Apollinaire (a.k.a. LEPIC, Amikwe; a.k.a. “POETE”), Rutshuru, North Kivu, Congo, Democratic Republic of the; DOB 1964; POB Rugogwe Cell, Mwiyanike Sector, Karago Commune, Gisenyi Prefecture, Rwanda; alt. POB Rubavu District, Western Province, Rwanda; nationality Rwanda; Gender Male (individual) [DRCONGO] (Linked To: FORCES DEMOCRATIQUES DE LIBERATION DU RWANDA).
Designated pursuant to section 1(a)(ii)(E) of Executive Order 13413 of October 27, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” as amended by Executive Order 13671 of July 8, 2014, “Taking Additional Steps To Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo” for being a leader of an entity whose property and interests in property are blocked pursuant to E.O. 13413, as amended by E.O. 13671.
6. UWIMBABAZI, Sebastien (a.k.a. KIMENYI, Gilbert; a.k.a. KIMENYI, Nyembo; a.k.a. “MANZI”; a.k.a. “NYEMBO”), Rutshuru, North Kivu, Congo, Democratic Republic of the; DOB 1968; POB Gatoki Cell, Murunda Sector, Rutsiro Commune, Kibuye Prefecture, Rwanda; alt. POB Rutsiro District, Western Province, Rwanda; nationality Rwanda; Gender Male (individual) [DRCONGO] (Linked To: FORCES DEMOCRATIQUES DE LIBERATION DU RWANDA).
Designated pursuant to section 1(a)(ii)(E) of Executive Order 13413 of October 27, 2006, “Blocking Property of Certain Persons Contributing to the Conflict in the Democratic Republic of the Congo,” as amended by Executive Order 13671 of July 8, 2014, “Taking Additional Steps To Address the National Emergency With Respect to the Conflict in the Democratic Republic of the Congo” for being a leader of an entity whose property and interests in property are blocked pursuant to E.O. 13413, as amended by E.O. 13671.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, on or after the date of publication of this notice. The public is invited to submit comments on these requests.
Comments should be received on or before September 29, 2023 to be assured of consideration.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Copies of the submissions may be obtained from Melody Braswell by emailing
The final regulations under section 367(e)(1) require gain recognition only for distributions of the stock or securities of foreign corporations to foreign persons. The final regulations under section 367(e)(2) generally require gain recognition when a domestic corporation liquidates into its foreign parent corporation; the regulations generally do not require gain recognition when a foreign corporation liquidates into its foreign parent corporation.
Document (TD 9704) contains final and temporary regulations relating to the consequences to U.S. and foreign persons for failing to satisfy reporting obligations associated with certain transfers of property to foreign corporations in nonrecognition exchanges. TD 9704 permits transferors to remedy “not willful” failures to file, and “not willful” failures to comply with the terms of, liquidation documents required under section 367(e)(2). In addition, it modifies the reporting obligations under section 6038B associated with transfers that are subject to section 367(e)(2). Further, TD 9704 provides similar rules for certain transfers that are subject to section 367(a). The regulations are necessary to update the rules that apply when a U.S. or foreign person fails to file required documents or statements or satisfy reporting obligations. The regulations affect U.S. and foreign persons that transfer property to foreign corporations in certain non-recognition exchanges.
Internal Revenue Service (IRS), Treasury.
Notice of proposed rulemaking and public hearing.
This document contains proposed regulations regarding increased credit or deduction amounts available for taxpayers satisfying prevailing wage and registered apprenticeship (collectively, PWA) requirements established by the Inflation Reduction Act of 2022 (IRA). These proposed regulations would affect taxpayers intending to satisfy the PWA requirements for increased Federal income tax credits or deductions. These proposed regulations would also affect taxpayers intending to satisfy the prevailing wage requirements for increased Federal income tax credit amounts that do not have associated apprenticeship requirements. Additionally, these proposed regulations would affect taxpayers who initially fail to satisfy the PWA or prevailing wage requirements and subsequently comply with the correction and penalty procedures in order to be deemed to satisfy the PWA or prevailing wage requirements. Finally, the proposed regulations address specific PWA or prevailing wage recordkeeping and reporting requirements. The proposed regulations would affect taxpayers intending to claim increased credit or deduction amounts pursuant to the IRA, including those intending to make elective payment elections for available credit amounts, and those intending to transfer increased credit amounts. This document also provides notice of a public hearing on the proposed regulations.
Written or electronic comments and requests for a public hearing must be received by October 30, 2023. A public hearing on these proposed regulations is scheduled to be held on November 21, 2023, at 10 a.m. ET. Requests to speak and outlines of topics to be discussed at the public hearing must be received by October 30, 2023. If no outlines are received by October 30, 2023, the public hearing will be cancelled. Requests to attend the public hearing must be received by 5 p.m. ET on November 17, 2023. The public hearing will be made accessible to people with disabilities. Requests for special assistance during the hearing must be received by November 16, 2023.
Commenters are strongly encouraged to submit public comments electronically via the Federal eRulemaking Portal at
Concerning the proposed regulations, the Office of Associate Chief Counsel (Passthroughs & Special Industries) at (202) 317-6853 (not a toll-free number); concerning submissions of comments or the public hearing, Vivian Hayes at (202) 317-6901 (not a toll-free number) or by email to
This document contains proposed regulations to amend the Income Tax Regulations (26 CFR part 1) under sections 30C, 45, 45L, 45U, 45V, 45Y, 45Z, 48C, 48E, and 179D of the Internal Revenue Code (Code) and proposed amendments to the Income Tax Regulations (26 CFR part 1) under sections 45Q and 48 (proposed regulations). The Inflation Reduction Act of 2022 (IRA), Public Law 117-169, 136 Stat. 1818 (August 16, 2022), amended sections 30C, 45, 45L, 45Q, 48, 48C, and 179D to provide increased credit or deduction amounts for taxpayers who satisfy certain requirements and added sections 45U, 45V, 45Y, 45Z, and 48E to the Code to provide new credits, which also contain provisions for increased credit amounts for taxpayers who satisfy certain requirements. Increased credit amounts are available under sections 30C, 45, 45Q, 45V, 45Y, 45Z, 48, 48C, and 48E, and an increased deduction is available under section 179D, for taxpayers satisfying certain prevailing wage and registered apprenticeship (PWA) requirements. Increased credit amounts are available under sections 45L and 45U for taxpayers satisfying certain prevailing wage requirements.
The increased credit amounts are also generally available under sections 45, 45Y, 48, and 48E with respect to certain facilities with a maximum net output (or capacity for energy storage technology under section 48E) of less than one megawatt (One Megawatt Exception). Additionally, increased credit and deduction amounts are available under sections 30C, 45, 45Q, 45V, 45Y, 48, 48E and 179D if beginning of installation or beginning of construction (BOC) occurs before January 29, 2023 (BOC Exception).
On October 24, 2022, the Treasury Department and the IRS issued Notice 2022-51, 2022-43 I.R.B. 331, requesting comments on aspects of the increased credits and deduction amounts enacted by the IRA, including the PWA provisions. Section 3.01 of Notice 2022-51 requested comments regarding the applicability of subchapter IV of chapter 31 of title 40 of the United States Code, which is commonly known as the Davis-Bacon Act; the special correction and penalty procedures generally provided for under section 45(b)(7)(B); any documentation or substantiation that should be required to show compliance with the prevailing wage requirements; and any other topics relating to the prevailing wage requirements that may require guidance. Section 3.02 of Notice 2022-51 requested comments addressing factors to be considered in regard to the appropriate duration of employment of individuals for construction, alteration, or repair work for purposes of the Participation Requirement; clarification regarding the Good Faith Effort Exception; factors to be considered in administering and promoting compliance with the Good
On November 30, 2022, the Treasury Department and the IRS published Notice 2022-61. 87 FR 73580, corrected in 87 FR 75141 (Dec. 7, 2022). Notice 2022-61 provided guidance on the PWA requirements that generally apply under sections 30C, 45, 45L, 45Q, 45U, 45V, 45Y, 45Z, 48, 48C, and 48E, and 179D. Additionally, Notice 2022-61 established the 60-day period described in sections 30C(g)(1)(C)(i), 45(b)(6)(B)(ii), 45Q(h)(2), 45V(e)(2)(A)(i), 45Y(a)(2)(B)(ii), 48(a)(9)(B)(ii), 48E(a)(2)(A)(ii)(II) and (a)(2)(B)(ii)(II), and 179D(b)(3)(B)(i). Specifically, Notice 2022-61 started the 60-day period applicable for determining if taxpayers qualify for the increased credit or deduction amounts by satisfying the BOC Exception. To be eligible for the BOC Exception, as indicated in Notice 2022-61, taxpayers must have begun construction or installation of a facility (as defined in Notice 2022-61) before January 29, 2023. Finally, Notice 2022-61 provided guidance for determining the beginning of construction under sections 30C, 45, 45Q, 45V, 45Y, 48, and 48E, and the beginning of installation under section 179D.
Prior to enactment of the IRA, the Code provided for certain temporary credits and deductions with respect to energy related facilities, projects, equipment, and investments under sections 30C, 45, 45L, 45Q, 48, 48C, and 179D. Congress had extended these provisions multiple times and for varying types of qualified facilities, energy projects, equipment, and investments. The IRA further amended these sections, generally adjusting the credit or deduction amounts, expiration dates, and qualifying activities. Under the IRA, Congress also enacted new credits under sections 45U, 45V, 45Y, 45Z, (production tax credits) and 48E (investment tax credit).
The IRA provides increased credit or deduction amounts that generally apply for taxpayers who satisfy (i) certain PWA requirements regarding the construction, installation, alteration, or repair of a qualified facility, qualified property, qualified project, or qualified equipment, or with respect to certain facilities, (ii) the One Megawatt Exception, or (iii) the BOC Exception. Generally, if a taxpayer satisfies the PWA requirements or meets the One Megawatt Exception or the BOC Exception, the amount of credit or deduction determined is equal to the otherwise determined amount of the underlying credit or deduction multiplied by five.
The principal PWA requirements are set forth in section 45(b)(6), (7), and (8). In general, section 45(b)(6) provides the increased credit amount for taxpayers satisfying the PWA requirements or meeting one of the exceptions, section 45(b)(7) provides the prevailing wage requirements (Prevailing Wage Requirements), and section 45(b)(8) provides the apprenticeship requirements (Apprenticeship Requirements).
Section 45 provides a credit for taxpayers producing and selling electricity from renewable resources to unrelated persons during the taxable year (section 45 credit). The section 45 credit is generally equal to 0.3 cents multiplied by the kilowatt hours of electricity (i) produced by the taxpayer from qualified energy resources and at a qualified facility during the 10-year period beginning on the date the facility was originally placed in service, and (ii) sold by the taxpayer to an unrelated person during the taxable year. If a taxpayer satisfies the PWA requirements, the One Megawatt Exception, or the BOC Exception, then the credit determined under section 45(a) for electricity produced at a qualified facility is multiplied by five.
Under section 45(b)(6), in the case of a qualified facility that satisfies the PWA requirements of section 45(b)(7) and (b)(8), the One Megawatt Exception, or the BOC Exception, the credit under section 45(a) “shall be equal to such amount multiplied by five.” Section 45(b)(7)(A) provides that with respect to any qualified facility, the taxpayer shall ensure that any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in—(i) the construction of such facility, and (ii) with respect to any taxable year, for any portion of such taxable year that is within the 10-year period beginning on the date the qualified facility is originally placed in service, the alteration or repair of such facility, shall be paid wages at rates not less than the prevailing rates for construction, alteration, or repair of a similar character in the locality in which such facility is located as most recently determined by the Secretary of Labor, in accordance with subchapter IV of chapter 31 of title 40, United States Code.
Under section 45(b)(7)(B), a taxpayer who is not eligible for the One Megawatt Exception or the BOC Exception and fails to satisfy the Prevailing Wage Requirements under section 45(b)(7)(A) is “deemed” to have satisfied those requirements if, for “any laborer or mechanic who was paid wages at a rate below the [required prevailing rate] for any period” during any year of the construction, alteration, or repair of the facility, the taxpayer makes a correction payment to the laborer or mechanic and pays a penalty to the Secretary of the Treasury or her delegate (Secretary). Under section 45(b)(7)(B)(i)(I), the amount of the correction payment is the sum of (i) the difference between the amount of wages paid to the laborer or mechanic during the period and the amount of wages required to be paid to the laborer or mechanic during that period in order to meet the Prevailing Wage Requirements; and (ii) interest on the amount under (i) at the underpayment rate established under section 6621 (determined by substituting “6 percentage points” for “3 percentage points” in section 6621(a)(2)) for the applicable period.
Under section 45(b)(7)(B)(i)(II), the amount of the penalty is “$5,000 multiplied by the total number of laborers and mechanics who were paid wages at a rate below the [prevailing wage] rate described in [section 45(b)(7)(A)] for any period” during the year. Deficiency procedures do not apply “with respect to the assessment or collection” of this penalty pursuant to section 45(b)(7)(B)(ii).
Under section 45(b)(7)(B)(iii), if the Secretary determines that the failure to satisfy the Prevailing Wage Requirements is due to “intentional disregard” of those requirements, then the correction payment to the laborer or mechanic is three times the amount that would otherwise be determined under section 45(b)(7)(B)(i)(I), and $10,000 is substituted for $5,000 in calculating the penalty under section 45(b)(7)(B)(i)(II).
Section 45(b)(7)(B)(iv) provides that, “pursuant to rules issued by the Secretary, in the case of a final determination by the Secretary with respect to any failure . . . to satisfy [the Prevailing Wage Requirements],” the correction and penalty provisions do not apply, “unless the payments . . . are made by the taxpayer on or before the date which is 180 days after the date of such determination.”
Under section 45(b)(8), in order to satisfy the Apprenticeship Requirements, certain requirements with respect to labor hours, apprentice-to-journeyworker ratios, and participation by apprentices must be satisfied.
Section 45(b)(8)(A)(i) provides that “[t]axpayers shall ensure that, with respect to construction of any qualified facility, not less than the applicable percentage of the total labor hours of the construction, alteration, or repair work (including such work performed by any contractor or subcontractor) with respect to such facility shall, subject to [section 45(b)(8)(B)] be performed by qualified apprentices” (Labor Hours Requirement).
For purposes of the Labor Hours Requirement, section 45(b)(8)(A)(ii) provides that the applicable percentage is: (i) in the case of a qualified facility the construction of which begins before January 1, 2023, 10 percent, (ii) in the case of a qualified facility the construction of which begins after December 31, 2022, and before January 1, 2024, 12.5 percent, and (iii) in the case of a qualified facility the construction of which begins after December 31, 2023, 15 percent.
Section 45(b)(8)(E)(i) defines “labor hours” as the “total number of hours devoted to the performance of construction, alteration, or repair work by any individual employed by the taxpayer or by any contractor or subcontractor, and exclud[ing] any hours worked by foremen, superintendents, owners, or persons employed in a bona fide executive, administrative, or professional capacity (within the meaning of those terms in part 541 of title 29, Code of Federal Regulations).” Section 45(b)(8)(E)(ii) defines “qualified apprentice” as “an individual who is employed by the taxpayer or by any contractor or subcontractor and who is participating in a registered apprenticeship program, as defined in section 3131(e)(3)(B).” Section 3131(e)(3)(B) defines a registered apprenticeship program as an apprenticeship program registered under the Act of August 16, 1937 (commonly known as the National Apprenticeship Act, 50 Stat. 664, chapter 663, 29 U.S.C. 50
Under section 45(b)(8)(B), the Labor Hours Requirement is subject to any applicable requirements for apprentice-to-journeyworker ratios of the U.S. Department of Labor (DOL) or the applicable State apprenticeship agency (Ratio Requirement).
Under section 45(b)(8)(C), each taxpayer, contractor, or subcontractor who employs four or more individuals to perform construction, alteration, or repair work with respect to the construction of a qualified facility must employ one or more qualified apprentices to perform such work (Participation Requirement).
Under section 45(b)(8)(D)(i), a taxpayer is not treated as failing to satisfy the Apprenticeship Requirements in section 45(b)(8) if: (i) the taxpayer satisfies the requirements described in section 45(b)(8)(D)(ii) (Good Faith Effort Exception), or (ii) in the case of any failure by the taxpayer to satisfy the Labor Hours Requirement under section 45(b)(8)(A) and the Participation Requirement under section 45(b)(8)(C), the taxpayer makes a penalty payment to the Secretary (Apprenticeship Cure Provision).
Under the Good Faith Effort Exception provided by section 45(b)(8)(D)(ii), a taxpayer is deemed to have satisfied the Apprenticeship Requirements with respect to a qualified facility if the taxpayer has requested qualified apprentices from a registered apprenticeship program, as defined in section 3131(e)(3)(B), and: (i) such request has been denied, provided that such denial is not the result of a refusal by the taxpayer or any contractors or subcontractors engaged in the performance of construction, alteration, or repair work with respect to such qualified facility to comply with the established standards and requirements of the registered apprenticeship program, or (ii) the registered apprenticeship program fails to respond to such request within five business days after the date on which such registered apprenticeship program received such request.
Under section 45(b)(8)(D)(i)(II), if the Good Faith Effort Exception does not apply, then the taxpayer will not be treated as failing to satisfy the Labor Hours Requirement or the Participation Requirement if the taxpayer makes a penalty payment to the Secretary in an amount equal to the product of $50 multiplied by the total labor hours for which the Labor Hours Requirement or the Participation Requirement was not satisfied with respect to the construction, alteration, or repair work on the qualified facility. Under section 45(b)(8)(D)(iii), if the Secretary determines that the failure was due to intentional disregard of the Labor Hours Requirement or Participation Requirement, then the penalty amount increases to $500 multiplied by the total labor hours for which the requirement was not satisfied.
Under the One Megawatt Exception in section 45(b)(6)(B)(i), a qualified facility that has a maximum net output of less than one megawatt (as measured in alternating current) is eligible for the increased credit amount. A qualified facility's nameplate capacity determines whether the facility meets the One Megawatt Exception. Similar exceptions apply for a qualified facility under sections 45Y(a)(2)(B)(i) and 48E(a)(2)(A)(ii)(I) with a maximum net output of less than one megawatt (as measured in alternating current); a qualified project under section 48(a)(9)(B)(i) with a maximum net output of less than one megawatt of
Under the BOC Exception in section 45(b)(6)(B)(ii), a qualified facility the construction of which began prior to the date that is 60 days after the Secretary publishes guidance with respect to the requirements of section 45(b)(7)(A) and (8) is eligible for the increased credit amount in section 45(b)(6). On November 30, 2022, the IRS and the Treasury Department published Notice 2022-61, providing guidance with respect to the PWA requirements in section 45(b)(7)(A) and (8), including initial guidance for determining the beginning of construction for section 45 and other credits and the beginning of installation under section 179D. Therefore, if a taxpayer began construction or installation of a facility
For purposes of determining when construction or installation begins, Notice 2022-61 incorporates by reference the notices issued under sections 45, 45Q, and 48 (collectively, IRS Notices).
The IRS Notices, as clarified and modified by Notice 2021-41, 2021-29 I.R.B. 17, provide that for purposes of the Physical Work Test and Five Percent Safe Harbor, taxpayers must demonstrate either continuous construction or continuous efforts (Continuity Requirement) regardless of whether the Physical Work Test or the Five Percent Safe Harbor was used to establish the beginning of construction. Whether a taxpayer meets the Continuity Requirement under either test is determined by the relevant facts and circumstances.
The IRS Notices, as subsequently clarified and modified, also provide for a “Continuity Safe Harbor” under which a taxpayer will be deemed to satisfy the Continuity Requirement provided a qualified facility is placed in service no more than four calendar years after the calendar year during which construction of the qualified facility began for purposes of sections 45 and 48, and no more than six calendar years after the calendar year during which construction of the qualified facility or carbon capture equipment began for purposes of section 45Q. For purposes of the Continuity Safe Harbor, certain offshore projects and projects built on Federal land under sections 45 and 48 satisfy the Continuity Requirement if such a project is placed into service no more than 10 calendar years after the calendar year during which construction of the project began.
Until the Treasury Department and the IRS issue further guidance on determining when construction or installation begins, taxpayers may continue to rely on the guidance provided in Notice 2022-61 and the IRS Notices. Specifically, to determine when construction begins for purposes of sections 30C, 45V, 45Y, and 48E, principles similar to those under Notice 2013-29 regarding the Physical Work Test and Five Percent Safe Harbor apply, and taxpayers satisfying either test will be considered to have begun construction. In addition, principles similar to those provided in the IRS Notices regarding the Continuity Requirement for purposes of sections 30C, 45V, 45Y, and 48E apply. Whether a taxpayer meets the Continuity Requirement under either test is determined by the relevant facts and circumstances. Similar principles to those under section 3 of Notice 2016-31 regarding the Continuity Safe Harbor also apply for purposes of sections 30C, 45V, 45Y, and 48E. Taxpayers may rely on the Continuity Safe Harbor with respect to those sections, provided the facility is placed in service no more than four calendar years after the calendar year during which construction began.
For purposes of section 179D, installation of energy efficient commercial building property has begun if a taxpayer generally satisfies principles similar to the two tests described in section 2.02 of Notice 2022-61 regarding the beginning of construction under Notice 2013-29 (Physical Work Test and Five Percent Safe Harbor). The relevant facts and circumstances will ultimately determine whether a taxpayer has begun installation.
For purposes of sections 45, 45Q, and 48, the IRS Notices will continue to apply under each respective Code section, including application of the Physical Work Test and Five Percent Safe Harbor, and the rules regarding the Continuity Requirement and Continuity Safe Harbors.
The Davis-Bacon Act (40 U.S.C. 3141
The Wage and Hour Division of the DOL is responsible for administering the DBA and has adopted regulations for the determination of prevailing wages as well as compliance with and enforcement of DBA labor standards requirements under 29 CFR parts 1, 3, and 5.
Section 3142 of the DBA requires that Federal agencies entering into contracts covered by the DBA include the requirements of the DBA in the contract, including the requirement to incorporate the applicable wage determinations that set forth the prevailing wages to be paid to laborers and mechanics performing work, and the Copeland Act, 40 U.S.C. 3145, sets forth the requirement to submit certified weekly payroll records to the contracting Federal agency. Under regulations implementing the DBA (29 CFR parts 1 and 5), the contracting agency and the Wage and Hour Division have responsibility to ensure compliance with prevailing wage requirements by engaging in periodic audits or investigations of contracts, including examination of payroll data.
The Wage and Hour Division determines the wage rates that are “prevailing” for purposes of section 3142(b) of the DBA for each classification of covered laborers and mechanics on similar projects in the
Under the DBA, contracting agencies follow specified procedures for incorporating wage determinations into covered contracts. The applicable prevailing wage determination generally applies for the duration of the contract.
In accordance with the DBA, certain apprentices may be paid wages at a lower wage rate than journeyworker laborers and mechanics. Under 29 CFR 5.5(a)(4), an apprentice from a registered apprentice program may be paid at not less than the rate specified in the registered program for the apprentice's level of progress in the apprenticeship program, expressed as a percentage of the journeyworker hourly rate specified in the applicable wage determination. Apprentices may also be paid bona fide fringe benefits in accordance with the provisions of the registered apprenticeship program, but if the registered apprenticeship program does not specify bona fide fringe benefits, apprentices must be paid the full amount of bona fide fringe benefits listed on the wage determination for the applicable classification.
Sections 3143 and 3144 of the DBA also provide for certain enforcement authority and remedies to ensure compliance with payment of prevailing wage rates. When a contracting agency or the Wage and Hour Division finds there has been an underpayment of wages, the contracting agency and the Wage and Hour Division can seek to recover the underpayments from the contractor responsible, including but not limited to the prime contractor. If the underpayment of wages to laborers and mechanics is not promptly remedied, then the contracting agency may withhold payments that are otherwise due under the contract or under another contract with the same prime contractor in order to compensate the laborers and mechanics for the underpayments. Contractors who have been found to have disregarded their obligations to employees and subcontractors, including by violating prevailing wage requirements, may also be subject to debarment from future Federal contracts under 40 U.S.C. 3144(b) and 29 CFR 5.12.
Under section 45(b)(7)(A), the increased credit is available with respect to a qualified facility if a taxpayer ensures that laborers and mechanics are “paid wages at rates not less than the prevailing rates . . . in accordance with [the DBA].” The phrase “in accordance with” means “in agreement or harmony with; in conformity to; according to.”
Under the DBA, a contractor must agree to pay prevailing wages at the commencement of the project as a condition of a Federal contract award. Conversely, under section 45, the requirements related to payment of prevailing wages are generally triggered at the beginning of construction and continue during the entire course of a project, but the requirement becomes binding only when a tax return claiming the increased credit is filed. The Code does not require taxpayers who do not seek an increased credit under section 45(b)(6) to pay prevailing wages in the construction, alteration, or repair of a facility.
The proposed regulations seek to strike the appropriate balance in determining when DBA requirements are relevant for purposes of the PWA requirements and when they are not. The proposed regulations would incorporate DBA statutory and regulatory guidance that is relevant for purposes of claiming the increased tax credit and consistent with sound tax administration. For example, the proposed regulations would largely adopt DBA guidance relating to wage determinations and the meaning of pertinent terms such as “laborer” and “mechanic”; “construction, alteration, or repair”; “wages”; and “employed”. The proposed regulations would not adopt DBA guidance if the result of doing so would not be in furtherance of sound tax administration or the aims of the IRA. For example, the proposed regulations would not incorporate the rules under the DBA regarding provisions required to be included in contracts, those provisions related to the reporting of certified payroll records by contractors to contracting agencies, and the various enforcement processes that are available to the DOL and the contracting agencies to address noncompliance. Additionally, the DBA's $2,000 monetary coverage threshold has not been incorporated.
The statutory language of the IRA does not reflect any intent to include exceptions from the PWA requirements, other than the One Megawatt Exception and the BOC Exception. Consequently, the Treasury Department and the IRS have not proposed a rule exempting Tribal governments or the Tennessee Valley Authority (TVA) from the PWA requirements in section 45. The Treasury Department and the IRS request comments on the need for any exceptions, including for Tribal governments or the TVA, from the PWA requirements in addition to those expressly described in the statute. Such comments should detail the specific circumstances requiring the proposed exception as well as how its design would limit its application only to those circumstances.
In addition, the Treasury Department and the IRS will hold Tribal consultation specifically to address the prevailing wage and apprenticeship requirements in these proposed regulations, which will inform the development of the final regulations. See part VI. of the Special Analyses section.
The proposed regulations would provide that in order to earn the increased credit under section 45(b)(6) by satisfying the PWA requirements, the taxpayer would be solely responsible for: (i) ensuring that the relevant laborers and mechanics are paid wages not less than the prevailing rate whether employed directly by the taxpayer, or by a contractor, or a subcontractor, and (ii) ensuring that the Apprenticeship Requirements are satisfied. The proposed regulations would also provide that the taxpayer would be solely responsible for the PWA recordkeeping requirements, the
Generally, the proposed regulations would define the term “taxpayer” to mean any taxpayer as defined in section 7701(a)(14), including applicable entities described in section 6417(d)(1)(A). This will generally be the entity that claims the credit (as increased under section 45(b)(6)), or makes an election under section 6417 with respect to such credit amount on a Federal income tax return. The section 45 credit, including the increased credit amount available under section 45(b)(6), is an eligible credit subject to the newly enacted section 6418. Section 6418 allows “eligible taxpayers” to elect to transfer certain credits to unrelated taxpayers rather than using the credits against their Federal income tax liabilities. In the case of credits transferred under section 6418, these proposed regulations would provide that the term “taxpayer” also means the eligible taxpayer that determines the eligible credit to be transferred and makes a transfer election under section 6418 to transfer any specified credit portion (including 100 percent) of an eligible credit determined with respect to any eligible credit property of such eligible taxpayer for any taxable year.
Section 6418(a) provides that, in the case of an eligible taxpayer that elects to transfer all (or any specified portion) of an eligible credit determined with respect to the taxpayer for any taxable year to an unrelated transferee taxpayer, the transferee taxpayer specified in such election (and not the eligible taxpayer) is treated as the taxpayer with respect to such credit (or such portion thereof).
The Treasury Department and the IRS published proposed regulations in the
The 6418 Proposed Regulations also would apply with respect to the entire credit determined under section 45, where the amount of credit determined would include increased credit amounts available under section 45(b)(6). As the rules for determining an eligible credit apply to the eligible taxpayer and not the transferee taxpayer under section 6418, these proposed regulations would provide consistency with respect to the rules relating to the determination of the section 45 credit. Thus, while a transferee taxpayer would claim a transferred eligible credit (or portion thereof) on a tax return, the requirements of section 45 relevant to determining the credit, including the correction and penalty provisions described in section 45(b)(7)(B) and 45(b)(8)(D), would remain with the eligible taxpayer who determined the credit. The Treasury Department and the IRS request comments on the application of the PWA penalty and cure provisions, including to transferees and eligible taxpayers, in the context of transferred credits.
Section 45(b)(7)(A) requires that taxpayers who are seeking an increased credit ensure that laborers and mechanics employed by the taxpayer, or any contractor or subcontractor in the construction, alteration, or repair of a facility are paid wages at rates that are not less than the prevailing rates determined by the DOL in accordance with the DBA.
The proposed regulations would largely incorporate the definitions of contractor and subcontractor from the DBA and would provide that: (i) a contractor would be any person that enters into a contract with the taxpayer for the construction, alteration, or repair of a qualified facility, and (ii) a subcontractor would be any contractor that agrees to perform or be responsible for the performance of any part of a contract entered into with the taxpayer (or contractor) with respect to the construction, alteration, or repair of a facility.
Consistent with the DBA and 29 CFR 5.2, and solely for purposes of the Prevailing Wage Requirements, the proposed regulations would provide that a laborer or mechanic would be considered employed by the taxpayer, contractor, or subcontractor if the individual performs the duties of a laborer or mechanic for the taxpayer, contractor, or subcontractor (as applicable), regardless of whether the individual would be characterized as an employee or an independent contractor for other Federal tax purposes. The definition of employed for purposes of the Prevailing Wage Requirements would generally be different and broader than the definition used elsewhere in the Code, for example with respect to employment taxes, as well as the associated reporting and withholding obligations. Laborers and mechanics who are independent contractors for employment tax purposes may be considered employed for purposes of the Prevailing Wage Requirements. Whether an individual is considered employed for purposes of the Prevailing Wage Requirements and these proposed regulations is not relevant when determining whether an individual is an employee or an independent contractor for other Federal tax purposes.
Under the proposed regulations, prevailing wage rates would be determined by the DOL in accordance with the DBA when they are issued and published by the DOL as a general wage determination or when issued to a taxpayer as part of a supplemental wage
The proposed regulations would provide that a general wage determination would be one issued and published by the DOL that includes a list of wage and bona fide fringe benefit rates determined to be prevailing for laborers and mechanics for the various classifications of work performed with respect to a specified type of construction in a geographic area. Generally, the DOL determines the prevailing rate based on wage rate data submitted by contractors, contractors' associations, labor organizations, public officials, and other interested parties. In general, the proposed regulations would provide that taxpayers would need to use the general wage determination(s) published by the DOL under the DBA on a DOL approved website, to determine the applicable prevailing wage rates. The current approved website for publishing general wage determinations is
The proposed regulations would largely incorporate the definition of wages from 29 CFR 5.2 for the Prevailing Wage Requirements. Under 29 CFR 5.2, wages are defined as the basic hourly rate of pay; any contribution irrevocably made by a contractor or subcontractor to a trustee or to a third person pursuant to a bona fide fringe benefit fund, plan, or program; and the rate of costs to the contractor or subcontractor that may be reasonably anticipated in providing bona fide fringe benefits to laborers and mechanics pursuant to an enforceable commitment to carry out a financially responsible plan or program, which was communicated in writing to the laborers and mechanics affected. Whether amounts are wages for purposes of the Prevailing Wage Requirements is not relevant in determining whether amounts are wages or compensation for other Federal tax purposes.
The proposed regulations would provide special procedures for the limited circumstances in which a general wage determination does not provide an applicable wage rate(s) for the work to be performed on the facility. These circumstances include when no general wage determination has been issued for the geographic area or for the specified type of construction, or when the Secretary of Labor has issued a general wage determination for the relevant geographic area and type of construction, but one or more labor classifications necessary for the construction, alteration, or repair work that will be done on the facility by laborers or mechanics is not listed as part of that determination. The proposed regulations would provide that under these circumstances, a taxpayer, contractor, or subcontractor would need to request a supplemental wage determination or request a prevailing wage rate for an additional classification from the DOL. A taxpayer satisfies section 45(b)(7)(A) by ensuring that laborers and mechanics are paid wages at rates not less than the rates determined by the DOL pursuant to a request for a supplemental wage determination or pursuant to a request for a prevailing wage rate for an additional classification.
The DOL has advised the Treasury Department and the IRS that most taxpayers will likely not need to use the process for requesting a supplemental wage determination or request a rate for an additional classification because of the availability of general wage determinations. The request for a prevailing wage rate for an additional classification would only be appropriate when the work to be performed by the classification is not performed by a classification in the applicable general wage determination and the classification is used in the area by the construction industry. In addition, a prevailing wage rate for an additional classification would only be approved when the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the general wage determination. A request for a prevailing wage rate for additional classification would not be permitted to be used to split, subdivide, or otherwise avoid application of classifications listed in a general wage determination. Under the proposed regulations, the procedures for requesting a supplemental wage determination or a prevailing wage rate for an additional classification from the DOL would correspond to the provisions of 29 CFR 1.5(b) and 5.5(a)(1)(iii).
The Treasury Department and the IRS expect that the construction of some facilities may span two or more adjacent geographic areas, and more than one general wage determination could apply to the facility. In such circumstances, a taxpayer would be able to satisfy the Prevailing Wage Requirements by ensuring that laborers and mechanics are paid wages at the highest rate for each classification provided under the general wage determinations. A taxpayer would also be permitted to request a supplemental wage determination with respect to the facility and pay the rates determined by the DOL pursuant to the request.
The proposed regulations would also provide a special rule for qualified facilities located offshore so taxpayers would not need to request a supplemental wage determination for offshore facilities. In lieu of requesting a supplemental wage determination for a facility located in an offshore area within the outer continental shelf of the United States, a taxpayer, contractor, or subcontractor would be permitted to rely on the general wage determination for the relevant category of construction that is applicable in the geographic area closest to the area in which the qualified facility will be located.
The process for requesting a supplemental wage determination or a prevailing wage rate for an additional classification provided for in the proposed regulations would be consistent with the process described in Notice 2022-61 while addressing the different context of the PWA regime wherein taxpayers, contractors, and
The proposed regulations would provide that the request for a supplemental wage determination or a request for a prevailing wage rate for an additional classification would need to include information consistent with the information that is required to be provided by a contracting agency when requesting a project wage determination or a conformance for purposes of the DBA. This information would include a description of the type of work to be performed, the geographic area where the facility is located, the start date for the construction, alteration, or repair of the facility, the labor classification(s) needed for performance of the work on the facility for which wage rates are not available on an applicable general wage determination, pertinent wage payment information that may be available with respect to the classifications, and any information the taxpayer wants the DOL to consider for determining the applicable classifications and prevailing wage rates. After review, the Wage and Hour Division will notify the taxpayer as to the labor classifications and wage rates to be used for the type of work in question in the geographic area in which the facility is located.
The proposed regulations would adopt, by cross reference, the review and appeal procedures available to any interested party under the DBA with respect to wage determinations generally. Any interested party would be able to seek reconsideration and review of a supplemental wage determination, or a prevailing wage rate for an additional classification, by the DOL Administrator of the Wage and Hour Division and appeal any decision of the Administrator of the Wage and Hour Division to the DOL Administrative Review Board.
In general, the Treasury Department and the IRS expect that supplemental wage determinations and requests for prevailing wage rates for an additional classification will be requested no more than 90 days prior to the beginning of the construction, alteration, or repair of the facility, as applicable. However, the Treasury Department and the IRS recognize that taxpayers may not reasonably determine until after construction, alteration, or repair begins that a supplemental wage determination or request for a prevailing wage rate for an additional classification is necessary. In these instances, the Treasury Department and the IRS would expect taxpayers, contractors, or subcontractors to make a request as soon as practicable after determining the need for a supplemental wage determination or prevailing wage rate for additional classifications. The proposed regulations would provide that when a supplemental wage determination or a prevailing wage rate for an additional classification is issued by the DOL after construction, alteration, or repair of the facility has begun, the applicable prevailing rates would apply retroactively to the date that the applicable construction, alteration, or repair work that is the subject of the request began. The taxpayer would be required to ensure that wages (including bona fide fringe benefits where appropriate) are paid at appropriate prevailing wage rates to all laborers and mechanics performing work on the project from the first day on which work is performed in the classification. The Treasury Department and the IRS request comments on the proposed procedures for requesting supplemental wage determinations and prevailing wage rates for additional classifications.
Under the proposed regulations, the applicable wage determination for a type of construction in a geographic area would provide the prevailing wage rates that apply to laborers or mechanics for the construction, alteration, or repair of a facility in that geographic area. The proposed regulations would provide that for purposes of satisfying the Prevailing Wage Requirements, all laborers and mechanics would need to be paid in the time and manner consistent with the regular payroll practices of the taxpayer, contractor, or subcontractor, as applicable. For purposes of satisfying section 45(b)(7)(A), the proposed regulations would provide that a taxpayer would need to ensure that the wages paid to laborers and mechanics employed by the taxpayer, contractor, or subcontractor on the construction, alteration, or repair of the facility must be “not less than the prevailing rates . . . in the locality in which such facility is located.” The proposed regulations would define the terms: (i) laborer and mechanic, (ii) types of construction, (iii) construction, alteration, or repair, and (iv) locality, generally consistent with the DBA definitions.
The proposed regulations would define the terms “laborer” and “mechanic” as those individuals whose duties are manual or physical in nature. Laborers and mechanics would include apprentices and helpers. Working forepersons who devote more than 20 percent of their time during a workweek to laborer or mechanic duties and who do not meet the criteria for exemption under 29 CFR part 541 would also be considered laborers and mechanics for the time spent conducting laborer and mechanic duties. However, laborers and mechanics would not include individuals whose duties are primarily administrative, executive, or clerical, and persons employed in a bona fide executive, administrative, or professional capacity as those terms are defined in 29 CFR part 541. The Treasury Department and the IRS request comments on the treatment of working forepersons or owners performing the duties of laborers and mechanics under certain circumstances, and other executive or administrative personnel who also perform duties of a manual or physical nature, in the construction, alteration, or repair of a qualified facility.
The proposed regulations would provide that the type of construction would be the general category of construction as established by the DOL for the publication of general wage determinations. Specific types of construction currently include building, residential, heavy, and highway. The Treasury Department and the IRS contemplate that the construction, alteration, or repair of most facilities eligible for the increased credit under section 45(b)(6) would be either building or heavy construction.
The proposed regulations would provide that the term construction, alteration, or repair would generally mean construction, prosecution, completion, or repair as provided under 29 CFR 5.2. Under this definition, construction, alteration, or repair would
The proposed regulations would provide that a locality or geographic area would be the county, independent city, or other civil subdivision of the State in which the facility or secondary site is located. Geographic area would also include offshore areas, including areas located within the outer continental shelf of the United States, and the U.S. territories. If construction, alteration, or repair is performed in multiple counties, independent cities, or other civil subdivisions, then the geographic area would also include all counties, independent cities, or other civil subdivisions in which the work will be performed.
Under section 45(b)(7)(A)(ii), the prevailing wage rates that are required to be paid with respect to such construction, alteration, or repair are determined by reference to “the prevailing rates for construction, alteration, or repair of a similar character in the locality in which such facility is located.” The proposed regulations would also use the DBA's “site of the work” definition to clarify the scope of the requirement under section 45(b)(7)(A) to pay prevailing wage rates. Under the DBA, the requirement to pay prevailing wages is limited by statute to laborers and mechanics “employed directly on the site of the work.” 40 U.S.C. 3142. By comparison, section 45(b)(7)(A)(i) and (ii) requires the payment of prevailing wages generally in the “construction of [a qualified] facility” and the “alteration or repair of such facility.” Over the years, the DOL has updated its rules to address developments in the construction industry that have enabled contractors to build large portions of a building or project on one or more secondary sites away from the primary site of the work. The DBA rules now provide that a secondary construction site is considered part of the site of the work, if a significant portion of a building or work is constructed at the secondary site for specific use in the designated building or work and the site either was established specifically for the performance of the covered contract or project or dedicated exclusively, or nearly so, to the covered contract or project. 29 CFR 5.2.
The Treasury Department and the IRS view the DBA's site of the work requirement to be helpful for purposes of interpreting the language in section 45(b)(7)(A) that the applicable prevailing wage rates for the construction, alteration, or repair of the facility are rates not less than those prevailing “in the locality in which such facility is located.” As with certain construction subject to the DBA, the Treasury Department and the IRS expect that taxpayers similarly may use multiple construction sites in the construction, alteration, or repair of a facility and in certain cases prefabricate large portions of the facility offsite for later installation at the facility's location. Some of these secondary sites will be dedicated solely to the construction of a facility while others may service multiple clients and facilities. While the language of section 45(b)(7)(A) could be interpreted to support an expansive reading of construction such that all construction of a facility, wherever located and however small, is subject to the Prevailing Wage Requirements, such a reading would result in significantly broader coverage than under the DBA and likely would entail substantial compliance costs and discourage taxpayers from seeking the increased credits or deduction available under the IRA. Thus, the Treasury Department and the IRS understand the DBA approach to “site of the work” to strike an appropriate balance between the requirements of section 45(b)(7)(A) and existing construction practices and thus propose to largely adopt the DBA approach for purposes of defining the scope of the Prevailing Wage Requirements.
Therefore, under the proposed regulations, taxpayers would be subject to the requirement to ensure that laborers and mechanics are paid not less than prevailing wage rates with respect to the construction, alteration, or repair at the locality in which the facility is located, which would be defined to include any secondary sites where a significant portion of the construction, alteration, or repair of the facility occurs, provided that the secondary site either was established specifically for, or dedicated exclusively for a specific period of time to, the construction, alteration, or repair of the facility.
Under 29 CFR 1.6(b)(1), the prevailing wage rate that applies to laborers or mechanics engaged in the construction, alteration, or repair work at a secondary site is determined by the geographic area of the secondary site. The proposed regulations would similarly provide that when a secondary site is established specifically for, or dedicated exclusively for a specific period of time to, the construction, alteration, or repair of the facility, the prevailing wage rate applicable to laborers and mechanics engaged in the construction, alteration, or repair of the facility at the secondary site would be determined by the applicable wage rate for that laborer or mechanic classification based on the geographic area of the secondary site.
Section 45(b)(8)(E)(ii) provides generally that a qualified apprentice is an individual who is employed by the taxpayer, contractor, or subcontractor and who is participating in a registered apprenticeship program, as defined in section 3131(e)(3)(B). For purposes of the DBA, an apprentice may also include an individual in the first 90 days of probationary employment as an apprentice in a registered apprenticeship program, who is not individually registered in the program, but who has been certified by the DOL's Office of Apprenticeship or a State apprenticeship agency (where appropriate) to be eligible for probationary employment as an apprentice.
A registered apprenticeship program is a program that has been registered by the DOL's Office of Apprenticeship or a recognized State apprenticeship agency, pursuant to the basic standards and requirements in 29 CFR parts 29 and 30. Program registration is evidenced by a Certificate of Registration or other written indicia of registration.
The proposed regulations would adopt 29 CFR 5.5(a)(4)(i) allowing the payment of wages that differ from the applicable prevailing wage rate to apprentices who are participating in a registered apprenticeship program. The proposed regulations would also provide that the calculation of the
For purposes of determining whether apprentices may be paid the apprentice wage rate rather than the full prevailing wage for other laborers and mechanics of the same classification, the proposed regulations would provide the apprentice must be participating in a registered apprentice program as demonstrated by a written apprenticeship agreement with the registered apprenticeship program containing the terms and conditions of the employment and training of the apprentice. The terms and conditions of the agreement would be required to comply with 29 CFR 29.7. The registered apprenticeship program would be required to be registered with the DOL or a recognized State apprenticeship agency in accordance with 29 CFR parts 29 and 30. If the apprentice is working in a classification that is not in an occupation that is part of the registered apprenticeship program, to satisfy the Prevailing Wage Requirements, the apprentice would need to be paid the full prevailing wage for laborers or mechanics for that classification in that location.
The proposed regulations would provide that taxpayers and contractors or subcontractors who employ apprentices who are not in a registered apprenticeship program or who employ apprentices in excess of applicable ratios permitted by the registered apprenticeship program would need to pay those apprentices the full prevailing wage rate listed for the classification of the work performed in the applicable wage determination.
Under section 45(b)(7)(B)(i) and the proposed regulations, taxpayers would cure a failure to meet the Prevailing Wage Requirements by making the correction and penalty payments described in Section III.B.3. Section 45(b)(7)(B)(i) provides that “[i]n the case of any taxpayer which fails to satisfy the requirement under subparagraph (A) . . . such taxpayer shall be deemed to have satisfied such requirement under such subparagraph with respect to such facility for any year if, with respect to any laborer or mechanic who was paid wages at a rate below the [prevailing rate] for any period during such year,” the taxpayer makes the applicable correction payments and pays the penalty. The phrase “[i]n the case of any taxpayer which fails to satisfy the requirement under subparagraph (A) . . . for any period” suggests that a failure to pay prevailing wages immediately triggers the applicability of the correction and penalty provisions if the increased credit is claimed on a return after a facility is placed in service. The proposed regulations would require the payment of prevailing wages at the time work is performed with respect to the construction, alteration, or repair of a facility in order to claim the increased credit. The proposed regulations would also provide that the requirement becomes binding only when the increased credit is claimed on a return. This is consistent with tax administration regarding the underlying credit.
Thus, the correction and penalty payment requirements of section 45(b)(7)(B)(i) would become applicable to a taxpayer upon the occurrence of the taxpayer's failure to satisfy the Prevailing Wage Requirements of section 45(b)(7)(A), which occurs whenever wages are paid to a laborer or mechanic below the prevailing wage rates. That failures will occur, and the obligation to make correction and penalty payments will have arisen, during the course of the construction, alteration, or repair of a qualified facility must be viewed in the context of taxpayers not needing to satisfy the Prevailing Wage Requirements in the absence of an increased credit being claimed on a return. Thus, the proposed regulations would provide that the obligation to make correction payments and pay the penalty would not become binding until a return is filed claiming the increased credit, and the proposed regulations would not require payment of the correction payment or the penalty until the time the increased credit is claimed. The earliest time that a taxpayer can make a penalty payment to the IRS is at the time of filing a tax return claiming the increased credit. However, taxpayers would retain the option of making correction payments to laborers and mechanics at any time after the initial payments were made and in advance of the filing of a tax return claiming the increased credit in order to limit the amount of additional interest the taxpayer must pay at the elevated rates set forth in section 45(b)(7)(B)(i)(I)(bb).
In general, taxpayers would be obligated to make any necessary correction payments to any laborer and mechanic on or before the date a return is filed claiming an increased credit amount. A taxpayer would also be obligated to make any penalty payments owed with respect to a failure to meet the Prevailing Wage Requirements at the time a return is filed claiming the increased credit amount. Under the proposed regulations, whether taxpayers make the necessary correction payments and pay the penalty amounts promptly is one of the facts and circumstances that would be considered for purposes of the increased penalties for intentional disregard. The proposed regulations would also provide a deadline for a taxpayer's ability to use the correction and penalty provisions to rectify a failure to comply with the Prevailing Wage Requirements when the IRS makes a final determination that a taxpayer has failed to satisfy the Prevailing Wage Requirements. Under section 45(b)(7)(B)(iv), once the IRS makes a final determination that a taxpayer has failed to satisfy the Prevailing Wage Requirements, the taxpayer must make the correction and penalty payments within 180 days after the final determination to be eligible to for the increased credit. The proposed regulations would clarify that this final determination would come in the form of a notice sent by the IRS.
As provided in section 45(b)(7)(B)(ii), under the proposed regulations, deficiency procedures would not apply to any penalty payment required to be made in connection with a failure to meet the Prevailing Wage Requirements. The proposed regulations would clarify that although deficiency procedures would not apply to the penalty payment, deficiency procedures would apply to any determination by the IRS disallowing a taxpayer's claim for the increased credit.
Section 45(b)(7)(B)(i) states that a taxpayer will be deemed to satisfy the prevailing wage requirement “if, with respect to any laborer or mechanic who was paid wages at a rate below the rate described in such subparagraph for any period during such year, such taxpayer—makes payment to such laborer or mechanic . . .” in the amount of the correction payment and makes the required penalty payment to the IRS. The Treasury Department and the IRS are aware that the construction of a qualified facility may occur over the course of several years and some taxpayers who fail to meet the Prevailing Wage Requirements may be unable to locate all laborers and mechanics to which the correction payment must be made. However, section 45(b)(7)(B)(i) does not excuse taxpayers from the requirement to make the correction payment, even if the taxpayer is unable to locate the laborer or mechanic. The proposed regulations would not provide for an exception to the statutory requirement.
The Treasury Department and the IRS expect that taxpayers will be able to establish correction payments even when a former laborer or mechanic cannot be located. In general, States have developed specific rules for the payment of wages to former laborers and mechanics who cannot be located. These rules can include diligence requirements to locate the laborer or mechanic, information reporting obligations to relevant State agencies on the amount of unclaimed wages, and requirements to remit any unclaimed wage amounts to State control as unclaimed property after defined holding periods. Taxpayers may also be able to establish correction payments were made by demonstrating compliance with any withholding and information reporting requirements with respect to the payments. The Treasury Department and the IRS request public comments concerning appropriate rules for situations in which laborers and mechanics who are owed wages cannot be located and how taxpayers may establish that they have made the correction payment described in section 45(b)(7)(B)(i)(I).
The Treasury Department and the IRS expect that some taxpayers will have made requests to the DOL for a supplemental wage determination or a prevailing wage rate for an additional classification. It is possible that the DOL's response to these requests will not be issued until after laborers and mechanics have started working on the facility. The laborers and mechanics who are the subject of the requests will have already been engaged in the construction, alteration, or repair, and may have already been paid wages below the rates later determined to be prevailing by the DOL. In this circumstance, the proposed regulations would provide that the taxpayer would not be considered to have failed to meet the Prevailing Wage Requirements with respect to any mechanics or laborers whose wage rate was subject to the request and who were paid below the prevailing wage rate before the determination by the DOL if the taxpayer requests the supplemental wage determination or prevailing wage rate for an additional classification before the beginning of construction (or as soon as practicable after the start of construction) and makes a correction payment within 30 days of the determination to each laborer or mechanic equal to the difference between the amount of wages paid to such laborer or mechanic before the determination and the amount of wages required by the Prevailing Wage Requirements to be paid to such laborer or mechanic during such period. This exception is intended to mitigate a rule that would require taxpayers to make correction and penalty payments for failures to pay a prevailing wage rate that could not be timely determined by the taxpayer.
As previously described, for purposes of transfers pursuant to section 6418, the proposed regulations would clarify that the requirement to make correction and penalty payments would continue to apply to an eligible taxpayer who (i) transfers an increased credit amount under section 45(b)(6) as part of a specified credit portion and (ii) fails to meet the prevailing wage requirement of section 45(b)(7)(A) with respect to such increased credit amount. Additionally, the proposed regulations would provide that the obligation to satisfy the Prevailing Wage Requirements would not become binding on an eligible taxpayer until the earlier of: (i) the filing of the eligible taxpayer's return for the taxable year for which the specified credit portion is determined with respect to the eligible taxpayer, or (ii) the filing of the return of the transferee taxpayer for the year in which the specified credit portion is taken into account.
The proposed regulations would also provide that a taxpayer who determines the underlying credit amount would have no obligation to comply with the correction and penalty provisions if the IRS later determines that the taxpayer was not entitled to the increased credit amount. Additionally, if the taxpayer does not correct and, therefore, is not subsequently granted the increased credit amount, no penalty is assessed under section 45(b)(7)(B).
Section 45(b)(7)(B)(iii) provides that if the failure to ensure that the laborers and mechanics are paid at the prevailing wage rate is found to be due to intentional disregard, then the amount of the correction payment is tripled and the amount of the penalty payment is doubled. The proposed regulations would provide that failures to meet the Prevailing Wage Requirements would be due to intentional disregard if they are knowing or willful, which is a determination that must be made by considering all relevant facts and circumstances. The proposed regulations would provide a non-exhaustive list of facts that may be relevant to this determination.
The proposed regulations would explain that the facts and circumstances would include consideration of whether the failure was part of a pattern of conduct and whether the taxpayer has been required to pay the penalty in previous years. The Treasury Department and the IRS believe that failures that occur despite a taxpayer exercising reasonable diligence weigh against a finding of a knowing or willful failure. Under the proposed regulations, taxpayers would demonstrate reasonable diligence by taking appropriate steps to determine the applicable classifications and wage rates and by seeking to promptly correct any failures when discovered. Last, the proposed regulations would seek to draw from behavior that is generally required of contractors under the DBA and that the Treasury Department and the IRS believe would be best practices of taxpayers seeking to comply with the Prevailing Wage Requirements. These behaviors would include posting prevailing wage rates in a prominent place for the duration of the construction, alteration, or repair or otherwise notifying employees of the applicable prevailing wage rates; incorporating provisions in any contracts entered with contractors that require payment of prevailing wage rates by the contractors and any subcontractors; and undertaking quarterly, or more frequent, reviews of wages paid to laborers and mechanics to ensure that prevailing wages are being paid. The Treasury Department and the IRS request comments on additional criteria that might be used as part of a facts and circumstances analysis of intentional disregard in this context.
The proposed regulations would also provide that there would be a rebuttable presumption against a finding of intentional disregard if the taxpayer makes the correction and penalty payments before receiving a notice of an examination with respect to a return that claimed the underlying increased credit. The presumption of no intentional disregard would be intended to encourage taxpayers who discover a failure to meet the Prevailing Wage Requirements after filing a return to use the correction and penalty provisions promptly.
The Treasury Department and the IRS request comments on intentional disregard, including but not limited to additional criteria that might be used as part of a facts and circumstances analysis of intentional disregard and the applicability of a presumption against a finding of intentional disregard in certain situations.
In general, the IRS may exercise its discretion to waive or decline to assert penalties in the interest of sound tax
The Treasury Department and the IRS understand that taxpayers intending to pay prevailing wage rates may make payroll errors. These errors are likely to range in scope and frequency. It is also possible that taxpayers may make classification errors with respect to work that is performed by certain laborers or mechanics. The proposed regulations would seek to account for these likelihoods while continuing to ensure that laborers and mechanics are paid according to the applicable prevailing wage rates.
The proposed regulations would provide that the penalty payment requirement would be waived with respect to the construction, alteration, or repair performed by a laborer or mechanic during a calendar year if (i) the taxpayer makes the required correction payment (back wages and interest) by the earlier of (a) 30 days after the taxpayer became aware of the error or (b) the date on which the tax return claiming the increased credit is filed; and (ii) either: (a) the laborer or mechanic is paid below the prevailing wage rate for not more than 10 percent of all pay periods of the calendar year (or part thereof) during which the laborer or mechanic worked on the construction, alteration, or repair of the facility; or (b) the difference between the amount the laborer or mechanic was paid for the calendar year (or part thereof) during which the laborer or mechanic worked on the construction, alteration, or repair of the facility and the amount required to be paid by the Prevailing Wage Requirements for the calendar year is not greater than 2.5 percent of the amount required under the Prevailing Wage Requirements. The proposed regulations would use calendar years to measure any failures because taxpayers, contractors, and subcontractors performing construction may have different taxable years and laborers and mechanics are generally paid on a calendar year basis. The Treasury Department and the IRS request comments on the proposed use of calendar years in place of taxable years for this purpose.
Pre-hire project labor agreements may be used to incentivize stronger labor standards and worker protections in the types of construction projects for which taxpayers may seek the increased credit, and having a project labor agreement in place may also help ensure compliance with PWA requirements. For these reasons, the proposed regulations would also provide that the penalty payment requirement would not apply with respect to a laborer or mechanic employed under a project labor agreement that meets certain requirements and any correction payment owed to the laborer or mechanic is paid on or before a return is filed claiming an increased credit amount. The Treasury Department and the IRS request comments on the proposed treatment of project labor agreements, other ways taxpayers might use project labor agreements to meet the PWA requirements, and the definition of a qualifying project labor agreement.
The proposed regulations would use the IRS's general enforcement discretion to allow taxpayers to correct limited failures to pay prevailing wages if the taxpayers pay the mechanics and laborers back wages and interest in a timely manner before the increased credit is claimed. The proposed regulations would not provide for waiver of the penalty after a return has been filed claiming the increased credit. The proposed regulations would seek to create incentives for taxpayers to self-correct and promptly pay prevailing wages.
To satisfy the requirements of section 45(b)(8), taxpayers must ensure that, with respect to the construction of any qualified facility, the Labor Hours Requirement, Ratio Requirement, and Participation Requirement are satisfied. The proposed regulations would clarify the interaction among these requirements. The proposed regulations would explain that the Labor Hours Requirement generally would be subject to the Ratio Requirement. The proposed regulations would further explain that the Participation Requirement would apply in addition to the Labor Hour Requirement and the Ratio Requirement. Therefore, in order to meet the requirements of section 45(b)(8), a taxpayer generally would be subject to all three components of the Apprenticeship Requirements. If a taxpayer satisfies the applicable Labor Hours Requirement but fails the Participation Requirement, then the taxpayer would not be eligible for the increased credit unless the taxpayer complies with the penalty provisions of section 45(b)(8)(D) with respect to the total hours that are not met with respect to the Participation Requirement or meets the Good Faith Effort Exception.
The proposed regulations would reiterate that under the Labor Hours Requirement, the taxpayer must ensure that the “applicable percentage” of the total labor hours are performed by qualified apprentices.
The Treasury Department and the IRS understand that certain jurisdictions and trades have developed pre-apprenticeship programs that are designed to help individuals prepare for and succeed in registered apprenticeship programs but that are not registered with the DOL under the Act of August 16, 1937 (commonly known as the “National Apprenticeship Act”; 50 Stat. 664, chapter 663; 29 U.S.C. 50
Under the Ratio Requirement, a taxpayer must ensure that any applicable apprenticeship-to-journeyworker ratio is satisfied. Section 45(b)(8)(B) provides that the applicable apprenticeship-to-journeyworker ratio is determined by reference to the ratios of the DOL or the applicable State apprenticeship agency. Under 29 CFR part 29, registered apprenticeship programs prescribe a numeric ratio of apprentices to journeyworkers in their standards of apprenticeship. This ratio is intended to ensure that there are enough journeyworkers to oversee the work of apprentices. The Treasury Department and the IRS understand that the DOL and State apprenticeship agencies review and approve the prescribed ratio requirements.
As stated in Notice 2022-61, the applicable ratios set by registered apprenticeship programs generally apply on a daily basis. The proposed regulations reiterate this requirement and would provide that the applicable ratio established by the apprenticeship program would need to be satisfied each day during construction, alteration, or repair of the qualified facility for which apprentice labor hours are being claimed. This means that the number of apprentices would not be permitted to exceed the number set forth in the ratio because the ratio sets the minimum number of journeyworkers needed for each apprentice, to ensure adequate safety and supervision. For example, for a 1:1 apprentice to journeyworker ratio, having two apprentices and three journeyworkers on a given day would satisfy the ratio requirement whereas having three apprentices and two journeyworkers on a given day would not.
The proposed regulations would provide that if the Ratio Requirement is not met on any day, then registered apprentices in excess of the applicable ratio who perform work on a facility would be required to be paid the full prevailing wage rate for the hours worked for purposes of the Prevailing Wage Requirement. Additionally, the hours worked by the apprentices on a day where the applicable ratio was not satisfied would not be counted as apprentice hours for purposes of calculating the applicable percentage under the Labor Hours Requirement.
For purposes of the Ratio Requirement, the proposed regulations would adopt the DOL definition of journeyworker in 29 CFR 29.2, which defines a journeyworker as a laborer or mechanic who has attained a level of skill, abilities and competencies recognized within an industry as having mastered the skills and competencies required for the occupation. A mentor, technician, specialist, or other skilled individual who has documented sufficient skills and knowledge of an occupation, either through formal apprenticeship or through practical on-the-job experience and formal training may also be a journeyworker. The Treasury Department and the IRS request comments on the application of the Ratio Requirement for purposes of satisfying the Apprenticeship Requirement.
The Treasury Department and the IRS propose to interpret the Participation Requirement as designed to prevent taxpayers from satisfying the Labor Hours Requirement by only hiring apprentices to preform one type of work and instead encourages taxpayers to use apprentices across the full range of work performed with respect to the facility. The proposed regulations would clarify that the Participation Requirement would be satisfied as long as the taxpayer, contractor, or subcontractor employs one or more apprentices to perform work on the facility and would not be a daily requirement. The proposed regulations would also clarify that it would be the responsibility of the taxpayer to ensure that any contractor or subcontractor performing work on the facility with four or more employees who perform such work on the facility has hired one or more apprentices in accordance with the Participation Requirement of section 45(b)(8)(C). Taxpayers who fail to meet the Participation Requirement would be subject to the penalty provisions of section 45(b)(8)(D) even if the taxpayer otherwise satisfies the applicable Labor Hours Requirement unless the Good Faith Effort Exception applies.
Section 45(b)(8)(D) and the proposed regulations would allow taxpayers who fail to meet the Apprenticeship Requirements to nonetheless qualify for the increased credit by curing their failures. To cure a failure to meet the Apprenticeship Requirements, taxpayers would be required to satisfy the Good Faith Effort Exception from the Apprenticeship Requirements or pay a penalty if they do not qualify for the Good Faith Effort Exception.
Section 45(b)(8)(D)(ii) provides that taxpayers are deemed to satisfy the Apprenticeship Requirements if they have requested qualified apprentices from a registered apprenticeship program and such request has been denied for reasons other than the taxpayer, contractor, or subcontractor's refusal to comply with the program's standards and requirements or if the program fails to respond within five business days of receiving a request. Notice 2022-61 provided that taxpayers could satisfy the Good Faith Effort Exception if the taxpayer requested qualified apprentices “in accordance with usual and customary business practices for registered apprenticeship programs in a particular industry.”
The Treasury Department and the IRS believe that additional guidance explaining the “usual and customary” standard would be useful. The proposed regulations would require the taxpayer, contractor, or subcontractor to make a written request to at least one registered apprenticeship program that has a geographic area of operation that includes the location of the facility, or that can reasonably be expected to provide apprentices to the location of the facility, trains apprentices in the occupation(s) needed by the taxpayer, contractors, or subcontractors performing construction, alteration, or repair with respect to the facility, and has a usual and customary business practice of entering into agreements with employers for the placement of apprentices in the occupation for which they are training, pursuant to its standards and requirements.
The Treasury Department and the IRS anticipate that a taxpayer may need to submit a request to more than one apprenticeship program in order to meet the Good Faith Effort Exception based on the size of the project, the number of contractors or subcontractors and the anticipated number of labor hours for which apprentices are needed. Although it may be possible for a taxpayer to meet all of its Labor Hours Requirement from one apprenticeship program, it is likely that given the multiple occupations involved in the construction, alteration, or repair of a qualified facility, the taxpayer would need to request apprentices from more than one apprenticeship program in order to satisfy the Labor Hours Requirement and the Participation Requirement with respect to that facility. This is in part because a registered apprenticeship program typically trains apprentices in a single occupation, whereas more than one occupation may be needed to meet the Labor Hours Requirement and the Participation Requirement. A taxpayer, contractor, or subcontractor would be expected to estimate the number of apprentices needed and the occupations for which they are needed and to submit its request for apprentices accordingly.
The proposed regulations would require the written request to include information concerning the dates of employment, the occupation or classification needed, the location and type of work to be performed, the number of apprentices needed, the number of hours the apprentices will work, and the name and contact information of the person requesting the apprentices. The written request would also be required to include a statement that the request for apprentices is made with an intent to employ apprentices in the occupation for which they are being trained and in accordance with the requirements and standards of the registered apprenticeship program. The Good Faith Effort Exception's
A denial of a request by a taxpayer, contractor, or subcontractor for a qualified apprentice would not automatically qualify the taxpayer for the Good Faith Effort Exception. The proposed regulations would require the taxpayer, contractor, or subcontractor to submit an additional request within 120 days of a previously denied request. The proposed regulations would also clarify that a denial of a request means that the registered apprenticeship program denied the request in its entirety. A registered apprenticeship program's response that it could partially fulfill the request in the occupation(s) for which it trains apprentices would not constitute a denial of the request with respect to the parts of the request that could be fulfilled.
Under the proposed regulations, the Good Faith Effort Exception would be specific to the request for apprentices made by the taxpayer, contractor, or subcontractor, including the number of apprentice hours for which the request for apprentices has been made to a registered apprenticeship program. Thus, the Good Faith Effort Exception would apply to the specific portion of the request for apprentices that was denied or not responded to and would be subject to the requirement to submit an additional request after 120 days. The Treasury Department and the IRS request comments on this proposed approach.
Consistent with section 45(b)(8)(D)(ii)(I), the proposed regulations would require that the request cannot have been denied because of a refusal of the taxpayer or any contractor or subcontractor to comply with the requirements and standards of the apprenticeship program. For example, if a registered apprenticeship program requires a requesting employer to enter into an agreement with the registered apprenticeship program, then a denial of the request because the employer refused to enter into the agreement would not be a valid denial for purposes of the Good Faith Effort Exception. Section 45(b)(8)(D)(ii) provides that taxpayers may also be deemed to satisfy the Good Faith Effort Exception if a registered apprenticeship program fails to respond to a request for a qualified apprentice. The proposed regulations explain that an acknowledgement of receipt by a registered apprenticeship program would constitute a response for purposes of section 45(b)(8)(D)(ii)(II), and a taxpayer would be unable to rely upon the Good Faith Effort Exception in such circumstances.
The Treasury Department and the IRS understand that apprenticeship programs are not uniform across industries and localities, including the manner and processes by which apprentices may be requested and supplied for purposes of satisfying the Apprenticeship Requirements. The Treasury Department and the IRS also understand that in many cases employers are sponsors of registered apprenticeship programs and directly employ apprentices. In those instances, a taxpayer, contractor, or subcontractor would likely obtain apprentices to meet the labor hours and participation requirements through their own registered apprenticeship programs rather than requesting apprentices from other registered apprenticeship programs.
In addition, the Treasury Department and the IRS are aware that the DOL's Office of Apprenticeship, as well as State apprenticeship agencies, routinely provide technical expertise on registered apprenticeship program matters, including identifying registered apprenticeship programs, and assisting employers seeking to register their own programs.
If a taxpayer does not qualify for the Good Faith Effort Exception under section 45(b)(8)(D)(ii), section 45(b)(8)(D)(i)(II) provides that the taxpayer is not treated as failing to satisfy the requirements of section 45(b)(8)(A) and (C) if the taxpayer pays a penalty to the Secretary. The proposed regulations explain that, with respect to failures to satisfy the Labor Hours Requirement or the Participation Requirement, the amount of the penalty would be equal to $50 multiplied by the total labor hours for which the taxpayer failed to meet the Labor Hours Requirement and the Participation Requirement. The proposed regulations would provide that the total labor hours by which the taxpayer failed to meet the Labor Hours Requirement would be calculated by subtracting the total labor hours worked by all qualified apprentices consistent with the Ratio Requirement from the total labor hours that should have been worked by qualified apprentices under section 45(b)(8)(A)(ii) to satisfy the applicable percentage.
Section 45(b)(8)(C) does not specify the number of hours that apprentices must work to satisfy the Participation Requirement. The proposed regulations would address this issue by providing that the number of labor hours that an apprentice was required to work for purposes of calculating the penalty for failing to satisfy the Participation Requirement would be equal to the total number of labor hours performed for the taxpayer, contractor, or subcontractor during construction, alteration, or repair of the facility divided by the total number of individuals employed by that taxpayer, contractor, or subcontractor who performed construction, alteration, or repair work on the facility. This calculation would be specific to the taxpayer, contractor, or subcontractor who failed to meet the Participation Requirement. For example, if the taxpayer failed to meet the Participation Requirement, then the penalty would be calculated with reference to the total number of labor hours performed only by those individuals who worked directly for the taxpayer, and would not include the labor hours worked by any individuals who worked directly for a contractor or subcontractor that satisfied the Participation Requirement.
If the taxpayer failed to meet both the Labor Hours Requirement and the Participation Requirement, the penalty would equal the sum of the penalty for the failure to meet the Labor Hours
If the failure to meet the Labor Hours Requirement or the Participation Requirement is determined to be the result of intentional disregard, then the amount of the penalty payment is enhanced tenfold—from $50 to $500 per labor hour. The proposed regulations would provide that failures to meet the Apprenticeship Requirements would be due to intentional disregard if they are knowing or willful, considering all relevant facts and circumstances. The proposed regulations would provide a non-exhaustive list of facts and circumstances that may be relevant to determining whether the failure was knowing or willful.
The proposed regulations would also provide the penalty payment requirement for failures to meet the Labor Hours Requirement or the Participation Requirement would not apply if there is in place a project labor agreement that meets certain requirements.
The proposed regulations also state that there would be a rebuttable presumption against a finding of intentional disregard if the taxpayer makes the penalty payments before receiving a notice of an examination with respect to the claim for the increased credit. The presumption of no intentional disregard is intended to incentivize taxpayers who initially fail to meet the Apprenticeship Requirements to make use of the cure provision promptly.
Consistent with the correction and penalty payments under the Prevailing Wage Requirements, the hiring of qualified apprentices is a factor in the taxpayer's eligibility for the increased credit and therefore applicable to determining the credit. Additionally, although the Apprenticeship Requirements must be satisfied contemporaneously with the construction, alteration, or repair of the qualified facility and before the filing of the taxpayer's tax return, the obligation to meet the Apprenticeship Requirements is not binding on the eligible taxpayer until the earlier of: (i) the filing of the eligible taxpayer's return for the taxable year for which the specified credit portion is determined with respect to the eligible taxpayer, or (ii) the filing of the return of the transferee taxpayer for the year in which the specified credit portion is taken into account. As a result, the proposed regulations would provide that a penalty payment that is required to retain the increased credit because of the failure of the eligible taxpayer to satisfy the Apprenticeship Requirements would remain the responsibility of the eligible taxpayer following a transfer of a specified credit portion pursuant to section 6418.
Section 30C provides a credit for the cost of any qualified alternative fuel vehicle refueling property placed in service during the taxable year. For properties placed in service before January 1, 2023, the credit is equal to 30 percent. For properties placed in service after December 31, 2022, the credit is equal to 30 percent (6 percent for property of a character subject to depreciation). If a taxpayer satisfies the PWA requirements or the BOC Exception, then the credit determined under section 30C(a) for any qualified alternative fuel vehicle refueling property of a character subject to an allowance for depreciation that is part of such project is multiplied by five.
To satisfy the Prevailing Wage Requirements under section 30C(g)(2)(A), a taxpayer must ensure that any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in the construction of any qualified alternative fuel vehicle refueling property that is part of such project are paid wages at rates not less than the prevailing rates for construction, alteration, or repair of a similar character in the locality in which the project is located. Section 30C(g)(2)(B) provides that rules similar to section 45(b)(7)(B) apply for purposes of the correction and penalty related to the failure to satisfy the Prevailing Wage Requirements. Section 30C(g)(3) provides that rules similar to section 45(b)(8) apply for purposes of the Apprenticeship Requirements.
The proposed regulations would provide that if a taxpayer satisfies the PWA requirements, then the credit determined under section 30C(a) for any qualified alternative fuel vehicle refueling property of a character subject to an allowance for depreciation that is part of such project would be multiplied by five.
Section 45L provides a credit for a qualified new energy efficient home (qualified home) that is constructed by an eligible contractor and acquired by a person from that eligible contractor for use as a residence during the taxable year. Under section 45L(b)(2), a qualified home is a dwelling unit located in the United States, the construction of which is substantially completed after August 8, 2005, and that meets the energy saving requirements of section 45L(c). Under section 45L(b)(1), an eligible contractor is the person who constructed the qualified home, or in the case of a qualified home that is a manufactured home, the manufactured home producer of that home. For a qualified home acquired after December 31, 2022, and before January 1, 2033, that is part of a building eligible to participate in the Energy Star Multifamily New Construction Program and meets the energy saving requirements under section 45L(c)(1)(A), the credit is $500 ($2,500 if the taxpayer satisfies the Prevailing Wage Requirements). For a qualified home acquired after December 31, 2022, and before January 1, 2033, that is part of a building eligible to participate in the Energy Star Multifamily New Construction Program and meets the energy saving requirements under section 45L(c)(1)(B), the credit is $1,000 ($5,000 if the taxpayer satisfies the Prevailing Wage Requirements).
To satisfy the Prevailing Wage Requirements under section 45L(g)(2)(A), a taxpayer must ensure that any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in the construction of any qualified home described in section 45L(a)(2)(B) are paid wages at rates not less than the prevailing rates for construction, alteration, or repair of a similar character in the locality in which the qualified home is located. Section 45L(g)(2)(B) provides that rules similar to section 45(b)(7)(B) apply for purposes of the correction and penalty related to the failure to satisfy the Prevailing Wage Requirements. There are no Apprenticeship Requirements with respect to section 45L.
The proposed regulations would provide that if a taxpayer satisfies the Prevailing Wage Requirements, then for a qualified home that is part of a building eligible to participate in the Energy Star Multifamily New Construction Program acquired after December 31, 2022, and before January 1, 2033, the credit would be $2,500 if the qualified home meets the energy saving requirements under section 45L(c)(1)(A), and the credit would be $5,000 if the qualified home meets the energy saving requirements under section 45L(c)(1)(B).
Section 45Q provides a credit for the capture and sequestration of qualified carbon oxide. The credit is the sum of the specified dollar amount, as provided
To satisfy the Prevailing Wage Requirements under section 45Q(h)(3)(A), the attributable taxpayer described in section 45Q(f)(3)(A) and § 1.45Q-1(h)(1) must ensure that any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in: (i) the construction of any qualified facility and any carbon capture equipment placed in service at that facility, and (ii) the alteration or repair of that facility or equipment (with respect to any taxable year, for any portion of such taxable year that is within the 12-year period beginning on the date the facility or equipment is originally placed in service), are paid wages at rates not less than the prevailing rates for construction, alteration, or repair of a similar character in the locality in which that facility and equipment are located. Section 45Q(h)(3)(B) provides that rules similar to section 45(b)(7)(B) apply for purposes of the correction and penalty related to the failure to satisfy the Prevailing Wage Requirements. Section 45Q(h)(4) provides that rules similar to section 45(b)(8) apply for purposes of the Apprenticeship Requirements.
The proposed regulations would provide rules based on the statutory rules.
Section 45U provides a credit for electricity produced by the taxpayer at a qualified nuclear power facility and sold by the taxpayer to an unrelated person during the taxable year. Generally, for taxable years beginning after December 31, 2023, the credit is equal to the amount by which the product of 0.3 cents multiplied by the kilowatt hours of electricity produced by the taxpayer at a qualified nuclear power facility and sold by the taxpayer to an unrelated person during the taxable year, exceeds the applicable “reduction amount” for such taxable year that is determined under section 45U(b)(2). If a taxpayer satisfies the Prevailing Wage Requirements, then the credit determined under section 45U(a) for a qualified nuclear power facility is multiplied by five.
To satisfy the Prevailing Wage Requirements under section 45U(d)(2)(A), a taxpayer must ensure that any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in the alteration or repair of any qualified nuclear power facility are paid wages at rates not less than the prevailing rates for alteration or repair of a similar character in the locality in which that facility is located. Section 45U(d)(2)(B) provides that rules similar to section 45(b)(7)(B) apply for purposes of the correction and penalty related to the failure to satisfy the Prevailing Wage Requirements. There are no Apprenticeship Requirements with respect to section 45U.
The proposed regulations would provide that if a taxpayer satisfies the Prevailing Wage Requirements, then the credit determined under section 45U(a) for any qualified nuclear power facility would be multiplied by five.
Section 45V provides a credit for the production of qualified clean hydrogen by the taxpayer during the taxable year at a qualified clean hydrogen production facility during the 10-year period beginning on the date the facility was originally placed in service. In general, for hydrogen produced after December 31, 2022, the credit is the product of the kilograms of qualified clean hydrogen produced multiplied by the applicable amount. The applicable amount is equal to the applicable percentage of $0.60, which is determined under section 45V(b)(2). If a taxpayer satisfies either the PWA requirements, or the BOC Exception and the Prevailing Wage Requirements for alterations or repairs occurring after January 29, 2023, then the credit amount determined under section 45V(a) for any qualified clean hydrogen produced by the taxpayer during the taxable year at a qualified clean hydrogen production facility is multiplied by five. A taxpayer must satisfy the Prevailing Wage Requirements with respect to an alteration or repair that occurs after January 29, 2023, notwithstanding the BOC Exception regarding the construction of that qualified facility.
To satisfy the Prevailing Wage Requirements under section 45V(e)(3)(A), a taxpayer must ensure that any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in: (i) the construction of any qualified clean hydrogen production facility, and (ii) the alteration or repair of that facility (with respect to any taxable year, for any portion of such taxable year that is within the 10-year credit period beginning on the date that the facility was originally placed in service),
The proposed regulations would provide that if a taxpayer satisfies either the PWA requirements, or the BOC Exception and the Prevailing Wage Requirements for alterations or repairs occurring after January 29, 2023, then the credit amount determined under section 45V(a) for any qualified clean hydrogen produced by the taxpayer during the taxable year at a qualified clean hydrogen production facility would be multiplied by five.
Section 45Y provides a credit for clean electricity produced by the taxpayer at a qualified facility and sold to an unrelated person, or in the case of a qualified facility which is equipped with a metering device which is owned and operated by an unrelated person, sold, consumed, or stored by the taxpayer during the taxable year, for facilities placed in service after December 31, 2024. Generally, the credit for any taxable year is the product of the kilowatt hours of electricity multiplied by 0.3 cents. If a taxpayer satisfies the PWA requirements, the One Megawatt
Section 45Y(g)(9) provides that rules similar to section 45(b)(7) apply for purposes of the Prevailing Wage Requirements. Section 45Y(g)(10) provides that rules similar to section 45(b)(8) apply for purposes of the Apprenticeship Requirements.
The proposed regulations would provide that if a taxpayer satisfies the PWA requirements, then the applicable amount under section 45Y(a)(2) would equal 1.5 cents.
Section 45Z provides a credit for clean transportation fuel produced by the taxpayer at a qualified facility after December 31, 2024, and sold to an unrelated person in a manner described in section 45Z(a)(4). Generally, the credit is the product of the applicable amount (determined under section 45Z(a)(2)) per gallon(s) of transportation fuel multiplied by the emission factor for the fuel (determined under section 45Z(b)). If a taxpayer satisfies the PWA requirements (modified for qualified facilities placed in service before January 1, 2025), then the applicable amount determined under section 45Z(a)(2)(B) is $1.00, otherwise the applicable amount is 20 cents.
In general, section 45Z(f)(6)(A) provides that rules similar to section 45(b)(7) apply for purposes of the Prevailing Wage Requirements. However, section 45Z(f)(6)(B) provides a special rule for qualified facilities placed in service before January 1, 2025. Under section 45Z(f)(6)(B), the Prevailing Wage Requirements do not apply with respect to construction of that facility but do apply to the alteration or repair of that facility with respect to any taxable year beginning after December 31, 2024, for which the section 45Z credit is allowed with respect to that facility. Section 45Z(f)(7) provides that rules similar to section 45(b)(8) apply for purposes of the Apprenticeship Requirements.
The proposed regulations would provide that if a taxpayer satisfies the PWA requirements, then the applicable amount determined under section 45Z(a)(2)(B) would equal $1.00.
Section 48 provides a credit for an energy property placed in service during a taxable year. For properties placed in service after December 31, 2022, the credit is generally six percent of the basis of property described in section 48(a)(2)(A)(i) and two percent of the basis of property described in section 48(a)(2)(A)(ii). If a taxpayer satisfies the PWA requirements, the One Megawatt Exception, or the BOC Exception, then the credit determined under section 48(a) for the basis of each energy property placed in service during the taxable year is multiplied by five.
To satisfy the Prevailing Wage Requirements under section 48(a)(10)(A), a taxpayer must ensure that any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in: (i) the construction of any energy project, and (ii) the alteration or repair of that energy project (for the five-year period beginning on the date such project is originally placed in service), are paid wages at rates not less than the prevailing rates for construction, alteration, or repair of a similar character in the locality in which that energy project is located. Section 48(a)(10)(B) provides that rules similar to section 45(b)(7)(B) apply for purposes of the correction and penalty related to the failure to satisfy the Prevailing Wage Requirements. Section 48(a)(10)(C) provides a special recapture rule with respect to alterations or repairs that occur during the five-year period after the energy project is placed in service if that taxpayer does not satisfy the Prevailing Wage Requirements. In general, the section 48(a)(10)(C) recapture is determined under similar rules to those provided for in section 50. Subject to the section 48(a)(10)(C) recapture, the taxpayer is deemed at the time the qualified energy project is placed in service to satisfy the Prevailing Wage Requirements for alterations or repairs for the five-year period beginning after such project is originally placed in service. Section 48(a)(11) provides that rules similar to section 45(b)(8) apply for purposes of the Apprenticeship Requirements.
The proposed regulations would provide that if a taxpayer satisfies the PWA requirements, then the credit determined under section 48 for any qualified energy project would be multiplied by five.
Section 48C provides a credit for a qualified investment in a qualifying advanced energy project for that taxable year (Section 48C Credit). The IRA added section 48C(e) to the Code, extending the Section 48C Credit to provide an additional Section 48C Credit allocation of $10 billion. Generally, the credit amount for Section 48C Credits allocated pursuant to section 48C(e) is equal to six percent of the basis of the eligible property. If a taxpayer satisfies the PWA requirements, then the credit amount determined under section 48C(a) is 30 percent.
To satisfy the Prevailing Wage Requirements under section 48C(e)(5)(A), a taxpayer must ensure that with respect to a qualifying advanced energy project, any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in the re-equipping, expansion, or establishment of a manufacturing facility are paid wages at rates not less than the prevailing rates for construction, alteration, or repair of a similar character in the locality in which the project is located. Section 48C(e)(5)(B) provides that rules similar to section 45(b)(7)(B) apply for purposes of the correction and penalty related to the failure to satisfy the Prevailing Wage Requirements. Section 48C(e)(6) provides that rules similar to section 45(b)(8) apply for purposes of the Apprenticeship Requirements.
The Treasury Department and the IRS issued Notice 2023-18, 2023-10 I.R.B. 508, and Notice 2023-44, 2023-25 I.R.B. 924, to provide guidance under section 48C(e). These notices provide a process for the IRS to allocate Section 48C Credits. To prevent an overallocation of Section 48C Credits, section 5.07 of Notice 2023-18 requires a taxpayer that applies for a Section 48C Credit allocation at the 30 percent credit amount to confirm that the taxpayer intends to satisfy the PWA requirements. Section 5.07 of Notice 2023-18 additionally requires that when the taxpayer provides notification that it placed the project in service, the taxpayer must also confirm that it satisfied the PWA requirements.
The proposed regulations would provide that if a taxpayer satisfies both the PWA requirements and the PWA confirmation requirements provided in Notice 2023-18 (or any subsequent guidance), then the credit amount for Section 48C Credits allocated pursuant to section 48C(e) would be equal to 30 percent.
Section 48E provides a clean electricity investment credit for the investment in qualified facilities and energy storage technology placed in service for the taxable year after December 31, 2024. The credit is generally six percent of the qualified investment. If a taxpayer satisfies the PWA requirements, the One Megawatt Exception, or the BOC Exception, then the credit amount determined under section 48E(a) for a qualified investment is 30 percent.
Section 48E(d)(3) provides that rules similar to section 48(a)(10) apply for purposes of the Prevailing Wage Requirements. Section 48E(d)(4) provides that rules similar to section 45(b)(8) apply for purposes of the Apprenticeship Requirements.
The proposed regulations would provide that if a taxpayer satisfies the PWA requirements, then the credit amount determined under section 48E(a) for a qualified investment would be equal to 30 percent.
Section 179D(a) provides a deduction for the cost of energy efficient commercial building property placed in service during the taxable year. Section 179D(f) provides an alternative deduction for energy efficient building retrofit property (alternative deduction). For taxable years beginning after December 31, 2022, section 179D(b) provides that the deduction cannot exceed the excess (if any) of the product of the applicable dollar value, and the square footage of the building, over the aggregate amount of deductions under section 179D(a) and section 179D(f) with respect to the building for the three taxable years immediately preceding the taxable year (or for any taxable year ending during the four-taxable-year period ending with such taxable year, if the deduction is allowed to a person other than the taxpayer). The alternative deduction is an amount equal to the lesser of the “excess” described in section 179D(b) (determined by substituting “energy use intensity” for “total annual energy and power costs”) or the aggregate adjusted basis (determined after taking into account all adjustments with respect to the taxable year other than the reduction under section 179D(e)) of energy efficient building retrofit property placed in service by the taxpayer pursuant to a qualified retrofit plan. The applicable dollar value is $0.50 increased by $0.02 (but not above $1.00) for each percentage point by which the total annual energy and power costs (or energy use intensity, in the case of the alternative deduction) for the building are certified to be reduced by a percentage greater than 25 percent. If a taxpayer satisfies the PWA requirements or the beginning of installation exception, then the applicable dollar value of the deduction determined under section 179D(b)(2) is $2.50 increased by $0.10 (but not above $5.00).
To satisfy the Prevailing Wage Requirements under section 179D(b)(4)(A), a taxpayer must ensure that any laborers and mechanics employed by the taxpayer or any contractor or subcontractor in the installation of any property are paid wages at rates not less than the prevailing rates for construction, alteration, or repair of a similar character in the locality in which the property is located. Section 179D(b)(4)(B) provides that rules similar to section 45(b)(7)(B) apply for purposes of the correction and penalty related to the failure to satisfy the Prevailing Wage Requirements. Section 179D(b)(5) provides that rules similar to section 45(b)(8) apply for purposes of the Apprenticeship Requirements.
The proposed regulations would provide that if a taxpayer satisfies the PWA requirements, then the applicable dollar value of the deduction determined under section 179D(b)(2) would be $2.50 increased by $0.10 (but not above $5.00).
Section 45(b)(12) authorizes the Secretary to issue such regulations or other guidance as the Secretary determines necessary to carry out the purposes of section 45(b), including regulations or other guidance that provide requirements for recordkeeping or information reporting for purposes of administering the requirements of section 45(b).
Section 6001 provides that every person liable for any tax imposed by the Code, or for the collection thereof, must keep such records as the Secretary may from time to time prescribe. Section 1.6001-1(a) provides that any person subject to income tax must keep such permanent books of account or records, including inventories, as are sufficient to establish the amount of gross income, deductions, credits, or other matters required to be shown by such person in any return of such tax. Section 1.6001-1(e) provides that the books and records required by § 1.6001-1 must be retained so long as the contents thereof may become material in the administration of any Internal Revenue law.
The Copeland Act requires contractors and subcontractors subject to the DBA to submit certified weekly payroll records reflective of work performed on a covered contract to the contracting agency. This requirement to comply with the DBA is statutory and inherent in the award of a contract and the submission of weekly payroll records becomes part of the terms of the awarded contract. In contrast, under section 45(b)(7)(A), although the requirement to pay prevailing wages is triggered by the beginning of construction and continues over the entire course of a project, the requirement to pay prevailing wages becomes binding only when a tax return claiming the increased credit is filed. Thus, because the increased credit is not claimed until the time of filing a return, which will only occur after a qualified facility is placed in service, the proposed regulations would not adopt the Copeland Act requirement to report payroll records to the IRS on a weekly basis in advance of claiming an increased credit. The Treasury Department and the IRS understand that adoption of the Copeland Act reporting regime for purposes of section 45(b)(7)(A) would not assist the IRS with administering the provision.
Instead, the proposed regulations would provide that taxpayers would be required to establish compliance with the Prevailing Wage Requirements at the time a return claiming the increased credit is filed. The proposed regulations would provide that a taxpayer would be required to do so on such forms and in such manner as the Commissioner provides in IRS forms, publications, or other guidance. The Treasury Department and the IRS expect that taxpayers will be required to report at the time of filing a return the following information: (i) the location and type of qualified facility; (ii) the applicable wage determinations for the type and location of the facility; (iii) the wages paid (including any correction payments) and hours worked for each of the laborer or mechanic classifications engaged in the construction, alteration, or repair of the facility; (iv) the number of workers who received correction payments; (v) the wages paid and hours worked by qualified apprentices for each of the laborer or mechanic classifications engaged in the construction, alteration, or repair of the facility; (vi) the total labor hours for the construction, alteration, or repair of the facility by any laborer or mechanic employed by the taxpayer or any contractor or subcontractor; and (vii) the total credit claimed.
The DBA has comprehensive recordkeeping requirements that assist the DOL in its oversight of Prevailing Wage Requirements. The DBA recordkeeping regime is consistent with what the IRS would ordinarily expect taxpayers to preserve to be able to substantiate that the Prevailing Wage Requirements have been satisfied. The proposed regulations would impose recordkeeping requirements that are generally consistent with the
The proposed regulations would require taxpayers to maintain and preserve sufficient records to establish compliance with the requirement that all laborers and mechanics were paid wages at rates not less than the applicable prevailing rates. Records sufficient to establish compliance would include payroll records that reflect the hours worked in each classification and the wages paid to each laborer and mechanic performing construction, alteration, or repair work on the facility (including any correction payments made to each laborer and mechanic). The Treasury Department and the IRS expect that most taxpayers will use contractors and subcontractors in the construction, alteration, or repair of facilities and that construction may occur for several years before a facility is placed in service. The proposed regulations would provide that it would be the responsibility of the taxpayer to maintain payroll records that reflect the wages paid to labors and mechanics engaged in the construction, alteration, or repair of the qualified facility, regardless of whether the laborers and mechanics are employed by the taxpayer, a contractor, or a subcontractor. The proposed regulations would also impose recordkeeping requirements related to correction and penalty payments.
The proposed regulations include a non-exhaustive list of facts and circumstances that would be relevant to the IRS in determining whether a failure to meet the Prevailing Wage Requirements was due to intentional disregard. To demonstrate that a failure was not due to intentional disregard, taxpayers would need to maintain and preserve records sufficient to document the failure and the actions they took to prevent, mitigate, or remedy the failure (for example, records demonstrating that the taxpayer regularly reviewed payroll practices, included requirements to pay prevailing wages in contracts with contractors, and posted prevailing wage rates in a prominent place on the job site).
The proposed regulations would also waive penalties for certain limited failures. To the extent taxpayers intend to rely on these penalty waiver provisions, they would need to maintain records sufficient to demonstrate when a failure occurred and proof that the taxpayer made the required correction payment.
The proposed regulations would require taxpayers subject to the Apprenticeship Requirements to maintain sufficient records to establish compliance with the Labor Hours Requirement, Ratio Requirement, and Participation Requirement. Records sufficient to establish compliance with the Apprenticeship Requirements include copies of any written requests for apprentices by the taxpayer, contractor, or subcontractor, any agreement entered by the taxpayer, contractor, or subcontractor with a registered apprenticeship program, documents reflecting any registered apprenticeship program sponsored by the taxpayer, contractor, or subcontractor, documents verifying participation in a registered apprenticeship program by each apprentice, records reflecting the required ratio of apprentices to journeyworkers prescribed by each registered apprenticeship program from which qualified apprentices are employed, records reflecting the daily ratio of apprentices to journeyworkers, and the payroll records for any work performed by apprentices. The proposed regulations provide that it would be the responsibility of the taxpayer to maintain the relevant records for each apprentice engaged in the construction, alteration, or repair on the qualified facility, regardless of whether the apprentice is employed by the taxpayer, a contractor, or a subcontractor.
Because an eligible taxpayer determines any increased credit amount applicable to the prevailing wage and apprenticeship requirements, the general recordkeeping requirements under these proposed regulations would remain with an eligible taxpayer who transfers a specified credit portion that includes an increased credit amount. The increased credit amount that is determined by an eligible taxpayer would be reported on the applicable forms on the return of the eligible taxpayer. The minimum required documentation to be provided to the transferee taxpayer is a separate requirement under the 6418 Proposed Regulations that does not impact the requirements in these proposed regulations.
The provisions of sections 3 and 4 of Notice 2022-61 would be obsoleted for facilities, property, projects, or equipment the construction, or installation of which begins after the date the Treasury Decision adopting these regulations as final regulations is published in the
These regulations are proposed to apply to facilities, property, projects, or equipment placed in service in taxable years ending after the date these regulations are published as final in the
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA) generally requires that a federal agency obtain the approval of the Office of Management and Budget (OMB) before collecting information from the public, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit.
The collections of information in these proposed regulations would include reporting, recordkeeping, and third-party disclosure requirements. These collections are required for purposes of claiming an increased credit or deduction amount; and are necessary for the IRS to validate that taxpayers have met the regulatory requirements and are entitled to claim the increased credit amounts. The likely respondents are individual, business, trust and estate filers, and tax exempt organizations.
The proposed regulations would set forth procedures for requesting supplemental wage determinations and wage rates for additional classifications from the DOL. This collection is approved by OMB under the DOL's Control Number 1235-0034. This IRS regulation does not alter any of the DOL collections approved under this control number.
The proposed regulations would include requirements to keep records
The proposed regulations would include reporting requirements that taxpayers provide a statement with the tax return that claims an increased credit or deduction amount that includes aggregate information as detailed in § 1.45-12. The Secretary may issue forms and instructions in future guidance for the purpose of meeting these reporting requirements. These reporting requirements will be covered under 1545-0074 for individuals/sole proprietors, 1545-0123 for business entities. IRS will solicit public comments on this requirement and the associated burden for trusts and estates filers as reflected below; and will seek OMB approval under a new OMB Control Number (1545-NEW) for trust and estate filers.
The proposed regulations would include third-party disclosures that include notifying laborers and mechanics of the applicable prevailing wage rates as detailed in § 1.45-7. The proposed regulations would also include third party disclosures for taxpayers requesting the dispatch of apprentices from a registered apprenticeship program as detailed in § 1.45-8. IRS will solicit public comment on this requirement and associated burden for all filers reflected below; and will seek OMB approval under a new OMB Control Number (1545-NEW) for all filers for the disclosure requirement.
The collections of information contained in this notice of proposed rulemaking has been submitted to the Office of Management and Budget for review in accordance with the Paperwork Reduction Act. Commenters are strongly encouraged to submit public comments electronically. Written comments and recommendations for the proposed information collection should be sent to
Whether the proposed collection of information is necessary for the proper performance of the functions of the IRS, including whether the information will have practical utility. The accuracy of the estimated burden associated with the proposed collection of information. How the quality, utility, and clarity of the information to be collected may be enhanced. 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 estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information.
The IRS estimates that 70 trust and estates may claim the increased credit and that it could take approximately 40 hours to compile the data needed for the statement attached to their return.
The IRS estimates that 70,000 filers may claim the increased credit and that it could take approximately two hours to display the prevailing wages rates and to request the dispatch of apprentices.
Estimated total annual third-party disclosure burden for all other filers: 140,000 hours.
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 Regulatory Flexibility Act (5 U.S.C. 601
The proposed regulations would provide guidance to taxpayers intending to satisfy the PWA requirements to qualify for an increased credit or deduction under sections 30C, 45, 45Q, 45V, 45Y, 45Z, 48, 48C, 48E, and 179D and for those taxpayers intending to satisfy the Prevailing Wage Requirements to qualify for the increased credit under sections 45L and 45U. The proposed regulations would provide needed guidance for taxpayers on the use of wage determinations issued by the DOL, on the time and manner for reporting compliance with the PWA requirements, as well as needed definitions. The proposed regulations would also provide guidance concerning correction and penalty payments that can be made by taxpayers who initially fail to satisfy the PWA requirements in order to qualify for the increased credit and deduction amounts.
The Treasury Department and the IRS intend and expect that the increased credit amount of five times the base credit for taxpayers that ensure the payment of paying prevailing wages and hiring apprentices in the construction, alteration, or repair of qualified facilities provides financial incentives that will beneficially impact various industries involved in the production of and investment in clean energy. These proposed regulations would provide clarifying guidance that will assist taxpayers seeking to comply with the
The Treasury Department and the IRS also expect the financial incentives for taxpayers to ensure payment of prevailing wage rates and using apprentices will deliver benefits across the economy by creating increased opportunities for contractors and subcontractors as well as laborers and mechanics to become involved in clean energy production. Allowing these increased credits and an increased deduction for taxpayers who satisfy prevailing wage and apprentice requirements will incentivize expansion of clean energy resources and will reduce economy wide greenhouse gas emissions.
The RFA directs agencies to provide a description of, and where feasible, an estimate of, the number of small entities that may be affected by the proposed rules, if adopted. The Small Business Administration's Office of Advocacy estimates in its 2023 Frequently Asked Questions that 99.9 percent of American businesses meet its definition of a small business. The applicability of these proposed regulations does not depend on the size of the business, as defined by the Small Business Administration. As described more fully in the preamble to this proposed regulation and in this IRFA, section 45 and these proposed regulations may affect a variety of different entities across several different green energy industries as there are 12 different credits with increased credit amount provisions. Although there is uncertainty as to the exact number of small businesses within this group, the current estimated number of respondents to these proposed rules is 70,000 taxpayers as described in the Paperwork Reduction Act section of the preamble. The Treasury Department and the IRS expect to receive more information on the impact on small businesses through comments on this proposed rule.
The proposed regulations provide rules for how taxpayers can satisfy the PWA requirements in order to seek the increased credits under section 45 as well as the increased credit or deduction available under sections 30C, 45L, 45Q, 45U, 45V, 45Y, 45Z, 48, 48C, 48E, and 179D. Taxpayers that seek to claim the increased credit or deduction will have administrative costs related to reading and understanding these proposed rules, as well as increased costs for the recordkeeping and reporting requirements necessary to establish compliance with the PWA requirements. The costs will vary across different-sized taxpayers and across the type of facilities and projects in which such taxpayers are engaged.
The Prevailing Wage Requirements would require the taxpayer to obtain the published wage determination issued by the DOL for the county in which the facility is located. To the extent a wage determination does not include a required classification, or if no wage determination has been published, the taxpayer would be required to contact the DOL to obtain a supplemental wage determination or a wage rate for an additional classification. The taxpayer would be required to ensure that any contractor or subcontractor that works on the construction, alteration, or repair of a facility has paid hourly wages in accordance with the wage determination for each classification required to complete such work. In order to be eligible for certain proposed cure provisions, the taxpayer would be required to know or be able to determine whether the laborers and mechanics employed for construction, alteration, or repair of the facility were paid in accordance with the applicable wage determination. Additionally, the taxpayer would be required to retain records sufficient to establish compliance with these proposed regulations for as long as may be relevant. The Treasury Department and the IRS expect that some of the recordkeeping that would be required under these proposed rules will be consistent with recordkeeping requirements already imposed under the DBA and the Fair Labor Standards Act, 29 U.S.C. 201
For the Apprenticeship Requirements, the taxpayer, contractor, and subcontractor, would be required to contact a registered apprenticeship program for purposes of requesting the dispatch of qualified apprentices to work on the construction, alteration, or repair of the facility. Whether or not the registered apprenticeship program dispatches apprentices, the taxpayer would be required to retain records to establish compliance with these proposed regulations for as long as may be relevant.
The taxpayer claiming the increased credit would be required to report the payment of prevailing wages and the utilization of apprentices consistent with the forms and instructions of the IRS. Although the Treasury Department and the IRS do not have sufficient data to determine precisely the likely extent of the increased costs of compliance, the estimated burden of complying with the recordkeeping and reporting requirements are described in the Paperwork Reduction Act section of the preamble.
The Treasury Department and the IRS considered alternatives to the proposed regulations. The proposed regulations were designed to minimize burdens for taxpayers while ensuring that laborers and mechanics are paid the applicable wage rates and that the IRS has sufficient information to administer the increased credits and deduction provisions. The proposed regulations would not adopt the DBA requirement of submitting weekly certified payroll records to the IRS. The Treasury Department and IRS determined that submission of weekly payroll records to the IRS by taxpayers would not assist the IRS with the efficient administration of the increased credit provisions. The Treasury Department and the IRS also considered a requirement that taxpayers submit payroll records for all laborers and mechanics at the time of filing a return that claims an increased credit. The Treasury Department and the IRS determined that per laborer and per mechanic payroll records would not provide the IRS with useful information and would also involve substantial burdens for taxpayers to report such information.
Comments are requested on the requirements in the proposed regulations, including specifically, whether there are less burdensome alternatives that ensure the IRS has sufficient information to administer the increased credit claimed under section 45 as well as the increased credit and deduction amounts that are claimed under sections 30C, 45L, 45Q, 45U, 45V, 45Y, 45Z, 48, 48C, 48E, and 179D.
For energy facilities built under contracts with the Federal Government, or with Federal financial or other assistance provided under a Davis-Bacon Related Act, the proposed regulations may overlap with the rules under the DBA, 29 CFR parts 1, 5, and 7. In all other instances, the proposed regulations would not duplicate, overlap, or conflict with any relevant Federal rules. The Treasury Department
Pursuant to section 7805(f), this notice of proposed rulemaking has been submitted to the Chief Counsel for the Office of Advocacy of the Small Business Administration for comment on its impact on small business.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or Tribal government, in the aggregate, or by the private sector, of $100 million (updated annually for inflation). This proposed rule does not include any Federal mandate that may result in expenditures by State, local, or Tribal governments, or by the private sector in excess of that threshold.
Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This proposed rule does not have federalism implications and does not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.
Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) prohibits an agency from publishing any rule that has Tribal implications if the rule either imposes substantial, direct compliance costs on Indian Tribal governments, and is not required by statute, or preempts Tribal law, unless the agency meets the consultation and funding requirements of section 5 of the Executive order.
The Treasury Department and the IRS will hold a consultation with Tribal leaders related to the prevailing wage and apprenticeship requirements in these proposed regulations, which will inform the development of the final regulations.
Pursuant to the Memorandum of Agreement, Review of Treasury Regulations under Executive Order 12866 (June 9, 2023), tax regulatory actions issued by the IRS are not subject to the requirements of section 6 of Executive Order 12866, as amended. Therefore, a regulatory impact assessment is not required.
Before these proposed amendments to the regulations are adopted as final regulations, consideration will be given to comments regarding the notice of proposed rulemaking that are submitted timely to the IRS as prescribed in the preamble under the
A public hearing has been scheduled for November 21, 2023, beginning at 10 a.m. ET, in the Auditorium at the Internal Revenue Building, 1111 Constitution Avenue NW, Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. Participants may alternatively attend the public hearing by telephone.
The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit an outline of the topics to be discussed and the time to be devoted to each topic by October 30, 2023. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing. If no outline of the topics to be discussed at the hearing is received by October 30, 2023, the public hearing will be cancelled. If the public hearing is cancelled, a notice of cancellation of the public hearing will be published in the
Individuals who want to testify in person at the public hearing must send an email to
Individuals who want to testify by telephone at the public hearing must send an email to
Individuals who want to attend the public hearing in person without testifying must also send an email to
Hearings will be made accessible to people with disabilities. To request special assistance during a hearing please contact the Publications and Regulations Branch of the Office of Associate Chief Counsel (Procedure and Administration) by sending an email to
Guidance cited in this preamble is published in the Internal Revenue Bulletin and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at
The principal author of these proposed regulations is the Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Treasury Department and the IRS participated in the development of the proposed regulations.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, the Treasury Department and the IRS propose to amend 26 CFR part 1 as follows:
26 U.S.C. 7805 * * *
Section 1.30C-3 also issued under 26 U.S.C. 30.
Section 1.45-6 also issued under 26 U.S.C. 45.
Section 1.45-7 also issued under 26 U.S.C. 45.
Section 1.45-8 also issued under 26 U.S.C. 45.
Section 1.45-12 also issued under 26 U.S.C. 45.
Section 1.45L-3 also issued under 26 U.S.C. 45L.
Section 1.45Q-6 also issued under 26 U.S.C. 45Q.
Section 1.45U-3 also issued under 26 U.S.C. 45U.
Section 1.45V-3 also issued under 26 U.S.C. 45V.
Section 1.45Y-3 also issued under 26 U.S.C. 45Y.
Section 1.45Z-3 also issued under 26 U.S.C. 45Z.
Section 1.48-13 also issued under 26 U.S.C. 48.
Section 1.179D-3 also issued under 26 U.S.C. 179D.
(a)
(b)
(1) A project the construction of which began prior to January 29, 2023; or
(2) A project that meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7, the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12.
(c)
This section lists the table of contents for §§ 1.45-1 through 1.45-12.
(a) In general.
(b) Qualified facility requirements.
(c) Definition of nameplate capacity for purposes of determining maximum net output under section 45(b)(6)(B)(i).
(d) Applicability date.
(a) In general.
(b) Wage determinations.
(c) Curing a failure to satisfy the prevailing wage requirements.
(d) Definitions.
(e) Applicability date.
(a) In general.
(b) Labor hours requirement.
(c) Application of apprentice-to-journeyworker ratio.
(d) Participation requirement.
(e) Exceptions to the Apprenticeship Requirements.
(f) Definitions.
(g) Applicability date.
(a) In general.
(b) Recordkeeping for prevailing wage and apprenticeship requirements.
(c) Recordkeeping for prevailing wage requirements.
(d) Recordkeeping for apprenticeship requirements.
(e) Applicability date.
(a)
(b)
(1) A facility with a maximum net output (as determined under paragraph (c) of this section) of less than one megawatt (as measured in alternating current);
(2) A facility the construction of which began prior to January 29, 2023; or
(3) A facility that meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7, the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12.
(c)
(d)
(a)
(b)
(2)
(3)
(ii)
(B)
(
(
(
(
(
(
(
(
(
(
(
(iii)
(4)
(5)
(6)
(7)
(ii)
(iii)
(iv)
(c)
(i)
(A) The difference between the amount of wages paid to such laborer or mechanic for all hours worked during such period and the amount of wages required to be paid to such laborer or mechanic pursuant to paragraph (a) of this section for all hours worked during such period; and
(B) Interest on the amount determined under paragraph (c)(1)(i)(A) of this section at the Federal short-term rate as determined under section 6621 but substituting “6 percentage points” for “3 percentage points” in section 6621(a)(2).
(ii)
(iii)
(iv)
(v)
(A)
(B)
(C)
(2)
(3)
(A) The correction payment under paragraph (c)(1)(i) of this section is increased to three times the sum determined in paragraph (c)(1)(i) of this section; and
(B) The penalty payment under paragraph (c)(1)(ii) of this section is increased to $10,000 multiplied by the total number of laborers and mechanics who were paid wages at a rate below the rate described in paragraph (b) of this section for any period during such year.
(ii)
(iii)
(A) Whether the failure was part of a pattern of conduct that includes repeated or systemic failures to ensure that the laborers and mechanics were paid wages at or above the applicable prevailing wage rate;
(B) Whether the taxpayer failed to take steps to determine the applicable classifications of laborers and mechanics;
(C) Whether the taxpayer failed to take steps to determine the applicable prevailing wage rate(s) for laborers and mechanics;
(D) Whether the taxpayer promptly cured any failures to ensure that laborers and mechanics were paid wages not less than the applicable prevailing rates;
(E) Whether the taxpayer has been required to make a penalty payment under paragraph (c)(1)(ii) of this section in previous years;
(F) Whether the taxpayer undertook a quarterly, or more frequent, review of wages paid to mechanics and laborers to ensure that wages not less than the applicable prevailing wage rate were paid;
(G) Whether the taxpayer included provisions in any contracts entered into with contractors that required the contractors and any subcontractors retained by the contractors to pay laborers and mechanics at or above the prevailing wage rates and maintain records to ensure the taxpayer's compliance with recordkeeping requirements set forth in § 1.45-12;
(H) Whether the taxpayer posted in a prominent place at the facility or otherwise provided written notice to laborers and mechanics during the construction, alteration, or repair of the facility, of the applicable wage rate(s) as determined by the U.S. Department of Labor for all classifications of work to be performed for the construction, alteration, or repair of the facility, and that in order to be eligible to claim certain tax benefits, employers must ensure that laborers and mechanics are paid wages at rates not less than such wage rates; and
(I) Whether the taxpayer had in place procedures whereby laborers and mechanics could report suspected failures to pay prevailing wages and/or suspected failures to classify workers in accordance with the wage determination of workers to appropriate personnel departments or managers without retaliation or adverse action.
(iv)
(4)
(ii)
(5)
(6)
(A) The laborer or mechanic is paid wages at rates less than the amount required to be paid under paragraph (b) of this section for not more than 10 percent of all pay periods of the calendar year (or part thereof) during which the laborer or mechanic was employed in the construction, alteration, or repair of the qualified facility; or
(B) The difference between the amount the laborer or mechanic was paid during the calendar year (or part thereof) and the amount required to be paid under paragraph (b) of this section is not greater than 2.5 percent of the amount required to be paid under paragraph (b) of this section.
(ii)
(A) Bind all contractors and subcontractors on the construction project through the inclusion of appropriate specifications in all relevant solicitation provisions and contract documents;
(B) Contain guarantees against strikes, lockouts, and similar job disruptions;
(C) Set forth effective, prompt, and mutually binding procedures for resolving labor disputes arising during the term of the project labor agreement;
(D) Contain provisions to pay prevailing wages;
(E) Contain provisions for referring and using qualified apprentices consistent with section 45(b)(8)(A) through (C) and guidance issued thereunder; and
(F) Be a collective bargaining agreement with one or more labor organizations (as defined in 29 U.S.C. 152(5)) of which building and construction employees are members, as described in 29 U.S.C. 158(f).
(iii)
(A)
(B)
(C)
(D)
(d)
(1)
(2)
(ii)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(e)
(a)
(b)
(2)
(i) 10 percent in the case of a qualified facility, the construction of which begins before January 1, 2023;
(ii) 12.5 percent in the case of a qualified facility, the construction of which begins after December 31, 2022, and before January 1, 2024; and
(iii) 15 percent in the case of a qualified facility, the construction of which begins after December 31, 2023.
(c)
(2)
(3)
(d)
(e)
(1)
(A)
(
(
(B)
(C)
(ii)
(A)
(B)
(C)
(D)
(E)
(F)
(2)
(A)
(B)
(C)
(D)
(
(
(
(
(ii)
(B)
(C)
(
(
(
(
(
(
(D)
(iii)
(iv)
(v)
(f)
(1)
(2)
(3)
(4)
(5)
(6)
(g)
(a)
(b)
(c)
(1) Identifying information, including the name, social security or tax identification number, address, telephone number, and email address;
(2) The location and type of qualified facility;
(3) The labor classification(s) the taxpayer applied to the laborer or mechanic for determining the prevailing wage rate and documentation supporting the applicable classification, including the applicable wage determination;
(3) The hourly rate(s) of wages paid (including rates of contributions or costs for bona fide fringe benefits or cash equivalents thereof) for each applicable labor classification;
(4) Records to support any contribution irrevocably made on behalf of a laborer or mechanic to a trustee or other third person pursuant to a bona fide fringe benefit program, and the rate of costs that were reasonably anticipated in providing bona fide fringe benefits to laborers and mechanics pursuant to an enforceable commitment to carry out a plan or program described in 40 U.S.C. 3141(2)(B), including records demonstrating that the enforceable commitment was provided in writing to the laborers and mechanics affected;
(5) The total number of labor hours worked per pay period;
(6) The total wages paid for each pay period (including identifying any deductions from wages);
(7) Records to support wages paid to any apprentices at less than the applicable prevailing wage rates, including records reflecting the registration of the apprentices with a registered apprenticeship program and the applicable wage rates and apprentice to journeyworker ratios prescribed by the apprenticeship program; and
(8) The amount and timing of any correction payments and documentation reflecting the calculation of the correction payments.
(d)
(1) Any written requests for the employment of apprentices from registered apprenticeship programs, including any contacts with the U.S. Department of Labor's Office of Apprenticeship or a State apprenticeship agency regarding requests for apprentices from registered apprenticeship programs;
(2) Any agreements entered into with registered apprenticeship programs with respect to the construction, alteration, or repair of the facility;
(3) Documents reflecting the standards and requirements of any registered apprenticeship program, including the applicable ratio requirement prescribed by each registered apprenticeship program from which taxpayers, contractors, or subcontractors employ apprentices;
(4) The total number of labor hours worked by apprentices; and
(5) Records reflecting the daily ratio of apprentices to journeyworkers.
(e)
(a)
(1) Meets the requirements under section 45L(c)(1)(A) or 45L(c)(1)(B), as applicable;
(2) Is constructed by an eligible contractor;
(3) Is acquired by a person for use as a residence during the taxable year; and
(4) Satisfies the prevailing wage requirements of section 45(b)(7) and § 1.45-7, and the recordkeeping and reporting requirements of § 1.45-12.
(b)
(2)
(c)
(a)
(b)
(1) With respect to a qualified facility the construction of which begins on or after January 29, 2023, and any carbon capture equipment placed in service at such facility, the taxpayer meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7 with respect to such facility and equipment, the apprenticeship requirements of section 45(b)(8) and § 1.45-8 with respect to the construction of such facility and equipment, and the recordkeeping and reporting requirements of § 1.45-12;
(2) With respect to any carbon capture equipment the construction of which begins on or after January 29, 2023, and which is installed at a qualified facility the construction of which began prior to such date, the taxpayer meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7 with respect to such equipment, the apprenticeship requirements of section 45(b)(8) and § 1.45-8 with respect to the construction of such equipment, and the recordkeeping and reporting requirements of § 1.45-12; or
(3) The construction of carbon capture equipment begins prior to January 29, 2023, and such equipment is installed at a qualified facility the construction of which begins prior to January 29, 2023.
(c)
(a)
(b)
(a)
(b)
(1) A facility the construction of which began prior to January 29, 2023, and that meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7 with respect to an alteration or repair of the facility that occurs after January 29, 2023 (to the extent applicable), and that meets the recordkeeping and reporting requirements of § 1.45-12; or
(2) A facility that meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7, the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12.
(c)
(a)
(b)
(1) A facility with a maximum net output of less than one megawatt (as measured in alternating current);
(2) A facility the construction of which began prior to January 29, 2023; or
(3) A facility that meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7, the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12.
(c)
(a)
(b)
(1) A qualified facility that begins construction on or after January 29, 2023, and is placed in service after December 31, 2024, that meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7, the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12; or
(2) A qualified facility that is placed in service before January 1, 2025, that meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7, the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12, with respect to any alteration or repair of the facility with respect to any taxable year beginning after December 31, 2024, for which the credit is allowed under section 45Z.
(c)
(a)
(b)
(1) A project with a maximum net output of less than one megawatt (as measured in alternating current) or thermal energy;
(2) A project the construction of which began prior to January 29, 2023; or
(3) A project that meets the prevailing wage requirements of section 48(a)(10)(A) and § 1.45-7(b)-(d), the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12.
(c)
(2)
(3)
(d)
(a)
(b)
(a)
(b)
(1) A facility with a maximum net output of less than one megawatt (as measured in alternating current);
(2) A facility the construction of which began prior to January 29, 2023;
(3) A facility that meets the prevailing wage requirements of § 1.48-13(c), the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12;
(4) Energy storage technology with a capacity of less than one megawatt;
(5) Energy storage technology the construction of which began prior to January 29, 2023; or
(6) Energy storage technology that satisfies the prevailing wage requirements of § 1.48-13(c), the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12.
(c)
(a)
(b)
(1) Property the installation of which began prior to January 29, 2023; or
(2) Property that meets the prevailing wage requirements of section 45(b)(7) and § 1.45-7, the apprenticeship requirements of section 45(b)(8) and § 1.45-8, and the recordkeeping and reporting requirements of § 1.45-12.
(c)
Transportation Security Administration, Department of Homeland Security.
Notice of proposed rulemaking.
The Transportation Security Administration (TSA) is proposing to amend the REAL ID regulations to waive, on a temporary and State-by-State basis, the regulatory requirement that mobile or digital driver's licenses or identification cards (collectively “mobile driver's licenses” or “mDLs”) must be compliant with REAL ID requirements to be accepted by Federal agencies for official purposes, as defined by the REAL ID Act, when full enforcement of the REAL ID Act and regulations begins on May 7, 2025.
Interested persons are invited to submit comments on or before October 16, 2023.
You may submit comments, identified by the TSA docket number to this rulemaking, to the Federal Docket Management System (FDMS), a government-wide, electronic docket management system. To avoid duplication, please use only one of the following methods:
•
•
•
George Petersen, Senior Program Manager, REAL ID Program, Enrollment Services and Vetting Programs, Transportation Security Administration; telephone: (571) 227-2215; email:
Please do not submit comments to these addresses.
TSA invites interested persons to participate in this NPRM by submitting written comments, including relevant data. Comments that will provide the most assistance to TSA will reference a specific portion of this proposed rule, explain the reason for any suggestion or recommended change, and include data, information, or authority that supports such suggestion or recommended change.
With each comment, please identify the docket number at the beginning of your comments. You may submit comments and material electronically, by mail, or fax as provided under
If you would like TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard or envelope on which the docket number appears and we will mail it to you.
All comments, except those that include confidential or SSI
Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in the
• TSA will not place comments containing SSI in the public docket and will handle them with applicable safeguards and restrictions on access.
• TSA will hold documents containing SSI, confidential business information, or trade secrets in a separate file to which the public does not have access, and place a note in the public docket explaining that commenters have submitted such documents.
• TSA may include a redacted version of the comment in the public docket.
• TSA will treat requests to examine or copy information that is not in the public docket as any other request under the Freedom of Information Act (5 U.S.C. 552) and the Department of Homeland Security (DHS) Freedom of Information Act regulation found in 6 CFR part 5.
Please be aware that anyone is able to search the electronic form of all comments in any of our dockets by the name of the individual, association, business entity, labor union,
You may review TSA's electronic public docket at
You can find an electronic copy of this rulemaking using the internet by accessing the Government Publishing Office's web page at
This proposed rule is part of an incremental, multi-phased rulemaking that will culminate in the promulgation of comprehensive requirements for State issuance of REAL ID
Second, TSA is proposing to establish a temporary waiver process that would permit Federal agencies to accept mDLs for official purposes,
As noted above, this proposed rule is part of an incremental rulemaking that would temporarily permit Federal agencies to accept mDLs for official purposes until TSA issues a subsequent rule that would set comprehensive requirements for mDLs. TSA believes it is premature to issue such requirements before the May 7, 2025, deadline due to the need for emerging industry standards and government guidelines to be finalized (discussed in more detail in Part II.D., below).
The need for this rulemaking arises from TSA's desire to accommodate and foster the rapid pace of mDL innovation, while ensuring the intent of the REAL ID Act and regulations are met. Secure driver's licenses and identification cards are a vital component of our national security framework. The REAL ID Act of 2005 addressed the 9/11 Commission's recommendation that the Federal Government “set standards for the issuance of sources of identification, such as driver's licenses.” Under the REAL ID Act and regulations, a Federal agency may not accept for any official purpose a State-issued driver's license or identification card, either physical or an mDL, that does not meet specified requirements, as detailed in the REAL ID regulations (
Although the current regulatory provisions do not include requirements that would enable States to issue REAL ID-compliant mDLs, several States are already investing significant resources to develop mDLs based on varying and often proprietary standards, many of which may lack the security, privacy,
Absent the proposed rule, individual States may choose insufficient mDL security and privacy safeguards that fail to meet the security purposes of REAL ID requirements and the privacy needs of users. The proposed rule would address these considerations by enabling TSA to grant a waiver to States whose mDLs TSA determines provide sufficient safeguards for security and privacy, pending completion of emerging standards. Without timely guidance from the Federal government regarding potential requirements for developing a REAL ID-compliant mDL, States risk investing in mDLs that are not aligned with emerging industry standards and government guidelines that may be IBR'd in a future rulemaking. States, therefore, may become locked-in to existing solutions and could face a substantial burden to redevelop products acceptable to Federal agencies under this future rulemaking.
Many stakeholders have already expressed these concerns to TSA. In response to an April 2021 Department of Homeland Security (DHS) Request for Information (RFI),
Although this proposed rule would not set standards for the issuance of REAL ID-compliant mDLs, it does establish minimum requirements that States must meet to be granted a waiver. These proposed minimum standards and requirements would ensure that States' investments in mDLs provide minimum privacy and security safeguards consistent with information currently known to the TSA.
As further discussed in part II.A., below, mDLs cannot be accepted by Federal agencies for official purposes when REAL ID full enforcement begins on May 7, 2025, unless 6 CFR part 37 is amended to address mDLs. This proposed rule would establish a process for waiving, on a temporary and State-by-State basis, the current prohibition on Federal acceptance of mDLs for official purposes, and enable Federal agencies to accept mDLs on an interim basis while the industry matures to a point sufficient to enable TSA to develop more comprehensive mDL regulatory requirements.
The current regulations prohibit Federal agencies from accepting non-compliant driver's licenses and identification cards, including both physical cards and mDLs, when REAL ID enforcement begins on May 7, 2025. Any modification of this regulatory provision must occur through rulemaking (or legislation). Until and unless TSA promulgates comprehensive mDL regulations that enable States to develop and issue REAL ID-compliant mDLs, mDLs cannot be developed to comply with REAL ID, and Federal agencies therefore cannot accept mDLs for official purposes after REAL ID enforcement begins on May 7, 2025. The proposed rule would allow the Federal government to accept mDLs on an interim basis, but only if all of the following conditions are met: (1) the mDL holder has been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card, (2) TSA has determined the issuing State to be REAL ID-compliant, and (3) TSA has issued a waiver to such State based on that State's compliance with minimum privacy, safety, and interoperability requirements proposed in this rulemaking. Please see Part II.A., below, for an explanation of the REAL ID requirement that both cards and issuing States must be REAL ID compliant.
TSA recognizes both that regulations can influence long-term industry research and investment decisions and that premature regulations can distort the choices of technologies adopted, which can be costly to undo. As noted above, there are clear reasons for TSA to issue requirements for mDLs. First, there is a growing demand for and interest in mDLs due to their potential benefits of increased convenience, security, and privacy. Second, to meet this demand, States are beginning to invest in the infrastructure and programs to issue mDLs. Third, in the absence of Federal regulations and guidelines as outlined in this rulemaking, States may make unsuitable investments and issue mDLs that Federal agencies cannot accept. Fourth, adoption and use of mDLs could be thwarted if current regulations are not amended to accommodate mDLs when REAL ID enforcement begins on May 7, 2025.
At the same time, however, TSA believes it is premature to issue final, comprehensive requirements for mDLs given the rapid pace of innovation in this nascent market, and the multiple emerging industry and government standards and guidelines necessary to ensure mDL privacy and security that are still in development. From comments submitted in response to the RFI, TSA recognizes that technology and stakeholder positions in this industry are diverse and evolving. TSA also conducted a comprehensive analysis of industry and Government standards and guidance, and the types of technology currently available. Based on this analysis, a few international industry standards applicable to mDLs are available,
Although TSA believes it is premature to establish comprehensive requirements at this time, TSA believes it is appropriate to use its regulatory authority to establish a waiver process with clear standards and requirements to facilitate the acceptance of mDLs while the industry matures and moves to accepted standards. Therefore, TSA has decided to proceed with a multi-phased rulemaking approach. Initial efforts focused on research and gathering information from interested stakeholders, commencing with publication of the pre-rulemaking RFI that was intended to inform any subsequent rulemaking. “Phase 1,” the current phase, would establish a temporary waiver process. This waiver process would enable secure use of mDLs when REAL ID enforcement begins on May 7, 2025, while providing TSA additional operational experience and data from TSA, which will accept mDLs during the waiver period before eventually issuing comprehensive regulations. The proposed rule is
Following publication of industry standards currently under development, TSA anticipates conducting a “Phase 2” rulemaking that would repeal the temporary waiver provisions, including appendix A to subpart A of the part (discussed in Part III.B.4.iv., below) established in Phase 1 and establish more comprehensive requirements enabling States to issue mDLs that comply with REAL ID requirements. At this time, TSA anticipates the Phase 2 rulemaking would IBR pertinent parts of some emerging standards (pending review of those final, published documents) regarding specific requirements for security, privacy, and interoperability, and distinguish between existing regulatory requirements that apply only to mDLs versus physical cards. Comments received in Phase 1, experience and data gained from temporary Federal mDL acceptance under a waiver, TSA testing of mDL acceptance at TSA airport security checkpoints, and publication of emerging standards, will inform the Phase 2 rulemaking. As one commenter
This iterative rulemaking approach supports Executive Order (E.O.) 14058 of December 13, 2021 (Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government), by using “technology to modernize Government and implement services that are simple to use, accessible, equitable, protective, transparent, and responsive for all people of the United States.”
The REAL ID Act of 2005 sets minimum requirements for State-issued driver's licenses and identification cards accepted by Federal agencies for official purposes, including accessing Federal facilities, boarding federally regulated commercial aircraft, entering nuclear power plants, and any other purposes that the Secretary shall determine.
On January 29, 2008, DHS published a final rule implementing the Act's requirements.
Card-based enforcement begins on May 7, 2025.
On December 21, 2020, Congress passed the REAL ID Modernization Act
In April 2021, DHS issued an RFI announcing DHS's intent to commence future rulemaking to set the minimum technical requirements and security standards for mDLs to enable Federal agencies to accept mDLs for official purposes. The RFI requested comments and information to inform DHS's rulemaking.
The RFI requested comments on 13 specific topics, including: potential security risks arising from mDL usage and mitigating solutions, potential privacy concerns or benefits associated with mDL transactions, the maturity of certain industry standards and the appropriateness of DHS's adoption of them, costs to individuals to obtain mDLs, and various technical topics associated with mDL issuance and communications. In response, DHS received about 60 comments. Please see Part IV, below, for a detailed discussion of the comments received, which are also referenced throughout this preamble.
Driven by increasing public demand for more convenient, secure, and privacy-enhancing forms of identification, many States have invested significantly and rapidly in recent years to develop mDL technology. An mDL is generally recognized as the digital representation of an individual's identity information contained on a State-issued physical driver's license or identification card.
Unlike physical driver's licenses that are read and verified visually through human inspection of physical security features, an mDL is read and verified electronically using a device known simply as a “reader” (discussed in Part II.C.2., below). Physical cards employ physical security features to deter fraud and tampering, such as “easily identifiable visual or tactile [security] features” on the surface of a card.
Generally, mDL-based identity verification under REAL ID would involve a triad of secure communications between a State driver's licensing agency, an mDL holder, and a Federal agency. Specifically, and as shown in Fig. 1, below, the following three communications would occur: (1) Issuance and Updates: the DMV would issue or “provision” an mDL onto a mobile device of the person requesting the mDL (who then becomes the mDL holder), (2) Data Transfer: the mDL holder would authorize release of relevant data from the device to a Federal agency, which would use a reader to retrieve data, and (3) Validation: the Federal agency would use a reader, to confirm that the data originated from the issuing DMV and is unchanged, by verifying the DMV's public key. Although not depicted in Fig. 1, the Federal agency would also validate (via human inspection or facial matching software) that the mDL belongs to the individual presenting it by comparing the individual's live appearance to the photo retrieved by the reader. Standardized communication interfaces are necessary to enable Federal agencies to exchange information with all 56 U.S. States and territories that issue mDLs.
Any Federal agency that chooses to accept mDLs for REAL ID official purposes would need to procure and use readers to validate an mDL holder's identity data from their mobile device and establish trust that the mDL is secure by using private-public key data encryption. Non-Federal agencies, such as State agencies, businesses, and other entities who choose to accept mDLs for uses beyond the scope of REAL ID are not governed by the REAL ID Act or regulations and therefore would make their own independent decisions concerning reading mDLs and reader procurement.
An mDL reader can take multiple forms, ranging from software to hardware. In its simplest form, an mDL reader can be an app installed on a smartphone or other mobile device. A reader could also be a dedicated device. This is expected to be a low-cost solution that could be added to existing smartphones carried by a verifying entity's employee. While reader development is ongoing in the industry, TSA understands that companies are already beginning to offer verification apps for free on their commercial app stores. As reader technology continues to evolve, there will likely be wide range of reader options with various capabilities and associated price points.
As noted above, mDL-issuance is proliferating rapidly among States, with nearly half of all States piloting, issuing, or considering mDLs. As of the date of this NPRM, at least eight States (Arizona, Colorado, Delaware, Louisiana, Maryland, Mississippi, Oklahoma, and Utah) are issuing mDLs, and three States (Florida, Iowa, and Virginia) are currently piloting or have piloted mDLs. Additionally, at least 17 States (California, District of Columbia, Georgia, Hawaii, Illinois, Indiana, Kentucky, Michigan, Missouri, New Jersey, New York, North Dakota, Pennsylvania, Puerto Rico, Tennessee, Texas, and Wyoming) have indicated they are studying mDLs or considering enabling legislation.
Based on its analysis of the current environment, TSA believes that States are issuing mDLs using widely varying technology solutions, resulting in a fragmented environment rather than a common standard for issuance and use. The various States issuing or piloting mDLs are believed to be using technology solutions provided by multiple vendors, and it is not clear whether such technological diversity provides the safeguards and interoperability necessary for Federal acceptance. For example, in September 2021 and March 2022, Apple announced
Although detailed mDL adoption statistics are unavailable, anecdotal information and fragmented reporting indicates that mDLs are rapidly gaining public acceptance. For example, Louisiana has recently reported that over one million residents (representing more than 20% of its population) have installed Louisiana's mDL app on their mobile devices.
An mDL has potential benefits for all stakeholders. For Federal agencies that require REAL ID-compliant IDs for official purposes, mDLs may provide efficiency and security enhancements. Compared to physical cards, which rely on manual inspection of physical security features on the surface of a card designed to deter tampering and fraud, mDLs rely on digital security features that are immune to many vulnerabilities of physical security features. For individuals, some commenters noted that mDLs may provide a more secure, convenient, privacy-enhancing, and “touchless” method of identity verification compared to physical IDs.
The nascence of mDLs and absence of standardized mDL-specific requirements provide an opportunity for industry and government to develop standards and guidelines to close this void. TSA is aware of multiple such documents, both published and under development, from both Federal and non-government sources. This section discusses standards and guidelines that form the basis of many of the requirements proposed in this rulemaking, as well as additional documents that may inform the upcoming Phase 2 rulemaking. As discussed in Part III.B.8, below, this rulemaking proposes to amend § 37.4 by incorporating by reference into part 37 nineteen standards and guidelines. All proposed incorporation by reference material is available for inspection at DHS Headquarters in Washington DC, please email
In September 2022, the American Association of Motor Vehicle Administrators published mDL Implementation Guidelines (AAMVA Guidelines).
The Certification Authority Browser Forum (CA/Browser Forum) is an organization of vendors of hardware and software used in the production and use of publicly trusted certificates. These certificates are used by forum members, non-member vendors, and governments to establish the security and trust mechanisms for public key infrastructure-enabled systems. The CA/Browser Forum has published two sets of requirements applicable for any implementers of PKI, including States that are seeking to deploy Certificate Systems that must be publicly trusted and used by third parties:
• Baseline Requirements for the Issuance and Management of Publicly‐Trusted Certificates v. 1.8.6 (December 14, 2022), available at
• Network and Certificate System Security Requirements v. 1.7 (April 5, 2021), available at
These documents are available to the public for free at the links provided above.
To issue mDLs that can be trusted by Federal agencies, each issuing State must establish a certificate system, including a root certification authority that is under control of the issuing State. TSA believes the CA/Browser Forum requirements for publicly trusted certificates have been proven to be an effective model for securing online transactions. As discussed generally in Part III.B.4, below, appendix A to
DHS and the Cybersecurity and Infrastructure Security Agency (CISA) have published two guidelines which are relevant to the operations of States' mDL issuance systems:
• National Cyber Incident Response Plan (Dec. 2016), available at
• CISA Cybersecurity Incident & Vulnerability Response Playbooks (Nov. 2021), available at
Cybersecurity and Infrastructure Security Agency, Mail Stop 0380, 245 Murray Lane, Washington, DC 20528-0380, (888) 282-0870. These guidelines, available for free at the links provided above, provide details on best practices for management of systems during a cybersecurity incident, providing recommendations on incident and vulnerability response. Management of cybersecurity incidents and vulnerabilities are critical to maintenance of a State's mDL issuance information technology (IT) infrastructure. As discussed generally in Part III.B.4, below, appendix A to subpart A of the part, section 8, requires compliance with specified requirements of the DHS National Cyber Incident Response Plan and the CISA Cybersecurity Incident & Vulnerability Response Playbooks. Section 37.4 of this proposed rule would IBR these DHS and CISA standards.
Two international standards-setting organizations, the International Organization for Standardization (ISO) and the International Electrotechnical Commission (IEC),
In September 2021, ISO and IEC published international standard ISO/IEC 18013, Part 5, entitled, “Personal identification—ISO-compliant driving licence.” ISO/IEC 18013-5:2021,
The ISO/IEC 23220 Series of Technical Specifications, “Cards and security devices for personal identification—Building blocks for identity management via mobile devices,” cover international digital IDs broadly and are applicable to mDLs. ISO/IEC 23220:
• Part 3, “Protocols and services for installation and issuing phase,” covers data function calls and formatting that States will use to communicate (
• Part 5, “Trust models and confidence level assessment,” covers trust framework and provisioning, including confidence levels, identity proofing, binding, identity resolution, evidence validation, evidence verification, and holder authentication.
• Part 6, “Mechanism for use of certification on trustworthiness of secure area,” primarily covers device security requirements and trust of the secure areas in mobile devices.
TSA anticipates that Series ISO/IEC 23220 will define critical requirements for the interface between a State driver's licensing agency and mobile device. However, none of Parts 3, 5, and 6 of Series 23220 have published. TSA understands that drafts of Parts 3 and 5 may publish in late 2023, and final publication is possible by the end of 2024; publication dates for Part 6 are unknown, but a draft is anticipated in 2024. DHS received many comments in response to the RFI cautioning, however, that standard ISO/IEC 23220, Parts 3, 5, and 6, are not sufficiently mature to inform regulatory requirements.
The National Institute for Standards and Technology (NIST) has published Digital Identity Guidelines, NIST SP 800-63-3, that cover technical requirements for Federal agencies implementing digital identity. NIST Special Publication 800-63-3,
NIST has also published Digital Identity Guidelines Authentication and Lifecycle Management, NIST SP 800-63B, as a part of NIST SP 800-63-3. NIST Special Publication 800-63B,
NIST is developing a revision to the Digital Identity Guidelines, SP 800-63-4, which is expected to impact key issues related to mDL processes. This publication and its companion volumes NIST SP 800-63A Rev. 4, SP 800-63B Rev. 4, and SP 800-63C Rev. 4, provide technical guidelines for the implementation of digital identity services. Initial public drafts of this suite published in December 2022, and final drafts may publish in early 2024. The full suite of draft NIST Digital Identity Guidelines, NIST SP 800-63-4, are available for free as follows:
• NIST SP 800-63-4,
• NIST SP 800-63A Rev. 4
• NIST SP 800-63B Rev. 4
• NIST SP 800-63C Rev. 4
NIST also maintains the Federal Information Processing Standards (FIPS) which relate to the specific protocols and algorithms necessary to securely process data. This suite of standards includes:
• NIST FIPS PUB 140-3, Security Requirements for Cryptographic Modules (March 22, 2019), available at
• NIST FIPS PUB 180-4, Secure Hash Standard (SHS) (August 4, 2015), available at
• NIST FIPS PUB 186-5, Digital Signature Standard (DSS) (February 3, 2023), available at
• NIST FIPS PUB 197, Advanced Encryption Standard (AES) (November 26, 2001) available at
• NIST FIPS PUB 198-1, The Keyed-Hash Message Authentication Code (HMAC) (July 16, 2008) available at
• NIST FIPS PUB 202, SHA-3 Standard: Permutation-Based Hash and Extendable-Output Functions (August 4, 2015) available at
NIST has published several guidelines to protect the security and privacy of information systems:
• NIST SP 800-53 Rev. 5, Security and Privacy Controls for Information Systems and Organizations (September 2020), available at
• NIST SP 800-57 Part 1, Rev. 5, Recommendation for Key Management: Part 1—General (May 2020), available at
• NIST SP 800-57 Part 2, Rev. 1, Recommendation for Key Management: Part 2—Best Practices for Key Management Organizations (May 2019), available at
• NIST SP 800-57 Part 3, Rev. 1, Recommendation for Key Management, Part 3: Application-Specific Key Management Guidance (January 2015) available at
Collectively, NIST SP 800-53 Rev. 5 and NIST SP 800-57 provide relevant controls for States regarding mDL security and privacy covering a broad range of topics related to the administration of a certificate system including: access management; certificate life-cycle policies; operational controls for facilities and personnel; technical security controls; and vulnerability management such as threat detection, incident response, and recovery planning. Due to the sensitive nature of State Certificate System processes and the potential for significant harms to security if confidentiality, integrity, or availability of the certificate systems is compromised, the minimum risk controls specified in appendix A to subpart A of the part require compliance with the NIST SP 800-53 Rev. 5 “high baseline” as set forth in that document, as well as compliance with the specific risk controls described in the appendix. In addition, and as discussed generally in Part III.B, below: appendix A to subpart A of the part, secs. 1-8, require compliance with NIST SP 800-53 Rev. 5; secs. 1 and 5 require compliance with NIST SP 800-57 Part 1, Rev. 5; sec. 1 requires compliance with NIST SP 800-57 Part 2 Rev. 1; and sec. 1 requires compliance with NIST SP 800-57 Part 3, Rev. 1. Section 37.4 of this proposed rule would incorporate by reference NIST SP 800-53 Rev. 5 and the full suite of NIST SP 800-57 references discussed above.
NIST has published the Framework for Improving Critical Infrastructure Cybersecurity v. 1.1 (April 16, 2018), National Institute of Standards and Technology, U.S. Department of Commerce, 100 Bureau Drive, Gaithersburg, MD 20899, available at
In its RFI, DHS specifically sought comments on industry standards that could inform future regulatory requirements.
While TSA is not proposing to IBR these W3C standards in this NPRM, TSA understands that W3C is developing two standards concerning digital identification that, like the ISO/IEC Series of standards discussed above, may be relevant to the Phase 2 rulemaking. The W3C standards are “Verifiable Credentials Data Model v1.1” (VCDM v1.1) and “Decentralized Identifiers v1.0” (DID v1.0).
In March 2022, the W3C published VCDM v1.1. A “Verifiable Credential” (VC) is a form of digital identification, developed under this standard, with features that enable a verifying entity to confirm its authenticity.
In July 2022, W3C published complementary standard DID v1.0, which specifies the essential requirements to enable the use of diverse types of digital identification in online transactions. A “DID,” is a unique identifier used in online transactions that, for example, enables VC holders to authenticate themselves. A DID can be used in a blockchain system. Like the VCDM standard, DHS understands that the DIDs standard includes non-binding guidance, but no prescriptive specifications, concerning security and privacy.
In their current forms, TSA understands that the W3C VCDM standard and DID standard focus on the use of digital identification in unattended mode internet transactions, which is different from the attended, in-person REAL ID transactions contemplated for mDLs under this rulemaking. In addition, the current versions of the W3C standards do not set forth specific requirements concerning security and privacy or an mDL-specific data model, which may impede States from developing standardized, interoperable mDLs. Several commenters also expressed similar concerns.
TSA understands that the standards and guidelines discussed above in this Part II.D. are the most comprehensive and relevant references governing mDLs today. TSA also acknowledges that many additional standards and guidelines are in development covering diverse types of digital identification that can be issued and verified by different entities, both government and commercial. These emerging documents are expected to concisely synthesize the large body of existing work from NIST and standards-development organizations, and will provide standardized mechanisms for mDLs. After carefully evaluating comments concerning emerging industry standards and closely observing ongoing development, TSA does not endorse any emerging standards at this time. TSA will continue to monitor development, and the future Phase 2 rulemaking may incorporate by reference pertinent parts of emerging standards (pending review of final published documents) that TSA believes are appropriate for Federal acceptance of mDLs for REAL ID official purposes.
DHS and TSA have been actively participating in the mDL and digital identity space for many years to keep pace with industry developments. DHS has been participating in industry standards-development activities by serving as a non-voting member on working groups of the ISO/IEC and the W3C that are developing mDL/digital identity standards and technical specifications. Concurrently, DHS and TSA have been collaborating with industry to test the use of mDLs at various TSA security checkpoints. In 2022, TSA, under its collaboration with Apple (see Part II.C.3., above), launched a limited initiative that enables Arizona, Maryland, and Colorado residents to test the use of mDLs provisioned into the Apple Wallet app at select airport security checkpoints.
In addition to revising definitions applicable to the REAL ID Act to incorporate mDLs, this rule proposes changes to 6 CFR part 37 that would enable TSA to grant a temporary waiver to States that TSA determines issue mDLs consistent with specified TSA requirements concerning security, privacy, and interoperability. This rule would enable Federal agencies, at their discretion, to accept for REAL ID official purposes, mDLs issued by a State that has been granted a waiver. The proposed rule would apply only to Federal agency acceptance of State-issued mDLs as defined in this proposed rule for REAL ID official purposes, but not other forms of digital identification, physical driver's licenses or physical identification cards, or non-REAL ID purposes. Any temporary waiver issued by TSA would be valid for a period of 3 years from the date of issuance. The waiver enabled by this rulemaking would be repealed when TSA publishes a Phase 2 rule that would set forth comprehensive requirements for mDLs.
To obtain a waiver, a State would be required to submit an application, supporting data, and other documentation to establish that their mDLs meet TSA-specified criteria (discussed in Part III.B.4., below) concerning security, privacy, and interoperability. If the Secretary determines, upon evaluation of a State's application and supporting documents, that a State's mDL could be securely accepted under the terms of a waiver, the Secretary may issue such State a certificate of waiver. TSA intends to work with each State applying for a waiver on a case-by-case basis to ensure that its mDLs meet the minimum requirements necessary to obtain a waiver. This rulemaking would establish the full process for a State to apply for a waiver, including instructions for submitting the application and responding to subsequent communications from TSA as necessary, specific information and documents that a State must provide with its application, and requirements concerning timing, issuance of decisions, requests for reconsideration, and terms, conditions, and limitations related to waivers. To assist States that are considering applying for a waiver, TSA has developed guidelines, entitled, “Mobile Driver's License Waiver Application Guidance,” which provide non-binding recommendations of some ways that States can meet the application requirements set forth in this rulemaking.
TSA cautions, however, that the waiver enabled by this rulemaking is not a commitment by Federal agencies to accept mDLs issued by a State to whom TSA has granted a waiver. Federal agencies exercise full discretion over their identity verification policies, which may be subject to change. A Federal agency that accepts mDLs may suddenly halt acceptance for reasons beyond the agency's control, such as suspension or termination of a waiver, technical issues with IT systems, or a loss of resources to support mDLs. In such instances, an mDL holder seeking to use an mDL for REAL ID official purposes (including boarding commercially regulated aircraft or access to Federal facilities) may be denied such uses. To avoid this issue, TSA strongly urges all mDL holders to carry their physical REAL ID cards in addition to their mDLs. This will ensure that mDL holders are not disenfranchised from REAL ID uses if a Federal agency does not accept mDLs. Indeed, TSA has long advised that passengers who choose to present mDLs in TSA checkpoint testing must continue to have their physical cards readily available in the event that a TSA officer requires such identification.
TSA proposes adding new definitions to subpart A, § 37.3. In particular, new definitions for “mobile driver's license” and “mobile identification card” are necessary because the current regulations predated the emergence of mDL technology and, therefore, does not define these terms. Additionally, the definitions reflect changes made by the REAL ID Modernization Act, which amended the definitions of “driver's license” and “identification card” to specifically include “mobile or digital driver's licenses” and “mobile or digital identification cards.” The proposed definitions in this rule would provide a more precise definition of “mobile driver's license” and “mobile identification card” by clarifying that those forms of identification require a mobile electronic device to store the identification information, as well as an electronic device to read that information. TSA also proposes adding a new definition of “mDL” that collectively refers to mobile versions of both State-issued driver's licenses and State-issued identification cards as defined in the REAL ID Act. TSA also proposes adding additional definitions to explain terms used in § 37.10(a) and appendix A to subpart A to the part. For example, the proposed rule would add new defintions for “digital certificates” and “certificate systems,” which are necessary elements of risk controls for the IT systems that States use to issue mDLs. In addition, the rulemaking proposes adding a definition for “certificate policy,” which forms the governance framework for the State's certificate systems. A State must develop, maintain, and execute a certificate policy to comply with the requirements set forth in appendix A to subpart A of the part.
TSA proposes adding to subpart A new § 37.7, entitled “Temporary waiver for mDLs; State eligibility,” to establish the availability of a temporary waiver
To be eligible for consideration for a waiver, a State must meet the criteria set forth in proposed § 37.7(b). These criteria require that the issuing State: is in full compliance with REAL ID requirements; has submitted an application demonstrating that the State issues mDLs that provide security, privacy, and interoperability necessary for Federal acceptance; and issues mDLs only to individuals who have been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card. TSA's determination of whether a State satisfies the eligibility criteria would be based on TSA's evaluation of the information provided by the State in its application (see Part III.B.4., below), as well as other information available to TSA.
TSA proposes adding to subpart A new § 37.8, entitled “Requirements for Federal agencies accepting mDLs issued by States with temporary waiver.” This section proposes that any Federal agency that elects to accept mDLs for REAL ID official purposes must meet three requirements in proposed new § 37.8. First, a Federal agency must confirm that the State holds a valid certificate of waiver. Agencies would make this confirmation by verifying that the State's name appears in a list of States to whom TSA has granted a waiver. TSA would publish this list on the REAL ID website at
TSA proposes adding to subpart A new § 37.9, which would set forth a process for a State to request a temporary certificate of waiver established in new § 37.7. As provided in § 37.9(a), a State seeking a waiver must file a complete application as set forth in § 37.10(a) and (b), following instructions that would be available at
As set forth in § 37.10(a)(1) through (4), a State would be required to establish in its application how it issues mDL under the specified criteria for security, privacy, and interoperability suitable for acceptance by Federal agencies, as follows:
• Paragraph (a)(1) would set forth requirements for mDL provisioning.
• Paragraph (a)(2) would specify requirements for managing State Certificate Systems, which are set forth in appendix A to subpart A of the part.
• Paragraph (a)(3) would require a State to demonstrate how it protects personally identifiable information of individuals during the mDL provisioning process.
• Paragraph (a)(4) would require a State to establish: how it issues mDLs that are interoperable with requirements set forth in standard ISO/IEC 18013-5:2021; that the State uses only those algorithms for encryption,
Section 37.10(b) would require a State to submit an audit report prepared by an independent auditor verifying the accuracy of the information provided by the State in response to § 37.10(a), as follows:
• Paragraph (1) would set forth specific experience, qualifications, and accreditations that an auditor must meet.
• Paragraph (2) would require a State to provide information demonstrating the absence of a potential conflict of interest of the auditing entity.
As set forth in § 37.10(c), TSA proposes to publish “Mobile Driver's License Waiver Application Guidance,” in the
Appendix A to subpart A of the part sets forth fundamental requirements to ensure the security and integrity of State mDL issuance processes. More specifically, these requirements concern the creation, issuance, use, revocation, and destruction of the State's certificate systems and cryptographic keys. The appendix consists of requirements in eight categories: (1) Certificate Authority Certificate Life Cycle Policy, (2) Certificate Authority Access Management, (3) Facility, Management, and Operational Controls, (4) Personnel Security Controls, (5) Technical Security Controls, (6) Threat Detection, (7) Logging, and (8) Incident Response and Recovery Plan. Adherence to these requirements ensures that States issue mDLs in a standardized manner with security and integrity to establish the trust necessary for Federal acceptance for official purposes.
• Certificate Authority Certificate Life Cycle Policy requirements (appendix A, sec. 1) ensure that a State issuing an mDL creates and manages a formal process which follows standardized management and protections of digital certificates. These requirements must be implemented in full compliance with the references cited in the appendix: the CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, CA Browser Forum Network and Certificate System Security Requirement, NIST Cybersecurity Framework, NIST SP 800-53 Rev. 5, NIST SP 800-57, and NIST SP 800-53B.
• Certificate Authority Access Management requirements (appendix A, sec. 2) set forth policies and processes for States concerning, for example, restricting access to mDL issuance systems, policies for multi-factor authentication, defining the scope and role of personnel, and Certificate System architecture which separates and isolates Certificate System functions to defined security zones. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, NIST Cybersecurity Framework, NIST 800-53 Rev. 5, NIST SP 800-63-3, and NIST SP 800-63B.
• Under the requirements concerning Facility, Management, and Operational Controls (appendix A, sec. 3), States must provide specified controls protecting facilities where Certificate Systems reside from unauthorized access, environmental damage, physical breaches, and risks from foreign ownership, control, or influence. These requirements must be implemented in full compliance with the references cited in the appendix: NIST SP 800-53 Rev. 5.
• Personnel security controls (appendix A, sec. 4) require States to establish policies to control insider threat risks to Certificate Systems and facilities. Such policies must include establish screening criteria for personnel who access Certificate Systems, post-employment access termination, updates to personnel security policy, training, records retention schedules, among other policies. These requirements must be implemented in full compliance with the references cited in the appendix: NIST SP 800-53 Rev. 5 and CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates.
• Technical security controls (appendix A, sec. 5) specify requirements to protect Certificate System networks. In addition, States are required to protect private cryptographic keys of Issuing Authority Root Certificates using hardware security modules of Level 3 or higher and Document Signer private cryptographic keys in hardware security modules of Level 2 and higher. Other controls are specified regarding Certificate System architecture and cryptographic key generation processes. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, NIST Cybersecurity Framework, NIST SP 800-53 Rev. 5, NIST SP 800-57, and NIST FIPS 140-3.
• Under requirements for threat detection (appendix A, sec. 6), States must implement controls to monitor and log evolving threats to various mDL issuance infrastructure, including digital certificate, issuance, and support systems. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Network and Certificate System Security Requirements, CISA Cybersecurity Incident & Vulnerability Response Playbooks, NIST Cybersecurity Framework, NIST SP 800-53 Rev. 5.
• Logging controls (appendix A, sec. 7) require States to record various events concerning Certificate Systems, including the management of cryptographic keys, digital certificate lifecycle events. The controls set forth detailed requirements concerning specific types of events that must be logged, as well as timeframes for maintaining such logs. These requirements must be implemented in full compliance with the references cited in the appendix: CA Browser Forum Baseline Requirements for the Issuance and Management of Publicly-Trusted Certificates, NIST Cybersecurity Framework, and NIST SP 800-53 Rev. 5.
• Finally, section 8 of appendix A requires States to implement policies to respond to and recover from security incidents. States must act on logged events, issue alerts to relevant personnel, respond to alerts within a specified time period, perform vulnerability scans, among other things. In particular, States must provide written notice to TSA at
Section 37.9(b) would establish a timeline and process for TSA to issue decisions on a waiver application. Under this paragraph, TSA would endeavor to provide States a decision on initial applications within 60 days, but not longer than 90 days. TSA would provide three types of written notice via email: approved, insufficient, or denied.
If TSA approves a State's application for a waiver, TSA would memorialize that decision by issuing a certificate of waiver to that State, and including the State in a list of State-mDLs approved for Federal use, published by TSA on the REAL ID website at
If TSA determines that an application is insufficient, did not respond to certain information required in § 37.10(a) or (b), or contains other deficiencies, TSA would provide an explanation of such deficiencies and allow the State an opportunity address the deficiencies within the timeframe specified in § 37.9(b)(2). TSA would permit States to submit multiple amended applications if necessary, with the intent of working with States individually to enable their mDLs to comply with the requirements of § 37.10(a) and (b).
If TSA denies an application, TSA would provide the specific grounds for the basis of the denial and afford the State an opportunity to submit a new application. As stated in § 37.9(c), TSA would also provide a State an opportunity to seek reconsideration of a denied application. Instructions for seeking reconsideration would be provided by TSA on the REAL ID website at
Section 37.9(e) would set forth various restrictions on a certificate of waiver. Specifically, in paragraph (e)(1) of this section, TSA proposes that a certificate of waiver would be valid for a period of three years from the date of issuance. Paragraph (e)(2) proposes that a State must report to TSA if, after it receives a waiver, it makes significant modifications to its mDL issuance processes that differ in a material way from information that the State provided in its application. If the State makes such modifications, it would be required to report such changes 60 days before implementing the changes. This requirement is intended to apply to changes that may undermine the bases on which TSA granted a waiver. The reporting requirement is not intended to apply to routine, low-level changes, such as systems maintenance and software updates and patches. Paragraph (e)(3) would require a State that is issued a waiver to comply with all requirements specified in §§ 37.51(a) and 37.9(d)(3).
Section 37.9(e)(4) sets forth processes for suspension of certificates of waiver. As provided in proposed § 37.9(e)(4)(i)(A), TSA may suspend the validity of a certificate of waiver if TSA determines that a State:
• fails to comply with any terms and conditions (see § 37.9(d)(3)) specified in the certificate of waiver;
• fails to comply with reporting requirements (see § 37.9(e)(2)); or
• issues mDLs in a manner that is not consistent with the information the State provided in its application for a waiver under § 37.10(a) and (b).
Before suspending a waiver for these reasons, TSA will provide such State written notice via email that it intends to suspend its waiver, along with an explanation of the reasons, information on how the State may address the deficiencies, and a timeline for the State to respond and for TSA to reply to the State, as set forth in § 37.9(e)(4)(ii). DHS may withdraw the notice of suspension, request additional information, or issue a final suspension. If TSA issues a final suspension of a State's certificate of waiver, DHS will remove the name of that State from the list of mDLs approved for Federal acceptance for official purposes.
TSA additionally may suspend a State's waiver at any time upon discovery that Federal acceptance of a State's mDL is likely to cause imminent or serious threats to the security, privacy, or data integrity of any Federal agency, as proposed by § 37.9(e)(4)(i)(B). Suspension would apply to all Federal agencies and would not be agency-specific. Examples of such triggering events include cyber-attacks and other events that cause serious harm to a State's mDL issuance systems. If a State discovers a significant cyber incident that it believes could compromise the integrity of its mDL issuance systems, sec. 8.6 of appendix A to subpart A of the part would require States to provide written notice to TSA, at
It is TSA's intent to work with States to resolve the conditions that could lead to suspension and avoid issuing a final suspension. If TSA issues a final suspension of any State's certificate of waiver, TSA will temporarily remove the name of that State from the list of mDLs approved for Federal acceptance for official purposes. A State receiving a final suspension may apply for a new certificate of waiver by submitting a new application. Under § 37.9(e)(5), TSA may terminate a certificate of waiver for serious or egregious violations. More specifically, TSA may terminate a waiver if TSA determines that a State:
• does not comply with REAL ID requirements in § 37.51(a);
• is committing an egregious violation of any terms and conditions (see § 37.9(d)(3)) specified in the certificate of waiver and is unwilling to cure such violation;
• is committing an egregious violation of reporting requirements (see § 37.9(e)(2)) and is unwilling to cure such violation; or
• provided false information in its waiver application.
Before terminating a certificate of waiver, TSA would provide written notice via email of intent to terminate, including findings supporting the termination and an opportunity to present information. As specified, a State would have 7 days to respond to the notice, and TSA would respond via email within 30 days. TSA may withdraw the notice of termination, request additional information, or issue a final termination. If TSA issues a final termination of a State's certificate of waiver, TSA will remove the name of that State from the list of mDLs approved for Federal acceptance for official purposes. A State whose certificate of waiver has been terminated may apply for a new certificate of waiver by submitting a new application.
Section 37.9(f) clarifies that the status of a State's certificate of waiver, including the status of an application for a waiver, has no bearing on TSA's determination of that State's compliance or non-compliance with any other section of this part. A certificate of waiver that TSA has issued to a State is not a determination that the State is in compliance with any other section in this part. Similarly, an application for a waiver that TSA has deemed insufficient or denied, or a certificate of waiver TSA has suspended, terminated, or expired, is not a determination that the State is not in compliance with any other section in this part.
TSA proposes adding to subpart A, § 37.4, the following industry standards and government guidelines that this rulemaking proposes to incorporate by reference (discussed in detail in Part II.D., above):
The proposed changes would apply to State driver's licensing agencies issuing mDLs that seek a temporary waiver from TSA for its mDLs. The waiver would enable Federal agencies to accept such mDLs for official purposes, defined in the REAL ID Act as accessing Federal facilities, entering nuclear power plants, boarding federally regulated commercial aircraft, and any other purposes that the Secretary shall determine. Any Federal agency that chooses to accept mDLs for official purposes must procure a reader in order to receive an individual's identity data.
This proposed rule does not impose any requirements on:
• States that do not seek a waiver for mDLs;
• Non-State issuers of other forms of digital identification; or
• Federal agencies to accept mDLs.
A State seeking a waiver for Federal acceptance of its mDLs for official purposes would be required to file with TSA a complete application and supporting documents. An application form and instructions would be published by TSA in a form and manner prescribed by TSA, such as a TSA-specified website. Through the application, the State would be required to demonstrate how its mDLs meet the requirements for a waiver set forth in § 37.10(a) and (b).
The scope of this proposed rule is confined strictly to Federal acceptance of mDLs for official purposes, defined by the REAL ID regulations as accessing Federal facilities, entering nuclear power plants, and boarding federally regulated commercial aircraft. Any other purpose is beyond the scope of this rulemaking. For example, a waiver issued under this proposed rule would not apply to any of the following:
• mDL acceptance by Federal agencies for non-REAL ID official uses (
• mDL acceptance by non-Federal agencies (
• Commercial transactions; or
• Physical driver's licenses or identification cards.
Nothing in this proposed rule would
As discussed in Part II.B., above, DHS issued an RFI
DHS received roughly 60 comments to the RFI from a diverse group of stakeholders, including advocacy groups representing varied interests, individuals, State government agencies, trade associations, and industry. An analysis of comments received showed that topics of interest to stakeholders
In addition to the issues already discussed, many commenters raised concerns about potential privacy risks depending on the mode of data transfer. For background, an mDL reader can retrieve an individual's data under two different modes of operation: a “device retrieval” mode (also known as “offline”) in which data is retrieved directly from an mDL holder's mobile device, and a “server retrieval” mode (also known as “online”) in which the data is retrieved from a State driver's licensing agency.
DHS also received comments on other topics, including non-REAL ID use cases such as commercial transactions and technical information on various topics. As noted above, a waiver issued under the proposed rule would not address use of an mDL for commercial transactions or any other non-Federal purposes not covered by the REAL ID Act or regulations. In general, mDL acceptance by Federal agencies for non-REAL ID official purposes, mDL acceptance by non-Federal agencies, and mDL use in commercial transactions go beyond the scope of the REAL ID Act's official purposes. Although not the focus of this proposal, TSA may examine some of these issues through its on-going mDL efforts, such as mDL collaborations with industry, which could inform future regulatory proposals. To support this interest, TSA appreciates stakeholders' perspectives on these topics.
Under section 205 of the REAL ID Act, issuance of REAL ID regulations must be conducted in consultation with the Secretary of Transportation and the States. During the development of this NPRM, DHS and TSA consulted with the Department of Transportation and other Federal agencies with an interest in this rulemaking. DHS and TSA also consulted with State officials via AAMVA. In addition, DHS and TSA met with various non-governmental organizations, including civil rights and privacy advocacy groups. Stakeholder input, informed by extensive outreach, was critical to informing this NPRM.
Changes to Federal regulations must undergo several economic analyses. First, E.O. 12866 of September 30, 1993 (Regulatory Planning and Review),
E.O. 12866 and E.O. 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Under E.O. 12866, as amended by E.O. 14094, agencies must also determine whether a regulatory action is significant.
In conducting these analyses, TSA has made the following determinations:
(a) While TSA attempts to quantify costs where available, TSA primarily discusses the costs and benefits of this rulemaking in qualitative terms. At present, mDLs are part of an emerging and evolving industry with an elevated level of uncertainty surrounding costs and benefits. Nonetheless, TSA anticipates the rulemaking would not result in an effect on the economy of $200 million or more in any year of the analysis. The rulemaking would not adversely affect the economy, interfere with actions taken or planned by other agencies, or generally alter the budgetary impact of any entitlements.
(b) TSA has not prepared an Initial Regulatory Flexibility Analysis (IRFA) and, pursuant to 5 U.S.C. 605(b), the Secretary certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule would only directly regulate the fifty States, the District of Columbia, and the five U.S. territories who voluntarily participate in the mDL waiver process, who under the RFA are not considered small entities.
(c) TSA has determined that the NPRM imposes no significant barriers to international trade as defined by the Trade Agreement Act of 1979; and
(d) TSA has determined that the NPRM does not impose an unfunded mandate on State, local, or tribal governments, such that a written statement would be required under the UMRA, as its annual effect on the economy does not exceed the $100 million threshold (adjusted for inflation) in any year of the analysis.
TSA has prepared an analysis of its estimated costs and benefits, summarized in the following paragraphs, and in the OMB Circular A-4 Accounting Statement. When estimating the cost of a rulemaking, agencies typically estimate future expected costs imposed by a regulation over a period of analysis. For this proposed rule's period of analysis, TSA uses a 10-year period of analysis to estimate costs.
This proposed rule would establish a temporary waiver process that would permit Federal agencies to accept mDLs for official purposes, as defined in the REAL ID Act, when full enforcement of the REAL ID Act and regulations begins on May 7, 2025. Federal agencies would be able to accept mDLs for official purposes on an interim basis, provided that: (1) the mDL holder has been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card from the same State that issued the mDL; (2) TSA has determined the issuing State to be REAL ID-compliant; and (3) TSA has issued a waiver to the State. Federal agencies that opt to accept mDLs for official purposes must also procure a mDL reader in order to validate the identity of the mDL holder. As part of the application process for the mDL waiver, States would be required to submit to TSA an application, including supporting data, and other documentation necessary to establish that their mDLs meet specified criteria concerning security, privacy, and interoperability. The criteria concerning security, privacy, and interoperability would not change absent a subsequent rulemaking. When REAL ID Act and regulations enforcement begins on May 7, 2025, Federal agencies will be prohibited from accepting non-compliant driver's licenses and identification cards, including both physical cards and mDLs, for official purposes.
In the following paragraph TSA summarizes the estimated costs of the proposed rule on the affected parties: States, TSA, mDL users, and relying parties (Federal agencies that voluntarily choose to accept mDLs for official purposes). TSA has also identified other non-quantified impacts to affected parties. As Table 1 displays, TSA estimates the 10-year total cost of the proposed rule to be $826.8 million undiscounted, $695.6 million discounted at 3 percent, and $562.0 million discounted at 7 percent. The total cost to States comprises approximately 98 percent of the total quantified costs of the proposed rule.
States incur costs to familiarize themselves with the requirements of the proposed rule, purchase access to an industry standard, submit their mDL waiver application, submit an mDL waiver reapplication, and comply with mDL application criteria requirements. As displayed in Table 2, the 10-year cost to States is $813.7 million undiscounted, $684.2 million discounted at 3 percent, and $552.4 million discounted at 7 percent.
TSA incurs costs associated with reviewing mDL waiver applications and mDL waiver renewals, purchasing access to industry standards, procuring mDL readers, and mDL training. As displayed in Table 3, the 10-year cost to TSA is $9.84 million undiscounted, $8.62 million discounted at 3 percent, and $7.35 million discounted at 7 percent.
Relying parties represent Federal agencies that elect to accept a mDLs for official purposes. Per the proposed rule, relying parties would be required to use a mDL reader to retrieve and validate mDL data. As a result, relying parties would incur costs to procure mDL readers should they voluntarily choose to accept mDLs for official purposes. TSA is also considered a relying party, but due to the particular impact to TSA related to the requirement for REAL ID related to boarding federally regulated commercial aircraft, those impacts are discussed separately. As displayed in Table 4, the 10-year cost to relying parties is $3.29 million undiscounted, $2.74 million discounted at 3 percent, and $2.19 million discounted at 7 percent.
TSA has also identified other non-quantified impacts to the affected entities. States may incur costs to: monitor and study mDL technology as it evolves; resolve the underlying issues that could lead to a suspension or termination of a mDL waiver; report serious threats to security, privacy, or data integrity; report material changes to mDL issuance processes; remove conflicts of interest with a third-party auditor; and request reconsideration of a denied mDL waiver application. TSA may incur costs to: investigate circumstances that could lead to suspension or termination of a State's mDL waiver; provide notice to States, relying parties, and the public related to mDL waiver suspensions or terminations; develop an IT solution that maintains an up-to-date list of States with valid mDL waivers; and resolve a request for reconsideration of a denied mDL waiver application. mDL users may incur costs with additional application requirements to obtain a mDL. Relying parties may incur costs to resolve any security or privacy issue with the mDL reader; report serious threats to security, privacy, or data integrity; verifying the list of States with valid mDL waivers; train personnel to verify mDLs; and update the public on identification policies.
TSA believes that States implementing a mDL, absent the rulemaking, would still comply with the AAMVA mDL Implementation Guidelines (hereafter referred to as the “AAMVA Guidelines”). Many of the requirements of the mDL application criteria are already contained within the AAMVA Guidelines. This includes mDL application criteria concerning: data encryption; authentication; device identification keys; user identity verification; applicant presentation; REAL ID compliant physical card; data record; records retention; privacy; and interoperability. Only the mDL application criteria related to escalated review and infrastructure security/issuance are not contained with the AAMVA Guidelines. Operating under the assumption that States interested in mDLs would comply with the AAMVA Guidelines, TSA assumes the application criteria that overlap with the AAMVA Guidelines would otherwise be incurred and thus not included as a cost of the proposed rule. However, TSA requests comment on this assumption and any cost information associated with the mDL application criteria.
This proposed rule would establish mDL application criteria that would serve as an interim mDL standard for those States choosing to issue mDLs that can be accepted for official purposes. TSA's application criteria may help guide States in their development of mDL technologies which would provide a shared standard that could potentially improve efficiency while also promoting higher security, privacy, and interoperability safeguards.
The application criteria set requirements establishing security and privacy protections to safeguard an mDL holder's identity data. They also set interoperability requirements to ensure secure transactions with Federal agencies. States, via their mDL waiver application, must establish that their mDLs meet the application criteria thus helping to ensure adequate security and privacy protections are in place. Absent the proposed rule, individual States may choose insufficient security and privacy safeguards for mDL technologies that fail to meet the intended security purposes of REAL ID and the privacy needs of users.
mDLs themselves may provide additional security benefits by offering a more secure verification of an individual's identity and authentication of an individual's credential compared to physical cards. In general, mDLs use a cryptographic protocol that ensures the mDL was obtained through a trusted authority, such as a State's Department of Motor Vehicles.
TSA's mDL application criteria can help guide State development and investment in mDLs. The mDL application criteria would foster a level of standardization that would potentially reduce complexity by limiting individual State nuances while also ensuring interoperability across States and with the Federal Government. This increased interoperability reduces implementation costs by limiting the need for different protocols or mechanisms to accept mDLs from individual States.
Identification of mDL application criteria that can be used across States would result in efficiency gains through multiple States pursuing similar objectives, goals, and solutions. Establishing application criteria early in the technology development process has the potential to align development activities across disparate efforts. Early guidance might also reduce re-work or modifications required in future regulations thus saving time and resources redesigning systems and functionality to adhere to subsequent Federal guidelines.
Furthermore, the mDL application criteria may potentially encourage investment in mDLs and the pooling of resources to develop mDL technology capabilities across States and address common concerns or issues. Such collaboration, or unity of effort, can help spread research and development risk and reduce inefficiencies that may arise from States working independently. Greater clarity over mDL regulations, with the proposed rule part of an incremental, multi-phased rulemaking approach, may spur new entrants (States and technology companies) into the mDL ecosystem.
The proposed rule, would allow Federal agencies to continue to accept mDLs for official purposes when REAL ID enforcement begins. This would avoid the sudden halting of mDL acceptance when REAL ID enforcement begins which would reverse trends in providing for a more customer-friendly screening experience. The experience and insight learned through the mDL waiver process could also be used to inform future standards and rulemaking.
The OMB A-4 Accounting Statement presents annualized costs and qualitative benefits of the proposed rule.
In addition to the proposed rule, or the “preferred alternative”, TSA also considered four alternative regulatory options.
The first alternative (Alternative 1) represents the status quo, or no change relative to the proposed creation of a mDL waiver. This represents a scenario without a rulemaking or a waiver process to enable mDL acceptance for official Federal purposes. Under this alternative, States would continue to
The second alternative (Alternative 2) features the same requirements of the proposed rule, including an mDL waiver process, but allows for an auto acceptance of certain State waivers that are “low-risk.” TSA would identify mDLs from States who have fulfilled the proposed rule's minimum requirements prior to applying for the waiver and have sufficiently demonstrated (
Under the third alternative (Alternative 3), TSA would establish more comprehensive requirements than those in the proposed rule to ensure mDLs comply with the REAL ID Act. States would be required to adopt the more comprehensive requirement to issue valid mDLs that can be accepted for official purposes. These technical requirements could include specific standards related to mDL issuance, provisioning, verification, readers, privacy, and other security measures. TSA rejects this alternative because promulgating more comprehensive requirements for mDLs is premature, as both industry standards and technology used by States are still evolving. Restrictive requirements could stifle innovation by forcing all stakeholders to pivot toward compliance. This could impede TSA from identifying and implementing a more efficient regulatory approach in the future.
Finally, under the fourth alternative (Alternative 4), instead of a waiver process, TSA would first establish minimum requirements for issuing REAL ID compliant mDLs before TSA later sets more comprehensive requirements as additional guidance and standards become available in the mid- and long-term. The interim minimum requirements would consist of the same requirements for security, privacy, and interoperability, based on nineteen industry and government standards and guidelines, described in the proposed rule to guide waiver applications. Alternative 4 effectively would codify standards that may become obsolete in the near future, as existing standards are revised, emerging standards publish, and new cyber threats proliferate. TSA rejects this alternative because establishing minimum requirements that may become obsolete in the near future may limit the ability for TSA to revise standards quickly and would increase the security and privacy risks of accepting mDLs. In addition, costs under Alternative 4 would roughly be similar to costs under the proposed rule, as both options would require audits and other compliance costs. TSA requests comments as to whether finalizing these minimum requirements for REAL ID compliance would be preferable to the temporary waiver process described in this proposal. Specifically, TSA seeks comment on whether Alternative 4 would realize higher benefits, either quantitative or qualitative, for States and the public, than the waiver process described in this proposal. TSA also seeks comment on costs to the affected entities to comply with the minimum requirements.
The Regulatory Flexibility Act (RFA) of 1980, as amended,
In accordance with the RFA, TSA has not prepared a Regulatory Flexibility Analysis and pursuant to 5 U.S.C. 605(b), the Secretary certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule would directly impact States that voluntarily choose to apply for a waiver that would permit mDLs issued by those States to be accepted for official Federal purposes.
The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. The Trade Agreement Act does not consider legitimate domestic objectives, such as essential security, as unnecessary obstacles. The statute also requires that international standards be considered and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this proposed rule and has determined this rule would not have an adverse impact on international trade.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under sec. 202 of the UMRA, TSA generally must prepare a written Statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments in the aggregate or by the private sector of $100 million or more (adjusted for inflation) in any one year.
Before TSA promulgates a rule for which a written statement is required, sec. 205 of the UMRA generally requires TSA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rulemaking. The provisions of sec. 205 do not apply when they are inconsistent with applicable law. Moreover, sec. 205 allows TSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the final rule provides an explanation why that alternative was not adopted. Before TSA establishes any regulatory requirements that may
When adjusted for inflation, the threshold for expenditures becomes $177.1 million in 2022 dollars. TSA has determined that this proposed rule does not contain a Federal mandate that may result in expenditures that exceed that amount either for State, local, and tribal governments in the aggregate in any one year. TSA will publish a final analysis, including its response to public comments, when it publishes a final rule.
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
The proposed rule establishes a process for States to apply to TSA for a temporary waiver. Such a request is voluntary but would require the submission of an mDL waiver application, resubmission of an mDL waiver application deemed insufficient or denied, and reapplication for a mDL waiver when the term of the mDL waiver expires. All of these items would be considered new information collections.
TSA uses the current State of mDL implementation to inform its estimate on how many State entities would request a mDL waiver during the period of analysis.
Following the State submission of its mDL waiver application, TSA determines if the application is approved, insufficient, or denied. States are allowed to amend an insufficient or denied mDL waiver application and resubmit to TSA review.
TSA assumes that all submissions would initially be deemed insufficient due to the mDL waiver criteria being new and with mDLs an emerging technology. Nonetheless, TSA intends to work individually with interested States to meet the mDL criteria to maximize the likelihood of receiving a waiver. Based on these assumptions, TSA estimates all initial mDL waiver applications would be deemed insufficient and that 90 percent of States would resubmit their mDL waiver applications.
A State's mDL waivers would be valid for three years. Therefore, States granted a mDL waiver in Year 1 would need to reapply in Year 4 which is beyond the scope of this particular information collection.
TSA technology subject matter experts estimate that the mDL waiver application would take, on average, 20 hours to complete. TSA also estimates that mDL waiver resubmissions would take 25 percent of the initial mDL waiver application time which equates to 5 hours.
These hour burden estimates are combined with the number of collection activities to calculate the total and average time burden associated with the proposed rule. TSA estimates the proposed rule's total three-year burden for mDL waiver applications, mDL waiver resubmissions, and mDL waiver reapplications is 57 responses and 735 hours. TSA estimates an average yearly burden of 19 responses and 245 hours. Details of the calculation can be found in Table 6.
In addition, States TSA incur costs associated with independent entity audits of their mDL infrastructure. DHS estimates this cost at $32,500 per submission.
A rule has implications for federalism under E.O. 13132 of August 6, 1999 (Federalism) if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. TSA analyzed this proposed rule under this order and determined it does not have these implications for federalism.
E.O. 14058 of December 13, 2021 (Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government), is focused on enhancing the of technology “to modernize Government and implement services that are simple to use, accessible, equitable, protective, transparent, and responsive for all people of the United States.” The Secretary of Homeland Security has specifically committed to testing the use of innovative technologies at airport security checkpoints to reduce passenger wait times. This proposed rule supports this commitment. Using mDLs to establish identity at airport security checkpoints is intended to provide the public with increased convenience, security, privacy, and health benefits from “contact-free” identity verification. In 2022, DHS began a limited initiative to evaluate some mDLs to determine the viability of using an mDLs as a form of identification at an airport security checkpoint.
TSA analyzed this proposed rule under E.O. 13211 of May 18, 2001 (Actions Concerning Regulations That Significantly Affected Energy Supply, Distribution or Use), and determined that it is not a “significant energy action” under that E.O. and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, this rulemaking does not require a Statement of Energy Effects.
TSA reviews proposed actions to determine whether the National Environmental Policy Act (NEPA) applies to them and, if so, what degree of analysis is required. DHS Directive 023-01 Rev. 01 (Directive) and Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish the procedures that DHS and its components use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500 through 1508. The CEQ regulations allow Federal agencies to establish, with CEQ review and concurrence, categories of actions (“categorical exclusions”) which experience has shown do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment (EA) or Environmental Impact Statement (EIS).
While commenters are asked to comment on this proposal in its entirety, TSA specifically requests comments in response to the following questions. Commenters are encouraged to address issues that may not be discussed below based upon their knowledge of the issues and implications. In providing your comments, please follow the instructions in the Commenter Instructions section above.
1. Applications for waivers. Provide comments on:
a. The estimated cost and time required for States to complete and submit applications for waivers, including the initial mDL waiver application, resubmission, and reapplication;
b. The estimated number of States and territories that would submit a waiver application, and when those States and territories would submit a waiver application;
c. The percentage of States that would receive a decision of approved, insufficient, or denied;
d. The percentage of States receiving a decision of insufficient that would resubmit an amended application; and
e. The assumption that TSA would approve all resubmitted applications.
2. Application Criteria. Provide comments on:
a. The costs States may incur to demonstrate compliance with the criteria to apply for a waiver as required by proposed § 37.10(a) and appendix A
b. The appropriateness of the application requirements set forth in proposed § 37.10(a) and appendix A to subpart A of the part;
c. The impact that the Initial Public Versions of Revision 4 of NIST SP 800-63, NIST SP 800-63A, NIST SP 800-63B, and NIST SP 800-63C may have on the requirements set forth in proposed § 37.10(a) and appendix A to subpart A of the part, including States' ability to demonstrate compliance with the criteria to apply for a waiver as required by proposed § 37.10(a) and appendix A to subpart A of the part.
3. Audit report. Provide comments on requiring States to submit a report of an audit as required in proposed § 37.10(b), which report would require verifying the materials that a State would provide in its application for a waiver as required by proposed § 37.10(a), including:
a. The appropriateness of requiring an audit to be conducted by a recognized independent entity;
b. The appropriateness of requiring an auditor to hold an active Certified Public Accountant license in the State that is seeking a waiver;
c. The appropriateness of requiring an auditor to be experienced with information systems security audits, including whether such auditors should have different or additional experience;
d. The appropriateness of requiring the auditor to be accredited by the State seeking a waiver;
e. The appropriateness of requiring an auditor to hold a current and active American Institute of Certified Public Accountants (AICPA) Certified Information Technology Professional (CITP) credential or ISACA (F/K/A Information Systems Audit and Control Association) Certified Information System Auditor certification;
f. The availability of auditors who meet the criteria specified in proposed § 37.10(b)(1);
g. The estimated cost and time incurred by States to obtain a report by the auditor; and
h. Any other considerations relating to auditing.
4. DHS Mobile Driver's License Waiver Application Guidance. Provide comments on the “Mobile Driver's License Waiver Application Guidance,” available at
5. Waiver validity period. DHS is considering a three-year validity period for waivers. Provide comments on the appropriateness of a three-year validity period for waivers and on alternate validity periods.
6. Mobile driver's license readers. Provide comment on the costs to procure mDL reader equipment, estimated reader usage by Federal agencies, States, and businesses, and the functional form of such reader equipment.
7. mDL acceptance. Provide comment on the number of Federal agencies other than TSA DHS and DHS component agencies that voluntarily choose to accept mDLs for official purposes for identity verification, including:
a. The number and types of locations where mDLs will be accepted; and
b. The number of individuals that are expected to obtain mDLs.
8. Costs to individuals. Provide comment on costs incurred by mDL users, including costs associated with obtaining an mDL.
9. TSA invites public comments on Alternative 4, including, but not limited to, costs to the affected entities to comply with the minimum standards, benefits of the alternative compared to the preferred alternative, and risks to security and privacy of accepting mDLs based on the minimum requirements.
Document security, Driver's licenses, Identification cards, Incorporation by reference, Licensing and registration, Motor vehicle administrations, Motor vehicle safety, Motor vehicles, Personally identifiable information, Physical security, Privacy, Reporting and recordkeeping requirements, Security measures.
For the reasons set forth in the preamble, the Transportation Security Administration is proposing to amend part 37 of title 6, Code of Federal Regulations, to read as follows:
49 U.S.C. 30301 note; 6 U.S.C. 111, 112.
(a) * * *
(2) ISO/IEC 18013-5:2021, Personal identification—ISO-compliant driving license—Part 5: Mobile driving license (mDL) application, Edition 1 (September 2021); IBR approved for §§ 37.8; 37.10(a); appendix A to this subpart.
(b) * * *
(2) Mobile Driver's License (mDL) Implementation Guidelines, Version 1.2 (January 2023); IBR approved for § 37.10(a); appendix A to this subpart.
(d) Certification Authority Browser Forum (CA/Browser Forum), 815 Eddy St, San Francisco, CA 94109, (415) 436-9333,
(1) Baseline Requirements for the Issuance and Management of Publicly‐Trusted Certificates, Version 1.8.6 (December 14, 2022),
(2) Network and Certificate System Security Requirements, Version 1.7 (April 5, 2021),
(e) Cybersecurity and Infrastructure Security Agency, Mail Stop 0380, Department of Homeland Security, 245 Murray Lane, Washington, DC 20528-0380,
(1) Cybersecurity Incident & Vulnerability Response Playbooks (November 2021),
(2) National Cyber Incident Response Plan (December 2016), Department of Homeland Security,
(f) National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899, (301) 975-2000,
(1) Federal Information Processing Standard (FIPS) Publication (PUB) 140-3, Security Requirements for Cryptographic Modules (March 22, 2019),
(2) FIPS PUB 180-4, Secure Hash Standard (SHS) (August 2015),
(3) FIPS PUB 186-5, Digital Signature Standard (DSS) (Feb. 2023),
(4) FIPS PUB 197, Advanced Encryption Standard (AES) (Nov. 26, 2001),
(5) FIPS PUB 198-1, The Keyed-Hash Message Authentication Code (HMAC) (July 2008),
(6) FIPS PUB 202, SHA-3 Standard: Permutation-Based Hash and Extendable-Output Functions (August 2015),
(7) Special Publication (SP) 800-53, Security and Privacy Controls for Information Systems and Organizations, Rev. 5 (September 2020),
(8) SP 800-57 Part 1, Recommendation for Key Management: Part 1—General, Rev. 5, Elaine Barker (May 2020),
(9) SP 800-57 Part 2, Recommendation for Key Management: Part 2—Best Practices for Key Management Organization, Rev. 1, Elaine and William C. Barker (May 2019),
(10) SP 800-57 Part 3, Recommendation for Key Management: Part 3: Application-Specific Key Management Guidance, Rev. 1, Elaine Barker and Quynh Dang (January 2015),
(11) SP 800-63-3, Digital Identity Guidelines, Paul A. Grassi et al. (June 2017),
(12) SP 800-63B, Digital Identity Guidelines Authentication and Lifecycle Management, Paul A. Grassi et al. (June 2017),
(13) Framework for Improving Critical Infrastructure Cybersecurity Version 1.1 (April 16, 2018),
(a)
(b)
(1) The State is in full compliance with all applicable REAL ID requirements as defined in subpart E of this part;
(2) Information provided by the State under § 37.10(a) and (b) sufficiently demonstrates that the State's mDL provides the security, privacy, and interoperability necessary for acceptance by Federal agencies; and
(3) The State issues mDLs only to individuals who have been issued a valid and unexpired REAL ID-compliant physical driver's license or identification card issued by that State.
Notwithstanding § 37.5(b), Federal agencies may accept an mDL for REAL ID official purposes issued by a State that has a valid certificate of waiver issued by TSA under § 37.7(a). A Federal agency that elects to accept mDLs under this section must—
(a) Confirm the State holds a valid certificate of waiver consistent with § 37.7(a) by verifying that the State appears in a list of mDLs approved for Federal use, available as provided in § 37.9(b)(1);
(b) Use an mDL reader to retrieve and validate mDL data as required by standard ISO/IEC 18013-5:2021 (incorporated by reference; see § 37.4); and
(c) Upon discovery that acceptance of a State's mDL is likely to cause
(a)
(b)
(1)
(2)
(3)
(c)
(2) An adverse decision upon reconsideration is a final agency action. A State whose request for reconsideration has been denied may submit a new application at any time following the process set forth in paragraph (a) of this section.
(d)
(1) The effective date of the waiver;
(2) The expiration date of the waiver; and
(3) Any additional terms or conditions as necessary.
(e)
(2)
(3)
(4)
(A)
(B)
(ii) Before suspending a certificate of waiver under paragraph (e)(4)(i)(A) of this section, TSA will provide to such State written notice via email of intent to suspend, including an explanation of deficiencies and instructions on how the State may cure such deficiencies. States will have 30 days to respond to the notice, and TSA will respond via email within 30 days. TSA's response would include one of the following: withdrawal of the notice, a request for additional information, or a final suspension.
(iii) If TSA issues a final suspension, TSA will temporarily remove the State from the list of mDLs approved for Federal acceptance for official purposes. TSA will continue to work with a State to whom TSA has issued a final suspension to resume validity of its existing certificate of waiver. A State that has been issued a final suspension may seek a new certificate of waiver by submitting a new application following the process set forth in paragraph (a) of this section.
(5)
(A) Does not comply with applicable REAL ID requirements in § 37.51(a);
(B) Is committing an egregious violation of requirements specified under paragraph (d)(3) or (e)(2) of this section that the State is unwilling to cure; or
(C) Provided false information in support of its waiver application.
(ii) Before terminating a certificate of waiver, TSA will provide the State written notice via email of intent to terminate, including findings on which the intended termination is based, together with a notice of opportunity to present additional information. States must respond to the notice within 7 days, and TSA will reply via email within 30 days. TSA's response would include one of the following: withdrawal of the notice, a request for additional information, or a final termination.
(iii) If TSA issues a final termination, TSA will remove the State from the list of mDLs approved for Federal acceptance for official purposes. A State whose certificate of waiver has been terminated may seek a new waiver by submitting a new application following the process set forth in paragraph (a) of this section.
(6)
(f)
(2) An application for certificate of waiver that TSA has deemed insufficient or denied, or a certificate of waiver that TSA has deemed suspended, terminated, or expired, is not a determination of non-compliance with any other section in this part.
(a)
(1)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(2)
(3)
(4)
(i) A State must issue mDLs using the data model defined in ISO/IEC 18103-5:2021 section 7 (incorporated by reference; see § 37.4), using the document type “org.iso.18013.5.1.mDL,” and using the name space “org.iso.18013.5.1”. States must include the following mDL data elements defined as mandatory in Table 5: “family_name”, “given_name”, “birth_date”, “issue_date”, “expiry_date”, “issuing_authority”, “document_number”, “portrait”, and must include the following mDL data elements defined as optional in Table 5: “sex”, “resident_address”, “portrait_capture_date”, “signature_usual_mark”.
(ii) States must use the AAMVA mDL data element set defined in American Association of Motor Vehicle Administrator (AAMVA) Mobile Driver's License (mDL) Implementation Guidelines v. 1.2, Section 3.2 (incorporated by reference; see § 37.4), using the namespace “org.iso.18013.5.1.aamva” and must include the following data elements in accordance with the AAMVA mDL Implementation Guidelines v1.2 (incorporated by reference; see § 37.4): “DHS_compliance”, and “DHS_temporary_lawful_status”.
(iii) States must use only encryption algorithms, secure hashing algorithms, and digital signing algorithms as defined by ISO/IEC 18103-5:2021, Section 9 and Annex B (incorporated by reference; see § 37.4), and which are included in the following NIST Federal Information Processing Standards (FIPS): NIST FIPS PUB 180-4, NIST FIPS PUB 186-5, NIST FIPS PUB 197, NIST FIPS PUB 198-1, and NIST FIPS PUB 202 (incorporated by reference; see § 37.4).
(b)
(1) The audit must be conducted by a recognized independent entity—
(i) Holding an active Certified Public Accountant license in the issuing State;
(ii) Experienced with information systems security audits;
(iii) Accredited by the issuing State; and
(iv) Holding a current and active American Institute of Certified Public Accountants (AICPA) Certified Information Technology Professional (CITP) credential or ISACA (F/K/A Information Systems Audit and Control Association) Certified Information System Auditor (CISA) certification.
(2) States must include information about the entity conducting the audit that identifies—
(i) Any potential conflicts of interest; and
(ii) Mitigation measures or other divestiture actions taken to avoid conflicts of interest.
(c)
(2)
A State that issues mDLs for acceptance by Federal agencies for official purposes as specified in the REAL ID Act must implement the requirements set forth in this appendix in full compliance with the cited references as set forth in the following table. All the standards identified in the following table are incorporated by reference, see § 37.4. If a State utilizes the services of a Delegated Third Party, the State must ensure the Delegated Third Party complies with all applicable requirements of this appendix for the services provided.